R v Khan
[2014] SADC 206
•11 December 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KHAN
[2014] SADC 206
Reasons for Ruling of His Honour Judge Tilmouth
11 December 2014
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
Pre-trial objection is taken to the admission of the evidence obtained during a search of a motor vehicle, after police officers approached the occupant and asked 'Have you got anything in the car that you shouldn't have', when neither held any relevant suspicion giving rise to the statutory power to search the vehicle.
Held 1: There was no illegality or impropriety in the question.
2: Given the cogency of the evidence and the seriousness of the charge, the evidence should be admitted anyway in the exercise of discretion.
Summary Offences Act 1953 (SA) s 74A, s 74B, s 74D(1); Controlled Substances Act 1984 (SA) s 52(9); Firearms Act 1977 (SA) s 32(2)(a); Bain v Police (2011) 112 SASR 10; R v Nguyen (2013) 117 SASR 432; Watson v Marshall & Cade (1971) 124 CLR 621; Symes v Mahon [1922] SASR 447, referred to.
George v Rockett (1990) 170 CLR 104; Coco v The Queen (1994) 179 CLR 427; Ousley v The Queen (1997) 192 CLR 69; Police v Moukachar (2010) 107 SASR 450; The Queen v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54, applied.
R v White [2014] SADC 33; R v Ngo DCCRM-13-1399; R v Le [2013] SADC 82; R v Armstrong (1989) 53 SASR 25; Coleman v Zanker (1991) 58 SASR 7; R v McKinnon [2007] SADC 132; R v Chapman (2001) 79 SASR 342, distinguished.
R v KHAN
[2014] SADC 206The issue
The accused Clinton Khan is charged with possessing a prescribed firearm, aggravated by the fact that he had possession of a loaded magazine that could be used in conjunction with the firearm, contrary to s 11(1) of the Firearms Act 1977 (SA). Objection is taken to the admission into evidence of the search and seizure of the firearm and magazine in question, on the basis that an illegal search was conducted of the vehicle in which they were found. It is accepted by the prosecution that if the evidence is excluded, no further evidence is to be proffered, so the charge must consequently fail. To understand the basis of the application for exclusion it is necessary to go into the facts in some detail.
Uncontested facts
At about 3.45am on Wednesday 23 October 2013, Mr Khan was asleep at the driver’s wheel of a Toyota Corolla hatchback, parked in grounds near sporting clubrooms at Agana Park, Elizabeth Downs, a northern suburb of Adelaide. At the same time two police officers on mobile patrol in a marked police vehicle, were driving east along Midway Road towards Main North Road. Midway Road abuts the southern boundary of the Park. First Class Constable O’Dea at the driver’s wheel and her offsider Probationary Constable Wallace in the front passenger seat, noticed the vehicle. There were no people about the park or adjacent reserve at the time, the clubrooms were closed and the car was parked in darkness, which served not unreasonably to excite their curiosity.[1] They turned left into a service road leading to the Elizabeth Football Club and approached the vehicle with their headlights on. As they pulled alongside, they saw ‘someone sitting in the driver’s side … slumped to the side, reclined and who appeared to be sleeping’.[2] They had shortly beforehand activated the red and blue emergency lights on their vehicle. Both officers alighted and walked towards the Corolla.
[1] T37.16-.27, 85.1
[2] T9.7-.11.
The evidence of the patrol officers
After discussing with Wallace that they should ‘find out what’s going on … why the car’s here’,[3] O’Dea knocked on the driver’s side window. This awoke the person, later identified to be Mr Khan. She said, as did Wallace, that upon waking he seemed a ‘bit shocked’, ‘hesitant’ and ‘nervous’.[4] He wound down the window after engaging the ignition, when according to O’Dea the following exchange between them took place:[5]
I said ‘Mate, what are you up to?’ And the male replied ‘Just resting, been driving’. I then said ‘Why are you parked here in the dark?’. The male replied ‘I’m - I don’t know I just am’ and I stated ‘Have you got anything in the car that you shouldn’t have?’.
[3] T9.31-.32.
[4] T10.20-11.2, T64.1-.15.
[5] T10.15-.19.
Mr Khan then looked down towards the driver’s door and said ‘Yep’. According to O’Dea she then asked ‘what’ and he said ‘a pipe’, whereupon he took out what she considered to be an ‘ice pipe’ from next to the driver’s door which he produced to her.[6] O’Dea then asked him for identification. He produced a Victorian learner’s permit. It contained correct particulars, namely his full name, date of birth and address in Cairnlee, Victoria.[7] Having received the ice pipe she informed him they would search the vehicle on the footing that she had by then ‘formed the reasonable suspicion that in the vehicle or on his person there could be evidence of either drugs or paraphernalia …’.[8]
[6] T11.19-.23.
[7] T12.31-13.8.
[8] T13.24-.27.
At that point Mr Khan attempted to put the car into gear, so O’Dea reached in putting her hand over the ignition key, turned the vehicle off and removed the key. Mr Khan is reported by both officers as screaming words to the effect ‘now I am fucked’, or ‘I am screwed’, during which he appeared agitated, rocking back and forth in the driver’s seat.[9]
[9] T13.37-14.8, T22.11-.16, T65.27-.33.
Reinforcements arrived to assist in the search, including Sergeant Mason who gave evidence on the voir dire. During the subsequent search, the firearm’s magazine was located in a magnetic key holder under the steering column. At that point Sergeant Mason gave an instruction to search the vehicle under the Firearms Act 1977 (SA). It was during this search that they located the firearm beneath the door trim of the driver’s door. It is to the tender of the real evidence comprising the alleged prescribed sawn-off .22 calibre automatic rifle and the magazine containing four live rounds, to which objection is taken. Those rounds were capable of being fired by the weapon.[10]
[10] Statement of Andrew Plummer, 18 December 2013, p 12.
For his part Constable Wallace gave evidence, which in general terms supports the account of events and the exchanges with Mr Khan given by O’Dea, except perhaps in two relevant respects. Firstly he recollected the exchange which led to the production of the ice pipe in terms elicited under cross-examination a little differently:[11]
[11] T73.9-.20.
QAnd at the conclusion of those questions there was the question 'Do you have anything in the car you shouldn't have?'.
ACorrect.
QThen you saw the accused look to the back of the car and then there was another question by Constable O'Dea, is that correct?
ACorrect.
QAnd what was that question.
A'What do you have that you shouldn't?'.
QSo it was said twice.
AYeah, well it was more a statement the second time.
Secondly, he held his own conversation with Mr Khan in the car as follows:[12]
QDid you have any conversation with the accused while at the car.
AI did. I asked the accused - I'd noticed a barcode on the back windscreen of the vehicle that I recognised as hire, usually a hire vehicle sticker, and I asked the accused where he was taking the car to.
QWhat was the conversation that you had.
AI said 'Where are you going to?'. The accused stated that he didn't know yet. I asked where he told the hire car company he was going and the accused stated that he didn't say.
Constable O’Dea does not recollect hearing the latter conversation at all.[13] The terms of this separate conversation are exactly what one might have expected a police officer to ask in this situation.
[12] T64.31-65.3.
[13] T42.7-43.7.
The basis of the objection to admission
It is accepted by both police officers that although they were curious because of the location of the vehicle in the early hours of the morning in a dark isolated spot, neither entertained any suspicion authorising them to question Mr Khan about his personal particulars or to search the vehicle, whether it be for drugs, firearms or otherwise.[14] Furthermore, on the basis of the evidence given by both officers, it is plain that it was the production of the ice pipe that triggered the initial search for drugs which produced the magazine and the rounds in it, thus justifying the second search under the Firearms Act. It is accepted by defence counsel that the production of the pipe which O’Dea recognised as an ‘ice pipe’, provided a sufficient basis for lawfully searching the vehicle thereafter.
[14] T37.36-38.18, T85.1-.10.
The focus of the objection is on what defence counsel submitted was an ‘edict’ by O’Dea ‘have you got anything in the car you shouldn’t’. He submitted that the differing accounts of the conversation with Mr Khan at that point, suggested O’Dea twice said ‘What do you have that you shouldn’t?’, so that it effectively became an instruction rather than a question.
At relevant times O’Dea spoke to Mr Khan from a position adjacent to the side rear-view mirror, whereas Wallace was behind the driver near the seat belt.[15] It might be doubted whether the differing recollections amount to much. The inherent implication in the bare question ‘what?’ after Mr Khan first responded ‘yep’, is ‘what do you have that you shouldn’t have?’, so that there is in reality little difference of substance between the two versions. O’Dea’s inability to recall the additional conversation embarked upon by Wallace, is explicable by their different positions at the vehicle, each focussed upon their own exchanges with him.
[15] T63.25-.28.
The submission by defence counsel was that there was no basis – or no proper basis – for asking the impugned question, there being no requisite suspicion triggering any statutory or common law right of interrogation or search. It was further submitted that the very nature of the question served as a means of circumventing the necessity to form such a belief, so as to impermissibly trigger rights of search, thus ‘arrogating to themselves’ the power of search.
Legal principles
The common law jealously guarded the immunity from search and seizure, a position grounded in the protection of private property rights, nowadays more so in the protection of privacy: George v Rockett.[16] Legislative interference or curtailment of such rights requires ‘clear and express’ language: Coco v The Queen,[17] and Ousley v The Queen.[18]
[16] (1990) 170 CLR 104, 110.
[17] (1994) 179 CLR 427, 435-438, 446.
[18] (1997) 192 CLR 69, 112, 118, 142.
An examination of the applicable statutory powers of search and seizure commences with the general power conferred by s 74A of the Summary Offences Act 1953 (SA) which provides:
74A—Power to require statement of name and other personal details
(1) Where a police officer has reasonable cause to suspect—
(a)that a person has committed, is committing, or is about to commit, an offence; or
(b)that a person may be able to assist in the investigation of an offence or a suspected offence,
the officer may require that person to state all or any of the person's personal details.
…
The situation for exercise of this power had not arisen here before the production of the ice pipe.
Next s 74AB of the Summary Offences Act authorises police to ask questions for the purpose of obtaining information that may lead to the identification of the person who is driving or is the owner of a vehicle on a particular occasion. Once again the circumstances contemplated for the due exercise of this power simply did not arise in this case. Both sections provide for sanctions by way of criminal offences for the failure to comply.
The power of the search of motor vehicles under the Controlled Substances Act 1984 (SA) is conferred by s 52(9) in these terms:
52—Power to search, seize etc
…
(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—
…
(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.
The situation for the exercise of this power did not accrue until Mr Khan produced the ice pipe, but it undoubtedly did thereafter.
Finally the power of search with respect to firearms is that conferred by s 32(2)(a) of the Firearms Act in these terms:
(2) A police officer may stop, detain and search or detain and search—
(a) any vehicle, vessel or aircraft on which the police officer suspects on reasonable grounds that there is a firearm, firearm part, silencer, prohibited firearm accessory, mechanism, fitting, ammunition or licence liable to seizure under this section; or
The occasion for the exercise of this statutory power of search of the motor vehicle only arose once the magazine was discovered.
Illegality or impropriety
In light of the various statutory powers noted above, the contention for the defence is that by asking the subject question(s), Constable O’Dea either had the intention or the expectation that an answer might come, that could lead to the formation of a relevant belief, so as to trigger the power to search the vehicle.
Her evidence was that she asked the question ‘have you got anything in the car that you shouldn’t have?’, ‘as a general conversation with people that I stop to speak with, I always ask that question’.[19] She stated that if she had received a negative answer she would have ‘just obtained some identification to complete the bona fide process for checks and then we would resume patrol’.[20]
[19] T11.7-.8.
[20] T12.10-.12.
Under further cross-examination, these series of questions and answers exposed her purpose in framing the question in the way she did:[21]
[21] T43.36-44.36.
QTell me this, when you spoke to Mr Khan about ‘Is there anything in the car that you shouldn’t have?’, did you expect an answer from him.
AI am not sure. Sometimes people answer, sometimes they don’t. I wasn’t really expecting anything, it’s just a matter of course, that you go through with people.
QSo it’s a matter of course, that you go through with people.
AYes.
QAre you saying this is just a routine question you often ask.
AYes.
QQuite regularly.
AYes.
QSometimes it turns up things and sometimes it doesn’t.
ACorrect.
QIs it pretty much a practice that is adopted by those other people you have worked with, in your experience.
ASome people have done it, some people haven’t. I wouldn’t say it’s a practice, I would say it’s a personal choice or a personal procedure.
QDo you consider it part of good policing.
AYes.
QTo see what you can discover, if I can put it that way.
AI would say it’s good policing, having a general conversation, finding out if people have things on them they shouldn’t.
QI want to suggest to you it’s more of a direction than a question.
ANo, it’s a question.
QThere is an expectation that the person will respond in some way to that.
ANot necessarily.
QWould you agree that when a police officer asks a question to a citizen they might feel obliged to answer.
ASometimes they could, yes.
QSo in your experience sometimes people have and sometimes they haven’t.
AYes.
She frankly volunteered that she would often as a matter of ‘normal policing’ ask persons for their name and address, even though there may be no reasonable cause to suspect anything in the requisite sense, but that ‘if they refuse and they don’t satisfy that suspicion then we move on’.[22] She explicitly disclaimed any intention or desire to manufacture a situation that would arouse a sufficient suspicion to enliven a statutory power to search. She did on the other hand frankly concede they were ‘hoping to find something … that something will turn up’,[23] and that ‘sometimes it turns up things and sometimes it doesn’t’.[24]
[22] T48.11-.12.
[23] T38.1-.18.
[24] T44.12.
In contrast, it was the evidence of Sergeant Mason, the Sergeant in charge of police patrols based in the Elizabeth service area, that he would only ask questions along the lines seen here, in the following circumstances:[25]
[25] T93.16-94.28
QHave you yourself adopted the practice of stopping and then asking someone if they have got anything in the car they shouldn't have.
AI certainly have asked if there is anything that might harm me if I stop a vehicle. The last thing you would want to happen is for something untoward to occur to harm me so yes, and occasionally yes, I have asked that question.
QSo let's distinguish the two. First of all one is an occupational health and safety reality.
AThat's correct.
Q'I'm going to go through the car now, is there anything in here I'm going to harm myself with, there is that question; correct.
AYes, there's a question, yes.
QThen I'm talking about another question 'Is there anything in the car you shouldn't have?' so that you can have a look in the car.
AI've said that once I have already told or formed a suspicion I am going to search the car and then asked them to caution someone 'Is there anything in here that is going to save me ripping the car apart that you might want to tell me about?'.
QSo you know that the question 'Have you got anything in the car you shouldn't have?' Must be predicated on a reasonable suspicion; correct.
ASorry could you rephrase that?
QYou know the question 'Have you got anything in the car you shouldn't have?' illegal, that is, must be predicated on a reasonable suspicion.
AI would ask that question based on my suspicions but not necessarily - the question is a quite general question, there is no legal requirement, in my view, that I couldn't ask someone the question, whether that would then be contrary to - as unlawful is a matter for the court.
QIf you wanted to search a vehicle you would do it where there would be a proper foundation; correct.
AYes.
QAnd by 'proper foundation' I mean that there would be something you could point to to establish a reasonable suspicion to invoke police powers to search.
AYes.
QIn the event that there are no such suspicions, is there a practice where police ask the questions to try and get themselves into a suspicion.
ANot that I'm aware of.
QYou certainly wouldn't do that, would you.
ANo.
QBecause you understand it's improper.
AYes.
The capacity of police officers to question citizens at large was examined by Vanstone J in Police v Moukachar:[26]
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of sections 74A, 74AB SOA and s 96(1) Motor Vehicles Act is to provide sanctions, in the circumstances prescribed, against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any of those sections in order to ask the designated questions, or any other questions. However, there is no obligation to answer such questions unless one of those sections, or some other statutory provision, obliges the individual to answer.
[26] (2010) 107 SASR 450 [13]
This passage was quoted with approval by White J in Bain v Police.[27] In that case an identical question to that asked by O’Dea here, was under consideration. Bain v Police is distinguishable on the basis that the police were lawfully authorised to ask questions that may lead to the identification of persons driving the vehicle on account of a traffic infringement. After remarking that in the absence of statutory authority ‘… questions concerning the appellant’s drug use did not make those questions unlawful’, White J continued:[28]
A police officer is not of course entitled to mislead a person who is the subject of the exercise of police powers as to the nature or extent of those powers or as to the person's obligations in relation to such powers. Conduct of that kind would be reprehensible and may give rise to an occasion for the exercise of the Bunning v Crossdiscretion.
[27] (2011) 112 SASR 10 [17].
[28] Above [18].
Police officers are entitled to ask citizens questions, as a necessary aspect of the policing function. It pays to recall that the common law has long recognised the capacity of police to conduct general inquiries and that citizens have a moral duty to assist them.[29] The Judges Rules for instance, recognised the legitimate use of inquisitive questions by police:[30]
I. When a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.
[29] Archbold Criminal Pleading, Evidence & Practice: 38th Edition 1389.
[30] Archbold, above 1389.
Based on the above authorities, there is nothing inherently wrong, improper or illegal in police asking citizens not suspected of any wrong-doing at all, along the lines of ‘do you have anything you shouldn’t have’, at least taken in isolation. The evidence given in this case as well as in Bain v Police, suggests this form of questioning is used not infrequently by police on the beat in South Australia. As Constable O’Dea said, it is a matter of personal choice. Of course citizens are entitled to decline to answer and when they do, that circumstance could not found a legitimate basis for forming a relevant suspicion.
On the other hand, should such or like questions in substance, or context, amount to more, such as a rouse or a form of trickery to circumvent or side-step statutory limits on the power of search, or mislead, matters would stand quite differently. So too in the situation of a citizen complying with police demands, thinking he or she was compelled to submit, acting under that impression by tone of voice, demeanour or manner of expression: Watson v Marshall & Cade,[31] Symes v Mahon.[32]
[31] (1971) 124 CLR 621, 626.
[32] [1922] SASR 447, 453.
However, in the circumstances of this case, there being no impropriety, the occasion for the exercise of discretion to exclude the fruits of the search, simply does not arise, whether the impugned question was asked once or twice.
The discretion to exclude
Assuming this conclusion to be wrong, the exercise of the discretion to exclude would have arisen. In broad terms this involves balancing and weighing the public need to bring offenders to justice, against the public interest in maintaining the protection of the individual from unlawful and unfair conduct by those whose duty it is to uphold the law: The Queen v Ireland,[33] Bunning v Cross.[34] As expressed by the Court of Criminal Appeal in R v Nguyen:[35]
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends.
[33] (1970) 126 CLR 321, 335.
[34] (1978) 141 CLR 54, 74, 78.
[35] (2013) 117 SASR 432, [41].
This case has some parallels with R v White,[36] in as much as the police in that case suspected people living or visiting a certain house were associated with illegal drugs. Accordingly they proceeded to ‘bona fide’ all those who came and went. Judge Barrett excluded the evidence because of an admission that the purpose of stopping and questioning those concerned was designed to ‘create an opportunity’ … [to] then see whether there was a suspicion after that time.[37] This is not such a case. O’Dea denied having any such purpose in mind and the objective circumstances do not imply that she did. Nor was it a situation in which a person was improperly detained without suspicion, as it was in R v Ngo,[38] R v Le,[39] R v Armstrong,[40] Coleman v Zanker,[41] and R v McKinnon,[42] or of using powers to question already enlivened ‘so as to create an opportunity to pursue an examination of the vehicle’, as it was in R v Chapman.[43]
[36] [2014] SADC 33.
[37] Above at [5] and [20].
[38] DCCRM-13-1399, unreported, District Court of South Australia, 30 April 2014.
[39] [2013] SADC 82.
[40] (1989) 53 SASR 25.
[41] (1991) 58 SASR 7.
[42] [2007] SADC 132
[43] (2001) 79 SASR 342, [10].
Here as O’Dea freely acknowledged, had Mr Khan refused to answer they would have checked his bona fides and then resumed their patrol duties. Wallace himself also considered that ‘he could have wound his window up and refused to talk to us’ had he wanted to at that time.[44] The production by Mr Khan of the ice pipe was entirely voluntary. There was no element of instruction or compulsion in what was said to him.
[44] T83.1-.8.
In these circumstances there was no deliberate or reckless disregard of the law and no cutting of corners. The subject question(s) apparently have some currency within the ranks of the South Australian Police, and have in fact escaped judicial criticism. There is no evidence to suggest the practice so far as O’Dea is concerned – no matter how extensive it may otherwise be – is ‘calculated to lead to widespread and arbitrary infringements of civil liberties’: R v Nguyen.[45]
[45] Above [40].
Nor is there any reason to doubt the cogency of the evidence. The only further criticism levelled at the police was the failure to record the earlier events or to repeat the exchanges on camera during a later formal interview. However, until the magazine was found, no indictable offence was suspected to have been committed and hence no obligation to record was engaged under s 74D(1) of the Summary Offences Act. As against that to countenance an otherwise illegal search simply because police ‘got lucky’, effectively renders the statutory prerequisites for a search otiose: R v McKinnon,[46] R v Ngo.[47]
[46] Above [43].
[47] Above.
Conclusion and orders
For the above reasons the evidence secured during the search of the motor vehicle in which Mr Khan was at the driver’s wheel at Agana Park shortly after 3.45am on Wednesday 23 October 2013, namely the firearm and the magazine, will be admitted.
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