R v Koo & Bae - [2019] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOO & BAE
[2019] SADC 50
Reasons for Ruling of His Honour Judge Stretton
3 May 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
The accused were charged with trafficking a large commercial quantity of methylamphetamine. Police located the accused on the Eyre Highway between Yalata and Port Augusta, searched the vehicle and located nearly 10 kg of methylamphetamine hidden in a speaker box.
The accused submit that they and their vehicle were unlawfully detained, that the police did not have the requisite suspicion pursuant to the Controlled Substances Act 1984 (SA), and that accordingly the evidence of the drugs located by the search be excluded.
Held: The police had the requisite suspicion, the search was lawful, and the evidence should be admitted.
Observations as to the meaning of "reasonable suspicion" and "detain".
Controlled Substances Act 1984 (SA) s 32(1), s 52, referred to.
R v Nguyen (2013) 117 SASR 432; R v Chapman (2001) 79 SASR 342; R v Colenso (2016) SASCFC 128; NSW v Le (2017) NSWCA 290; Police v Pocius (2018) SASC 38; R v Swaffield (1988) 192 CLR 159, applied.

R v KOO & BAE
[2019] SADC 50
Introduction

On 2 September 2017 police received intelligence that a grey Toyota Kluger vehicle with a given registration number was likely to be travelling east on the Eyre Highway towards Yalata. The intelligence suggested that the two named accused were driving the vehicle and were possibly in possession of large quantities of drugs and/or cash.
For a range of reasons to do with safety and available backup, police did not stop the vehicle when it was first located on Eyre Highway but rather followed it with a view to waiting until more police resources were to hand. At some stage police contacted at least one road house through which the accused were soon expected to pass, requesting that if the vehicle stopped there, it not be served petrol.
The accused stopped at that roadhouse. Police approached and spoke to the accused noting on inspection that their intelligence as to the vehicle and the identity of the drivers was accurate. They formed a belief pursuant the Controlled Substances Act 1984 (“the Act”). On the basis of that belief they searched the vehicle locating within it a subwoofer speaker box containing nearly ten kilograms of white crystal substance containing 80 per cent pure methylamphetamine of very significant value.
The accused through their counsel contend that the search was unlawful and that consequently the evidence of the location of the drugs should be excluded.
A voir dire was held and at the conclusion of that voir dire the court determined that the evidence should be admitted. These are the reasons for that decision.
The alleged offence
Each of the accused are charged with trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Act. It is alleged that they, on 2 September 2017, at Nundroo trafficked in a large commercial quantity of a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact that the substance was a controlled drug.
The application to exclude evidence pursuant to Rule 49
Each accused submits that the search of the Toyota Kluger vehicle was such that the evidence obtained should be excluded, on the basis that:
(a)The evidence relied upon by police to justify their search was insufficient to create the reasonable suspicion required pursuant to s 52 of the Act.
(b)The accused and their vehicle were unlawfully detained.
(c)The search was consequently unlawful.
(d)The evidence obtained as a consequence of the search should be excluded.
The primary contention of both accused was that it was unlawful for the police to request the Nundroo Roadhouse proprietors not to provide the vehicle with petrol. They argue that at the time of the police request to the Nundroo Roadhouse police did not have the requisite level of suspicion pursuant to s 52 of the Act to justify the exercise of the power to detain the vehicle for the purposes of the search. They submit that both the vehicle and each accused was thereby unlawfully detained and consequently the results of the search which was able to be carried out by virtue of that unlawful detention were tainted by the unlawfulness such that the consequent discovery of drugs should be excluded from evidence in the trial.
The Eyre Highway – 2 September 2017
Brevet Sergeant Reddaway, a police officer then stationed at the Yalata Police Station 290 kilometres from the Western Australian border was on duty on 2 September 2017. His partner was Brevet Sergeant Carroll. He gave evidence that they received information from Brevet Sergeant Lovell of the Ceduna Police Station[1] via email. The email attached a further email from a Senior Western Australian Police Officer Superintendent Gaunt. Also attached was an Information Report from the Australian Criminal Intelligence Commission (“ACIC”) dated 1 September 2017 headed “Chae Tok Koo (M) [date of birth given] and Youngmin Bae (M) [date of birth given] to drive from Perth to Melbourne”.
[1] Brevet Sergeant Lovell was the on duty supervisor for the area that day with the authority to direct operations.
The report records that information had been received on 1 September 2017 from a source regarded as “usually reliable”, with the quality of the information being “probably true”.
The report set out that the two accused had planned to drive from Perth to Melbourne requesting a Toyota Kluger motor vehicle or similar, and that they in fact rented a grey 2016 Toyota Kluger Station Sedan with a given registration number. That vehicle was due to be delivered to the Melbourne airport by the accused on 9 September 2017. Mobile phone numbers were given. The report went on to indicate that it was suspected that the sole purpose of hiring and driving the vehicle between the States was to transport large quantities of drugs or cash. Whilst that piece of information was phrased in the plural, the report has a number of redacted parts to it and all accept that the report was conveying that it was suspected that the sole purpose of the accused hiring and driving the vehicle between the States on that occasion was to transport large quantities of drugs or cash.
In his covering email Superintendent Gaunt said that the vehicle had indeed passed through the Western Australia/South Australia border check point at 1430 hours on 2 September 2017 South Australian time, heading east. Superintendent Gaunt said that the vehicle was believed bound for Melbourne and at its current speed was likely to be at the Nullarbor Roadhouse at any time from approximately 1530 hours, South Australian time. Superintendent Gaunt went on to say that intelligence indicated the occupants left Perth after midday on Friday 1 September and had travelled from Perth to the Western Australia/South Australia border over about a 22-24 hour period. He indicated the Eucla police had been patrolling certain areas and premises without success and were travelling east on the Eyre Highway but were unlikely to catch up with the vehicle before it came into contact with SAPOL.
The email from Brevet Sergeant Lovell suggested that SAPOL, on the basis of the attached material including both the email from Superintendent Gaunt and the ACIC report, should stop and search the vehicle. Brevet Sergeant Reddaway and Brevet Sergeant Carroll had access to the full and unredacted version of the ACIC report.
Brevet Sergeant Reddaway said that information conveyed to him that the vehicle had been hired to travel from Perth to Melbourne with two males in the car for the sole purpose of transporting a large quantity of cash or drugs. The names and dates of birth of the two males were included. The source of the information was “usually reliable”, and the information had been graded as “probably true”. He had information that the vehicle was approaching their vicinity.
Brevet Sergeant Reddaway gave evidence that his intention at that time was simply to locate the vehicle concerned. Accordingly Brevet Sergeant Reddaway and Brevet Sergeant Carroll got in their police vehicle, drove three kilometres north from Yalata to the Eyre highway and proceeded west so as to intercept the suspect vehicle coming the other way from Western Australia. That was at approximately 4.00 pm.
Brevet Sergeant Reddaway gave evidence they decided that when they saw the vehicle they would note it passing in the opposite direction and then when they were out of sight of that vehicle turn around, follow it and make arrangements with other patrols closer to Ceduna and Penola. They did that so that they could have other officers present for safety reasons if they were to search the vehicle, and in case the car attempted to decamp.
The officers had travelled approximately 40 kilometres west of Yalata when they saw the grey Toyota Kluger with the given number plate approach and then pass in the opposite direction, at that time travelling at what Brevet Sergeant Reddaway assessed as a normal speed for that stretch of road. Brevet Sergeant Reddaway estimated that it was a minute or two between first sighting the vehicle to when they U-turned to follow it. Detective Sergeant Reddaway indicated that he immediately sped up to 130 kilometres an hour in an attempt to catch up with the vehicle but was unable to do so, indicating, in his opinion, that the vehicle must have sped up from the point that its occupants would have observed the police vehicle travelling in the opposite direction.
Brevet Sergeant Reddaway said that they then notified police communications confirming they had located the vehicle, that it was travelling east and that they were attempting to catch up with it. Brevet Sergeant Reddaway said there was then communication between Brevet Sergeant Carroll and Ceduna Police Station asking them to contact the Nundroo Roadhouse for Nundroo Roadhouse to not turn on the petrol pumps for the car in question.
Approximately half an hour later police arrived at Nundroo Roadhouse and observed the Kluger parked at one of the petrol pumps. Police alighted and approached the vehicle which at that time was unattended. At that point a male exited the toilets, police approached him and the male identified himself as the driver of the vehicle. That was the accused Mr Koo. Brevet Sergeant Reddaway spoke briefly further with Mr Koo to confirm his identification and his travel arrangements. He was asked to recount the conversation he then had with Mr Koo:
A.… I asked him if he had his driver's licence with him and he produced his licence as recorded, which was his name, his date of birth, licence number and his address. And I asked him where he was coming from and he told me 'Sydney' and I said 'Sydney isn't that way' and he said 'Oh no, Perth'. I said 'Where are you heading?' and he said 'Port Augusta' and I said 'So you're driving from Perth to Port Augusta?' and he said 'Then to Melbourne' and I said 'Okay, why?' He said he's just seeing the country. I said 'When did you leave Perth?', he said 'Yesterday, we stayed in Norseman last night' and I said 'You can't be seeing much if you've made it here already'. And he said 'We stopped and saw the whales' and I said 'How fast are you driving?' and he asked 'What?' and I said 'It looked like you were going a bit quick back there' and he said 'I needed to go to the toilet' and then I asked him what he did for work and he said he owns a bar and cafe and I asked him 'Whereabouts?', and he said 'Sydney' and I asked him 'Whose car is this?', and he said 'It's a hire car' and I said 'That's an expensive way to travel' and he said 'What?' and I said 'Wouldn't it be cheaper to fly?' and he said 'We like to drive and talk, we're friends from primary school' and I asked him if his business did okay and he asked 'What?', and I said 'Well, it's a pretty expensive way to do this and be away from your business' and I asked him whose running his business and he said his business partner and I said 'How are you paying for all of this?' and he said they're splitting the costs 50/50 and I asked him 'What's his name?', referring to the other male, and he told me that it was Youngmin Bae.
Brevet Sergeant Reddaway then spoke briefly with Mr Koo about his business in Sydney and conducted some radio checks. At that point he finished his conversation.
Brevet Sergeant Reddaway said that Brevet Sergeant Carroll then returned from having spoken to the other occupant of the vehicle Mr Bae, and as a result police decided that they would search the vehicle pursuant to s 52 of the Act on the basis that they reasonably suspected that there was a quantity of drugs in the car. Brevet Sergeant Reddaway said that the information basing his suspicion was “the information in the report which was given to us about the belief that the sole purpose for the trip was to transport a quantity of cash or drugs. The other information in the report about the two males that were in the vehicle and the vehicle itself, where it had come from and where it was going to and then locating the vehicle with those two males, that information matching, I believe – or I suspected that the report would be correct and that there would be a quantity of drugs in the car”.[2]
[2] T33.
Brevet Sergeant Reddaway went on to describe the search of the vehicle. In the course of that search he located a speaker box in the rear of the car which, when it was initially moved by Brevet Sergeant Carroll proved to not be plugged in and which when lifted seemed overly heavy for a speaker box. Brevet Sergeant Reddaway shook the box and heard a rattle similar to a maraca. The box was opened and observed to contain the almost ten kilograms of 80 per cent pure methylamphetamine, the subject of the charge against the accused.
In cross-examination Brevet Sergeant Reddaway said that there was another roadhouse at Penong a further 80 kilometres east on Eyre Highway where fuel was next available.
At that stage defence counsel tendered a police communications document entitled “SACAD Event History”, detailing the following events and times:
Action Date    Time  Detail
02/09/2017    16:43:12                 Caller: Event Location: EYRE HWY YALATA
  Cross Streets: UNNAMED, UNNAMED
TRYING TO STOP VEH – HIRE VEH – DRUGS/CASH ON BOARD – 130/110
EAST ON EYRE HWY – PANONG ADVISED
NOT 601 AT THIS STAGE – TRYING TO CATCH UP
02/09/2017    16:43:13                 Event Type 603- TRAFFIC RELATED INCIDENT
Sub Type-24-TRAFFIC-MEDIUM RISK, DGroupEW, Response Area YA35, Priority-2, Event Status 7, Prim Unit: Prim Member.
02/09/2017    16:43:13                 Field Event
02/09/2017    16:43:13                 Event Type:603:Traffic Related Incident. Sub Type:2M-TRAFFIC-
  MEDIUM RISK, DGroup:EW, Response Area YA35
  Priority:2, Event Status:7, Prim Unit, Prim Member.
02/09/2017    16:43:13                 Field Event
02/09/2017    16:43:13                 Event Type.603-TRAFFIC RELATED INCIDENT. Sub Type:2M
  TRAFFIC-MEDIUM RISK, DGroup:EW. Response Area:YA35,
  Priority:2, Event Status:7, Prim Unit:, Prim Member:
02/09/2017    16:43:13                 Event Type:603-TRAFFIC RELATED INCIDENT, Sub Type:2M-
  TRAFFIC-MEDIUM RISK,DGroup:EW, Response Area:YA35
  Priority:2, Event Status:8, Prim Unit:,Prim Member:
02/09/2017    16:43:14                 Unit ID=1YA357, Unit Status=AR, Location=EYRE HWY,
YALATA, UHISM=
02/09/2017    16:43:14                 License: 1hy3cx, Make:, Model:, Type:, Year:, Colour, Other
  [Provided by:]
02/09/2017    16:43:14                 VEH search completed at 02/09/17 16:43:14
02/09/2017    16:43:14                 Event Type:603-TRAFFIC RELATED INCIDENT, Sub Type:2M-
  TRAFFIC-MEDIUM RISK, DGroup:EW, Response Area:YA35
  Priority:2. Event Status:8, Prim Unit 1YA357.Prim Member:74412
02/09/2017    16:43:35                 Event Type:603-TRAFFIC RELATED INCIDENT, Sub Type:2M-
TRAFFIC-MEDIUM RISK, DGroup:EW, Response Area:YA35,
Priority:2, Event Status:8, Prim Unit: 1YA357, Prim Member:74412
02/09/2017    16:43:38                 UnitID=1PO355, Unit Status=DP, Location=EYRE HWY, YALATA,
  UNISCM=
02/09/2017    16:43:44                 FORSEEABLE RISK OF PURSUIT
02/09/2017    16:43:47
02/09/2017    16:43:53                 ROADHOUSE ADVISED NOT TO REFUEL THE VEH
02/09/2017    16:43:54
02/09/2017    16:44:08                 WA REGO 1HY3CX
02/09/2017    16:44:09
02/09/2017    16:44:11
02/09/2017    16:44:30                 Unit ID=IPO355, Unit Status=AK, Location=EYRE HWY,
  YALATA, UHISCM
02/09/2017    16:44:42                 SUPERVISOR MONITOR EVENT
02/09/2017    16:44:43
02/09/2017    16:45:26                 SSM – MONITORING
02/09/2017    16:45:45                 SSM – ON CHANEL
02/09/2017    16:55:58                 Unit ID=IPO355, Unit Status=ER, Location=EYRE HWY, YALATA
  UHISCM=
02/09/2017    16:55:59                 Event Type:603-TRAFFIC RELATED INCIDENT, Sub Type:2M-
TRAFFIC-MEDIUM RISK, DGroup:EW, Response Area:YA35,
Priority:2, Event Status:8, Prim Unit:1YA357,Prim Member:74412
02/09/2017 16:57:06 PD73668: NEXT FUEL STOP IS NUNDROO, ETA 20-40
MINUTES, HAVE BEEN ADVISED POTENTIAL TO DRIVE OFF AND TO CALL POLICE ASAP
Shift manager user ‘PD73668’ called method ‘AddEventComment’
02/09/2017 16:57:33 PD73668: FROM THERE IS PENONG, SERVICE STATION
ADVISED THE SAME
Shift manager user “PD73668’ called method ‘AddEventComment’
02/09/2017    17:13:09                 YA357 HAVE VEHICLE AT SERVO AT NUNDROO – DRIVER
  NOT WITH VEHICLE SSM ADV
02/09/2017    17:14:49                 PO355 A/A ARE 80 KMS OUT
02/09/2017    17:15:41                 YA357 WITH DRIVER AND OSS.
02/09/2017    17:16:18                 2CAV34 MONITORING.
In cross examination, Brevet Sergeant Reddaway was asked if there was “a similar direction in relation to the roadhouse at Penong as well”, and Brevet Sergeant Reddaway replied not that he recalled. He was shown the “SACAD Event History” set out above. His attention was directed to the entry at 16:43:53 “ROADHOUSE ADVISED NOT TO REFUEL THE VEHICLE”, which he agreed was a notation by someone on the log of the communication to Nundroo Roadhouse.
His attention was also directed to an entry thirteen items later at 16:57:33 which records “PO73668: FROM THERE IS PENONG, SERVICE STATION ADVISED THE SAME”. Brevet Sergeant repeated that while he recalled a request for Nundroo to not serve the vehicle he did not recall any conversation about telling Penong to do so. Defence counsel put, on the basis of these two entries “Do you agree that this document tends to indicate the same situation existed in relation to Penong”, and the officer replied “yes”.
A closer look at the document indicates that it does not necessarily indicate that. Immediately prior to the 16:57:33 notation “PD73668: FROM THERE IS PENONG, SERVICE STATION ADVISED THE SAME” is the entry at 16:57:06 which reads “PD73668: NEXT FUEL STOP IS NUNDROO, ETA 20-40 MINUTES. HAVE BEEN ADVISED POTENTIAL TO DRIVE OFF AND CALL POLICE ASAP”.
Accordingly the entry indicating that Penong Service Station advised “the same” comes immediately after the entry Nundroo advised that there was a potential for the vehicle to drive off and if it did to call the police “asap”. In other words, the document is at best equivocal as to whether it indicates that Penong was given any advice or request in relation to fuel.
Brevet Sergeant Reddaway agreed that communication to roadhouses of that nature were a tactic sometimes used given the remote distances that were involved. He was asked if they were directions or requests. He said that they were requests, and that police had no power to legally prevent a service station from selling fuel.[3] He said that at the time the communication was made to Nundroo Roadhouse police had no indication as to whether or not the vehicle would stop there.
[3] T45.

Brevet Sergeant Carroll also gave evidence. Brevet Sergeant Carroll confirmed the logistical and other information given by Brevet Sergeant Reddaway. Brevet Sergeant Carroll said that he called Brevet Sergeant Lovell at the Ceduna Police Station to confirm the initial verbal information they had received that a vehicle likely to be carrying drugs or cash was travelling in an easterly direction from Western Australia towards their location. He also received and read the emails and ACIC report. Brevet Sergeant Carroll said the essence of the information he had at that time from the phone calls and the documentation received was that two males of Korean origin had travelled to Western Australia and had spent about a week there, hired a car and were returning to Melbourne with the rental vehicle due to be dropped off on 9 September. Further, that police had been given the details of the vehicle together with its registration number, and had been told it was believed there was a possibility there was a large amount of drugs or cash in the vehicle.[4]
[4] T51.
Brevet Sergeant Carroll gave evidence that their intention was to locate the accused, follow at a distance, advise other patrols including the Penong Patrol and ultimately try and stop the vehicle at a location where there would be more than just he and Brevet Sergeant Reddaway present. Brevet Sergeant Carroll gave evidence consistent with Brevet Sergeant Reddaway as to locating the vehicle, then turning to follow it but being unable to catch it notwithstanding accelerating to 130 kilometres per hour in their attempt to do so.
Brevet Sergeant Carroll advised that as a part of all these communications they spoke with Ceduna Police Station requesting Ceduna contact the Nundroo Service Station advising of the details of the vehicle and requesting that Nundroo not provide the accused with fuel if it happened to stop there for fuel.[5]
[5] T58.
In the course of these communications Brevet Sergeant Carroll also spoke to a truck towing an excavator over the radio. The driver of that vehicle told Brevet Sergeant Carroll that he had seen the accused’s vehicle travelling at speed. The driver of the truck also told Brevet Sergeant Carroll that the accused had overtaken him on a blind bend.
Brevet Sergeant Carroll said that they located the accused’s vehicle parked at a petrol bowser at the Nundroo Road House. The fuel cap or flap on the side of the vehicle was open but no one was with the vehicle. Brevet Sergeant Carroll said that very shortly after they approached the vehicle both accused emerged from the service station along with one of the service station managers. Brevet Sergeant Carroll asked who was driving the vehicle and Mr Koo said he was the driver.
Brevet Sergeant Reddaway then spoke to Mr Bae and asked him some general questions about his status in the country, where he was travelling, where he was from and the like. Mr Bae said he was from Sydney, studying language and business at Apex Education. Mr Bae said that they were travelling to Melbourne to visit some friends. He said that although he could not say who the friends were, they were Mr Koo’s friends. At that point Brevet Sergeant Carroll said Mr Bae looked down and spoke more quietly. Mr Bae said that he and Mr Koo had flown from Sydney to Perth, stayed at the Crown Casino and had been there for a week, drinking and gambling. Mr Bae said that he and his friend had won $1,000 each. When asked how he had won the money and what game he was playing Mr Bae then said that his friend had won the $2,000. Mr Bae provided his home address in New South Wales, and indicated that he was funded by his parents. When the officer asked Mr Bae how his parents pay him, Mr Bae then said he was also an Uber car driver. Brevet Sergeant Carroll said that initially Mr Bae could not recall his friend, Mr Koo’s last name. Mr Bae said he had been in Australia for two years and six months and that the two of them knew each other from their time in Korea.
Brevet Sergeant Carroll then spoke to Brevet Sergeant Reddaway indicating that he, Brevet Sergeant Carroll was satisfied there were some anomalies in what Mr Bae was saying and that at that point he was satisfied he had enough suspicion to search the vehicle for drugs pursuant to s 52 of the Act. Brevet Sergeant Carroll said that it was he who formed an opinion at that point, however Brevet Sergeant Reddaway agreed with him.
I set out Brevet Sergeant Carroll’s description of his belief in full:
Q.And ultimately at that point what was it that you say you had which formed a reasonable suspicion to search the vehicle.
A.Okay, at that point in time it was a combination of all the information we had at hand. I did make some notes of that later and I’ll just go through those. The initial information that was provided by the Australian Crime Intelligence Commission was not specific, however, it had come to us from quite a high ranking officer in the Western Australia police and at the time that gave some credit to the information in my mind. Once we went out and started looking for the vehicle and sighted the vehicle, the manner of driving – prior to us seeing the vehicle suggested – and the location where we found the vehicle was where we expected the vehicle to be if it was driving at the speed limit. Now, after we sighted the vehicle we turned around within – my notes or statement says a kilometre, I would say it was somewhere between 500 m and a kilometre, probably not more than that, and we expected to catch up to that vehicle fairly quickly. We caught up to the vehicle it was with very quickly and the Toyota Kluger was nowhere to be seen. That was confirmed, the manner of driving was confirmed to us by the truck driver that we spoke to on the radio a short time later and – so that added to my suspicion that after the driver and – had seen us, that they had started driving differently to how they had been previously based on the timings of the information, where the vehicle was at the Western Australian border as to where we located it, I hope that makes sense to you. Further to that, during my conversation with Mr Bae, he changed his demeanour when I asked questions relating to what his activities were in Perth and he also changed his demeanour when I asked him about his friends in Melbourne. Now, both times when he did this he did the same thing, he answered the questions without looking at me, he looked down and he spoke in a softer voice than how he’d been answering other questions. Another one of my suspicions was based on when I was speaking to Mr Bae about how he funded his – himself in Australia. Initially he said that he was funded by his parents who sent him money. And then – then he changed his story to that he was an Uber car driver. Now, that was – he changed that after – I believe after I questioned him about how his parents actually paid him. He sort of – then all of a sudden mentioned he was an Uber car driver, which again further raised my suspicions. Another part of my suspicions was that Mr Bae couldn’t identify who the friends were that they were going to see in Melbourne. I found that to be unusual, that whilst they lived in Sydney together, that they were deviating to Melbourne but he had no idea who the people were that they were going to see in Melbourne. They had spent a – quite a long time in Perth with no other explanation for how they spent their time other than the fact that they spent that time drinking and gambling at the casino. I found that to be unusual, that there wouldn’t be anything else other than that and it’s, you know, something that they could have done in Sydney. I think Mr Bae also stated it was the first time that they’d travelled from Perth back to Melbourne, which may have been in conflict with other information that we had. Again, when he was asked why they flew to Perth, his demeanour changed and he looked down and away from me and paused before answering the question. And again, when I asked him about driving from Perth back home when they flew from Sydney in the first place, when I asked him that question, he again looked down and was a little more softly spoken when he replied to that question and that’s pretty much a summary of what my suspicions were at the time.
Q.As a result of the suspicions did you search the vehicle.
A.Yes, both Senior Constable First Class Reddaway and myself searched the vehicle.
In cross-examination it was put to Brevet Sergeant Carroll that as far as he was aware both petrol stations at Nundroo and Penong were directed to withhold petrol from being served, at least in part from what he heard over the communication system, and Brevet Sergeant Carroll replied insofar as it was a request for service stations not to provide fuel, “yes”. An audio file was put to Brevet Sergeant Carroll in cross-examination which Brevet Sergeant Carroll agreed “included information that the Nundroo Roadhouse had been told to withhold fuel from this particular vehicle”, to which Brevet Sergeant Carroll agreed.[6] No audio file suggesting Penong had been given a similar request was produced.
[6] Exhibit VD D4.
In further cross-examination Brevet Sergeant Carroll agreed with a proposition put to him by defence counsel that prior to his arrival at Nundroo he did not at that time think that he had a reasonable suspicion sufficient to search the Kluger. He replied that he had the ACIC report and the manner of driving and if the accused had refused to answer their questions on the spot they may have had sufficient to form a suspicion. He said that he did not have to rush the situation so he wanted to speak with them further to bolster his suspicions. He was asked why he didn’t think he had a reasonable suspicion based on the information received via email and ACIC report. He said that he had discussed it to a certain level with colleagues, I assume after the event, and that whilst he didn’t think he had enough because information was not specific enough, others believed that it was sufficient and that views differed from one person to another.[7]
[7] T77-78.
Brevet Sergeant Carroll also gave evidence that they have a good relationship with the roadhouses concerned as they deal with them regularly and indeed source petrol from them.
Mr Allen then called Mr Bae to give evidence on the voir dire. Mr Bae said that on the day he was arrested, they filled the car up with petrol in the morning. They then drove on towards Melbourne, with Mr Koo driving the vehicle. Mr Bae said that they stopped at the place where the police ultimately spoke with and arrested them because they needed petrol and wanted to fill the tank. Mr Bae said that when they got to the roadhouse he opened the “screw” and then put the “mouth” to the tank whilst his friend went to the toilet. He said there was no reaction from the pump so he walked into the service station to tell them that he needed petrol. He said the staff replied but he could not understand what they were saying so he walked back out and into the toilet to see his friend. He said he explained what had happened and his friend said “just wait and I will talk to them”. Mr Bae then returned to the vehicle and made a further attempt to put petrol in it but there was no reaction from the pump. He said someone came out of the shop and said something he did not understand but he understood “no petrol”. Mr Bae said he could not remember how much petrol they had at that time but at one point it was a bit higher than one line and that he was worried about running out of petrol. He said that after filling the car up they had intended to continue their trip. Mr Bae said that prior to arriving at Nundroo roadhouse they were driving in a normal manner at a normal speed but at about ten to twenty kilometres per hour over the speed limit. Mr Bae said that police approached them between five and ten minutes after they had arrived at the roadhouse.
Mr Allen then tendered a seven minute video of police formally arresting Mr Bae including Mr Bae’s responses to a number of formal questions. The video occurred between 5.54 pm and 6.01 pm.
The following facts were agreed:
1The distance by the Eyre Highway from Caiguna Roadhouse to the Nundroo Roadhouse is 677 kilometres.
2Members of SAPOL conducted a thorough search of the accused and the Toyota Kluger (registration given).
3A number of receipts were seized. The only receipt for the purchase of fuel on 2 September 2017 is that depicted in VD D3.
4The distance via the Eyre Highway from the Nundroo roadhouse to Pt Augusta is 621 kilometres.
5In proofing with the office of the Director of Public Prosecutions, Brevet Sergeant Carroll stated that the initial Australian Criminal Intelligence Commission report VD P3 was not enough to arouse a reasonable suspicion.
Application to Exclude
The accused submit essentially[8] that:
1The actions of police in communicating to Nundroo Roadhouse a request that should the accuseds’ vehicle stop there for petrol, that they not be provided with petrol, amounted to the detention of that vehicle and the accused.
2At the time of the request police did not have a reasonable suspicion pursuant to s 52 of the Act and accordingly the consequent detention of the accused was unlawful.
3Accordingly the search of the vehicle by police at the Nundroo Roadhouse was unlawful giving rise to a discretion to exclude the result of that search from evidence.
4In the totality of the circumstances the discretion to exclude should be exercised in favour of the accused.
[8] Mr Koo’s written submissions dated 27 March 2017 paras 1–5, Mr Bae’s writtens submissions dated 1 April 2019 paras 1-2.
Findings of fact for the purposes of the voir dire
For the purposes of the voir dire it is necessary to make findings of fact.[9] That is a straightforward matter in this case as the evidence of Brevet Sergeant Reddaway, Brevet Sergeant Carroll and Mr Bae was not materially challenged for the purposes of the voir dire. Accordingly I accept the evidence of each of those witnesses for the purposes of the voir dire.
[9] I do so only for the purposes of the voir dire, and any evidence or findings of fact will be entirely disregarded for the purposes of any substantive trial.
The court accepts the evidence of the two police officers as to the intelligence and other information they received on 2 September 2017. The only real factual dispute on the voir dire was whether after police had passed the accused travelling in the opposite direction on the Eyre Highway the accused sped up from that point. The court accepts the police evidence that both officers perceived that on first observation the accuseds’ vehicle travelling in the opposite direction was proceeding at what they regarded was a normal speed for that time and place and that when police turned and followed at 130 kilometres per hour for a relatively moderate period of time they were unable to catch the accused. After a time they were notified by police radio to slow back down to 110 kilometres per hour. The court also accepts for the purposes of the voir dire Mr Bae’s evidence that his recollection was that he did not recall any speeding-up, but that Mr Koo was travelling at between 120 – 130 kilometres an hour in any event.
Given the times and distances and the evidence of Mr Bae, the court finds that the accused stopped at the Nundroo roadhouse intending to purchase fuel. They still had some fuel left according to Mr Bae. They were however intending to fill up their vehicle and continue their trip with the aim of reaching Port Augusta that evening.
Mr Koo alighted the vehicle and went to the toilet whilst Mr Bae opened the petrol cap and attempted to refuel the vehicle. The pump did not work so he walked into the roadhouse to enquire why. He could not understand what they were saying to him so he went to talk to Mr Koo in the toilet block. Mr Koo said to Mr Bae, just to wait, and he, Mr Koo, would discuss it with the roadhouse proprietors. Both accused then returned to the roadhouse. They were emerging from it in the course of discussing the matter with the proprietors and being told “no petrol” when police arrived and approached them.
The Nundroo roadhouse had turned off the petrol pump in response to a police communication that the identified vehicle not be served petrol. There is limited information before the court as to the nature of the request or the relationship between the roadhouse proprietors and police. Police gave evidence that they do occasionally request roadhouses not serve petrol to identified vehicles in light of the long distances involved and to enable police to locate and speak to drivers.
Both officers gave evidence that the communications to roadhouses would be requests not directions and that they had no power to direct or prevent roadhouses from selling petrol to identified vehicles. The notation in the radio log, “roadhouse advised not to refuel the VEH”, and the phraseology of the voice log are in terms of advice or direction but it must be borne in mind that those notations are short form summary records not purporting to accurately reflect the phraseology of the communications concerned. The practice was a longstanding one and accordingly likely to reflect an ongoing co-operative arrangement between police and roadhouses whereby the roadhouses would voluntarily assist the police who were patrolling and serving the region.
I find that at the point when police approached the accuseds’ vehicle both accused had returned to the roadhouse proper, Mr Koo was primarily conducting the discussion and they were in the course of being told words to the effect of “no petrol”. They were still in the presence of the proprietor and having this discussion as they walked out of the roadhouse and met police. At that time both accused were still in the process of understanding whether they would ultimately be able to get petrol at that roadhouse and had not proceeded to any other consideration of their options. In particular it is plain that they had yet to consider whether they would, for example:
(a)Continue to negotiate for petrol.
(b)Wait until petrol became available at that roadhouse, or enquire where else it might be available.
(c)Make an assessment as to whether they could safely drive to the next roadhouse for petrol there.
(d)Stop and have a meal to consider their options.
(e)Call such Roadside Assistance as may have been available to provide petrol.
(f)Undertake some other action to proceed with their trip such as to investigate the availability of an Uber, a bus or even hitchhiking.
On balance it is clear that neither Mr Koo nor Mr Bae were aware of any detention or restriction on their free movement. Nor had any legal or coercive direction, requirement or even request that they not drive their vehicle away been made. Nothing physical had been done to detain them, for example no police vehicle had pulled in front of their vehicle to bar its way.
The court accepts the police evidence that they at no time intended to detain the accused or the accuseds’ vehicle in any formal sense prior to forming the claimed suspicion immediately prior to their actual search of the vehicle at the roadhouse.
Legal consequences
It is beyond doubt that police are entitled to enlist the voluntary assistance of members of the community to locate suspects and to investigate crime. So long as the actions of those people are not unlawful, the requesting and enlisting of such assistance by police is unexceptional and lawful. Accordingly the fact that police communicated a request to the Nundroo roadhouse, whether phrased as a request, advice or a direction, which the roadhouse was legally and factually quite entitled to implement or decline, was in no way in itself unlawful or improper.

It is equally unexceptional, in my view, that if acting through a member of the public or third party, police do detain a suspect without any lawful right to have done so, the mere interposition of an innocent third party will not protect the police conduct from being categorised as unlawful. The issue in this matter is whether by those actions the accused were unlawfully detained.
Whether a person is detained is an objective question of fact and degree to be determined in each case. The court has regard to the cited authorities.[10]
[10] R v Nguyen (2013) 117 SASR 432, R v Chapman (2001) 79 SASR 342, R v Colenso [2016] SASCFC 128, NSW v Le [2017] NSWCA 290 and Police v Pocius [2018] SASC 38.
The court finds that from the police’s perspective, the communication to the roadhouse was an attempt to, on the contingency that the accused stopped at the Nundroo Roadhouse, slow or briefly delay them to enable police to catch up and locate them. There was no intention that the accused be detained nor any intention to in any other way restrict the accuseds’ liberty.
From the accuseds’ perspective they had just discovered that they were not at that point in time being served petrol. They had not begun to consider what the numerous other options they may have were to be. There was no actual or de facto direction that they remain in the vicinity or at the service station. They were not physically prevented from leaving. So far as they were aware they were free to go and do whatever they wished to do.
In those circumstances I conclude that the accused were not detained by the actions of police in contacting the Nundroo roadhouse and requesting that the accused not be served petrol if the accused stopped there.
If I am wrong about that and the accused were ‘detained’ by the non service of petrol it is appropriate to consider whether the police at the time of the communication to the roadhouse had a lawful basis to detain and search the vehicle the accused were driving. As outlined earlier in these reasons police were in receipt of an ACIC report from a “usually reliable” source that had been assessed as “probably true” that two persons driving the exact vehicle the accused had been located in as they drove east along Eyre Highway were suspected of having been hired for the sole purpose of transporting large quantities of drugs or cash interstate. When the police located that exact vehicle, where it was expected to be on the Eyre Highway, in my view the intelligence police were in possession of, together with the further information provided by Superintendent Gaunt was sufficient to base a reasonable suspicion pursuant to s 52(9) of the Act. That section 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.
As to what is meant by “a police officer reasonably suspects”, the Full Court held in R v Nguyen:[11]
… a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
… the police officer must not only suspect but “reasonably suspect” … the additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of the person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational connections. On the other hand, it would be unreasonable, it would deny the power of much of its utility to demand material which supports a positive belief in the existence of the relevant facts.
[11] R v Nguyen (2013) 117 SASR 432.
In this instance the simple fact is that police had “probably true” information from a “usually reliable” source that this vehicle was being driven between States for the sole purpose of transporting large quantities of drugs or cash. Whilst such information would not necessarily engender a belief that that was the case it would in my view be entirely rational to reasonably suspect on the basis of that material that the vehicle was being so used.
Accordingly I conclude that at the time when Brevet Sergeant Reddaway and Brevet Sergeant Carroll located the accused and their vehicle travelling east on the Eyre Highway, in light of the detailed intelligence they had, it was entirely reasonable to suspect that material that would afford evidence of an offence pursuant to the Act was in that vehicle, thereby justifying its detention and search.
If I am wrong about that and the information in the possession of police was not sufficient in an objective sense to cause a police officer to have the required reasonable suspicion pursuant to s 52 of the Act, and if the actions of police in communicating with the Nundroo Roadhouse and the consequent momentary denial of fuel to the accused resulted in the accuseds’ vehicle being detained unlawfully, the issue arises as to whether the consequently illegal search should result in the exercise of the court’s direction to exclude the consequent discovery of the drugs in the vehicle.
I have regard to the criteria helpfully set out by the High Court in R v Swaffield.[12]
Whether the unlawfulness by the police was deliberate
[12] (1988) 192 CLR 159.
In this case the police would have been entitled to, under ordinary police powers, pull over the accused when they first located them on the Eyre Highway to ascertain their identity and speak to them. For considerations of safety they elected not to do so but undertook the course of turning and following the accused, having the Nundroo Roadhouse contacted with a view to speaking to them there, should they stop there. I find that at all times the police officers were conscious of their powers pursuant to the Act, approached them conservatively and carefully and at no time intended to undertake unlawful behaviour. Indeed they understood the law and their actions sought to avoid any such illegality. If their actions were unlawful, they were plainly not deliberately so.
Cogency of the Information held by police
In this instance the police had cogent and apparently reliable information provided by the Australian Criminal Intelligence Commission and senior Western Australian Police upon which it was entirely reasonable to act.
Whether the police actions were of a wilful or malicious nature
I find that police intended at all times to comply with their legal requirements and adopted a careful and measured approach to making contact with, ultimately speaking with, and then searching the accuseds’ vehicle.
Whether the cogency of the evidence is affected
Police actions had no effect on the cogency of the evidence located nor did it affect in any way the accuseds’ ability to challenge that evidence at trial.
Is the evidence of considerable probative value in relation to a serious charge
In this matter the methylamphetamine located if sold on the street in the commonly occurring ‘point deal’ format and quantity could have had a value of up to $10,000,000. This is an extremely serious offence. Drug trafficking particularly in ice methylamphetamine as reflected in numerous South Australian Supreme Court decisions and the legislation itself is regarded as very harmful. The search revealed cogent evidence of an extremely serious offence. In other words the evidence is of considerable probative value in relation to a very serious charge.
In all the circumstances, balancing all of those factors, if the police’s actions did amount to the unlawful detention of the accused, it was in the court’s view unintentional, partial, momentary and did not in any way affect the cogency of the evidence located.
In those circumstances the court’s discretion to exclude the evidence should not be exercised. The evidence should be admitted.
Conclusion
The actions of police did not ‘detain’ the accused or their vehicle at any time prior to police attendance at the Nundroo Roadhouse and the ultimate search of the vehicle.
At the time police searched the accuseds’ vehicle they had the requisite suspicion pursuant to s 52(9) of the Act.
In any event, at the stage police located the accused in the vehicle as it travelled east on Eyre Highway, in light of the ACIC Report they had received together with information from Western Australian Police, there were objectively reasonable grounds to form a reasonable suspicion pursuant to s 52 of the Act. If the accuseds’ vehicle was then detained at the Nundroo Roadhouse by virtue of the police communication that it not be served petrol, then such detention was authorised by s 52.
If the Court is wrong and the accuseds’ vehicle was unlawfully detained, it was unintentional, partial, momentary and did not affect the cogency of the evidence, such that in the totality of the circumstances applying the test articulated in Swaffield and later cases, the evidence should in any event be admitted.
Accordingly, the evidence of the police search of the accused’s vehicle and subsequent location of drugs will be admitted.