R v Gibbs - [2016] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GIBBS & ORS
[2016] SADC 144
Reasons for Rulings of His Honour Judge Chivell
4 November 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Applications pursuant to rule 49 of the District Court Criminal Rules.
Application by all three accused for an order excluding evidence obtained after a search of a vehicle on the basis that the search was unlawful. Application refused.
Application by accused Gibbs to exclude certain answers given to police during search on the basis that caution should have been given. Application granted in part.
Application by accused Gibbs for permanent stay of proceedings on the basis that s 32(4) of the Controlled Substances Act prohibits trial of count 3 in the District Court. Application refused.
Application by accused Jones for an order excluding evidence of seven SIM cards found in her possession on the basis that more prejudicial than probative. Application refused.
Controlled Substances Act 1984 (SA) s 32(4), s 52(9); District Court Act 1991 (SA) s 9(3); Magistrates Act 1983 (SA) s 22; Road Traffic Act 1961 (SA) s 40H, s 145; Summary Offences Act 1953 (SA) s 41(2), referred to.
R v Dam & Nguyen (2015) 123 SASR 511; R v Dolan (1992) 58 SASR 501; R v Bueti (1997) 70 SASR 370; Tarasenko v Boylan (1992) 58 SASR 587; R v Allen (2002) 81 SASR 434, considered.

R v GIBBS & ORS
[2016] SADC 144

Adrian Hugh Gibbs, Brenton John Champion and Angela Gayle Jones are jointly charged with three counts of drug trafficking.
In the early hours of 22 April 2015, Sergeant O’Toole was conducting solo patrol duties around the township of Berri in the Riverland of South Australia. She pulled over a Ford motor vehicle in which the three accused people were travelling. A subsequent search of the vehicle revealed the presence of cannabis, methylamphetamine and 1-(3-trifluromethylphenyl)piperazine (TFMPP) in the boot, together with drug paraphernalia which the prosecution says provides evidence of drug trafficking.
All three accused have made applications pursuant to rule 49 of the District Court Criminal Rules seeking the exclusion of evidence. Mr Gibbs seeks the exclusion of:
·any drugs seized during the course of the search;
·evidence of conversations between Mr Gibbs and police officers prior to a recorded interview;
·evidence concerning a knife found in a backpack in the boot of the car;
·evidence of the interview between Mr Gibbs and the police (this order is not opposed by the Director of Public Prosecutions).
Mr Gibbs also seeks a permanent stay of proceedings in relation to count 3 on the information (the count of trafficking in cannabis) because he says that that count should be tried in the Magistrates Court pursuant to s 32(4) of the Controlled Substances Act 1984.
Mr Champion also makes application pursuant to rule 49, for the exclusion of evidence (the application says ‘excused’ but I assume this is an error) of all items seized by the police during the search of the motor vehicle.
Ms Jones also makes application pursuant to rule 49, for the exclusion of evidence of seven SIM cards seized from her property by Sergeant O’Toole. Ms Jones asserts that the evidence is irrelevant and is more prejudicial than probative.
The central issue to be determined on the voir dire was succinctly and accurately summarised by Mr Apps, counsel for Mr Champion:[1]
As you know my complaint is about the search and the unlawfulness. Mr Graham has made submissions about that, the evidence is fresh in your Honour's memory. It is a common area of disputation. I would submit though, that in this case your Honour would have to find that the police really deliberately decided to search the vehicle and use the defect as a pretext for doing over a car, if you like, that they thought was suspicious.
[1] T 144.
Circumstances leading up to the search
Sergeant O’Toole followed the Ford over the bridge towards the township of Berri. It was about 2.05 in the morning. She conducted a registration check and noted that the car was registered to a male person from Brahma Lodge. The vehicle slowed right down to about 30 kilometres per hour over the bridge. When it came to a lit-up area near the United Service Station, she pulled it over and it was driven onto the apron of the service station.
A male person got out of the car. Sergeant O’Toole approached him and asked him for his driver’s licence. He said he did not have one on him. The driver was Mr Champion. Sergeant O’Toole conducted a check and discovered that his driver’s licence had expired on 18 February 2014.
Sergeant O’Toole commenced writing out a traffic infringement notice for driving without a licence. As she was doing so, she asked Mr Champion what they were doing in the area. Mr Champion told her that he had bought the car from a friend and that he was in Berri to buy a caravan from someone. That person was not home, so he was going to sleep in the car until morning and then try him again. He had two friends with him as he did not want to drive up to Berri on his own.
There was nothing inappropriate about this conversation. As Vanstone J observed in R v Dam & Nguyen:[2]
A police officer, like any other member of the community, is entitled to ask another person questions. He does not need any statutory authority, or any reasonable suspicion of an offence, to do so.
[2] (2015) 123 SASR 511 at [26].
Sergeant O’Toole saw that there were two other people in the car. They were both in the back seat and had blankets over them.
Sergeant O’Toole said that during their conversation, Mr Champion told her that he needed to fix the car as the ‘shocks weren’t too good at the back’.[3] She looked at the car, saw that it was lower at the back and decided to check out the car for defects. She called for assistance from another patrol.
[3] T 9.
Sergeant O’Toole was cross-examined about the reason she called for assistance. She agreed that she called the other officers before Mr Champion said anything about the shock absorbers on his car.[4] She said that it was a ‘safety issue’. Mr Graham suggested that she already intended to search the vehicle at that stage. Sergeant O’Toole denied this.
[4] T 46-7.
I do not have any difficulty accepting Sergeant O’Toole’s evidence that, as a single female officer dealing with three people from a different area in the early hours of the morning on a deserted street, calling her colleagues for backup was a sensible precaution. I do not accept that it supports the defence position that the defect check was a pretext for a comprehensive search of the vehicle.
Not long afterwards, Senior Constable Hughes and Senior Constable Thomas attended the scene. Sergeant O’Toole was still speaking with Mr Champion. She asked Senior Constable Thomas if he ‘could help have a look at the rear of the car, paying attention to the shocks or the suspension of the car’.[5]
[5] T 9.
Sergeant O’Toole said that the reason she stopped the car was to check the driver’s licence details and to check that the driver was the owner of the vehicle.[6] She was unsure of her specific power under the Road Traffic Act to do that. Mr Graham, counsel for Mr Gibbs, submitted that this demonstrates that Sergeant O’Toole was reckless about her powers to stop the vehicle. I do not accept that. It is perfectly clear that a police officer, who is an ‘authorised officer’ under the Road Traffic Act 1961,[7] has the power to stop a vehicle in order to exercise other powers under a road rule. It is difficult to imagine a more basic aspect of police general patrol work. The fact that Sergeant O’Toole did not identify the precise section number in the Act is a trivial matter.
[6] T 10.
[7] Road Traffic Act 1961, s 40H.
When Senior Constables Thomas and Hughes arrived, Sergeant O’Toole said that she ‘asked Senior Constable Thomas if he could help have a look at the rear of the car, paying attention to the shocks or the suspension of the car’.[8] Senior Constable Thomas gave a slightly different version of this instruction. He initially said that they had ‘just had a conversation and agreed I should check the car for defects’. However, after consulting his notes, he said that ‘She suggested I started with the boot and in relation to the defect of the suspension’.[9]
[8] T 9.
[9] T 62.
Mr Graham seized upon this discrepancy, suggesting that Sergeant O’Toole’s motive in stopping the vehicle was to search it, and the suggested defect was merely a pretext to achieve that end. Sergeant O’Toole denied that. Mr Graham suggested that the fact that she directed Senior Constable Thomas to commence at the boot indicates that she is not being truthful about that.
Senior Constable Thomas explained that he considered that he had power to inspect the vehicle if he had reasonable grounds to suspect that it had a defect.
Section 145 of the Road Traffic Act provides:
(1aa) For the purposes of this section, a vehicle has deficiencies if the vehicle is in a condition such that there would be a breach of a vehicle standards or maintenance requirement if the vehicle were driven on a road.
(1a) An authorised officer may direct the driver of a vehicle to stop the vehicle and may examine the vehicle if the vehicle has deficiencies or the officer suspects on reasonable grounds that the vehicle has deficiencies.
I have no doubt that Sergeant O’Toole had a reasonable suspicion that the vehicle driven by Mr Champion had a deficiency within the meaning of the Act. Her unchallenged evidence that Mr Champion told her that the ‘shocks weren’t too good at the back’ and her observation that the vehicle was low at the back, gave her reasonable grounds for that suspicion.
Section 145(4) of the Road Traffic Act provides that Sergeant O’Toole had the power to cause the vehicle to be examined by ‘any other person’. She was thereby authorised to direct that Senior Constable Thomas examine the vehicle.
Section 145(4a) provides:
(4a) If, on examination of a vehicle, an authorised officer is of the opinion that the vehicle has deficiencies but that further use of the vehicle on roads would not give rise to a safety risk, the officer may issue a formal written warning to the driver of the vehicle or, if the vehicle is unattended, cause a formal written warning to be affixed to the vehicle.
Section 145(5) provides:
(5) If, on examination of a vehicle, an authorised officer is of the opinion that the vehicle has deficiencies and reasonably believes that further use of the vehicle on roads would give rise to a safety risk, the officer may issue a written notice (a defect notice) in relation to the vehicle ...
It is an offence to drive a vehicle contrary to a defect notice (s 145(6)).
A central issue in this case is whether Senior Constable Thomas was authorised by the Road Traffic Act to inspect the inside of the boot of the vehicle. It was during this inspection that he discovered the various items sought to be excluded from evidence.
Senior Constable Thomas explained that, on inspection, he was of the opinion that the vehicle was ‘very low to the ground’.[10] He said he inspected the inside of the boot ‘to see if there was any load in the vehicle that would bring it down to make it a load (the transcript records ‘low’) issue as opposed to a vehicle defect issue’.[11]He rather awkwardly explained that he inspected the boot ‘to remove the defence if the car is riding low’. He explained that if he discovered that there was something heavy in the boot, he may not have issued a defect notice. He said:[12]
That might explain why it's riding low and (I) wouldn't issue a defect. It's matter of if there's a reason for it as opposed to the vehicle's defective.
[10] T 62.
[11] T 63.
[12] T 64.
I find this to be a perfectly reasonable explanation. Senior Constable Thomas’ power to issue a warning, rather than adopt the more draconian step of issuing a defect notice, depended on his assessment of whether the ‘deficiency’ in the car constituted a safety risk. If the car was riding low because of a heavy weight in the back, that may not have constituted a safety risk. If the car was riding low because of some defect in the suspension, it may have constituted a safety risk. Senior Constable Thomas did not exceed his powers under s 145 of the Road Traffic Act in inspecting the interior of the boot.
Mr Apps, counsel for Mr Champion, criticised Senior Constable Thomas on the basis that he did not simply ask Mr Champion what was in the boot. This is a somewhat disingenuous suggestion. Senior Constable Thomas replied that motorists in that situation are not always truthful about the cause of an apparent deficiency in the vehicle.[13] I have no difficulty accepting that explanation.
[13] T 86.
I reject the submissions that Sergeant O’Toole exceeded her authority by pulling over the Ford vehicle, and that Senior Constable Thomas exceeded his power by inspecting the boot of the vehicle. I reject the submission that their reference to defects was a mere pretext to search the vehicle for other purposes.
The discovery of the drugs
Senior Constable Thomas said that there were at least five or six bags in the boot.[14] He said he checked these bags to see if there was anything heavy in them. He explained that he thought that the shopping bags, either alone or in combination with something underneath them, may have been causing that. He said:[15]
I thought there might have also been something underneath the bags that were [sic] heavy. The entire space of the boot was covered in bags so I couldn't see underneath them but checking underneath the bags to see if there was anything heavy underneath.
[14] T 64.
[15] T 65.
One of the bags Senior Constable Thomas picked up was a clear plastic bag which contained ‘jumper leads’. He said within the bag was a ‘suspicious looking package made of duct tape’.[16] He said he opened the bag and ‘got a slight waft of cannabis’.[17]Once he put the package closer to his nose, he ‘got a strong smell of cannabis’.[18]
[16]T 53.
[17] T 54.
[18] Ibid.
It was at this point that Senior Constable Thomas said that he decided that he had authority under the Controlled Substances Act to conduct a search for drugs. He said: ‘I announced the change after I found the cannabis but, technically speaking, I might have changed it during the finding of that suspicious package’.[19]He explained that it was after he picked up the bag and squeezed the package ‘to feel if it was solid or whether it was just a ball of duct tape’[20] that he became suspicious of the package. This was before he removed the package from the plastic bag.
[19] T 67.
[20] Ibid.
In my view, this is demonstrated by the following passage of evidence:[21]
[21] T 70-1.
Q.It's only when you feel the bag and feel that it's not duct tape that you decide to reach in and see what it is and you didn't suspect it was cannabis until you              actually smelt it. That's correct, isn't it.
A.     Correct.
Q.So you were searching the bag and its contents before you actually had the power to do so.
A.I thought it was a fortuitous find.
Q.But you didn't suspect it was cannabis until you opened the bag, so what gave you the right to pick up the bag, feel what was in it, then reach in and grab it.
A.     I assumed it was a suspicious package and I hadn't decided it was cannabis but I      thought there's a possibility.
Q.You said before you didn't suspect it was cannabis until you opened the bag and smelled it.
A.I suspected it was possibly drugs. I didn't suspect cannabis.
Q.At what point did you suspect that it might have been drugs.
A.As soon as I saw the package I was suspicious as to what it was.
Q.What made you suspicious.
A.Just that it was a brand new jumper lead bag, or looked brand new, and the duct tape itself looked brand new, didn't look like it was used duct tape rolled up in a                   ball, just looked like brand new duct tape wrapped around something.
The conclusion that Senior Constable Thomas formed a reasonable suspicion that the duct tape package was suspicious and might provide evidence of an offence against the Controlled Substances Act, is not contradicted by the following questions and answers in cross-examination of him:[22]
[22] T71-2.
Q.You said earlier in your evidence that it was only when you opened the bag that you started searching the car using your suspicion that enlivened the power to search it under the Controlled Substances Act. That's what you said earlier in evidence, wasn't it.
A.Yes, sort of like a fluid sort of thing from one power to another.
Q.It wasn't that you just changed your evidence now about when you were suspicious about the package.
A.What do you mean, sorry?
Q.Just before you gave evidence that it was at the point where you opened the bag and you could smell cannabis.
A.I became suspicious it was cannabis, yes.
Q.No, no, you said that's when you started using your power under the Controlled Substances Act to search the car or the contents of the car. That was your evidence before, wasn't it.
A.Yes.
Q.You didn't suspect it was drugs earlier than that, otherwise you would have used your power at that stage to start searching the bag under the Controlled             Substances Act, wouldn't you.
A.     Yes, I agree.
Q.     So you didn't suspect it was drugs earlier.
A.I suspected it could have been drugs. I wasn't set on just drugs, I wasn't sure what it was going to be, but it was one of them possibly, yes.
Q.It could have been anything that's that size, couldn't it.
A.Yes.
Q.There was nothing else that raised your suspicion besides the fact of something wrapped up in duct tape in the bag, was there.
A.No.
Q.There wasn't any other material that went to cause you to be suspicious about it, was there.
A.No.
In my view, Senior Constable Thomas was attempting to explain, again somewhat awkwardly, that his state of mind progressed from a suspicion about the package as soon as he saw it, to a suspicion that the package might contain drugs after he squeezed it, to a suspicion bordering on certainty that the package contained cannabis after he smelled it. To seek to dissect what Senior Constable Thomas quite justifiably described as a ‘fluid sort of thing’ is artificial and does not accord with the realities of what was happening.
Mr Graham submitted that, in lifting the plastic bag and then squeezing the package, Senior Constable Thomas had embarked upon a search under the Controlled Substances Act before he was authorised to do so by that Act.
Section 52(9) of the Controlled Substances Act provides:
(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)     …
(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.

I find that the discovery of this package by Senior Constable Thomas was fortuitous. On his evidence, it is clear that he regarded the package of duct tape as suspicious as soon as he saw it. That was the reason why he squeezed it. The sensation he experienced when squeezing the package added further weight to his suspicion that the package may afford evidence of an offence against the Controlled Substances Act.
I do not accept that, by squeezing the package, Senior Constable Thomas had embarked upon the search. He was in the process of a lawful inspection of the boot of the car when he picked up the bag, and I do not accept that the relatively trivial action of squeezing the package can be interpreted as embarking upon a search. His subsequent actions in smelling the package merely confirmed the reasonableness of his earlier suspicion. After that he announced to his colleagues what he had found, and the powers under s 52(9) were then exercised to search the rest of the vehicle and the three occupants.
There was no illegality in this. There are no grounds upon which a discretion should be exercised to exclude the fruits of the search on the basis that it was unlawful.
Further discoveries in the boot – the backpack
Senior Constable Thomas said that he continued searching the boot of the car after he found the duct tape package containing cannabis, and found a backpack which was locked with a ‘wire loop’.[23] He said that the zip opened so that he could see inside the bag and he saw some duct tape which appeared similar to the package containing the cannabis.[24] He said he held it up and asked ‘Whose is this?’ He said he was ‘not hundred per cent sure but I believe Hughes indicated that the male with him (who was Mr Gibbs) said it was his’.[25]
[23] T 56.
[24] T 56.
[25] T 58.
He said he walked around to where Mr Gibbs and Senior Constable Hughes were standing and handed the bag to Senior Constable Hughes. He then returned to continue searching the boot of the car.
Senior Constable Hughes confirmed that Senior Constable Thomas handed him the backpack. Senior Constable Hughes said that he asked Mr Gibbs if it was his backpack and that Mr Gibbs had said that it was.[26]
[26] T 96.
Senior Constable Hughes said that when Senior Constable Thomas handed him the backpack, he asked him to search it.[27] Senior Constable Hughes then asked Mr Gibbs to open the bag, because it was locked. Mr Gibbs attempted to open it, but was unable to unlock the combination. He then opened the zip far enough to get his hand inside the backpack and took out a ‘fairly large knife’.[28] Senior Constable Hughes took possession of the knife. He asked Mr Gibbs what the knife was for and he shrugged his shoulders.
[27] T 111.
[28] T 97.
Mr Graham submitted that before Senior Constable Thomas asked who owned the backpack, he should have administered a caution reminding him of his right to silence. I will discuss this submission shortly.
Further discoveries in the boot – the black ‘Pelican’ case
When Senior Constable Thomas continued his search of the boot, he found a ‘small flat black case or Pelican case’ which was also locked. The case was under the floor mat of the boot, on the right-hand side. He asked generally ‘Whose is this?’ but did not get a response.[29]
[29] T 55.
Senior Constable Hughes said that when Senior Constable Thomas held up the black case, he asked Mr Gibbs directly ‘Is this yours?’ and he responded ‘Yes’.[30]
[30] T 97.
Mr Graham made the same submission in relation to the ‘Pelican’ case, namely, that before Senior Constable Thomas asked Mr Gibbs if it was his, he should have administered the caution.
The arrest of Gibbs
Senior Constable Hughes said that when he first arrived at the scene, Mr Gibbs was asleep in the back of the car. When Senior Constable Hughes asked Ms Jones who the gentleman was, Mr Gibbs opened his eyes and said ‘Russell’.[31]
[31] T 102.
When Senior Constable Hughes asked Mr Gibbs for identification, he responded that he did not know where his wallet was.[32] Mr Gibbs got out of the vehicle. He was holding several $50 notes in his right hand. Senior Constable Hughes said ‘Maybe you don’t have a wallet if you’re holding those $50 notes fairly tight, what’s that cash for?’ Mr Gibbs replied ‘For spending’.[33]
[32] Ibid.
[33] Ibid.
Senior Constable Hughes saw Mr Gibbs’ wallet after he alighted from the vehicle. It was on the back seat. He picked up the wallet and handed it to Mr Gibbs. Mr Gibbs opened his own wallet after he ‘took it from me’.[34]
[34] T 108.
Mr Graham submitted that in picking up Mr Gibbs’ wallet and handing it to him, he was conducting an illegal search. I reject that. He was not conducting a search at all.
Senior Constable Hughes acknowledged that Mr Gibbs seemed to be in possession of a large amount of money. He did not know precisely how much.[35] Mr Graham asked him whether he had decided to arrest Mr Gibbs for unlawful possession of the money at that stage. He said:[36]
[35] T 106.
[36] T 105-6.
A.    Not immediately. That was my thought process at the time.
Q.That's what led to him being arrested for unlawful possession, isn't it.
A.Yes, but I thought - it was more I found it peculiar and I was willing to give him the opportunity to explain himself but, yeah, I had decided to delay arrest.
Q.You were willing to give him a chance to explain himself so you decided to delay the arrest; is that what you just said.
A.Yeah. At that time I wasn't sure of the exact amount either as I didn't count it.
Q.Did the exact amount matter to you.
A.Yeah.
Q.You can see a wallet full of $50 notes. It's not going to matter whether it's $1,000 or $1,050, is it.
A.No, no.
Q.So the exact amount really wasn't relevant to whether you were going to arrest him or not, was it.
A.No.
The offence of unlawful possession is created by s 41 of the Summary Offences Act 1953. Section 41(2) provides:
(2) It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
It was reasonable for Senior Constable Hughes to postpone a decision whether to arrest Mr Gibbs for unlawful possession until he had given him an opportunity to explain how he had obtained possession of the property if he wished to. If he had produced a betting ticket or a wages packet or some other verification, there would have been no need to arrest him at all.
When Mr Gibbs produced the knife from the backpack, Senior Constable Hughes then decided to arrest him. By that time, the cannabis had been discovered. He arrested him for carrying an offensive weapon and unlawful possession.
Mr Graham argued that Senior Constable Hughes had already decided to arrest Mr Gibbs for unlawful possession when he saw how much money he had, and that he should have cautioned him then, which was before the backpack was produced. I do not accept that submission.
The classical exposition of the stage at which a caution should be administered is contained in the judgment of King CJ in R v Dolan.[37] His Honour said:
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge's discretion.
[37] (1992) 58 SASR 501 at 505.
In my view, when the question was asked about the ownership of the backpack, the investigation had not gone beyond the gathering of information. The police officers did not know who might claim ownership of the backpack and who might deny it and thereby seek to clear him or herself. Senior Constable Thomas explained that he asked the question so that they could ‘get the backpack open so we could search it’.[38]
[38] T 73.
Senior Constable Thomas acknowledged that he suspected that one of the group was in possession of cannabis at that stage.[39] He acknowledged that the ownership of the backpack might have some evidentiary value further on.[40] He knew (in hindsight) that there was a link between the duct tape and the cannabis.[41]
[39] T 77.
[40] Ibid.
[41] Ibid.
Those acknowledgments do not demonstrate that Senior Constable Thomas had reached ‘a stage in his investigations at which he has reasonable grounds for suspecting a particular person’. In this case, he was dealing with a group of people, he wished to gain access to the locked backpack and the most logical way of gaining access, short of destroying it, was to find out who owned the backpack in case the owner might be able to open it. In my view, Senior Constable Thomas was clearly still ‘simply gathering information’ and he was not in a position to charge a particular person with an offence. He was therefore not obliged to administer a caution at that point.
The situation is different in relation to the ‘Pelican’ case.
In the submissions of Ms Barnes, counsel for the Director of Public Prosecutions, there is a concession that Senior Constable Hughes had formed the decision to arrest Mr Gibbs, and that he should have been cautioned before the ‘Pelican’ case was produced, because by that time he had decided to arrest Mr Gibbs after he produced the knife from the bag.[42] However, Ms Barnes submitted that the evidence should not be excluded because:
·the police were still gathering information;
·the amount of cannabis found was small;
·there is nothing unlawful about a police officer speaking to a member of the public (R v Dam & Nguyen);
·there is no evidence of trickery or misleading conduct by the police;
·the failure to caution was simply an error of judgment in a quickly unfolding series of event;
·the evidence is cogent, and of considerable probative value.
[42] Submissions, [32]-[34].
Mr Graham submitted that the failure is serious, it denied Mr Gibbs a fundamental right, the administration of a caution is basic police procedure, the circumstances were such that Mr Gibbs was caught off guard, and the evidence is seriously prejudiced.
In all the circumstances, I uphold Mr Graham’s submission about that. To admit the evidence would result in a serious unfairness to Mr Gibbs. I accept that the failure to caution was not deliberate, but it did result in a substantial abrogation of Mr Gibbs’ right to silence.
I rule that the evidence of Mr Gibbs’ admission that the black ‘Pelican’ case was his, or was ‘mine’, should be excluded.
Further discoveries in the boot – the TFMPP
Senior Constable Thomas continued searching the boot of the car and found several glass ‘ice pipes’ in a shopping bag wrapped in bubble wrap. He continued searching and found a small black metal case wrapped in blue electrical tape behind the lining of the boot, on the left-hand side. It was attached to the side of the vehicle with magnets. Inside the case were 393 tablets, which the police initially thought were ecstasy tablets but which on analysis turned out to be TFMPP.
Voluntariness
The onus is always on the prosecution to show that statements made against interest were made voluntarily, that is, in the exercise of a free choice to speak or remain silent. Doyle CJ said in R v Bueti:[43]
That requires a consideration of the circumstances in which [the accused] was placed: see R v Hallam (1985) 42 SASR 126 at 135. It is not simply a matter of considering whether there were threats made or inducements offered.
[43] (1997) 70 SASR 370 at 376.
Mr Graham submitted that:
·there is evidence that Mr Gibbs was extremely tired – he was asleep in the car when they were first pulled over, and he fell asleep in the police car later. I am dubious about the first proposition – the only evidence about that is that Senior Constable Hughes thought he was asleep and when he asked Ms Jones the question, Mr Gibbs said that his name was ‘Russell’’. He was obviously not asleep then;
·the three men were subject to a ‘de facto arrest’ in the sense that they were detained for the purposes of the search and were not free to leave.
This was acknowledged by the police officers who gave evidence;[44]
·there is considerable doubt about the reliability of Mr Gibbs’ statements, since Senior Constable Hughes was unsure whether Mr Gibbs said ‘Yes’ or ‘Mine’ in answer to the question. He said:[45]
‘Yes' or 'Mine'. Yeah, I can't actually recall the actual question I gave Mr Gibbs. It was either 'Is this yours?', which would have been a 'Yes', or 'Who does this belong to?', which would have been 'Mine'. Either way, the answer is it belonged to Mr Gibbs.
·to add further doubt about reliability, the statements were not videotaped, since the police officers had no prior notice that there would be a search for drugs.
[44] Sergeant O’Toole at T 30-1; Senior Constable Thomas at T 73-4.
[45] T 111.
There is no evidence before me which gives rise to any doubt that Mr Gibbs’ statements at the scene were voluntary. Mr Graham pointed to the fact that after Mr Gibbs was cautioned at the police station, he declined to answer further questions. I do not regard that as being probative of his state of mind at the scene.
However, when Senior Constable Thomas first produced the cannabis and asked ‘Whose is this?’, Mr Gibbs chose to remain silent. I find that when the backpack was produced, he chose to answer the question.
Further, when Mr Gibbs put his hand in the backpack and removed the knife, he also acted voluntarily. Senior Constable Hughes had no idea that there was a knife in the bag prior to Mr Gibbs doing that. He could have chosen to leave it there. The prosecution says that his actions in removing the knife demonstrate that he knew what the bag contained. Mr Graham argued that it is just as likely that he simply discovered the presence of the knife when he put his hand in the bag. It seems to me that these are essentially jury questions, but for present purposes, I see no reason to doubt that Mr Gibbs’ actions were voluntary.
I therefore reject the application to exclude the evidence of what Mr Gibbs said at the scene on the basis of involuntariness.
Mr Graham further submitted that the evidence should be excluded in the exercise of discretion on the basis that its use would be unfair. Again, this was based upon the circumstances of a lack of a caution, de facto arrest, tiredness and unreliability.
I reject that submission on the same basis, as already outlined. If the circumstances do not give rise to doubt about voluntariness, they do not establish unfairness either. I can see no unfairness in what occurred. I say this keeping in mind the comments of Doyle CJ in Bueti at 377-379. In that case, unlike this one, an unfairness was clearly demonstrated, and yet the Court found that there were no grounds for discretionary exclusion.
Application to exclude evidence of the knife
Mr Graham argued that the evidence of the knife is highly prejudicial to his client and has little probative value. The jury are likely to form an adverse impression of his client which outweighs any probative value the evidence has.
It is not the least bit unusual that evidence of the possession of a weapon is used as a piece of circumstantial evidence which tends to establish drug dealing. Drug dealers often carry weapons to protect themselves from attack. In my view, the evidence of the knife is relevant and admissible. Any prejudicial effect can be countered by an appropriately worded warning to the jury against propensity reasoning.
The application to exclude the knife is refused.
Stay of proceedings
Mr Graham argued that I should stay the proceedings on count 3 having regard to the provisions of s 32(4) of the Controlled Substances Act. That section provides:
(4) An offence against subsection (3) involving cannabis, cannabis resin or cannabis oil (and not involving any other controlled drug) must be prosecuted, and dealt with by the Magistrates Court, as a summary offence but if the Court determines that a person found guilty of such an offence should be sentenced to a term of imprisonment exceeding 5 years, the Court must commit the person to the District Court for sentence.
Section 9 of the District Court Act 1991 provides that the District Court has jurisdiction to try a charge of any offence except treason or murder, or a conspiracy or attempt to commit, or assault with intent to commit, either of those offences. The only limitation upon that power is in s 9(3):
(3) The Court's jurisdiction to try, convict or sentence for a summary offence exists only where the offence is charged in the same information as an indictable offence.
It follows that the power in s 9(3) does not entitle the District Court to try a charge of a summary offence standing alone.
There is power in s 22 of the Magistrates Act 1983 which entitles a judge of the District Court to exercise the jurisdiction and powers of a magistrate to deal with summary offences.[46] The Court of Criminal Appeal in R v Allen[47] had no difficulty finding that a District Court judge could sit as a District Court judge and pursuant to s 22 of the Magistrates Act as a magistrate simultaneously (see the judgment of Lander J at 437). That was a sentence appeal, but the power in s 22 is not limited to sentencing. It reads:
Any of the following persons, namely—
(a) a Judge of the Supreme Court; or
(b) a Master of the Supreme Court; or
(c) a District Court Judge,
may exercise the jurisdiction, powers or functions of a magistrate.
[46] Tarasenko v Boylan (1992) 58 SASR 587.
[47] (2002) 81 SASR 434.
The court in Allen referred with approval to the earlier authority of Tarasenko v Boylan, where King CJ said, at 591:
I am of the opinion therefore that a judge of the District Court is authorised to hear and determine charges of summary offences in proceedings which have been instituted in the Magistrates' Court and that there is no occasion to discontinue the practice which has hitherto been followed. It is not necessary for the District Court judge to sit as the Magistrates' Court. He is entitled to exercise his jurisdiction as a judge of the District Court. The proceeding is not, of course, in any sense removed from the Magistrates' Court into the District Court, but is dealt with by the District Court judge pursuant to the special powers confirmed by s 22 of the Magistrates Act and s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act. It remains a 'criminal action' within the meaning of s 3 of the Magistrates Court Act and an appeal would therefore be governed by s 42 of the Magistrates Court Act.
In summary then, I would have been empowered to hear and determine count 3 by s 22 of the Magistrates Act 1983, even if it was being heard as a single count. I am empowered to hear and determine count 3 by s 9(3) of the District Court Act where, as here, it is joined in the same information with an indictable offence.
In my view, s 32(4) of the Controlled Substances Act does not alter that position.
The application for a stay of proceedings is refused.
Application by Brenton John Champion
Mr Champion also applies pursuant to rule 49 of the District Court Criminal Rules for the exclusion of all items seized by police during the search of the motor vehicle in the exercise of the court’s discretion on the basis that the search conducted by the police was unlawful.

Mr Apps, counsel for Mr Champion, adopted the submissions made by Mr Graham in support of his client’s application, and so Mr Apps’ client’s application will stand or fall with the application made by Mr Gibbs. Having regard to my earlier rulings, Mr Champion’s application is allowed in relation to the comments of Mr Graham in relation to the black ‘Pelican’ case, but is otherwise refused.
Application by Angela Gayle Jones
Ms Jones applies pursuant to rule 49 of the District Court Criminal Rules for the exclusion of the evidence relating to seven SIM cards seized by Sergeant O’Toole from Ms Jones’ property.
Mr Clarke, counsel for Ms Jones, submitted that the evidence is not relevant to any fact in issue in the trial. He pointed out that Sergeant O’Toole examined the contents of each SIM card, but nothing contained on any of them was suggestive of drug trafficking.[48]
[48] See the statement of Nicole Ann O’Toole dated 23/9/16, page 2.
Counsel for the Director of Public Prosecutions, Ms Barnes, submitted that the prosecution proposed to lead the evidence of the SIM cards as part of a circumstantial case against Ms Jones of drug trafficking, including the fact that she was carrying a large amount of cash in her underwear, and the finding of the drugs and other drug paraphernalia in the car.
The statement of Detective Brevet Sergeant Anderson dated 27 September 2016, indicates that evidence such as that proposed to be led in this case is probative of drug trafficking. The statement reads:
In some instances there may be signs that persons in particular premises are actively involved in drug dealing. Some indicators are, but not limited to;
.    Obvious unexplained wealth;
.    Large amounts of cash;
.    Expensive items in the house such as jewellery, ‘toys’ and elaborate entertainment systems;
.    Sets of electronic scales;
.    Quantities of unused clear plastic press seal bags;
.    Heat sealing machines;
.    Large volume of heat sealing machine packaging;
.    Lists of names and amounts indicating drug dealing;
.    Unusually large number of mobile phone services;
.    The transferring of cash overseas in amounts just under $10,000 to avoid scrutiny by Law Enforcement Agencies.
Mr Clarke submitted:
·Having a number of SIM cards is not the same as having a number of mobile phones as evidence of drug dealing.
I do not accept that submission. I fail to understand the difference. Each SIM card represents a ‘telephone service’ within what I understand to be the meaning of the evidence of Brevet Sergeant Anderson, and there is no difference in their probative value.
·The fact that there was nothing of interest found on the SIM cards means that they have no probative value.
I reject that submission as well. It is the number of telephone services which is said to be probative. The fact that they would be even more probative if there was material on the SIM cards which demonstrate drug dealing, is not to the point. I accept the prosecution submission that the number of phone services is probative in itself.
I reject Mr Clarke’s submission that the evidence is irrelevant.
·Mr Clarke further submitted that the prejudicial effect of the evidence outweighs its probative value. This submission is based upon Mr Clarke’s earlier submission about the lack of probative value of the SIM cards.
I have already rejected that submission. I reject this one for the same reasons.
·The SIM cards would have more probative value if there were more evidence of indicia of trafficking such as tick lists, plastic bags, ice pipes and the like.
As I understand the prosecution evidence, there will be evidence of a tick list, ice pipes and scales. The whole nature of circumstantial evidence is that the jury must weigh the totality of the evidence, considered together, and the jury should not separate out each individual item and assess it in isolation from all the other evidence.
·There is a danger that the jury will misuse the evidence by assuming that there are indicia of drug dealing in the SIM cards, when that is not the case.
I do not accept that the jury is likely to do that, especially if they are directed not to. I am sure the prosecutor would not suggest that the SIM cards might contain something they do not, and it would also be wrong if the trial judge suggested any such thing. I reject that submission.
Ms Jones has not demonstrated any grounds for the exclusion of evidence about the SIM cards. The application by Ms Jones is refused.