R v Gibson No. DCCRM-00-53

Q v Ian David Gibson
[2000] SADC D80

Judge C R Lee
Criminal

This is an application on the voir dire. The accused is charged with the offence of possessing methylamphetamine for sale on 23 August 1999 at Kadina, contrary to section 32(1)(e) of the Controlled Substances Act 1984. He seeks to exclude from the prosecution case:-
1...... evidence of the finding and seizure of the drug after he had been searched by police, and
2. evidence of his admissions to police that he was in possession of the drug for the purpose of sale.
Two police officers, Constable Staker and Constable Pratt, gave evidence. They were on uniform mobile patrol at the time. It was about 10 o’clock on a Thursday morning. Constable Staker was the driver of the police vehicle, and Constable Pratt, who was Constable Staker’s superior, was the passenger. Constable Staker took a decision to stop a Holden Torana being driven along one of the streets of the town. He did so because “I wanted to find out who was actually driving and the vehicle was a little bit rough around the edges, so I just wanted to examine the vehicle as well”. He said he was acting in accordance with powers in ss42 and 160 of the Road Traffic Act 1961.
Having stopped the Torana, Constable Staker went to the driver’s side door, and saw that there were three occupants. The driver and the accused were in the front seat and a third person was in the back seat. He told me he immediately recognised the driver and asked for and was shown his licence.
Constable Pratt told me he went to the passenger side door after checking the registration disc, and motioned to the accused to wind his window down. He greeted the accused and thinks that he asked him for his name. He said he did that “Just as a standard practice; to make conversation with the people in the vehicle”. He then observed a white plastic shopping bag on the floor between the accused’s legs. The top of the bag was open and he could see green vegetable material which he believed to be cannabis. The accused attempted with his feet to conceal the bag and to move it back underneath the seat. Constable Pratt asked the accused to get out of the vehicle and made a quick inspection of the contents of the bag. He asked the accused to place his hands on the bonnet for the purposes of a search of his pockets. The search disclosed, amongst other things, a film canister containing small press sealed bags of white powder subsequently analysed as methylamphetamine.
Constable Pratt then had the following conversation with the accused:-
“Q.    Whats this Ian.
A.     Amphetamines.
Q.     Are you using.
A.     No.
Q.     Are you or have you been selling these amphetamines.
A.     Yes.
Q...... Ian you are under arrest for possessing amphetamines for sale. Do you understand that. You are no obliged to answer any questions I put to you. Do you understand that.
A.     Yes.
Q...... I will be returning you to the Kadina Police Station. There you can and are entitled to contact a friend, relative or solicitor about your whereabouts. Do you understand that.
A.     Yes.
Q.     How much are you selling the amphetamines for.
A.     $50 a bag.
Q.     How many bags of amphetamines are in this container.
A.     Eight, I think.”
The accused repeated his admissions at a subsequent video-taped interview at the Kadina Police Station.
So much for the background facts.
In relation to the search for and the finding of the methylamphetamine, counsel for the accused submits that Constable Pratt’s prior conduct was unlawful and that I should exclude the evidence in the exercise of discretion. Four potential sources of power were discussed, namely ss42 and 160 of the Road Traffic Act 1961, s52(9) of the Controlled Substances Act 1984 and s68(1) of the Summary Offences Act 1953.
Section 160 of the Road Traffic Act concerns the power to stop and inspect vehicles for defects. Although, as I have said, Constable Staker’s evidence was that “the vehicle was a little bit rough around the edges, so I just wanted to examine the vehicle as well”, he did not indicate any such purpose to the driver and he did not conduct any such examination. Constable Pratt’s evidence was that there was nothing untoward about the vehicle or the way the vehicle was being driven. This section can be dismissed from further consideration as a valid source of power.
Section 42 of the Road Traffic Act states:-
“(1)   A member of the police force or an inspector may -
(a)     request the driver of a vehicle on a road to stop that vehicle;
(b)    ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.
(2)    a person must forthwith -
(a)     comply with a request made under subsection (1) to stop a vehicle;
(b)    truthfully answer any questions put under subsection (1).”
There is nothing on the face of the section to require the police to entertain a reasonable suspicion before the vehicle is stopped and the driver is questioned. Although I have misgivings which I will explain in a moment, at this stage I am prepared to assume that the stopping of the Torana and Constable Staker’s request of the driver that he wind down his window were authorised by s42 of the Road Traffic Act. It should be noted, however, that the powers of the section are exercisable against the driver of a vehicle and not against a passenger. Constable Pratt was not authorised by s42 to request the accused to wind his window down for the purpose of answering questions or for any other purpose.
I need not quote either s52(9) of the Controlled Substances Act or s68(1) of the Summary Offences Act. The specific power with respect to drugs in s52 does not oust the general power in s68, and each should be read as subject to the other: Gibson v Ellis (1992) 59 SASR 420 at 425. Each power enables police to stop a vehicle and to search for and seize evidence of a criminal offence, but both require as a necessary prerequisite the existence of a suspicion for which there are reasonable grounds (in the case of the former) or a suspicion for which there is reasonable cause (in the case of the latter).
I consider that, when Constable Pratt asked the accused to wind the passenger side window down and looked towards the passenger seat floor, he was conducting a search before he had grounds or cause for entertaining the requisite suspicion. It is true that a mere sensory perception - whether by eye, ear or nose - cannot of itself constitute a search: Questions of Law Reserved (No 3 of 1998) 71 SASR 223. But here the looking was preceded by and associated with the asking, and it is those acts in combination which were sufficient, in my opinion, to constitute a search.
In the result, given that the search and seizure in relation to the cannabis in the Torana were unlawful, I hold that the consequential search and seizure in relation to the methylamphetamine in the accused’s possession were also unlawful.
The question remains whether I should exercise a discretion to exclude the evidence. A court might not do so if the unlawfulness is of a technical and unintended nature. But here I am confronted with important implications for the rights of citizens not to be stopped and searched without due cause. Barwick CJ might well have had this kind of case in mind when he said in R v Ireland (1970) 126 CLR 321 at 335:-
“Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price”.
I hold that the evidence in question should be excluded.
Although, in the circumstances, I need not decide whether the stopping of the vehicle was a valid exercise of power under s42 of the Road Traffic Act, I make the following observations. I have said that there is nothing on the face of the section to require the police to entertain a reasonable suspicion in advance of the stopping of the vehicle. Yet the power cannot be entirely without fetter. I refer to Bleby J’s observations on the point in Police v Prinse (1998) 196 LSJS 273, and to his analysis of the cases. At page 272, Bleby J says:-
“There may be circumstances where it can be shown that the exercise of the powers under s42 has been carried out capriciously or for an identifiable purpose not connected at all with legitimate policing of the law. In those circumstances, the stopping and what follows may be unlawful. Examples, some of which were mentioned in argument, may include that of a male police officer stopping a vehicle and asking the female driver for her identity for the purposes of inviting her out, or stopping a vehicle and offering to purchase it, or to inquire of the driver about the result of a sporting event.”
The circumstances of the case before me may well provide a further example to add to those given by Bleby J. It seems to me that police officers should not use s42, nor indeed s160, of the Road Traffic Act to justify the stopping of a vehicle for no reason other than the chance that grounds for search and seizure might then arise. On two occasions at least, judges of the Supreme Court have criticised the arbitrary stopping of vehicles by police: see R v Armstrong (1989) 53 SASR 25 and Coleman v Zanker (1991) 58 SASR 7. None of the judgments in those cases makes any reference to s42. Moreover, in R v Frantzis and Batas (1996) 186 LSJS 301, Lander J, with whom Cox J and Nyland J agreed, discussed various powers to stop a vehicle in which a quantity of cannabis was subsequently found, without making any reference to s42. Lander J also discussed, but did not decide, a prosecution contention that s74A of the Summary Offences Act empowers police to stop a vehicle to ask for a person’s name and address, but a reasonable suspicion is a prerequisite to the operation of that provision as well.
In relation to the accused’s admissions to police that he was in possession of the methylamphetamine for the purpose of sale, his counsel submits that the evidence should be excluded for want of a timely caution. Constable Pratt observed the green vegetable material in the vehicle, suspected that it was cannabis, and then located on the accused a white powder which he suspected was amphetamine or heroin. He must have reached a firm conclusion by the time of the accused’s admission that the substance was amphetamine and that the accused was a definite suspect of having possessed the amphetamine for sale. He should have cautioned the accused at that point. If authority is needed, it will be sufficient to quote the well-known words of King CJ in R v Dolan (1992) 58 SASR 501 at 505:-
“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 a mission 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.”
Although the Chief Justice went on to say that “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 visual tape”, I consider that, in the circumstances of this case, the police officer should not have sought, without a caution, what was tantamount to an unequivocal admission of guilt. It must follow that, if the accused had exercised his right to remain silent at that point, he may well have exercised his right to remain silent at the formal interview.
I hold in the exercise of my discretion that the evidence of both the informal and the formal interview should be excluded.

[2000] SADC 80

28 June 2000