R v Kovac - [2025] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v KOVAC
Reasons for Ruling of Her Honour Judge Mackenzie
19 September 2025
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE - GENERALLY
CRIMINAL LAW - PROCEDURE - ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
Application to exclude evidence of the fruits of the search of a motor vehicle at Mitchell Park. In the early hours of 22 May 2024 police stopped the vehicle for a licence check after it had left a house of interest at Brenda Street, Mitchell Park. There were four occupants in the vehicle. The accused was sitting in the front passenger seat – it was discovered he was in breach of curfew conditions of bail on another matter. Paperwork in the name of another person was found in his possession. He also denied ownership of a backpack placed in the footwell of the front passenger seat, which the driver confirmed belonged to him (not the accused). The vehicle was searched pursuant to s 68 of the Summary Offences Act 1953 (SA) and methylamphetamine and MDMA were found in the backpack.
Held: Prosecution’s evidentiary burden as to searching officer’s state of mind not discharged. Searching officer reconstructed substantial parts of his evidence. Further, on the information available to the searching officer, there was insufficient basis for forming reasonable suspicion to enliven the search of the vehicle. The search was unlawful and the evidence should be excluded on the exercise of public policy discretion. The police officer’s approach to his search powers was reckless. Other factors considered.
Controlled Substances Act 1984 (SA); Summary Offences Act 1953 (SA); Joint Criminal Rules 2022 (SA), referred to.
MacPherson v The Queen (1981) 147 CLR 512; Cleland v The Queen (1982) 151 CLR 1; R v Nguyen [2015] SASCFC 7; Zenuni v The King [2022] SASCA 106; McHugh v The Queen [2022] SASCA 5; Young v The King [2024] SASCA 47; R v Nguyen (2013) 117 SASR 432; R v Mitchell [2020] SASC 147; Bae v The Queen and Koo v The Queen (2020) SASR 522; R v Frantzis (1996) 66 SASR 558; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v AS and Raynor [2023] SADC 60; Wilson v R; Morrison v R (1994) 176 LSJS 435; Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391; R v Armistead [2019] SASCFC 85; R v Golja [2017] SASCFC 61; Kadir v The Queen (2020) 267 CLR 109; Alzuain v The King [2025] SASCA 67; R v Swaffield (1998) 192 CLR 159; Cleland v The Queen (1982) 151 CLR 1; Ridgeway v The Queen (1995) 184 CLR 19; R v Lobban (2000) 77 SASR 24; Director of Public Prosecutions v Moore (2003) 6 VR 430; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Pollard v The Queen (1992) 176 CLR 177, considered.

R v KOVAC
[2025] SADC 114
Introduction

The accused, Steven Kovac (Kovac), is charged on an Information dated 26 February 2025 with two counts of trafficking a controlled drug pursuant to 32(3) of the Controlled Substances Act 1984 (SA). Count one relates to 5.56 grams of methylamphetamine; and count two relates to 3.54 grams of MDMA (also known as ‘Ecstasy’).
The two charges arise out of the discovery of the methylamphetamine and MDMA during a police search of a Great Wall (GW) utility on 22 May 2024. The vehicle was stopped by the police in Lanark Avenue, Mitchell Park, at approximately 2.00 am with four occupants, including Kovac – who was sitting in the front passenger seat. The backpack, in which the methylamphetamine and MDMA was discovered, was on the floor of the utility in the footwell of the front passenger seat nearest to where Kovac was sitting.
The search of the GW utility was conducted by then Senior Constable Adams (Adams) purportedly pursuant to s 68 of the Summary Offences Act 1953 (SA). Section 68 provides:
68—Power to search suspected vehicles, vessels, and persons
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a)     a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)    there are stolen goods; or
(ii)     there is an object, possession of which constitutes an offence; or
(iii)    there is evidence of the commission of an indictable offence;
(b)     a person who is reasonably suspected of having, on or about his or her person—
(i)    stolen goods; or
(ii)     an object, possession of which constitutes an offence; or
(iii)    evidence of the commission of an indictable offence.
(2)     In this section—
“stolen goods” includes goods obtained by the commission of an offence.
On 27 June 2025, shortly before the jury trial in this matter was listed to commence, Kovac filed an application pursuant to rule 39.1(d) of the Joint Criminal Rules 2022 seeking the exclusion of evidence obtained as a result of the search of the vehicle.[1]
[1] The application was also for exclusion of a pre-arrest conversation, which exclusion was not pressed for at the hearing.
The evidence sought to be excluded concerned the fruits of the search conducted by Adams of the GW utility, specifically the drugs found in a backpack alleged to be in the possession of Kovac prior to his arrest on the two counts of trafficking a controlled drug. Kovac contended that that the search of the vehicle was unlawful and that I should exercise my discretion to exclude the evidence on public policy grounds. This evidence will be critical to the prosecution’s case at trial.
It was for Kovac to make out a proper basis for the exclusion of otherwise relevant evidence, as a matter of discretion, on the grounds that it was obtained by unlawful means.[2] However, in the circumstances in which the lawfulness of the search relied upon the state of mind of Adams, an evidential onus lay upon the prosecution to adduce evidence that Adams held the requisite suspicion to justify the search of the GW utility.[3] The standard of proof is on the balance of probabilities. [4]
[2]    MacPherson v The Queen (1981) 147 CLR 512 at 519 – 520 (Gibbs CJ and Wilson J); Cleland v The Queen (1982) 151 CLR 1 at 16 (Murphy J) and 20 (Deane J).
[3]     R v Nguyen [2015] SASCFC 7 at [27].
[4]     Zenuni v The King [2022] SASCA 106 at [12].
The prosecution case
The prosecution contended that the search was lawful because Adams formed a reasonable suspicion, against his background of being an experienced police officer, based upon the combined force of the following four key pieces of information he allegedly knew before conducting the search:
1.prior to being intercepted, the GW utility had left from a premises at Brenda Street, Mitchell Park, which Adams knew to be a place of interest to the police because it was associated with a wanted person and other criminal activity;
2.Kovac was a passenger in the vehicle, and was in breach of his bail curfew conditions, and was wanted in connection with a serious criminal trespass matter;
3.Services SA and council “paperwork” in the name of another person (Mr Jack Fountas) was found on Kovac when he was searched at the scene, and when questioned about it, Kovac indicated that he might have found it at the bins; and
4.Kovac had denied ownership of the backpack in the utility, in which the drugs were ultimately found, and Adams formed an opinion that it was unusual that nobody would claim ownership of the backpack considering it was sitting in the footwell of the front passenger seat of the GW vehicle.
Mr Powell for the prosecution contended that, even if I found the search to be unlawful, I ought not exclude the evidence from trial because the search did not demonstrate deliberate or reckless impropriety of the police, or otherwise warrant exclusion in the exercise of the “public policy” discretion. Mr Powell also emphasised the seriousness of the charges laid against Kovac to which I must also have regard in determining whether to exclude the evidence.
The defence case
Counsel for Kovac, Mr Mead, contended that the search was unlawful because Adams did not have the requisite suspicion.
The substantive case for the accused was that the police had always intended to search the GW utility in the early hours of 22 May 2024, and had planned to do so well before it was stopped for a traffic check - and certainly before Adams knew that Kovac was in breach of curfew on his bail. Mr Mead submitted that what had occurred was an “old-fashioned turnover of a vehicle” by police, and that Adams and Senior Constable Ralph (Ralph) had reconstructed their evidence of matters relevant to the forming of reasonable suspicion. Mr Mead contended that this could be inferred from the failure of Adams and Ralph to disclose the reasons for a series of mobile phone calls between them in the 30 minutes or so prior to the vehicle being stopped, which inference was compounded by the existence of those phone records only being revealed to the court part-way through the hearing. If that was so, Mr Mead contended there is a clear case for me to exclude the evidence.
In view of the decision I have reached, it is unnecessary for me to formulate any conclusions about whether this was an “old-fashioned turnover of a vehicle” by police, and whether Adams and Ralph had deliberately reconstructed their evidence in that regard. I am not sufficiently satisfied that they were deliberately reconstructing their evidence to that end. However, I declined to accept certain key aspects of their evidence - and I will come to describe those details later in these reasons. I consider it probable that their memories of the events that evening were reconstructed, having been infected by their speculation as to what could have occurred, or should have occurred, in order to validate their search powers.
As to the information allegedly relied upon by Adams in forming his suspicion, Mr Mead contended that prior to deciding to search the vehicle, Adams could not have relied upon information about: (i) Kovac being wanted in relation to serious criminal trespass, because the evidence did not support him being informed about it; or (ii) there being a dispute about the ownership of the backpack, because that had only occurred once the vehicle search was underway. I address both matters in some detail below.
Further, Mr Mead contended that even if all information upon which Adams alleges he relied was available to him prior to deciding to conduct the search, such that he subjectively held a suspicion (which the defence rejected), there was still not a sufficient basis for him to form the requisite reasonable suspicion for the purposes of s 68 of the Summary Offences Act.
Finally, Mr Mead contended that Adams had misunderstood his search powers and misapplied them, which was a sufficient reason of itself for me to exercise my discretion to exclude the evidence. Though I have not accepted that Adams misunderstood the search power under s 68, I have found that he did not turn his mind to the exercise of that power and displayed a rather cavalier approach to what is required to satisfy the pre-conditions for the exercise of the power. Further, it is evident from the responses Adams gave under cross examination, this was not an aberration from his usual approach to the exercise of his search powers.
Issues to be determined
Resolution of the application turns on two issues.
First, did Adams have reasonable cause to suspect that a search of the GW utility might uncover an object, possession of which constitutes an offence? This was the specific limb of s 68 upon which Adams said he relied to form his suspicion, though he did not use this precise language. During his examination he also mentioned suspecting that the search would reveal “evidence” of an offence, which would need to be directed to the evidence of the commission of an indictable offence for the purposes of s 68.
The determination of this issue requires the court to put itself in the position of Adams, with his experience and knowledge held at the time, and to ask whether a reasonable person in possession of that information would have entertained the same suspicion.
Secondly, if the search was unlawful, should the evidence be excluded in the exercise of the public policy discretion?
Evidence on the voir dire
The application to exclude evidence was heard on the voir dire over four days.
The prosecution called oral evidence from three police officers; Adams, Ralph and Constable Johnson (Johnson), who were all present at the scene of the vehicle search. Their body worn camera (BWC) footage from that evening was also admitted and played in court.[5] Adams’ partner that evening, Probationary Constable Mochan (Mochan), who had travelled in the same police car with him to the scene, was not called. I draw no inference from Mochan not being called. The audio recording of police radio communications relevant to the stopping of the GW utility that evening was also admitted and played in court, together with a written schedule of the time of those radio calls.[6] The mobile phone records of Ralph, showing various calls made to Adams that evening, were also admitted (being discovered during the three week adjournment).[7]
[5]     Exhibits VDP1, VDP3 and VDP8. Transcript of the BWC footage prepared by officers Ralph and Adams were tendered and marked for identification as VDPMFI4 and VDPMFI2 respectively.
[6]     Exhibits VDP5 and VDP7.
[7]     Exhibit VDP6.
Most of the key events of the traffic stop of the GW utility in the early hours of 22 May 2024 are uncontroversial because they are apparent from the BWC footage of Adams, Ralph and Johnson and supported by the mobile phone records and police radio audio played into court. The following chronology of the key events is apparent:
·at least five mobile phone calls from Ralph to Adams took place between 1.33 am and shortly before 2.00 am (the purpose and content of those calls was in issue before me);
·shortly prior to 2.00 am, Ralph and Johnson were in an unmarked police car on Nellie Avenue, Mitchell Park, for the purposes of observing movements at the nearby Brenda Street address, particularly relating to a person of interest known as “Scott Pitt”;
·Ralph had stepped out of his car for closer observation of the Brenda Street address. He saw the GW utility parked outside the house with someone sitting in the driver’s seat, and he heard noises that made him think that the GW utility was preparing to leave;
·Ralph and Johnson followed the GW utility, stopping it for a licence check nearby on Lanark Avenue, Mitchell Park at about 2.00 am;
·Ralph approached the driver of the vehicle, Mr Sam Burdon (Burdon), requesting his licence and, at that time, he also recognised Kovac, who was known to him, sitting in the front passenger seat;
·at 2.02 am, Ralph made a mobile phone call to Adams which lasted for 14 seconds (the content and purpose of this call was in issue before me);
·at about 2.04 am, Ralph ran a check, via the police “SHIELD” system, in his police car and found Kovac to be in breach of the curfew conditions on his bail for an unrelated matter (whether or not Ralph was also alerted at that time to Kovac being wanted in relation to a serious criminal trespass matter was in issue before me);
·at about 2.07 am, Adams and Mochan arrived on the scene;
·at about 2.08 am, Ralph asked Kovac to get out of the car and a discussion took place about the breach of curfew on his bail, Adams was standing nearby;
·at about 2.09 am, Ralph returned to his police car to re-check Kovac’s bail status, and during this time Adams and Kovac have a conversation about the charges relating to his breach of bail – with Kovac saying he did not think he had any curfew on his bail, and also giving a muddled description of some past events. Ralph then returned and confirmed to Kovac that he was “still on the curfew, for that other matter, carry offensive”;
·at 2.11 am, Ralph announced that he was arresting Kovac for “breach of curfew” and in the process of being arrested there is a garbled discussion between Adams and Kovac about the backpack; noting from the BWC footage that Kovac had not held or moved the backpack and Adams appears to assume it was Kovac’s because he said to him: “it was right next to you”. Kovac then indicated it belonged to Burdon (the driver), which Burdon is heard on Johnson’s BWC to confirm (these matters are alleged to be significant to Adams having reasonable suspicion);
·over the next several minutes, Ralph handcuffed Kovak and conducted a body search, with Adams assisting him; paperwork was found on Kovak, which consisted of a letter on “Services SA” letterhead and a council letter addressed to another person. When Ralph asked Kovac why he had that paperwork he responded in a disjointed way but indicated he had found it “in the bin just now” (this was also an important aspect of information which the prosecution claims was relevant to the forming of reasonable suspicion to search the vehicle);
·at 2.15 am, Ralph and Adams put Kovac into the back seat of the police car;
·at 2.15.45 am, each of Ralph and Adams briefly turned off their BWC, Ralph for 23 seconds, and Adams for 28 seconds (in issue were the details of any conversation that took place between the officers at this time);
·at 2.16.13 am, Adams is seen by his BWC footage to be back at the GW utility where he announced he intended to search the GW utility, he said:
“before we start searching the car”;
and he also directed the remaining three men to get out and sit on the kerb. He asked whether there was anything he needed to be aware of “like needles” and shone his torch in the tray area of the GW utility;
·at about 2.17 am, after speaking with one of the passengers, Mr Matthew Pitt, Ralph returned to his police car to conduct checks; Adams and Ralph then questioned the other occupants of the GW utility (it was apparent that Scott Pitt, the person of interest, was not in the GW utility);
·at 2.21.20 am, Adams and Ralph had a discussion, which followed Ralph announcing “no warrants, no bail or anything”;
·at 2.22 am, Adams searched another one of the occupants;
·at about 2.24 am, Adams appeared to find a pole under the driver’s seat of the GW utility and, at about 2.29 am, he appeared to find another bag from the back seat;
·at about 2.35 am, Adams picked up the backpack that he had earlier removed from the front passenger seat of the GW utility; and asked the driver (Burdon) whether it was his. There was then a dispute about ownership of the backpack (see paragraph 63 below);
·from about 2.37 am to 2.45 am, Adams searched the backpack in which the drugs, amongst other things, were found.
Johnson
The key evidence given orally by Johnson related to:
·he and Ralph being present at Nellie Avenue shortly prior to 2.00 am in their unmarked police car observing the Brenda Street address;
·their intention being, at that time, to follow the GW utility when it left the Brenda Street address for the purpose of stopping it for a licence check;
·his understanding of their interest in observing the Brenda Street address, and in intercepting the GW utility, was that it was for the purpose of trying to locate a person of interest, being Scott Pitt; and
·his memory that when they were following the GW utility it was not speeding or driving in a manner that would otherwise cause the vehicle to be intercepted.
I found him to be an honest and reliable witness. In giving his evidence Johnson was thoughtful, and he was prepared to accept that he could not recall precisely all of the details of the events of that evening. I did not sense he was attempting to conceal or reconstruct any evidence to improve the police case. My impression of him as a witness was that he gave an accurate account of those matters he could remember, which were also consistent with contemporaneous evidence presented from the BWC footage and the mobile phone records. His evidence was not challenged.
Ralph

Ralph gave evidence about carrying out observations of the Brenda Street address, with Johnson, at about 1.55 am on 22 May 2024. He gave evidence, consistent with that of Johnson, that they had an interest in observing the house in Brenda Street because they were looking to apprehend Scott Pitt – who he said was wanted for matters involving dishonesty.
Ralph said that their unmarked police car was parked on Nellie Avenue next to Brenda Street when they were carrying out these observations. He said he got out of the police car, and while on foot, observed the GW utility parked outside of the Brenda Street house with someone sitting in the driver’s seat. He had then heard noises which indicated to him that the vehicle might be leaving and he returned to his police car with Johnson. He said he then saw two vehicles drive past “at speed”; one being the GW utility, the other being a Holden sedan. He decided to follow the vehicles because they were leaving Brenda Street and there was a possibility that Scott Pitt was on board one of them. He said that both vehicles were travelling at speed. He said he lost sight of the Holden sedan, but kept following the GW utility, pulling it over on Lanark Avenue.
Consistent with Johnson’s evidence, he said the purpose of intercepting the vehicle was for a “licence check” of the driver. But he said, inconsistently with Johnson’s evidence, the GW utility had turned left and right down side streets, and split from the Holden sedan, in a way which he understood was common for losing police (albeit there does not appear to have been any chase or pursuit). Also, in cross-examination, Ralph had to concede that his notes did not record the GW utility driving suspiciously or accelerating at speed; though he continued to maintain that it was speeding and trying to evade police. As noted above, this was quite different to Johnson’s account. Johnson’s account was more consistent with Ralph’s acceptance that the GW utility stopped and pulled over when the lights on their unmarked police car were activated. It was also apparent from the BWC footage that when Ralph first approached the driver of the GW utility after it was stopped there was no attempt to escape or evade the police, and the driver (Burdon) responded co-operatively with Ralph’s requests. Further, nothing is heard on any of the BWC footage or audio of police radio about the vehicle being driven erratically or speeding.
There was no allegation that the GW utility had been unlawfully stopped. As such, nothing much turned on the different accounts of Johnson and Ralph about the manner in which the GW utility was driving. I prefer Johnson’s account because his evidence proved to be more immediately consistent with the mobile phone records and timeline of events, and he was overall a more credible witness than Ralph (for reasons which become apparent below). Ultimately, I have found there was no attempt made by the GW utility to evade police and no suspicion can arise from the manner in which the GW utility was driven. To the extent Ralph was attempting to convince the court that the GW utility was being driven in a way to evade police, I consider he was reconstructing the events of that evening to bolster the grounds police had for searching the vehicle.
Once the GW utility was pulled over at 2.00 am, Ralph said he got out and approached the driver for the purpose of conducting a licence check. Curiously, Ralph does not immediately inquire of the driver whether Scott Pitt is in the GW utility - being the specific reason he gave for following the GW utility. Ralph recalls seeing four men in the car, and he said he recognised Kovac – who was known to him, in the front passenger seat. This is also apparent from his BWC footage which was turned on as he was approaching the GW utility shortly after it had stopped. His BWC footage then provides an accurate account of the next 35 minutes or so, other than when he switches it off for a short time when he is back in the police car conducting the checks on the driver and Kovac, and again for a short time after Kovac is arrested.
Ralph said that when he was back in the police car, shortly after the traffic stop, he then called Adams to ask him to come and assist with Kovac’s arrest. In his examination in chief on the first day of the hearing, Ralph said he could recall contacting Adams to assist him with the arrest of Kovac; however, he could not recall the conversation (or whether it was via mobile phone or police radio). He said:
… I would have advised him that I had Mr Kovac breaching his bail and I was intending to arrest him.
Exactly when and what Ralph told Adams during this call was challenged. Under cross-examination, Ralph confirmed that he could not remember making a phone call and there was no reference to any conversation that he had with Adams at that time in his notes – other than a mention of: “Requested Mochan Adams to attend”. He also confirmed that he had not made a note of any conversation with Adams in his earlier statements of 13 September and 15 December 2024 filed in this matter, and he conceded that he had no memory of providing Adams with information over the phone in terms of the traffic stop.
During cross-examination on the first day of the hearing, Ralph was asked about his mobile phone records. These were later tendered on day three of the hearing (after an adjournment of more than three weeks).[8] Once presented with this evidence, which revealed at least six outgoing mobile calls made to Adams from 1.33 am to the 2.02 am, during examination-in-chief the following exchange occurred:
[8] Exhibit VDP6.
Q. Do you remember making those phone calls, any of those phone calls.
A.I can’t recall the specific calls themselves, but it is common practice that I would be making phone calls during my shift, yeah.
Q.You’ve said previously that you remember making a phone call to Brevet Sergeant Adams. Do any of these calls stick out to you as being that particular call that you made to Brevet Sergeant Adams.
A.Yes, the one, I believe it to be on the first page, p.1, the 2.02 am, that would’ve been when I was requesting them to come and assist me.
…
Q.And so maybe just focussing on the other phone calls that we know are Brevet Sergeant Adams’ phone number, firstly, do you remember making those phone calls.
A.I can’t recall exactly making the phone calls. I do recall being in contact, now it’s been refreshed my memory with these phone calls, when I was at the Brenda Court speaking to Brevet Sergeant Adams, advising him that I had two vehicles.
…
Q.You can’t remember the specific content of those phone calls.
A.No.
Q.But you recall being at 3 Brenda Court when you remembered them.
A.So I recall being at 3 Brenda Court and, as per my phone calls, I made those calls. So when I was at that location it would have been in relation to that location and what I’d seen there, and the other call would be after the vehicle stop.
Q.Do you remember any reason why you would have made those phone calls.
A.Yes, because it’s common practice. I think as I said previously while giving evidence, we were trying to arrest Scott Pitt, as he was wanted, and that was an address of interest and the team all were briefed on his behaviours and where he was attending, and so we would report to each other information that we would gather during the shift.
During cross-examination, Mr Mead challenged the premise that Ralph telephoned Adams at 2.02 am for the purposes of helping him arrest Kovac as patently false because Ralph gave evidence that when he returned to the police car, also at 2.02 am, to perform the driver’s licence check it then took him five minutes to perform those checks – first checking the driver, then Kovac. There is force in Mr Mead’s submission that the 14 second mobile phone call at 2.02 am from Ralph to Adams could not have been about the imminent arrest of Kovac for breach of bail, or about being wanted in relation to serious criminal trespass, because, by his own account, Ralph could not have performed that check on Kovac by that time and was not initially aware that Kovac had any outstanding warrants or was in breach of his bail conditions. During cross-examination, Ralph refused to resile from his earlier account that he had called Adams at 2.02 am to assist with the arrest of Kovac. The following exchange occurred:
Q.And your evidence about having to request Officer Adams to assist you in the arrest of Mr Kovac is not true, is it.
A.That is true.
Q.You maintain that’s true, do you.
A.Yes, I do.
Q.You understand you’re under oath.
A.Yes, I do.
Q.So your evidence is that even though you had no intention at the time you spoke to Officer Adams of arresting Mr Kovac, the reason you requested his attendance was to help you arrest Mr Kovac.
A.Yes.
Ultimately, nothing substantive turns on this difficulty with Ralph’s evidence because it is apparent that Adams knew Kovac was being arrested for breach of his bail conditions before he commenced to search the vehicle. However, this exchange dampened my opinion about Ralph being a credible witness. It also diminished the reliability of his oral evidence more generally and contributed to my forming the impression that Ralph was seeking to reconstruct the events of that evening to improve the prosecution’s case for reasonable suspicion.
Mr Mead sought to deploy Ralph’s inconsistent evidence as a basis upon which I should find that Ralph and Adams were intending to illegally search the GW utility from the time Ralph and Johnson began following it after it left Brenda Street. Mr Mead also contended that the five earlier outgoing mobile calls made by Ralph to Adams, about which Ralph had no detailed recollection – and had failed to mention at all in his notes or earlier statements, also pointed to there being a plan between Adams and Ralph to illegally search the vehicle. Ralph denied that he had sought to conceal these conversations.
Though I have concerns about the reliability of Ralph as a witness, I do not go so far as to conclude that he was being dishonest or deliberately attempting to reconstruct the events of that evening to conceal any alleged plan to illegally search the GW utility from the time it left Brenda Street. However, my impression is that Ralph reconstructed parts of his evidence because it was what he envisaged “would have” or “should have” occurred and he was motivated to bolster the prosecution’s case.
Given Ralph’s admissions that he could not recall the details of what he informed Adams that evening during the five earlier phone calls, I do not accept his evidence that he told Adams that Kovac was wanted in connection with serious criminal trespass. There was simply no contemporaneous evidence of any mention being made to Adams of Kovac being wanted in connection with serious criminal trespass, including in Ralph’s notes, on the BWC footage or audio played from the police radio. Further, there was little scope for such conversations to have occurred when their BWCs were turned off. Again, I find this is something that Ralph reconstructed to bolster the grounds for forming reasonable suspicion.
Adams
Adams was the police officer with carriage of the search. The information that was available to him and his perception of matters prior to deciding to commence the search were critical to the outcome of the voir dire hearing. It is convenient to address his evidence in the context of those matters.
Before proceeding to the evidence Adams gave about the matters he claims informed his reasonable suspicion, it is appropriate for me to say something about his credibility, and the reliability of his evidence.
Adams gave conflicting evidence about when he was contacted by Ralph to attend the scene and how long it took for he and Mochan to arrive. His early evidence was that he and Mochan had been at the Sturt Police Station having a meal when he was called by Adams to come and assist with the arrest of Kovac. He had said that he recalled it taking him in the order of 20 to 25 minutes to arrive at the scene after receiving that call. However, later, during cross examination, it became obvious that his arrival at the scene (at or about 2.07 am) was not compatible with: (i) the time of the traffic stop (shortly after 2.00 am); and (ii) the mobile phone records of Ralph showing the 14 second call to Adams (at 2.02 am). When confronted with this inconsistency, Adams then claimed he must have “just got [his] times wrong” and proceeded to give a substantially different account of his travel to the scene, saying he was: “literally the next suburb along” and it was possible to arrive at the scene in that much shorter timeframe. This inconsistent account of his evidence caused me to strongly doubt the reliability of Adams’ memory of the events of that evening. His response to being confronted with inconsistencies in his evidence gave me a real concern as to his credibility. It appeared to me to be a deliberate attempt by him to navigate his way around a perceived difficulty in the prosecution’s case.
Further aspects of Adams’ evidence were also of concern to me, which I have addressed in the context of his reasons for the search as set out below.
When was the search power activated?
In McHugh v the Queen,[9] in relation to a general search warrant under s 67(4) of the Summary Offences Act, the Court of Appeal made it clear that the requisite degree of suspicion must exist at the time of the search, that is the time of the warrant being executed.[10] While there is no warrant required to execute a search under s 68, whether there was the requisite degree of suspicion is also to be determined at the time that the search commenced. Doyle JA stated in relation to s 67(4), in Young v The King:[11]
the text of s 67(4) links the existence of the reasonable suspicion to the police officer’s conduct in entering, breaking open and searching the relevant premises or receptacle.
[9] McHugh v The Queen [2022] SASCA 5.
[10] Ibid at [7] (Kourakis CJ, with Doyle and Lovell JJA agreeing) and [16] (Lovell JA).
[11] Young v The King [2024] SASCA 47 at [46] (Doyle JA, with Kourakis CJ and David JA agreeing).
By parity of reasoning, the same construction must apply to s 68, such that the police officer’s reasonable cause to suspect is adjudged at the activation of the search power.
It is apparent from Adams’ BWC footage that he announced that he intended to search the GW utility at 2.16.13 am and then commenced to act upon it. At or about that time he had also shone his torch in the tray area of the GW utility and looked into it. When he approached the occupants, he said:[12]
Move that seat forward. Everyone take a seat on this curb, take a seat on the curb right behind the car. Just take a seat right here, everyone take a seat. Alright take a seat on the curb. On the curb mate. Yeah alright before we start searching the car is there anything in there that we need to be aware of. No anything that’s gonna stick me, needles, otherwise.
[12] Exhibit VDP1. Also see the transcript of the BWC footage at Exhibit VDMFI2 (page 7 of 23, lines 27 to 33).
It was my impression from viewing the BWC footage that these actions by Adams marked the commencement of the search. However, I understood the prosecution to be contending that the search commenced several minutes later, at about 2.21.20 am, following a conversation between Adams and Ralph, as follows:[13] (emphasis added)
R - No warrants, no bail or anything (Ralph’s BWC Audio)
A – Clean?
R – But there’s definitely going to be something in the car…in that backpack he is trying to say is not his
[whispering is heard]
R – Search the car (Adams’ BWC Audio)
[13] This does not appear in full in the transcript of Adams’ BWC footage (Exhibit VDPMFI2) but it can be clearly heard on the recording itself as played into court (Exhibit VDP1). It is also heard on Ralph’s BWC footage and appears on the transcript of Ralph’s BWC footage (VDPMFI4).
Ultimately, nothing significant occurs between 2.16 am and 2.21 am, other than checks on occupants which did not reveal any further relevant information (ie “no warrants, no bail or anything”). As such, whether the search power was activated at 2.16 am or at 2.21 am has no real bearing on the outcome of this matter. I pause here to mention, I found it at odds with the statement by Ralph (above), that Adams did not go immediately to the backpack when the search was commenced; in fact, the BWC footage reveals the backpack was left towards the end of the search.
Mr Mead had contended that a decision to search the GW utility had been made by Adams and Ralph from the time it left Brenda Street. I accept that when the GW utility departed from Brenda Street both Ralph and Adams may have been eager to search the vehicle with a view to finding what was in it. I am also inclined to accept that the five or so mobile phone conversations between them from 1.33 am to 1.57 am may have canvassed the topic of searching vehicles leaving Brenda Street and this may have fuelled Adams’ eagerness to search the vehicle. To my mind, there is nothing inherently wrong with those kinds of discussions taking place between police engaged in carrying out surveillance provided that they were not hellbent on a search without meeting the pre-conditions to enliven the search power. In other words, there was nothing unlawful about the police contemplating a potential search of a vehicle that might leave Brenda Street. What matters is whether there were sufficient grounds to support the forming of reasonable suspicion by the time the search commenced.
What did Adams say justified the vehicle search?
During his examination in chief, Adams was asked about what justified his decision to search the GW utility in the following exchange:
Q. When you searched that Ute, what suspicions justified that search.
A.So when Senior Constable Ralph pulled over Mr Kovac, he called me to assist. I attended. He was currently wanted for serious criminal trespass and for breaching his curfew bail agreement. He was arrested and as part of that arrest a safety search was conducted where I located paperwork or Senior Constable Ralph located paperwork in the name of another person. There was also questions around a backpack that was sitting by his feet in the footwell of the vehicle, next to him. No-one was claiming ownership of that backpack, time of night and the fact that the other three people in the vehicle we also bona fide had some previous criminal history and dealings with police. I deemed it reasonable to suspect that there may be other possessions or objects in the vehicle that would constitute an offence, so I searched it.
To my mind, it is also relevant that Adams’ evidence points to the matters of the paperwork and the backpack raising suspicion in relation to Kovac personally and not necessarily providing a link to the possibility of offending objects being in the vehicle – so as to justify searching the vehicle (as opposed to a search of Kovac under s 68(1)(b)). For example, in relation to the paperwork, he said during examination in chief (emphasis added):[14]
Q. And what did you think when you saw that paperwork.
A. It raised my suspicions of other objects or items that may be in his possession or in the possession of the backpack, which at the time was being debated at whose it was, that there may be evidence of an offence as not – people don’t normally carry around paperwork that’s not in their name.
[14] T13.11-17.
Further, in relation to the backpack, Adams said during examination in chief (emphasis added):[15]
Q. What did you think when he said that the backpack wasn’t his.
A.This raised my suspicion further to think that he was trying to deny it belonging to him because there was something in it that may afford evidence of an offence.
[15] T14.26-30.

Later during examination in chief the following exchange took place concerning what Adams thought he might find in the backpack:
Q. So, what did you think would be in the backpack at that time.
A.Needles is generally something what I would ask for if it's going to hurt me or stick me, it's generally a needle, because, obviously, I don't want to be stuck by that. Other than that, I was uncertain at that time, but thought it would have possessions that belonged to him.[16]
[16] T16.16-23.
If Adams is believed, these exchanges reveal that his subjective suspicion was based on a “debate” about ownership of the backpack and finding paperwork on Kovac in someone else’s name; coupled with Kovac being wanted for serious criminal trespass and being in breach of curfew on his bail, and the three others in the vehicle having previous criminal history and dealings with police. For the reasons that follow, I find that not all of this information was available to Adams and that it is more probable than not that he has reconstructed his evidence to justify the search of the vehicle.
It is also relevant to my determination of this matter that Adams did not give cogent evidence that linked his suspicion in respect of the paperwork and the backpack to finding an offending object (or stolen goods) or evidence of the commission of an indictable offence in the vehicle. It is difficult for me to regard his suspicion arising from the backpack and the paperwork as having a sufficient logical connection to the possibility of finding any offending objects in the vehicle, other than a slight one because Kovac was a passenger. I address these matters further in my reasons below.
Criminal history of occupants
It is uncontroversial that Adams knew Kovac was in breach of the curfew conditions of his bail agreement prior to 2.16 am. However, given the timeline of events I have analysed above, I find it was not probable that Adams had known Kovac was in the GW utility until he arrived at the scene at about 2.07 am. Adams also admitted in cross-examination that he did not have information about any of the other three occupants (being the driver and the two passengers in the back seat) prior to commencing the vehicle search. In any event, the checks ultimately carried out on the driver and other passengers did not reveal any “warrants, bail or anything”.
I find that Adams could not have (subjectively) relied on the “criminal history and dealings with police” of the occupants of the GW utility (other than Kovac) prior to conducting the search (referring to his statement set out at paragraph 47 above). I note this was not information upon which the prosecution placed reliance. I am concerned that this amounts to another example of Adams seeking to reconstruct his evidence to bolster the prosecution’s case. Such matters are relevant, later in these reasons, to the manner in which I have found Adams approached his search powers more generally.
Kovac wanted in connection with a serious criminal trespass matter
Adams said that he had a conversation with Ralph when he arrived at the scene and was told that one of the people was wanted for a serious criminal trespass offence. Adams confirmed that was “part of” his suspicion in terms of searching the vehicle. Like Ralph, even when confronted with evidence from the BWC footage to the contrary, Adams resisted accepting that he had not been informed by Ralph, shortly after his arrival at the scene, about Kovac being wanted in connection with a serious criminal trespass matter. The following exchange occurred during cross-examination:
Q.Officer, do you agree that at no time during that portion of the video is the term ‘serious criminal trespass’ mentioned.
A.    Correct.
Q.And as I understand your evidence, this is when - it was that portion that you say you were informed that Mr Kovac had an outstanding serious criminal trespass.
A.    I believe in my notes it does say that.
Q.    Do you accept your notes are wrong.
A.    No.
Q.You say, having watched that portion of the video, that you were told that Mr Kovac was wanted for a serious criminal trespass.
A.      If I can refer to my notes I'll be able to say exactly what they say in my notes.
Q.I'm not asking you about your notes, I'm asking you about what's displayed on your body-worn footage which actually records what happened.
A.I may have done checks in the vehicle on the way there and been informed that he had other matters that he was wanted for, because we have access to that. I can't recall how it was determined.
Q.    You accept that you're not told.
A.    Yes, I accept that I'm not told.
Q.And you did give evidence only a matter of minutes ago that all you knew when you arrived at the scene was that you were there to assist with the arrest of someone.
A.    Yes.
Q.    That was your evidence, wasn't it.
A.    Yes.
Q.Officer, do you agree again that there's no mention at all from Officer Ralph about a serious criminal trespass in relation to Mr Kovac.
A.    Yes.
Q.    And, indeed, he was being arrested for a breach of bail.
A.    Yes.
Q.    In relation to a curfew.
A.    Yes.
Q.I want to suggest to you that that's all that was mentioned while you were present in relation to the arrest of Mr Kovac. Do you agree with that.
A.    Yes. Yes.
Q.And do you agree that at the time you decided to search the vehicle you had heard nothing at the traffic stop about a serious criminal trespass in relation to Mr Kovac.
A.I can't determine whether that - I haven't heard anything from Senior Constable Ralph about the SCT, or whether I had done checks prior to on our police systems, I can't tell you whether I did or didn't.
Q.    You don't have any memory of doing those checks, do you.
A.    No.
Q.And your evidence previously was that when you arrived all you knew was that you were going to assist in the arrest of someone.
A.    Yes.
Q.And that you'd only had a very brief conversation with Officer Ralph while you were in the dining room at the Sturt Police Station.
A.    Yes.
Q.Do you accept, therefore, that you had no information about Mr Kovac being wanted in relation to a serious criminal trespass.
A.    No.
Based upon the above exchange, and the contemporaneous BWC footage, I am satisfied that Adams was not aware of Kovac being wanted in connection with any serious criminal trespass matter prior to commencing to search the vehicle. In any event, Adams gave no specific evidence about the details of the alleged serious criminal trespass matter, including where it had occurred and whether it was in connection with something that had occurred that evening or some time ago. At best, the information was vague, and I have difficulty finding it would have informed any suspicion to search the vehicle, even if known to Adams.
My impression of the above exchange, in Adams giving his evidence, is that he was reconstructing events to bolster the prosecution’s case. When confronted with difficulties in his evidence about Kovac being wanted in relation to serious criminal trespass he sought, in a misconceived way, to navigate his way around those difficulties grasping at alternative possibilities that he thought were favourable to the prosecution’s case (like conducting a search on Kovac using the SHIELD system in the police car on the way to the scene - when he could not have known about Kovac being present at that stage). Adams’ refusal to concede the possibility of any error on his part also demonstrates his obstinance and supported my view that he was not a credible or reliable witness.
What did Adams know about the paperwork found on Kovac?
In relation to the “paperwork” Adams gave the following evidence in chief:
Q.    What did you think when – well, Senior Constable Ralph found that paperwork.
A.    Yes, and handed it to me.
Q.    And what did you think when you saw that paperwork.
A.It raised my suspicions of other objects or items that may be in his possession or in the possession of the backpack, which at the time was being debated at whose it was, that there may be evidence of an offence as not people normally carry around paperwork that’s not in their name.
Q.I don’t want to put words in your mouth, but it seemed unusual to you, is that fair to say.
A.    It did.
Q.    Did you ask Mr Kovac about the paperwork.
A.    Yes.
Q.    What did you ask him.
A.    Whose is this paperwork? Where did you get it?
Q.    Did he answer you.
A.    He said it wasn’t his.
Q.    Did he give an explanation for why he had it.
A.    Not that I can recall.
The above exchange reveals that Adams was relying only upon the “paperwork” being in someone else’s name; the forming of his subjective suspicion in relation to the paperwork must be so confined. It appears from the BWC footage that when the paperwork was discovered on Kovac he indicated that he might have found it “in the bins”. As noted, Adams does not appear to have relied upon this in informing his subjective suspicion. As the BWC footage reveals that it is likely a reasonable person would have heard Kovac’s disjointed response about finding it at the bins, I consider it in the context of the forming of reasonable suspicion below.
What information did Adams have about the backpack?
In relation to the backpack, Adams gave the following further evidence in chief, after stating that the backpack was in the footwell at the front left side of the vehicle when he arrived at the scene (emphasis added):
Q.Just pausing there, when you walked up, just maybe going back a step, when you walked up to the vehicle and spoke to Senior Constable Ralph, where was Mr Kovac at that time.
A.    I believe he was still sitting in the vehicle.
Q.    And did you have a look through the window to look at him.
A.    Yes.
Q.    Did you see the backpack at that time.
A.    Yes.
Q.    Where was it situated.
A.    It was situated it the footwell next to Mr Kovac's legs.
QSo, Mr Kovac was searched, you found some paperwork, did you at that time make any assumptions about who that backpack belonged to.
A.    I believed or had suspicion to believe that it was Mr Kovac's backpack.
Q.    And why did you assume or suspect that it was his backpack.
A.We asked all the other occupants in the vehicle if the backpack belonged to them, they denied. We also - it was sitting right next to him at the time when we pulled him over.
Q.    Did you ask Mr Kovac whether it was his backpack.
A.    Yes.
Q.    What did he say.
A.He said he found it near a bin earlier. [This refers to a later statement made after 2.35 am.]
Q.    Sorry, at that time when he was under -
A.    He said it wasn't his.
Q.    What did you think when he said that the backpack wasn't his.
A.This raised my suspicion further to think that he was trying to deny it belonging to him because there was something in it that may afford evidence of an offence.
Q.    Was there anything about his answer that caused you to suspect.
A.    I just felt like it was odd that no-one was claiming that a backpack that was in the vehicle belonged to them, the fact that he had it sitting by his legs and was denying knowing about it was suspicious.
During cross-examination Adams clarified what he knew about the backpack prior to making the decision to search the vehicle:
Q.You also then, as I understand it, had some sort of conversation with the person you now know to be Mr Kovac and the people in the vehicle about the ownership of the backpack.
A.    Correct.
Q.    And you say you spoke to the people in the car.
A.    Yes.
Q.    At that time.
A.Not at that time, when they were outside the car, in the vehicle, sitting on the kerb, on the body-worn.
Q.    And that was at a time after you had begun to search the vehicle, wasn't it.
A.    Yes.
Q.    And that was at a time after you'd formed your intention to search the vehicle.
A.    Yes.
Q.You, in fact, hadn't had any conversation with anyone in the car prior to that time about the ownership of the backpack, had you.
A.    Other than Steven.
Q.    The only person was Steven, Mr Kovac.
A.    Yes.
Q.    And he said it wasn't his.
A.    He claimed it was Sam's [being Burdon – the driver].
Q.    And at the time Sam had agreed that it was his.
A.    I believe so, yes.
Q.    And that was the only information you had at that stage about the backpack.
A.    Yes.
Q.All of the conversations about the disputed ownership occurred when the other gentleman was sitting outside the vehicle, do you agree with that.
A.    Yes.
Q.    And that was after you had, in fact, started to search the vehicle.
A.    Yes.
As there was some controversy at the hearing about this topic, it is important that I address the evidence very carefully as to what information was available to Adams in relation to the so-called “dispute” about ownership of the backpack when he made the decision to search the vehicle.
There is no doubt that there was a “dispute” or “debate” between the driver and the other passengers about ownership of the backpack after the search of the vehicle had commenced and when they were out of the vehicle and sitting on the kerb. The footage from Adams’ BWC captures this dispute from about 2.35 am, being well after the search of the vehicle had commenced. An excerpt from the BWC footage is as follows: (emphasis added)
[Adams to driver and other passengers: 2.35 am]
Adams:Is this your backpack or his, he’s saying its yours, you said it was yours in the car. Is this yours?
…
Adams:     … don’t know yet its either his or yours. Yes no maybe?
Burdon:    Not mine.
Adams:     It’s not yours.
[Adams to Kovac: 2.35.30 am]
Adams:     Is this your backpack.
Kovac:      Yes, we, I found it was at the bins before.
Adams:     Ok.
…
Kovac:      Its not my bag like … yeah I put my bumbag in there and that’s it.
Adams:     Ok alright.
It is obvious that this dispute could not have informed Adams prior to commencing to search the vehicle at or before 2.16 am; or even prior to 2.21 am when the prosecution claims the decision to search the vehicle was made (as described at paragraph 44 above) or even later as the driver’s seat was being searched (at about 2.24 am).
The only so-called dispute about the backpack that was extant prior to the commencement of the search could have only related to brief comments made by Kovac when he was asked to get out of the GW utility to be arrested for breach of his bail conditions. That discussion occurred at 2.11.35 am and is captured on the BWC of both Adams and Ralph:
Ralph:       Keep your stuff with you, and your backpack in the car.
Kovac:      That’s not mine, not my backpack
Ralph:Well, it was right next to you in the front there, why are [you] saying that’s not your backpack.
Kovac:      It’s his [indicating the driver] backpack not mine.
Ralph:       What do you mean that the backpack
Kovac:Sam [being Burdon, the driver] that’s yours not mine aye, that’s not my backpack that’s yours, yeah I didn’t come [over?] with anything that’s not my backpack.
Johnson was standing nearby when Kovac was being arrested at that time. His BWC also picks up this discussion with Kovac about the backpack. On the footage of his BWC, at 2.11.50 am, the driver, Burdon, can be heard to claim ownership of the backpack:
Burdon:    Hm? What’s going on? Hm?
Kovac:      That’s yours it’s not mine.
Burdon:    Hey?
Kovac:      That’s not my backpack its yours.
Burdon:    Yeah, it is – my backpack.
It is apparent from the later discussions about the backpack at 2.35 am between Adams and Burdon (set out at paragraph 63 above), that Adams is cognisant of Burdon having claimed ownership of the backpack at the earlier time (which contrasts with Adams’ earlier oral evidence that there had been a “dispute” about ownership of the backpack).
In view of these matters, I find it is more probable than not that Adams’ memory (if genuine) of a “dispute” or “debate” about the backpack was a memory of the dispute which in fact took place at about 2.35 am, after the search of the vehicle had commenced. The extent of Adams having any cause for suspicion in relation to the backpack is therefore confined to the earlier conversation that took place when Kovac was being arrested during which he denies ownership of the backpack when Adams assumes it is his. It is possible Adams held a subjective suspicion about the contents of the backpack, though at this stage it may have bordered on being nothing more than idle wondering or curiosity. In any event, for reasons I address below, I do not give this factor any significant weight in relation to the formation of reasonable suspicion enlivening the power to search the GW utility.
Did Adams have requisite suspicion?
Legal principles
Resolution of the application in relation to the vehicle search turns on whether Adams reasonably suspected that a search of the vehicle might uncover an object, possession of which constitutes an offence (including stolen goods).
There are two prongs to determining this, first, whether Adams subjectively held a relevant suspicion prior to searching the GW utility; and secondly, whether that suspicion was reasonably held.
Subjective suspicion is a state of conjecture or surmise where proof is lacking but it must be more than mere “idle wondering” about whether something exists or not;[17] it is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion without sufficient evidence.[18] There must also be a rational connection between the supporting material and the suspicion, which is a factual question.[19]
[17] R v Nguyen (2013) 117 SASR 432 at [21] (Kourakis CJ, Blue and Stanley JJ).
[18] R v Mitchell [2020] SASC 147 at [10] (Lovell J).
[19] Ibid.
Whether reasonable suspicion attaches to certain conduct or circumstances is a factual question and an element of objectivity is imported into the assessment.[20] It requires an assessment of whether the information available to the police officer at the time the power of search is engaged would “rationally produce a suspicion in the mind of … a person thinking reasonably about that information”.[21]
[20] Ibid.
[21] R v Nguyen (2013) 117 SASR 432 at [22]; Bae v The Queen and Koo v The Queen (2020) SASR 522 at [76] (Kelly J, with Stanley and Parker JJ agreeing).
Significant to this matter, the requisite degree of suspicion must exist at the time of the search;[22] as I have found above, the decision by Adams to search the GW utility was made no later than 2.16.13 am, being the time when Adams announces he is going to search the vehicle and directs the remaining occupants to sit on the kerb.[23] The search commenced, at the latest, by about 2.24 am – though I consider it more likely commenced shortly before this time (see paragraph 44 above).
[22] R v Mitchell [2020] SASC 147 at [10] (Lovell J); R v Frantzis (1996) 66 SASR 558.
[23] Exhibit VDP1 – disc of BWC footage of Adams.
I must evaluate the reasonableness of this suspicion in the context of the purpose of the search power, and the civil liberties abrogated by their exercise.[24] This provides a reason for the courts to retain a supervisory role in determining whether a subjectively held suspicion was in fact a reasonably held one in the circumstances of a particular case.
[24] R v Nguyen (2013) 117 SASR 432 at [22].
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.[25] On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.[26] The assessment is necessarily fact sensitive, and no universal or prescriptive rules apply.
[25] Ibid.
[26] Ibid.
The determination of this issue requires me to put myself in the position of Adams, with the knowledge he had at the time of commencing the search, and to ask whether, in those circumstances, a reasonable person in possession of such information would have entertained the same suspicion.[27] In so doing, the prosecution emphasised the need for me to have regard to the significant experience of Adams in his various roles as a police officer since 2016, including his experience in investigating serious drug offences and conducting vehicle searches following a traffic stop. For Adams’ suspicion to be a reasonable one, there had to be something more than a tenuous, even if rational, connection between the information he had available to him and the working hypothesis that there was an offending object in the vehicle.[28]
[27] Ibid.
[28] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303 (Kitto J).
Information available to Adams

As I have set out above, the prosecution contends that the search was lawful on the basis that Adams had reasonable cause for suspecting that there were “possessions or objects” in the vehicle that would constitute an offence.[29]
[29] T8.26-29.
In his evidence-in-chief on day one of the hearing, Adams said that he had formed a suspicion based upon knowing the following information:[30]
·Kovac was wanted for serious criminal trespass and breaching his “curfew bail agreement” (as mentioned above (paragraph 56), I am not satisfied any information about Kovac being wanted in connection with serious criminal trespass was available to Adams);
·Service SA “paperwork” in the name of another person had been found on Kovac during his safety search (as mentioned above (paragraph 59), Adams does not subjectively rely on the disjointed indication by Kovac that he might have found the paperwork at the bins);
·there had been “questions around the backpack that was sitting by his feet in the footwell of the vehicle” next to Kovac and “no-one was claiming ownership of that backpack” (as mentioned above (paragraph 66), the driver had in fact claimed ownership, and the other occupants were not denying ownership);
·the time of night when the vehicle was stopped; and
·the three other people in the vehicle also “bona fide had some previous criminal history and dealings with the police” (as mentioned above (paragraph 54), I am not satisfied such information was available to Adams).
[30] T8.14-26.
By day three of the hearing, after being recalled, he said in a challenge to his evidence during cross-examination:[31] (emphasis added)
I don’t believe my suspicions were based on the car leaving 13 Brenda. I believe my suspicions were based on the defendant, Mr Kovac, having a letter in someone else’s name on his person. That is suspicion enough for me at that time of night, and the fact they were denying who the bag belonged to, that I could enter that vehicle and search under my powers of s. 68.
[31] T139.30-36.
Adams then, almost immediately, seemed to step away from that statement, with the following exchange:[32]
Q.So your evidence now is that the fact the vehicle had left Brenda Avenue had absolutely nothing to do with your reasonable suspicion in searching the vehicle.
A.It added to my suspicions. I’m not saying it had nothing to do with it, but I’m saying it was a very minor part of my suspicions.
[32] T139.37-T140.4.
By the end of this exchange, it seems all Adams was relying upon to form his subjective suspicion was finding Services SA and council paperwork in someone else’s name; the occupants of the vehicle denying who the backpack belonged to (which the contemporaneous evidence did not support); the time of night, and the vehicle leaving Brenda Street.
As I have found Adams to be an unreliable witness (see paragraphs 39, 51, 54 and 57 above), who attempted to reconstruct his evidence to bolster the prosecution’s case, I have difficulty in accepting much of what he said he relied upon to form his subjective suspicion. Accordingly, I am not satisfied that the prosecution has discharged its evidentiary burden which relies upon establishing Adams’ state of mind. I think it is more probable than not that Adams did not turn his mind to forming a subjectively held suspicion about there being an offending object in the GW utility, beyond mere idle wondering. Instead, I find it more probable than not that Adams later turned to reconstructing his evidence in an effort to demonstrate he had made a rational connection between information he thought (in hindsight) would have been known to him and the suspicion he needed to form to conduct the search. In the event my finding, as to Adams not having the requisite suspicion, is wrong, the issue of the lawfulness of the search is able to be conclusively determined by considering whether Adams held the requisite reasonable suspicion. It is to that issue which I now turn.
Reasonable suspicion
Ultimately, in closing, Mr Powell contended that the key pieces of information to support Adams having requisite reasonable cause to suspect there were objects in the vehicle, possession of which would constitute an offence, were his knowledge that:
1.   the vehicle had come from a house of interest to the police in Brenda Street, Mitchell Park;
2.   Kovac was in breach of his bail conditions (with less emphasis on the knowledge of Kovac being wanted for serious criminal trespass);
3.   the discovery of the paperwork of another person on Kovac, with Kovac indicating that he found it in the bins;
4.   the existence of the backpack in the front footwell of the GW utility and Kovac denying ownership of it.
Mr Powell submitted that these pieces of information must be viewed together, such that one informs the other, with each piece of information being viewed in the context of the other pieces of information.
Mr Mead contended that even if I were to find that all those pieces of information were known to Adams, prior commencing the search, they do not constitute a sufficient foundation for formation of reasonable suspicion. For the reasons that follow, I agree with Mr Mead that there was insufficient information upon which Adams could have had reasonable cause to suspect that there was an offending object in the vehicle.
I turn now to consider, in turn, each piece of the information which the prosecution claims a reasonable person standing in the shoes of Adams could have taken into account prior to deciding to conduct the search. I am mindful that it is necessary for me to have regard to the combined force of the information available. No one piece of information should be excluded from examination of the reasonableness of the suspicion merely because, standing alone, it might be intractably neutral or otherwise explicable.[33] However, information or circumstances that have a readily apparent and innocuous explanation are unlikely to add much to the broader assessment that must be made.[34]
Brenda Street
[33] R v AS and Raynor [2023] SADC 60 at [132].
[34] Ibid.
The Brenda Street property at Mitchell Park was considered by Adams and Ralph to be a known place of interest to police. Ralph described it by reference to Scott Pitt who was wanted for offences involving dishonesty. This was also consistent with Johnson’s evidence. Adams gave an account of having some prior knowledge of Brenda Street as a house at which he knew of “past drug activity” and of “vehicles coming and going from the address at all times of the day and night”. He confirmed he had never been inside the house. Adams did not give any evidence to specify what criminal activity he associated with the house on the evening the GW utility was intercepted. I find that Adams had only vague knowledge that Brenda Street was a house of interest for police as he did not draw any connection between the house and any category of object he might have expected to find because the GW utility had left from that house.
While there was some confusion in the evidence provided by both Adams and Ralph as to precisely when Adams was informed about the GW utility having left the Brenda Street address, I am satisfied on the evidence of Johnson that that information was conveyed by Ralph to Adams during the one minute and 30 second mobile phone call that took place at 1.57 am while Ralph and Johnson were sitting in their police car at Nellie Avenue. However, it is significant that there was nothing at that stage to connect Kovac with the Brenda Street address or with him being a passenger in the GW utility. I agree with the contention of Mr Mead that the 14 second mobile phone call that took place at 2.02 am, after the GW utility had been stopped, was made by SC Ralph to inform SC Adams only that the vehicle had been stopped on Lanark Avenue.
I accept Adams’ evidence that he considered there was a possible connection between the GW utility and the Brenda Street address because he had been told by Ralph that it was parked outside that property. However, that connection was tenuous. It was also speculative to think that there was any nefarious connection between Kovac and that address, noting that Adams told the court that he did not know Kovac prior to that evening. Ultimately, the only fact connecting the GW utility to the Brenda Street address was that it had been parked outside that address.
There is a possibility that Ralph had informed Adams during one of the earlier calls to his mobile phone that a person of interest, Scott Pitt, might be travelling in the vehicle from Brenda Street. However, it is not evident from the BWC footage of any of the officers or the audio from the police radio that there was any interest in determining whether Scott Pitt was in the vehicle when it was stopped. Once it was determined that Scott Pitt was not in the vehicle, any connection with Brenda Street would seem to be of no relevance to conducting the search of the vehicle.
The fact that Adams knew the GW utility had been parked at the Brenda Street address is to my mind of little consequence to informing reasonable suspicion.
Breach of bail and serious criminal trespass
When Adams arrived at the scene of the traffic stop he commenced assisting Ralph with the arrest of Kovac for breach of bail. I accept that Adams was therefore aware that Kovac had breached the curfew conditions on his bail before he searched the GW utility. However, I am not satisfied that Adams knew that Kovac was also wanted in connection with a matter of serious criminal trespass. In any event, it never became clear as to the capacity or purpose for which Kovac was wanted in relation to serious criminal trespass; and no details were mentioned at the hearing or otherwise revealed.
There was no mention of serious criminal trespass on any of the BWC footage of the three police witnesses played in court or in the audio recording of the police radio. Ralph could not find any mention of Kovac being wanted in relation to serious criminal trespass in his eight pages of notes that he was permitted to refer to in the witness box. Further, though Adams had given evidence that when he arrived at the scene he had an “in-person” conversation with Ralph about Kovac being wanted in relation to a serious criminal trespass, after being played footage from his BWC from the evening, he confirmed he was not told anything by Ralph about any serious criminal trespass when arriving at the scene.[35] This is evident from the following part of the cross-examination:[36]
Q.Having watched your body-worn footage do you accept that you weren’t told anything about serious criminal trespass when you arrived.
A.When I arrived, correct.
[35] T35.24-27.
[36] T35.13-16.
He also accepted this was contrary to his sworn statement which he had signed on 14 July 2024 – about which he could give no explanation to the court. He further accepted that he had not mentioned any telephone communication with Ralph prior to arriving at the scene in his sworn statement of 13 January 2025, and he had maintained in that statement that he had been informed about the serious criminal trespass when he arrived at the scene.[37] In the face of the BWC footage he was forced to accept that did not happen.[38]
[37] T36.16-22.
[38] T36.20-22.
There was a possibility of Ralph informing Adams about the serious criminal trespass matter during an approximate 28 second break when the BWC of Ralph was turned off immediately before Adams announced he was going to search the vehicle. However, I am not satisfied that such information was given to Adams at that time because it was a very short window of time during which Adams also walked from the police car back to the GW utility; during this time Adams is heard speaking to Kovac on his BWC footage, and there was no reference to any such conversation about the serious criminal trespass matter in any of their earlier sworn statements.
The other possibility of Adams being informed about the serious criminal trespass matter was traversed when Adams was giving evidence that he looked up Kovac on the police SHIELD system when driving to the scene, after receiving the (14 second) call from Ralph at 2.02 am. However, I am not satisfied that this occurred because the mobile phone call to Adams occurred at 2.02 am, being almost immediately when Ralph returns to the police car to commence the check on the driver’s licence, and before he could have had time to carry out any check on Kovac. Further, Ralph gave evidence that when he recognised Kovac in the passenger seat of the vehicle he was not then aware that Kovac was in breach of his bail curfew or that he was wanted in connection with a serious criminal trespass matter. It is also apparent that Adams could not have known at any earlier time that Kovac was in the GW utility so as to conduct a check on him. The BWC footage of Ralph shows that he returned to the GW utility at 2.08 am to inform Kovac that he was in breach of his bail, with Adams and Mochan arriving at the scene at 2.07 am.
Finally, when Ralph is in the process of arresting Kovac at about 2.11 am they discuss the backpack and his curfew, and it is a stark omission that no mention is made by Ralph or Adams at that time about Kovac being wanted in connection with serious criminal trespass. In the context of the conversation that occurred with Kovac at that time during the process of his arrest, I find it implausible that neither Ralph nor Adams would not have mentioned the matter of the serious criminal trespass if it had been known to them.
In view of these matters, I find that Adams was not aware of Kovac being wanted in connection with serious criminal trespass at the time he made the decision to search the vehicle. Even if I had found Adams had knowledge of this matter, I think it would of itself be of little weight; Kovac being wanted in relation to a serious criminal trespass matter did not provide any cogent link to finding an offending object in the GW utility. In contrast, it was not a case where it was alleged, for example, that Kovac had been fleeing the scene of a serious criminal trespass that evening.
It is uncontroversial that Adams knew Kovac was in breach of the curfew conditions on his bail agreement when he decided to search the vehicle. A person being in breach of bail does not provide a logical connection to suspicion of an offending object then being in the vehicle in which that person is travelling. Even in the context of Ralph being an experienced police officer, and the traffic stop occurring in the early hours of the morning with the vehicle having left a place of interest, I am not satisfied that the discovery of the fact that Kovac was in breach of his bail to be of any great consequence for the decision to search the vehicle. It adds little to the formation of any reasonable suspicion to search the GW utility that evening.
The paperwork
Upon conducting a “safety search” of Kovac during the process of his arrest, Services SA and council paperwork in the name of another person, “Mr Jack Fountas”, was found in Kovac’s pocket. Adams gave evidence that he did not consider it normal for people to carry around paperwork “that's not in their name”, and the prosecution also placed emphasis on Kovac indicating to Adams (albeit in a disjointed way) that he had found the paperwork “in the bin”. As noted above, Adams did not rely on this indication about “the bin” to inform his subjective suspicion.
To my mind, there is nothing inherently incredulous or suspicious about a person being found with paperwork in the name of another person; there could be any number of valid explanations for this. I accept that the odd and disjointed explanation proffered by Kovac, that he had found the paperwork in the bins, may have contributed to a reasonable person thinking that Kovac was lying about the paperwork and, in turn, this may have spawned his curiosity about what Kovac had been doing that night. However, this piece of information rises no higher than a minor contributing factor to determining whether Adams formed the requisite reasonable suspicion. As noted above, in this regard it is relevant that the paperwork did not provide any real connection to the vehicle – the only connection being that it was found on Kovac who was a passenger in (and not even the driver or owner of) the GW utility.
The backpack
The backpack, which was found to contain the methylamphetamine and MDMA - being the subject of the charges against Kovac, was an item of particular focus for the prosecution.
In his submissions, Mr Powell sought to confine Adams’ reliance upon the so-called dispute about the backpack to Kovac denying ownership of it when he was being arrested (at or about 2.11 am) – being prior to the commencement of the search. It was appropriate for him to do so because the later dispute could not have informed the decision to search the vehicle (see paragraphs 60 to 68 above).
Adams gave evidence that it seemed unusual to him that nobody would claim ownership of the backpack, considering it was sitting in the footwell of Kovac's passenger seat. And it was the denial by Kovac that he owned the backpack that Adams said indicated to him that there may be ultimately items constituting an offence located in that backpack. I accept this may have informed Adams’ subjective suspicion. However, the issue for the court is whether it is significant to the forming of reasonable suspicion.
The question for the court is therefore whether the statements made by Kovac that the backpack was not his – but the drivers, and the driver confirming it was his backpack, are sufficient to contribute to Adams forming a reasonable suspicion to conduct the search. In considering this issue, I am alert to fact that the BWC footage did not show Kovac giving any indication to the police officers that he owned the backpack; it was merely an assumption made by Adams because it was sitting in the footwell next to him. For example, at no relevant stage did Kovac touch, hold or pick up the backpack or take anything from it that would then more obviously make a denial of ownership seem suspicious. I note that this was not a circumstance where no one wanted to know about the backpack - to the contrary, Burdon had said it was his.[39] Further, there was no indication that anyone had lied to the police.[40]
[39] Compare the facts in Wilson v R; Morrison v R (1994) 176 LSJS 435.
[40] Ibid.
Mr Powell impressed upon me the fact that the backpack was in the footwell of the front passenger seat where Kovac had been sitting contributed to Adams finding it “unusual to him that nobody would claim ownership of the bag”. Further, Mr Powell submitted that the exchange between Kovac and Burdon, where Burdon claims ownership of the backpack, ought not to have voided Adams’ suspicion in relation to the backpack. I accept that a reasonable person would not be naively gullible, however that is not this case.
Mr Mead said there was not a “dispute” about ownership of the backpack prior to the search commencing. I accept Mr Mead’s submission and find that Kovac’s denial of ownership of the backpack prior to the search to be of little consequence to the formation of reasonable suspicion. For the reasons that follow, I reject the proposition that there was any real question or dispute about ownership of the backpack at that early stage, prior to the commencement of the search, that could have contributed to Adams’ reasonable suspicion in any material sense.
I find that in giving his evidence Adams has also likely confused the sequence of the events of that evening, perhaps subconsciously so. As such, his evidence was misguided in giving emphasis to there being a dispute over ownership of the backpack.
When the conversation about the ownership of the backpack occurs, prior to any decision being made to search the vehicle, I think it is inaccurate to describe it as a “dispute”; I find that it amounted to no more than a denial of ownership by Kovac. And I find that there may have been a very good explanation for Kovac to deny ownership. For example, the backpack may have in fact belonged to Burdon (the driver) – which Burdon confirmed at the time (and Adams knew he had so confirmed). It should be thought by a reasonable person to be very usual for a driver to place their belongings on the front passenger seat beside them and, if a passenger is sitting on the seat, for those belongings to be put in the footwell of that seat. It was not reasonable for Adams to be overly incredulous about Kovac denying ownership of the backpack in those circumstances.

As such, to my mind, Kovac’s denial of ownership of the backpack is of marginal relevance to the formation of reasonable suspicion.
Conclusion on reasonable suspicion
Although I have analysed the above pieces of information separately, it should not be thought that I have viewed them in isolation to one another. One piece of information will be informed by the other pieces of information, and I must consider all information in a holistic way to determine whether it is sufficient to have caused suspicion in the mind of a person thinking reasonably about that information. It is also necessary for me to consider the combined force of all these pieces of information in the context of Adams being an experienced police officer at the scene that evening.
In my view, the reasonableness of the suspicion of Adams was insufficient. The information that was available to Adams prior to commencing to search the vehicle was only that:
·Kovac was a passenger travelling in the vehicle, which had been stopped in the early hours of the morning for a licence check by Ralph and Johnson - in the hope of finding Scott Pitt in the vehicle (he was not so found);
·the vehicle had travelled from a house of interest to the police - which Ralph and Johnson had been observing, but Adams did not know of any other connection which the vehicle or its occupants had to that house (I accept Adams also had some past general knowledge about the Brenda Street house, but nothing significant or relevant to that night);
·Kovac was in breach of curfew on his bail conditions, but Adams did not know that Kovac was also wanted in connection with a matter of serious criminal trespass;
·Kovac had paperwork on him which was in the name of someone else, which Kovac indicated, in a disjointed manner, that he found in the bin; and
·Kovac denied ownership of a backpack that was in the footwell of the front passenger seat where he had been sitting, but the driver had confirmed it was his and there was no reason for Adams to think otherwise.
In my opinion, any connection between these facts and the existence of an offending object in the vehicle was a tenuous one and something more compelling than the information Adams had before him was required. Just because a vehicle has travelled from a place of interest in the early hours of the morning (without any other connection to any criminality at that address), and a passenger in the vehicle is found to be in breach of curfew conditions on their bail agreement, does not present a factual foundation for searching the vehicle. This remains so even when: (i) paperwork in the name of the other person is found on a passenger, such a matter is of no great moment in terms of suspecting the existence of offending objects in the vehicle in which they are travelling; and (ii) the front seat passenger denies ownership of a backpack in the footwell of his seat. As I have said above, the denial of ownership of the backpack was of little consequence because a person acting reasonably would have viewed it as extremely plausible for the backpack to have belonged to the driver.
To my mind, the only fact of any real consequence, something which Adams did not himself recall, was the odd and disjointed indication by Kovac that he found the Services SA and council paperwork “in the bin”. To my mind when viewing the BWC footage this indication by Kovac was of little moment in the context of the scene. I accept it may have given an impression of a consciousness of guilt by Kovac. However, I am not satisfied it provides any telling link to the GW utility and to suspicion about any offending objects or evidence that might be in the vehicle (even when considered together with the other available information). I accept s 68 does not require the searching officer to have knowledge of a particular offence or of the kinds of objects in the vehicle. However, to my mind, it is not a determinative or significant factor weighing on the formation of reasonable suspicion to ground a search of the vehicle.
When taken together, the information available to Adams was not capable of giving rise to a reasonable cause for him to suspect there was an object in the vehicle, possession of which constituted an offence (including stolen goods), or that there was evidence of the commission of an indictable offence in the vehicle. The search of the GW utility was therefore unlawful.
Despite my concluding that the search was unlawful, I acknowledge that, in a case such as this, the task of deciding whether to search a vehicle in the early hours of the morning may not be an easy one for police. Imbued with the role of police is the noble objective of keeping our community safe; however, the law also demands that the important civil liberties of individuals abrogated by the exercise of police search powers be borne steadily in mind when exercising those powers. Such sentiments are picked up below in my discussion of the public policy discretion.
The public policy discretion
In view of my having found that the search of the GW utility was unlawful, it is necessary for me to consider whether the incriminating evidence obtained in consequence of the search should be excluded in the exercise of the public policy discretion.
The legal principles applicable to the exercise of that discretion are well settled. [41] Ultimately, I must navigate between the need for bringing offenders to account, and the need to ensure the court is not seen to provide tacit endorsement of the unlawful conduct of the police.[42] Further, it is well understood that, in a matter such as this, the exercise of the discretion is not concerned with fairness to the accused.[43]
[41] Bunning v Cross (1978) 141 CLR 54 at 78-80 (Stephen and Aickin JJ); R v Rockford (2015) 122 SASR 391 at [39] and [41] (Stanley J, with Kourakis CJ and Sulan J agreeing).
[42] R v Armistead [2019] SASCFC 85 at [104]; Kadir v The Queen (2020) 267 CLR 109 at 125 (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); R v Golja [2017] SASCFC 61 at [35] (Stanley J, with Parker J agreeing).
[43] Bunning v Cross at 74-75 (Stephen and Aickin JJ).
The exercise of the Bunning v Cross discretion to exclude will be informed by considering and balancing a number of matters, including:[44]
1.   The nature of the offence charged.
2.   The probative value of the evidence, and its importance in the proceedings.
3.   Whether the police conduct involves illegality, impropriety,[45] entrapment,[46] or unfairness.[47]
4.   Whether the conduct by police was deliberate, or resulted from a mistake.
5.   Whether the nature of the conduct affected the cogency of the evidence so obtained.
6.   The ease with which those responsible might have complied with the law in procuring the evidence in question.
7.   The legislative intention (if any) in relation to the law that is said to have been infringed.
8.   Whether the conduct was encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.[48]
[44] Alzuain v The King [2025] SASCA 67 at [343] (the Court) adopting Middlin-Hannah v The Queen (2020) 137 SASR 366 at [155] (Livesey J), citing Bunning v Cross at 74-75 (Stephen and Aickin JJ) and R v Swaffield (1998) 192 CLR 159 at [135] (Kirby J).
[45] Cleland v The Queen (1982) 151 CLR 1 at 20 (Deane J).
[46] Ridgeway v The Queen (1995) 184 CLR 19 at 31-32 (Mason CJ, Deane and Dawson JJ).
[47] R v Lobban (2000) 77 SASR 24; cf Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288-289 (the discretion does not apply where police officers give false evidence as to how material was obtained), Director of Public Prosecutions v Moore (2003) 6 VR 430 at [55] (the unlawful or improper conduct must be the means by which the evidence was obtained).
[48] Ridgeway v The Queen (1995) 184 CLR 19 at 31-32 (Mason CJ, Deane and Dawson JJ).
Mr Powell submitted that the key consideration for me in the exercise of the discretion is whether the unlawfulness was born from a deliberate or reckless impropriety by police, or born out of some mistake. I understood Mr Powell’s reference to mistake to be a reference to the police having a genuine misunderstanding about their search powers as opposed to a deliberate or reckless attitude towards them, which is consistent with the test as it was articulated by the High Court in Bunning v Cross. In this regard, I note that it has been observed that the discretion to exclude unlawfully obtained evidence on public policy grounds is directed to “deliberate or reckless disregard of the law by those whose duty it is to enforce it”.[49]
[49] Bunning v Cross at 78 (Stephen and Aicken JJ); Pollard v The Queen (1992) 176 CLR at 204 (Deane J).
I have not found Adams to have deliberately flouted the search powers under s 68. However, for the reasons that follow, I consider the manner in which he approached the exercise of the search power to have been reckless. His reckless approach was of a kind where he did not really care whether he had sufficient cause to exercise his search power and simply thought himself entitled to do so.
It is clear to me that Adams made a decision to search the GW utility in an instinctive way based largely on his curiosity about what he might find. He failed to turn his mind to whether there was any actual connection between what he knew and what he might find in the vehicle. This meant that when he gave evidence during the hearing about what information he based his reasonable suspicion upon he was unable to articulate it clearly. In fact, he prevaricated under cross-examination about what was the basis for his forming suspicion. This meant I had difficulty in accepting that he did hold any genuine (subjective) suspicion arising from information available to him that evening. I think it is more likely that Adams largely reconstructed the information forming his suspicion that evening for the purposes of the voir dire hearing.
An example of Adams’ misconceived efforts in giving evidence occurred when he was challenged during cross-examination about why he had only given evidence earlier about a single phone call with Ralph that evening, despite Ralph’s mobile phone records (produced later) showing multiple calls that had occurred prior to 2.00 am. The following exchange occurred: (emphasis added)
Q.And I further suggest the only reason you mentioned any phone call in your statement on 26 June was to try and bolster your reasonable suspicion in relation to the facts you say you relied on to conduct the search.
A.I don’t believe that phone call is essential to any facts of the reasonable suspicion to search the vehicle. I think without that phone call I have plenty of suspicion to search that vehicle.
A similar exchange is set out at paragraph 80 above, where Adams says: “that is suspicion enough for me”, in relation to the paperwork in someone else’s name and the so-called denial of ownership of the backpack.
Adams’ demeanour revealed his generally presumptuous attitude to what the legislature requires to enliven search powers. In this regard, it is relevant to note that there was no concession made by Adams that he might have made a mistake that evening by acting too hastily on scant information or in the heat of the moment. Adams displayed no willingness to reflect on his conduct that evening. To the contrary, as revealed by numerous exchanges during cross-examination, Adams remained overly confident, and somewhat arrogant, about what was necessary to enliven the search power.
Further, there is no basis for me to find that Adams was acting that night in an unusual or uncharacteristic way. Perversely, even when confronted with difficulties in his evidence, Adams maintained his presumptuous attitude and did not resile from the approach he took to the search. I was left with the strong impression that Adams’ offhand attitude displayed in responding to difficulties in his evidence meant that he would be likely to knowingly repeat his actions in searching vehicles based upon similar insufficient foundations.
As such, I find that Adams took a reckless approach to his power to search the GW utility, and without the disapproval of the court he (and other like-minded police officers) would be likely to do so again. My concern is heightened by Adams being a more senior and experienced police officer, who would be expected to demonstrate leadership to the probationary and junior officers who were present that evening.
In deciding to exclude the evidence, it is also relevant for me to have regard to the dearth of any careful notetaking by Adams about the information upon which he founded his search powers, which then meant he had to rely upon his memory of the events of that evening. As I have found, his memory of certain matters proved fallible when tested against the BWC footage and Ralph’s mobile phone records, and other contemporaneous evidence. The unreliability of Adams’ account of the events was also made apparent when he was cross-examined about why his earlier sworn statements filed in this matter had not mentioned any phone calls received from Ralph, and the first time a phone call is mentioned was in the very recent statement provided on 25 June 2025 – shortly prior to the voir dire hearing. This reflected the unfortunate position of Adams not having an accurate detailed contemporaneous record of the information he relied upon for the purposes of conducting the search. As such, he was forced to reconstruct reasons for conducting the search and the surrounding events from his memory, substantial parts of which proved to be unreliable.
A relevant consideration for discretionary exclusion is also whether the searching officer subjectively suspected an offending object would be found upon a search of the vehicle, such that the approach to the search was genuinely thought to be lawful. Given my finding at paragraph 127 above, that Adams was reckless in his approach to the search power, I do not give much weight to this consideration. Further, as already mentioned, I strongly doubt that Adams had a state of mind beyond idle wondering.
For completeness, I also note that the cogency of the evidence obtained on account of the search was not in any way diminished by the illegality of the search. However, with rare exceptions, that will ordinarily be the case.[50] In R v Nguyen,[51] an unlawful search that infringed the accused’s civil liberties in a moderate way was nonetheless held to warrant the exclusion of the illegally obtained evidence, notwithstanding the cogency of the evidence was unaffected. In that case, the degree of departure from a proper exercise of intrusive powers compelled the exclusion of the evidence, noting that no evidence was adduced to show it was an isolated error.
[50] Bunning v Cross at 79 (Stephen and Aickin JJ).
[51] R v Nguyen (2013) 117 SASR 432.
Additionally, I do not lose sight of the fact that trafficking drugs is a serious offence, carrying a maximum term of imprisonment of 10 years (and more for serious drug offenders), and that it is in the community’s interest that drug offenders be apprehended, tried and brought to account where their guilt is proved to the criminal standard. I also take into account that the evidence obtained by the unlawful search will be critical to the trial of Kovac in this matter. However, I consider the alleged offending, in this case detected as a result of the unlawful search, does not appear so grave as to supply a powerful justification for declining to exclude the evidence if the other factors relevant to the exercise of my discretion point in favour of exclusion. In this regard, I place reliance upon the following observation of Deane J in Pollard v The Queen:[52]
It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an acceptance of judicial acquiescence.
[52] Pollard v The Queen (1992) 176 CLR 177 at 202-203 (Deane J).
Finally, I note that Mr Mead also contended that Adams misunderstood his powers pursuant to s 68 of the Summary Offences Act. He principally based that submission upon Adams’ evidence in chief in the following exchange:
QWhen searching vehicles what do you understand your powers to be.
ASo under s 68 of the Summary Offences Act, if I have reasonable cause to suspect that there may be an object or good in possession of that vehicle, I can identify who the driver is. I can search any vehicle, vessel or aircraft. Anything that entails evidence of the commission of an indictable offence, I can search the vehicle. So as long as I have that reasonable cause to suspect that there may be objects or goods in possession of that vehicle, I can search it.
While I accept that his description of the search power was clumsy, and confused aspects with other search powers, I am satisfied that Adams understood the necessity to have information to ground reasonable suspicion before commencing a search, and that the suspicion must be directed to objects in the vehicle, possession of which would constitute an offence or evidence of the commission of an indictable offence. However, as I have concluded above, the difficulty for Adams was not so much a misunderstanding of the search power but his reckless and cavalier approach to exercising it.
Conclusion
I conclude that exclusion of the evidence obtained as a result of the search of the GW utility on 22 May 2024 is necessary in order to guard against the appearance of judicial acquiescence in unlawful conduct on the part of the police.