R v Hayes & Jolly - [2019] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYES & JOLLY
[2019] SADC 126
Reasons for Rulings of His Honour Judge Tilmouth
5 September 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
Application to exclude evidence obtained by police following a search of a vehicle in which both accused were travelling at an isolated location along the Augusta Highway in the early morning. The applicants question whether the basis of the suspicion justifying a search of the vehicle is proven, or was reasonable and sufficient to sustain the lawfulness of the search.
Upon the arrest of Mr Hayes, Ms Jolly and their child were transported by the police to the Port Pirie Police Station for further investigation of an alleged assault on her by Mr Hayes. The applicants also question whether the 'detention' of both Ms Jolly and the vehicle itself was lawful.
Held: There was a genuine and reasonable belief that evidence of a drug related offence was in the vehicle, sufficient to justify the search. The police otherwise conducted themselves reasonably in a practical manner and thus did not unlawfully apprehend or detain Ms Jolly or the vehicle. The application is therefore dismissed.
Controlled Substances Act 1984 (SA) ss 32(3), 59(2); District Court Criminal Rules 2014 (SA) rr 49(1)(h), 61(2); Criminal Procedure Act 1921 (SA) s 58(b); Evidence Act 1929 (SA) s 34P(4); Police Act 1998 (SA) ss 5(d), 65; Supreme Court Act 1935 (SA) s 110C; District Court Act 1991 (SA) s 46; Magistrates Court Act 1991 (SA) s 44; Police Regulation Act 1985 (Vic) s 123(1); Road Traffic Act 1961 (SA); Summary Offences Act (SA); Bail Act 1985 (SA) s 13(3), referred to.
R v Phong Hoang Nguyen (2013) 117 SASR 432; George v Rockett (1990) 170 CLR 104; Smith v The Queen (1957) 97 CLR 100; Bunning v Cross (1978) 141 CLR 54, applied.
R v Bac Nguyen [2016] SASCFC 96; R v Chehil [2013] 3 SCR 220; State of Victoria v Horvath (2002) 6 VR 326; R v Chapman (2001) 79 SASR 342, discussed.
Wendo v The Queen (1963) 109 CLR 559; MacPherson v The Queen (1981) 147 CLR 512; R v Nguyen (2015) 248 A Crim R 398; Henderson v Surfield & Carter [1927] SASR 192; R v Rockford (2015) 122 SASR 391; Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; Cope v Sharpe (No 2) [1912] 1 KB 496; Aldworth v Stewart (1866) 4 F & F 957, ER 865; Hook v Cunard Steamship Co Ltd [1953] 1 WLR 682; Cresswell v Sirl [1948] 1 KB 241; In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Australasian Steam Navigation Co v Morse (1872) LR 4 PC 222; Brandeis Ltd v Western Transport Ltd [1981] 1 QB 864; Haynes v Harwood & Son [1935] 1 KB 146; Todd v O’Sullivan (1985) 122 LSJS 403; Watson v Marshall & Cade (1971) 124 CLR 621; Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) 112 SASR 10; R v Amad [1962] VR 545; R v McKenzie (1977) 17 SASR 304; Van der Meer v The Queen (1998) 62 ALRJ 656; R v Dolan (1992) 58 SASR 501; Abbott v Ramm Unreported, Supreme Court of South Australia SCGRG 1064 of 1994, 31 March 1995, BC 9503114, 22; R v Santos and Carrion (1987) 61 ALJR 668; R v Lavery (1978) 19 SASR 515; State of New South Wales v Le [2017] NSWCA 290; Ridgeway v The Queen (1995) 184 CLR 19; R v Ireland (1970) 126 CLR 321; Cleland v The Queen (1982) 151 CLR 1, considered.

R v HAYES & JOLLY
[2019] SADC 126
Contents
Formalities
Overview of underlying facts
The pre-trial applications
The power of search
Degree of suspicion required
The additional requirement of reasonableness
Unlawful detention of Mitsubishi
The ‘detention’ of Ms Jolly
The discretion to exclude
Orders
Formalities

Both accused Ben Hayes and Jaimie-Lee Jolly, were arraigned before a judge of this court on 28 August 2018, when they pleaded not guilty to charges laid on an Information of the same date. This Information jointly charged them with two counts of trafficking in a controlled drug on 15 March 2017 near Crystal Brook in the mid-North. The charges are brought under s 32(3) of the Controlled Substances Act 1984 (SA).
Ms Jolly filed an application to exclude evidence obtained from the search of the vehicle in which both accused were travelling on the charged date. Counsel for Mr Hayes joined in the application through the oral submissions of his counsel. To the extent necessary the court dispensed with compliance with r 49(1)(h) of the District Court Criminal Rules 2014 (SA), insofar as the required notice was concerned in the case of Mr Hayes. The trial is listed to commence on 12 November 2019. It is of course for the applicants to establish the facts justifying the exercise of the discretion to exclude: Wendo v The Queen,[1] MacPherson v The Queen.[2]
[1] (1963) 109 CLR 559, 565.
[2] (1981) 147 CLR 512, 519-520.
Overview of underlying facts
At approximately 2.00 am on Wednesday 15 March 2017, Police Officers Clee and Stratford were on mobile radar patrol duties when they detected a Mitsubishi ASX (‘the Mitsubishi’), with Victorian registration 1IP3MR exceeding the speed limit, when travelling North in the direction of Port Pirie along the Augusta Highway. The vehicle was clocked at 126 k/h in a 110 k/h zone.[3] Activating their emergency lights, the officers did a U-turn and caught up with the Mitsubishi, which pulled over. This was at a remote location on the side of the Augusta Highway, about 5 km South of an exit to Crystal Brook. Once stationary, the accused Jolly who was heavily pregnant, left the driver’s seat and approached the police vehicle. Constable Clee conversed with her about speeding and obtained her driver’s licence number. Licence and registration checks revealed the licence was suspended and that the Mitsubishi was a hire vehicle registered to ‘Avis’.
[3] Statement Constable Clee dated 19.4.17, pp 2-3.
At the same time Senior Constable Stratford observed the accused Mr Hayes and a young child, laying down in the rear of the Mitsubishi. Constable Clee asked Jolly to open the Hatch. Senior Constable Stratford then obtained Hayes’ personal details. He ascertained the existence of a warrant for his arrest with respect to a recent report of domestic assault against Jolly. Hayes was arrested on what was a first instance warrant for non-appearance over his failure to attend court and subsequently placed in the police car.[4]
[4] T7.32-8.2, s 58(b) Criminal Procedure Act 1921 (SA).
Both police officers contacted their supervisor Sergeant Hanna, a patrol Sergeant on duty at the Port Pirie Police Station. They discussed the means of transporting Ms Jolly, her child and the Mitsubishi to Port Pirie. In the event, Sergeant Hanna drove a police caged vehicle to the scene and conveyed Hayes back to the police station in it. Senior Constable Stratford returned to the police station in the other police car, whilst Constable Clee drove the Mitsubishi to the police station with Jolly and her son - who was just four years old - as passengers. She noticed the odour of fuel to the rear of the Mitsubishi ‘as soon as I got into the car’, and then as a result:[5]
I immediately had to wind down the windows due to the overwhelming smell of fumes from a jerry can that was stored in the vehicle and when I spoke to Ms Jolly about that she indicated that they had to stop several times to attempt to resecure it because it seemed to be leaking fuel on the trip.
Upon arriving at the Port Pirie Police Station at approximately 3.00 am, Constable Clee advised Jolly:[6]
… in relation to the possibility of having to search the vehicle to make sure that it was okay to be stored at the back of the station due to the fact of the fuel that was in the vehicle.
[5] T11.4-.9.
[6] T11.13-.11.17.
As to this prospective search, Constable Clee gave this evidence in-chief:[7]
Q.Did you intend to conduct a search of the vehicle at that point.
A.The search that we were intending to conduct was to make sure that the fuel can could be located and taken out of the vehicle and make sure if there's any residual fuel that would possibly create any danger from a fire risk perspective.
Q.I see, so the reason for that was to ensure that everyone was safe because of the potential fire hazard.
A.That's correct, yes.
Q.Is there any particular authority you relied on for that.
A.No, to be honest it was more of a safety issue, the fact that there's a jerrycan [sic] that appeared to be unsecured or at least enough vapour was coming out of it to be overwhelming and the concern if that was locked up during the day that would possibly create a fire risk.
[7] T13.13-.30.
Ms Jolly told Constable Clee the Mitsubishi was hired by Hayes from a friend at Avis and that they were in the course of driving to Alice Springs, where Hayes hoped to find employment.[8] She also told Constable Clee they were in the possession of the fuel in the event that outback service stations were closed.[9]
[8] T13.1-.5.
[9] Statement Constable Clee dated 19.4.17, p 7.
Constable Clee escorted Jolly and her son to the foyer of the police station in order to process the traffic offence and investigate the reported assault by Hayes. The Mitsubishi was then secured in a car park to the rear of the police station, unsearched at this point in time. Inside the station Constable Clee held a brief conversation with Sergeant Hanna, during which she was advised Jolly recently contacted police wanting to withdraw the assault charge against Hayes. Ms Jolly already told her as much in the journey to the station ‘as they were trying to reconcile and that this trip was part of that attempt’.[10]
[10] Statement Constable Clee dated 19.4.17, p 67.
She was also informed by Hanna that Jolly was the subject of an outstanding warrant for theft.[11] There was this further exchange between the two officers:[12]
Clee: Did you wanna do the search?
Hanna:Let’s worry about the car later, so we can deal with the two warrants … I initially thought it might be to do with drugs because of the time, but now I think they were just trying to leave the State.
Constable Clee accepted that at this point she had insufficient evidence to search for drugs:[13]
… because of the time of night we have had instances … that have resulted in the discovering of drugs … but over and above that we didn't have anything else.
[11] T7.26-.31, T9.1-.6.
[12] T16.9-.15, Exhibit VDP 1.
[13] T17.9-.17.
Mr Hayes was in fact arrested on the outstanding warrant in relation to domestic violence, and was refused police bail.[14] An Intervention Order to protect Jolly was also issued and served on him.[15]
[14] T17.38-18.6, T37.22-.26, T97.7-.16.
[15] T87.8-.14.
At 3.30 am, Constable Clee interviewed Jolly in relation to the alleged assault, the traffic offence and the outstanding warrant for theft.[16] At approximately 3.50 am, she was arrested for theft, and given arrest rights in front of Sergeant Hanna as Watch House Sergeant.[17] By 4.48 am Jolly was granted police bail on the warrant to appear at the Port Adelaide Magistrates Court on a date in mid-April 2017.[18]
[16] T18.9-.29.
[17] T97.18-.23.
[18] Statement of Sergeant Hanna 21/3/17, p 37.
Within minutes thereafter Constable Clee took Jolly and her son to the Mitsubishi. This was to allow Jolly to collect personal belongings she may require for herself and her son overnight.[19] Constable Clee described what happened next:[20]
So when we got to the car, Jolly was opening and checking the door pockets of the car on the passenger side, both the front and the rear door. She rummaged around in the car for approximately five minutes. She took out her white handbag and placed that at her feet. Braxton was getting quite agitated at this time. It had been a long night for him, so he was understandably very tired and over it, for want of a better description, so he was quite vocal about wanting to get going. At that time, Jolly took a pillow out and was moving to put that with her handbag and it was at that time I noticed that there was a distinct bulge at the back of the pillow and asked to see what the bulge was in the back of that pillow.
…
So Jolly had the pillow in her hands. I said 'Can I see what's in the back of that?'. She said 'I don't need this', and then gave me the pillow. I then felt on the back of the pillow there was a plastic bag, and I took the plastic bag out of the rear of the pillow and Jolly said that 'That's not mine. I don't know what's in it'.
[19] T19.2-.6.
[20] T19.27-.20.2., T20.25-.30.
It was at this point Constable Clee told the court that she ‘formed my final suspicion and, yes, I was commencing the search’.[21] Although she took a white plastic ‘Lowes’ bag forming the bulge out of the pillow case, she did not at that time examine it. She added that she intended to perform the search later … ‘with the sergeant’, once Ms Jolly and her son were taken to a Motel.[22] Just before removing the pillow from the rear seat, Ms Jolly ‘located her handbag and placed it on the ground near her feet’.[23]
[21] T48.26-.38, T49.21-.24.
[22] T49.5-.20.
[23] Statement Constable Clee 19.4.17, p 9. T19.27-.31.
As Ms Jolly’s son was ‘getting agitated … wanted to go home and was very tired’, Constable Clee secured the pillow and plastic bag inside the Mitsubishi, then ‘checked her handbag to make sure there was nothing in there that shouldn’t be’, before escorting Jolly and her son to a Motel.[24] Nothing to do with drugs was found in the handbag.[25] Constable Clee checked the contents of the handbag under the same suspicion.[26] She deposed to having by that time ‘formed the suspicion that there were possibly drugs involved in relation to what was in the back of the pillow’.[27] Her reasons for doing so as given in evidence were these:[28]
Due to her behaviour and her not wanting to take it and being quite adamant that it wasn't hers. There was nothing else that was taken from the car, so I formed the suspicion in addition to all of the other things that to date could have easily been wanting to flee the state, being the late driving, not being in a vehicle registered in their name, having a jerry can in their car because they didn't want to stop unnecessarily, as well as getting out of the car and coming to see us straightaway, it was the tipping point for me to form the suspicion that there was possibly a reason to search the car and the person under the Controlled Substances Act.
[24] T21.5-22.12.
[25] T49.25-.35.
[26] T49.21-.30.
[27] T22.1-.4.
[28] T22.8-.20.
Upon returning to the police station at around 5.05 am, she discussed her ‘suspicions’ with Sergeant Hanna, before going to the Mitsubishi and searching it.[29] According to her evidence the effect of what she said to Hanna was this:[30]
So I listed off my suspicions and what had occurred at the car and the fact that Ms Jolly hadn't attempted to take anything else out of the car and then, when questioned about the one thing that she had taken out of the car, she was quite adamant that it wasn't hers, she didn't need it and was giving it away.
Hanna indicated that ‘if they were my suspicions, that I could continue on with my search’.[31]
[29] T22.27-.33.
[30] T22.36-.23.3.
[31] T23.4-.11.
Inside the plastic bag concealed in the pillow case, Constable Clee found three cryovac bags, the first containing two plastic containers of crystal substance, one holding 1.6 g and the other 1.35 g of paste, both containing methylamphetamine. The second plastic bag held a container of paste weighing 83.3 g, with 35.4 g of methylamphetamine. These two containers form the basis of trafficking on Count 1. A third cryovac sealed bag held a plastic container of paste weighing 41.3 g, with 12 g of methylamphetamine. This constitutes the subject matter of Count 2.
In the front passenger foot well, police retrieved a bum bag holding a plastic tub containing paste weighing 3.49 g, with 1.56 g of methylamphetamine. In a black bag branded ‘Tunza’ found behind the driver’s seat, police discovered a notebook with handwritten notes consistent with a ‘tick list’. Other items in the car included some drug taking paraphernalia, an Avis hire car contract in the name of ‘Scott Reid’, a capsicum spray, a mobile phone, a battery powered scale and passports in the name of Ben Hayes and his son Braxton Hayes.
At approximately 9.50 am the following morning, both accused were arrested and charged with the two counts of trafficking, Hayes at the police station, Jolly at the Motel.
The pre-trial applications
The present pre-trial motions seek to exclude evidence obtained during the search of the Mitsubishi, essentially on the grounds of illegality. Defence counsel submits Constable Clee did not hold a reasonable suspicion to conduct the search within the meaning of s 52(9) of the Controlled Substances Act. Subsidiary points made by Mr Redmond counsel for Ms Jolly, were that both the detention of the Mitsubishi and of Ms Jolly were unlawful, as was the subsequent search of the vehicle. Counsel for Mr Hayes joined the application principally on the grounds of an illegal search of the motor vehicle.
A notice to lead evidence of discreditable conduct was filed by the Director of Public Prosecutions on 13 June 2019, pursuant to s 34P(4) of the Evidence Act 1929 (SA). The accused Jolly, filed a notice of intention to object to the proposed discreditable conduct evidence on 18 June 2019, pursuant to r 61(2) of the District Court Criminal Rules. It is accepted by counsel that it is appropriate for the trial judge to deal with that matter.
The power of search
The power relied upon to justify the search of the Mitsubishi by Constable Clee was s 52(9) of the Controlled Substances Act. This 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)     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.
No claim was made justifying the search under any other statutory or common law power, or under general search warrant.
Degree of suspicion required
The principal point taken by defence counsel was that Constable Clee formed a state of mind falling short of the prerequisite standard for valid search. The point is a deceptively simple one. It was that power of arrest is enlivened once a suspicion is formed ‘that any substance … would afford evidence … is in any vehicle’.[32] Constable Clee deposed to a lower level of suspicion, namely that there possibly were drugs involved, rather than there was in fact drugs involved.[33] For example she deposed ‘I had formed the suspicion that there was possibly drugs involved’,[34] and ‘If I formed a suspicion that there may be the commission of drug offences, that I could complete a search’.[35]
[32] Outline of Submissions for Ms Jolly, paras 6-15.
[33] Emphasis applied.
[34] T22.2-.4.
[35] T28.7-.9, emphasis applied.
It is clear the requisite suspicion was not formed or at least crystallised at the time Constable Clee spoke with Senior Constable Hanna shortly after they arrived at Port Pirie. The fact that Constable Clee may have said to him during this short exchange ‘do you wanna do the search now’, does not unequivocally convey the inference she had already made up her mind to search the car for drugs, irrespective of any level suspicion about the presence of drugs in the Mitsubishi.[36] Given the context, this was more likely a reference to the issue of fuel in the rear, as to which there was at the time no pressing urgency given that Ms Jolly was anxious to go to the Motel. A fixed belief as to the presence of drugs was more than likely a different matter altogether. If anything, a suspicion of relevance was only formed later at about the time she observed the pillow containing the bulge.
[36] Exhibit P1.

Constable Clee frankly admitted turning her mind earlier to the possibility of drugs being in the Mitsubishi, because of the ‘time of night’ and past instances, ‘but over and above that we didn’t have anything else’ and consequently ‘we didn’t have enough to substantiate anything in that regard’.[37] Sergeant Hanna’s retort in the exchange with Constable Clee ‘I was originally thinking it might be drugs because of the time, but now I think they’re just leaving the state’, confirms that state of affairs.[38]
[37] T17.9-.17, T31.22-.29.
[38] Exhibit P1.
As the Court of Criminal Appeal emphasised in R v Phong Hoang Nguyen,[39] s 52(9) of the Controlled Substances Act requires more than an actual suspicion, but rather a suspicion that there is evidence of an offence against the Controlled Substances Act in a vehicle, at the point in time at which the suspicion arises. Section 52(9)(b) of the Controlled Substances Act permits the detention and removal of vehicles once a legal search is embarked upon, or for the purposes of conducting that search in a more convenient and appropriate place.
[39] (2013) 117 SASR 432, [22].
In a second decision of R v Nguyen,[40] the search of a vehicle was held to be unlawful because there was an insufficient basis upon which to form the necessary reasonable suspicion and because the police officer concerned did not ‘address her mind to the requisite questions.’ Of greater significance for the present, is the reference in a footnote to the joint judgment, which reads:[41]
Constable Munn did not give evidence that he reasonably suspected that the driver was in possession of illicit drugs. He gave evidence that he believed that the Act empowered a stoppage and search of the vehicle if it was suspected on reasonable grounds that there may be drugs in the vehicle. He did not give evidence that he actually held such a suspicion. This would not in any event amount to the requisite suspicion, because s 52(9) of the Controlled Substances Act 1984 required a suspicion that illicit drugs are in the vehicle, not merely that they may be.
[40] (2015) 248 A Crim R 398, [25]-[32].
[41] Ibid, footnote [6].
A trilogy of related decisions was completed in R v Bac Nguyen.[42] In this Doyle J postulated with reference to the above quoted footnote, that:[43]
[57] Strictly speaking, s 52(6) and (9) require more than this. They require a reasonable suspicion that the appellant “has” (rather than “may have”) a substance in his possession, and a reasonable suspicion that a substance “is” (rather than “might be”) in the vehicle.
These comments pertain to references in the trial judge’s ruling, rather than to expressions used by the police, and therefore are indecisive of the question. Likewise the reference in the footnote in the earlier decision plainly does not authoritatively resolve the issue either for as Doyle J proceeded to observe:[44]
… the difference is unlikely to be one of great practical significance as a suspicion, … by its very nature, connotes something less than established facts, it necessarily requires consideration of what may or might be the fact.
[42] [2016] SASCFC 96.
[43] Ibid [56]-[57].
[44] Ibid [59].
His Honour noted the police in that case correctly articulated themselves in terms of a suspicion the appellant had (rather than) may have drugs in his possession and that a substance was (rather than ‘might’ have been) in the vehicle.[45] Indeed, as Murray CJ points out in Henderson v Surfield & Carter,[46] ‘(S)uspicion lives in the consciousness of uncertainty’.
[45] Ibid [60].
[46] [1927] SASR 192, 196.
The combined submissions of defence counsel fail to perceive the evidence of Constable Clee as a whole, by seizing on isolated passages and expressions employed in her oral evidence. In her statement of 19 April 2017 she speaks of her ‘suspicions that Jolly was trying to hide drugs or items connected with drugs’, and in the second of 21 August 2018 of ‘my suspicions of drugs being in the … Mitsubishi’ and that Ms Jolly’s suspicious behaviour concerning the pillow ‘cemented’ her suspicion ‘that drugs were being concealed’. The above references taken from her oral evidence suggesting qualifications such as ‘might’ or ‘possible’, simply acknowledge the fact she formed suspicions, as opposed to an actual belief that drugs were in the car.
It was further put by defence counsel that Constable Clee’s misunderstanding of the extent of the power contended in s 52(9) of the Controlled Substances Act, remained her position when giving evidence, thus requiring judicial admonishment in order to secure better ‘compliance with the limitations on the exercise of the power of search … conferred on police’: R v Rockford.[47] Constable Clee gave the following evidence about this:[48]
[47] (2015) 122 SASR 391 [47].
[48] T23.12-.14, T28.5-.9.
Q.So the sergeant, in effect, shared your opinion that there was a suspicion drugs may be found in the vehicle.
A.That's correct.
…
Q.At the time that you searched the car under the CSA, what was your understanding of the use of that power.
A.If I formed a suspicion that there may be the commission of drug offences, that I could complete a search.
Q.Is that the position you maintain today.
A.At 5 o'clock when we started that search, that's what I thought we were doing.
Q.Is that the same position that you maintain in your powers to search today.
A.Yes.
When one returns to the criteria necessary to invoke the statutory power of search, it is important to bear in mind that a suspicion is a lesser state of affairs than a belief, that is ‘a working hypothesis for which there is some supporting material’, something more than ‘(M)ere curiosity, speculation or “idle wondering” about the existence of the fact …’: R v Phong Hoan Nguyen.[49] The resolution of this issue should not turn on a mere matter of words; it is the substance rather than the form of words that are critical. When duly considered in context, Constable Clee clearly entertained a suspicion that drugs or drug paraphernalia were within the Mitsubishi. Had the police deposed to the fact that they suspected there were actually drugs in the vehicle, that would in fact approach a higher state of belief. There is accordingly nothing requiring curial censure.
[49] (2013) 117 SASR 432, [21].
The additional requirement of reasonableness
A second tier of attack mounted by defence counsel relates to the reasonableness or otherwise of Constable Clee’s suspicion. It is apparent from passages of her evidence referenced earlier, that a combination of circumstances underpinned her belief, particularly Ms Jolly’s pre-emptory dismissal of any connection with the pillow ‘(T)hat’s not mine. I don’t know what it is’ and ‘I don’t need this’.[50] This reaction was completely unsolicited and it was at this very point that the requisite suspicion was formed:[51]
Q.If we leap forward to the police station, there was a bit of inconsistency earlier about when did you form the suspicion to enable the exercise of your search powers under the Controlled Substances Act.
A.Right. So as I said, that was when questioned about the pillow that she was intending to take, that is when I formed the suspicion that a search should be conducted. As I said, I took possession of that pillow as I asked to see what was in the rear of the pillow, because it looked like she was trying to conceal something in the rear of the pillow. When that was given to me she indicated that it wasn't hers. I've secured it from there.
Q.After you had received the pillow and Jolly said 'That's not mine', is that the point where you formed the suspicion.
A.Yeah. 'That's not mine' and so I didn't get a chance to question because she was filling in the blanks for me.
[50] Statement Constable Clee 19.4.17, p 10, T20.25-.34.
[51] T79.20-.37.
In her second statement of 21 August 2018 Constable Clee spelled out a ‘list of [her] suspicions’ in the following terms:
13.Hire vehicle when both HAYES and JOLLY are unemployed and experiencing money troubles.
14.Hire vehicle not being hired in either HAYES or JOLLY name, hired under the name of a friend.
15.Time of travel, have left ADELAIDE at about 9:30 pm the time taken to be where vehicle was stopped at about 2:00am.
16.Gerry Can [sic] with overwhelming smell of fuel in the car, when young child and pregnant woman in the car.
17.Upon being advised that vehicle would be searched due to fuel leakage/possible fire concerns, JOLLY only attempted to take one item out of the vehicle. JOLLY did not attempt to get any clothing or bedding for herself or her son.
18.When pillow taken from vehicle, a bulge which appeared to be concealing another item was sighted. JOLLY immediately gave pillow to me and stated it did not belong to her and she was unaware of what item was in the plastic bag stuffed into the back of the pillow. This behaviour cemented my suspicions that drugs were being concealed.
Defence counsel properly pointed out that traffic stops of this kind were not unique, that carrying a jerry can full of petrol was not unknown especially in the case of long trips into remote parts of Australia and it was not unusual to rent vehicles for that purpose. It is not however, a question of weighing specific individual reasons supporting the formation of a reasonable suspicion, in order to trigger rights of statutory search and seizure. In truth more often than not the combination of in situ factors are more persuasive.
The Supreme Court of Canada reminds us that a ‘reasonable suspicion must be assessed against the totality of the circumstances’: R v Chehil.[52] In a unanimous decision of nine Judges delivered by Karakatsonis J, the court continued:
[29] .... The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286 (Sask. C.A.), at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.
[30] A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (U.S. C.A. 4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (U.S. Sup. Ct. 1980), and Terry v. Ohio, 392 U.S. 1 (U.S. Ohio S.C. 1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
[31] While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.
[32] Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
[52] [2013] 3 SCR 220, [29].
In this particular instance there were compelling reasons to search the vehicle based on observations, reactions and verbal exchanges with Ms Jolly, which both rationally supported the suspicion formed by Constable Clee, and were more than rationally capable of engendering ‘that suspicion in the mind of a person thinking reasonably’ about those observations: R v Phong Hoang Nguyen.[53] Chief amongst these were the fact that somewhat oddly, Ms Jolly attempted only to retrieve the pillow and her handbag rather than clothing, and her suspicious behaviour and statements with respect to the pillow containing the bulge. These were established facts ‘sufficient to induce that state of mind in a reasonable person’: George v Rockett.[54]
[53] (2013) 117 SASR 432, [22].
[54] (1990) 170 CLR 104, 112.
Unlawful detention of Mitsubishi
The next point made by defence counsel was that an unlawful detention of the Mitsubishi amounted to a civil trespass. The contention is founded on the proposition that the handling of a chattel without authority amounts to trespass, even though later returned undamaged: Penfolds Wines Pty Ltd v Elliott.[55]
[55] (1946) 74 CLR 204, 214-215.
The evidence of Constable Clee was that the car was taken to Port Pirie after roadside discussions with Sergeant Hanna, on the following assessment of the circumstances:[56]
… that, due to the fact that she would be left on the side of the road with no means of driving the vehicle, all her possessions were in the vehicle, we were looking to speak to her in relation to the domestic allegations, it made sense to take her and the vehicle with all of their possessions and car seats and what not back to the station.
[56] T57.16-.23.
The decision was informed by the fact that Ms Jolly’s driver’s licence was suspended,[57] her son was four years old,[58] general considerations of safety for both,[59] and convenience for later retrieval by Mr Hayes.[60] Sergeant Hanna gave evidence to the effect that the decision was a collaborative one and returning the vehicle was the most reasonable option in the circumstances.[61]
[57] T8.11-.25, T92.8-.18.
[58] T9.26-.33.
[59] T10.6-.25, T33.28-34.2, T85.29-86.24.
[60] T34.28-35.3.
[61] T92.5-93.35.
Other considerations feeding into this conclusion were ‘the opportunity to discuss with Ms Jolly the allegation of domestic abuse’,[62] that they ‘thought we were helping getting her somewhere where she could stay for the night’,[63] and to follow up ‘additional allegations of possible dissuade witness’.[64] The latter was founded on the brief discussion with Sergeant Hanna soon after 4.00 am in the police station in which he told her Ms Jolly ‘has rang the police in the last couple of days saying “he’s ringing me all the time saying if I drop the charges I’ll be going interstate”’.[65]
[62] T10.6-.25.
[63] T56.31-57.37.
[64] T59.4-.23.
[65] Exhibit P1, 3.06.39.
It was accepted that Ms Jolly was not consulted about this decision,[66] or that she was not informed she was not obliged to accompany them to the Port Pirie Police Station.[67] The police did not profess to rely on any specific power to take her there, or the Mitsubishi for that matter.[68] The evidence was also to the effect that there was no express consent to move the vehicle to the Port Pirie Police Station and that the police did not purport to exercise any particular coercive power authorising the movement of the vehicle to it.[69]
[66] T10.6-.25.
[67] T56.31-.37.
[68] T61.11-.31, T92.10-109.11.
[69] T60.1-62.3.
This deceptively simple trespass proposition should not be too readily accepted at face value, given the elements of the tort of civil trespass. Objectively viewed, the failure of police to bring Ms Jolly and her son to the Port Pirie Police Station would have been nothing short of highly reprehensible. Leaving them abandoned on the side of National Highway No. 1, in the early hours of the morning without recourse to assistance, was quite frankly, unthinkable.
The tort of trespass allows for a defence of necessity or justification, when the interference with goods is reasonably necessary as a means of protecting persons from the threat of real or imminent harm: Cope v Sharpe (No 2),[70] Aldworth v Stewart,[71] Hook v Cunard Steamship Co Ltd,[72] Fleming’s ‘The Law of Torts’, 10^th Ed, Law Book Co 2011, [5-10], [5-60]. This defence usually requires proof of the fact that there was no other practical means other than the course adopted, or that the course taken was reasonable to prevent real or imminent danger: Cresswell v Sirl.[73] Nevertheless ‘the principle is one of necessity, not of emergency’: In re F. (Mental Patient: Sterilisation).[74]In Australasian Steam Navigation Co v Morse,[75] the Privy Council summarised the operation of the principle in this way:
… when by the force of circumstances a man has a duty cast upon him of taking some action for another … and under that obligation, adopts the course which, to the judgment of a wise and provident man, is apparently the best for the interests … in a given emergency, it may properly be said of the course so taken, that it was … necessary to take.
[70] [1912] 1 KB 496, 502, 508.
[71] (1866) 4 F & F 957, 962. ER 865, 867.
[72] [1953] 1 WLR 682, 685.
[73] [1948] 1 KB 241, 249.
[74] [1990] 2 AC 1, [75].
[75] (1872) LR 4 PC 222, 230.
In the situation confronted by police here, no other practical option was available. Although there was no present danger as such, there was the potential for it if Ms Jolly and her son were abandoned on the roadside at that time of night.
Secondly, a defence of lawful authority equally applies to trespass, usually conferred by statute. In that event, the question will be whether otherwise tortious conduct falls within the scope of any lawful authority relied upon to provide a defence. So far as relevant to this question, s 65(1) of the Police Act 1998 (SA) provides:
65—Protection from liability for members of SA Police
(1)A member of SA Police does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law.
Obviously, the purpose lying behind s 65(1) of the Police Act is to protect members of the South Australian Police from personally incurring civil liability in the circumstances specified therein. The phrase ‘honest act or omission’ or akin phrases are commonly found in Statutes erecting immunities from suit, especially for judicial officers: s 110C Supreme Court Act 1935 (SA), s 46 District Court Act 1991 (SA), s 44 Magistrates Court Act 1991 (SA).
According to the Second Reading Speech, s 65 of the Police Act was designed to provide ‘immunity for members of SA Police in the honest discharge of their duties’.[76] An akin immunity is afforded to Victorian Police Officers by s 123(1) of the Police Regulation Act 1985 (Vic) in the following terms:
[76] Hansard House of Assembly 3 June 1998, p 10.
123 Immunity of members
(1)A member of the force or a police recruit is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force or police recruit.
It was said in State of Victoria v Horvath,[77] this provision was a recognition by the Legislature:
… of the need to provide a proper level of protection to police members on the one hand, and the need to ensure that no encouragement was thereby being given to the development of an attitude of irresponsibility by police members on the other.
The court in Horvath was not prepared to construe the provision ‘in too narrow a fashion’ so as to cover:[78]
… only those acts or omissions in which there is, objectively viewed, a strict obligation to act or omit to do so if the member concerned was to perform properly his or her duty.
[77] (2002) 6 VR 326, [46].
[78] Ibid [48].

Adopting another passage taken from the joint judgment to the present case:[79]
… the proper test to be applied is whether, having regard to all of the circumstances existing at the time and, viewed from the perspective of the member … the adoption of the chosen course must be an honest act or omission in the exercise or discharge of a power, function or a duty conferred by … any … Act or law’.
Here the police were not exercising any express power or duty to remove and then retain the car at Port Pirie. The purposes of SA Police are defined to include ‘assisting the public in emergency situations’ by s 5(d) of the Police Act. The considered action of taking the Mitsubishi to Port Pirie comes within the purview of this function. Mr Hayes was lawfully under arrest and detained at first in the Police cage vehicle. Ms Jolly could not drive the Mitsubishi because her licence was suspended. Of course the Mitsubishi could be left at the roadside, but it then would be more onerous and costly for Mr Hayes to recover it later, once released. This was to the mutual advantage of the applicants. It was also to their advantage to minimise or eliminate the risk of theft or damage.
[79] Ibid [50]. Police Act 1988 (SA) s 65(1).
In these circumstances impounding the vehicle was plainly an act of necessity and one reasonably done in good faith by the police in this instance. In any event, at common law it is the duty of police to protect life and property, in addition to a discretionary moral duty to intervene in order to prevent an accident from arising: Haynes v Harwood & Son,[80] Todd v O’Sullivan.[81] This was exactly what occurred in the described circumstances.
[80] [1935] 1 KB 146, 162.
[81] (1985) 122 LSJS 403, 409.
It is true enough that by s 65(2) of the Police Act a ‘liability that would, but for subsection (1), lie against a member of SA Police lies instead against the Crown’. The fact that the Crown in right of the State of South Australia is ultimately rendered liable is therefore unlikely to be an effective curial sanction against the South Australian Police, if that was required. Even if it was, impounding was not a circumstance that led to the search of the vehicle.
Of course the tort of trespass is actionable per se without proof of damage: Penfolds Wines Limited v Elliott,[82] an award of minimal damages will result when a plaintiff was not adversely affected or unable to prove or quantifiable loss: Brandeis Ltd v Western Transport Ltd.[83] Whether the circumstances amount to an unlawful detention of property or not, it was at worst a highly technical one from which only nominal damages would flow.
[82] (1946) 74 CLR 204, 24-25.
[83] [1981] 1 QB 864, 873.
As reasoned, earlier any such liability is at worst a trivial one.
The ‘detention’ of Ms Jolly
A further distinct point made by the defence was that the detention of Ms Jolly at the car and more particularly taking her to the Port Pirie Police Station and detaining her there for some time and thereafter taking her to a Motel, was unauthorised and unlawful. The gist of an action for a false imprisonment is mere total restraint of the liberty of a person by confinement: Watson v Marshall & Cade.[84] Of course, the police needed no authority to question Ms Jolly in circumstances where a formal caution is not called for: Police v Moukachar,[85] Bain v Police.[86]
[84] (1971) 124 CLR 621.
[85] (2010) 107 SASR 450, 453-454.
[86] (2011) 112 SASR 10, [18].
The situation here is much the same as it was in R v Chapman,[87] in as much as both the police exercised the power to direct persons to provide their correct name and address to police upon request, pursuant to s 40V of the Road Traffic Act 1961 (SA).[88] In both cases that power was exhausted. Thereafter, the facts diverge markedly. In Chapman, the police deliberately proceeded without forming the requisite suspicion to ‘turn over’ a vehicle looking for drugs, acting ‘in accordance with a practice under which police stopped a vehicle with a view to creating an opportunity to conduct a search’, leading the judge to exclude evidence of the search in order to ‘discourage’ the practice. No such situation arose here. None of the other contingencies found here arose in Chapman either.
[87] (2001) 79 SASR 342.
[88] Formerly s 42(1) of the Road Traffic Act when Chapman was decided.
The evidence of Constable Clee in relation to whether Ms Jolly was given the option to remain with the vehicle, or allowed to leave at any subsequent time, was as follows:
Q.So, what decision was ultimately made in terms of getting everyone moving.
A.Okay, so the decision that was ultimately made was for me to drive the ASX to the station that would give us the opportunity to discuss with Ms Hayes the allegation of domestic abuse and any follow-ups that were required. It also gave us the opportunity for her to have accommodation for the night and make sure that she was okay and the boy was okay. Mr Hayes was conveyed in another car that Sergeant Hanna bought out for us.
Q.So, at that point you were primarily concerned with the domestic violence allegation.
A.Yeah, and the safety of - obviously we couldn't leave her on the side of the road, it's 2 o'clock in the morning with a four-year-old child with her and basically, we wanted to make sure that everybody was okay and their property was secure.
Q.Did you discuss with Ms Jolly whether she would prefer to be left there or had alternate means of transport.
A.No, we did not discuss that, not to my recollection.[89]
[89] T10.6-.25.
…
Q.Did you tell her at any time she was not obliged to accompany you back to the station.
A.No, I don't recall saying that.[90]
…
Q.Was she offered to be taken straight to a motel.
A.No.
Q.Why not.
A.Because we were looking to follow up the allegations.[91]
[90] T57.24-.26.
[91] T58.6-.9.
Constable Clee proceeded to explain it did not occur to her to inform Ms Jolly she was allowed to leave or that driving her to the police station might convey the impression she was not allowed to:[92]
… because we were offering her assistance in relation to getting accommodation and the like, which is as per the general orders with domestic violence.
[92] T59.10-.12.
Although not detained formally as such, it was submitted the circumstances amounted to compulsion to remain with police, despite the absence of formal constraints or the formal act of arrest. It is to be recalled that Ms Jolly was wanted on a warrant for theft and it was informally proposed to question her about the outstanding allegation of assault against Mr Hayes and her desire to have the charge dropped.
No doubt a person is as a matter of law, regarded as held in custody, not simply upon formal arrest, but equally where the person is in a police vehicle or on police premises and when the police give the person reasonable grounds for believing that he or she are not allowed to leave: R v Amad,[93] R v McKenzie.[94]
[93] [1962] VR 545, 546-547.
[94] (1977) 17 SASR 304, 309.
This principle was articulated by Williams J in Smith v The Queen:[95]
The term “in custody” in the Judges’ Rules is not a term of art. It is not confined to a person who has been arrested after a charge has been preferred against him. Any person who is taken to a police station under such circumstances that he believes that he must stay there is in the custody of the police. He may go only in response to an invitation from the police that he should do so and the police may have no power to detain him. But if the police act so as to make him think that they can detain him he is in their custody. This was decided in England in Reg v Bass (1) (1953) 1 QB 680; and in Scotland in Chalmers v. H.M. Advocate (2) (1954) S.L.T 177.
[95] (1957) 97 CLR 100, 129, and see Van der Meer v The Queen (1998) 62 ALJR 656, 661.
The evidence of police here was to the effect that they took the opportunity to discuss with Ms Jolly the allegation of domestic abuse, the request to drop the charge and to assist her in finding accommodation for the night. It was accepted she was not cautioned or told she was not obliged to accompany them, and that she was not taken at first to the Motel but rather the police station.[96]
[96] T57.26-58.6.
The fact that she was not formally cautioned as to her right to answer questions until she was told the car was to be searched, is of no consequence as there was no consequent unfairness, since no admissions were subsequently obtained.[97] In any case, the obligation to caution had not materialised because the stage was not reached when it was proposed to arrest her: Van der Meer v The Queen,[98] R v Dolan.[99] Further, it does not necessarily follow because a suspicion is formed that drugs might be in the Mitsubishi, that Ms Jolly had committed an offence justifying her arrest: Abbott v Ramm.[100]
[97] T58.18-.36.
[98] (1998) 62 ALRJ 656, 661.
[99] (1992) 58 SASR 501, 505.
[100] Unreported, Supreme Court of South Australia SCGRG 1064 of 1994, 31 March 1995, BC 9503114, 22.
Ms Jolly was pulled over and eventually cautioned—that is warned—for speeding at the roadside. It was then ascertained she was driving unlicensed, although her understanding was otherwise. There was an outstanding warrant for her apprehension in respect of a dishonesty charge. In order to process that, it was necessary to take her to the Port Pirie Police Station. She was not arrested at the scene for this. Constable Clee said they would not be detaining her on the warrant.[101] Had she been under arrest, the police were required to take her ‘as soon as reasonably practicable into the custody of the officer in charge of the nearest custodial police station’, pursuant to s 78(1) of the Summary Offences Act.[102] This requirement is interpreted to allow for and to accommodate formal charge procedures taking place and for processing applications such as bail for example, in that time: R v Santos and Carrion.[103] Thereafter, unless admitted to police bail, her situation would otherwise be governed by s 13(3) of the Bail Act 1985 (SA), which was to present her as soon as reasonably practicable on the next working day before 4.00 pm to a Summary Court.
[101] T19.2-.23.
[102] Invoked by s 16 of the Statutes Amendment (Arrest Procedures and Bail) Act No 60 of 2013 (SA).
[103] (1987) 61 ALJR 668, 670-671.
The circumstances were clearly that Ms Jolly was not under formal arrest. Whether she can be taken to be under informal or ‘de facto’ arrest depends upon whether she felt constrained from leaving. There is not one skerrick of evidence to suggest she felt obligated to remain. To the contrary, she expressed a desire to urge the police to withdraw the charge of assault against Mr Hayes. It was in her interests for safety and convenience reasons to go to Port Pirie, as the Mitsubishi and Mr Hayes were to be taken there as well. After dealing with domestic violence issues for around fifty minutes, she was then given into the custody of Sergeant Hanna as officer-in-charge of the nearest custodial police station.
Once formalities were completed and she was allowed to collect personal items from the Mitsubishi, the evidence was that she was taken to the Motel with her son without demur or complaint. It is to be remembered that her son became quite anxious at around 4.45 am.
The chronology of events, as gleaned from the police statements before the court, was this:
.at 2.40 am the Mitsubishi left the roadside area driven by Constable Clee with Ms Jolly in the front passenger seat and her son in a rear seat. Constable Clee observed there was no luggage which she ‘thought was strange considering that … they would be away for at least a few days’;
.at around 3.00 am Ms Jolly was left in a front office with her son whilst Constable Clee reviewed the outstanding domestic violence report, as to which Ms Jolly ‘was to be re-interviewed in relation to additional allegations regarding her initial domestic abuse’;
.at 3.30 am Ms Jolly was taken to an interview room where she refused to provide a ‘statement in relation to any additional abuse …’;
.at 3.50 am Ms Jolly was spoken to about the outstanding warrant relating to the charge of theft;
.at 4.06 am Ms Jolly was told Mr Hayes was to be issued with a Police Intervention Order and would be detained overnight;
.just after 4.10 am Ms Jolly was taken to the charge counter. At this time she was adamant her son ‘could not be left in the care of others’ due to previous dealings with Families SA;
.at 4.28 am Ms Jolly’s warrant was processed, she was released on Police bail and given a new court appearance date;
.at 4.45 am Ms Jolly was taken to the Mitsubishi to collect personal effects;
.at 4.50 am Mr Hayes was charged with aggravated assault and refused bail by Sergeant Hanna, because of ‘our concerns that [he] was travelling out of the State and that he may not return to South Australia to answer the charge’;
.the Mitsubishi was searched between 5.10 am and 7.00 am;
.at 9.50 am Mr Hayes was taken from the Police cells and arrested on the drugs charges, whilst at the same time Ms Jolly was arrested at the Motel.
From this chronology it can be seen the entire period of time in question is no more than two and a half hours. The circumstances judged by the objective facts are such that there is no reason to apprehend Ms Jolly was detained against her will. Not one question was asked of the police witnesses suggesting otherwise. The act of bringing her to the police station was the only sensible and practical course the police could adopt and was apparently in accordance with standard police procedures.[104] Perhaps they might be better advised to have processed her on the warrant first, before proceeding to further examine the domestic violence allegation, but as mentioned earlier, Ms Jolly was anxious to deal with that in any case.
[104] T59.4-.23, T93.36-94.3.
As explained in R v Lavery,[105] when a person accedes to accompany police to a police station, no situation of detention arises. Nor will a person be detained in the relevant sense in being prevented or delayed in carrying out an intended course, by the exigencies of everyday events: State of New South Wales v Le.[106] No illegality or unfairness therefore arises from or attends the facts that Ms Jolly was transported from the scene and remained at the Port Pirie Police Station in the above circumstances. Given that she otherwise was delivered into the custody of the officer-in-charge of the nearest custodial police station and that around 50 minutes between 3.00 and 3.50 am was used in exploring the domestic violence issue voluntarily without protest, no impropriety of any relevant kind arises either.
[105] (1978) 19 SASR 515, 516-517.
[106] [2017] NSWCA 290, [5].
The discretion to exclude
In light of the above conclusions, the exercise of the discretion to exclude on the grounds of illegality, impropriety or unfairness does not arise. In deference to the detailed submissions of all counsel on the topic, it is desirable to say something about it nevertheless. The discretion to exclude rightly exists to permit the criminal courts to exclude evidence on ‘high public policy’ grounds when evidence is unlawfully obtained, so as to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice: Ridgeway v The Queen,[107] Bunning v Cross.[108]
[107] (1995) 184 CLR 19, 31-32.
[108] (1978) 141 CLR 54, 74-75.
The exercise of the discretion to exclude evidence requires weighing the competing public interest in the need to bring to conviction those who commit criminal offences, against the protection of individual liberty and from unlawful and unfair treatment: R v Ireland.[109] This exercise is concerned with broader questions of high public policy, in which unfairness to an accused is a factor playing its part: Bunning v Cross.[110] The fundamental principle is safeguarded and enforced in the courts, who exercise vigilance to ensure they are not demeaned by becoming too acquiescent or encouraging of unlawful conduct on the part of those whose task it is to enforce the law: Bunning v Cross,[111] and by discouraging curial advantage by unlawful or improper conduct on the part of police: Cleland v The Queen.[112]
[109] (1970) 126 CLR 321, 335.
[110] (1978) 141 CLR 54, 74-75.
[111] Ibid, 77-78.
[112] (1982) 151 CLR 1, 20.
In the course of their oft cited joint judgment in Bunning v Cross, Stephen and Aickin JJ identify the several considerations bearing upon the exercise of this discretion, which may be summarised as:
.whether the unlawfulness was the result of a mistaken belief on the part of the police officers rather than a conscious appreciation that they were deliberately or recklessly acting unlawfully (at CLR 78);
.whether the nature of the illegality affected the cogency of the evidence in demonstrating guilt of the offence, a consideration generally playing no part in the exercise of discretion where the illegality involved is intentional or reckless, (at CLR 79);
.the ease with which the law might be complied with in procuring the evidence in question, so that a deliberate "cutting of corners" tends against the admissibility (at CLR 79-80);
.the nature of the offence and the comparative seriousness of the offence and of the unlawful conduct (at CLR 80);
.the intention on the part of the legislature (or otherwise) to interfere with personal liberty, or to narrowly restrict police powers (at CLR 80).
These principles were affirmed in Ridgeway v The Queen,[113] in which Mason CJ, Deane and Dawson JJ considered the relative weight to be given to each varies according to the circumstances of the particular case, and according to the degree of illegality involved, and that ‘the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers …’
[113] (1995) 184 CLR 19, 38, to similar effect see Brennan J at 51.
Here the legislature clearly intended interference with personal liberties when enacting s 52 of the Controlled Substances Act, whilst at the same time restricting police powers to those circumstances in which the requisite suspicion is both genuinely and reasonably held. Once the necessary belief is entertained, the infringement of civil liberties is thereby authorised to the extent permitted by s 52.
This is an overwhelming case against discretionary rejection. The police handled what could easily have become a roadside tragedy, with compassion and calm reflection. It is all but impossible to conceive of how they might have sensibly handled things any differently. There was no conscious disregard of the law and no unnecessary institutional practice requiring censure, as there was for instance in R v Phong Hoang Nguyen.[114] The evidence is highly cogent and the offences quite serious given the relatively high quantity of methylamphetamine found, together with the attendant indicia of trafficking. As Stephen and Aikin JJ considered in Bunning v Cross:[115]
… it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
[114] (2013) 117 SASR 432, [38] and [40], R v Nguyen [2015] SASCFC 7, [38]-[39], R v Dam Nguyen (2015) 133 SASC 11, [38] and in R v Rockford (2015) 122 SASR 391 [41].
[115] (1978) 141 CLR 54, 78.
Orders

The applications to reject the evidence of the search of the Mitsubishi in the early hours of 15 March 2017 are therefore refused.
Both defendants are remanded for a second directions hearing at 10.30 am on Thursday 11 October 2019.