R v LE - [2013] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LE
Criminal Trial by Judge Alone
[2013] SADC 82
Ruling of His Honour Judge Soulio
21 June 2013
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST - REASONABLE CAUSE
Accused charged with two counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
Accused brought an application pursuant to Rule 15 DCCR, seeking an order that the evidence obtained as a consequence of a search be excluded on the basis that the search was unlawful and the proceeds of the search tainted.
Controlled Substances Act 1984 (SA) ss 32, 52; Summary Offences Act 1953 (SA) s 68; Road Traffic Act 1961 (SA) ss 5, 40V, 42 (repealed); DCCR r 15, referred to.
R v Rondo (2001) 126 A Crim R 562; R v Frantzis and Batas (1996) 66 SASR 558; Coleman v Zanker (1991) 58 SASR 7; Police v Dafov (2008) 102 SASR 8; R v Chapman [2001] SASC 113; Bunning v Cross (1977-78) 141 CLR 54; R v McKinnon [2007] SADC 132; R v Davidson (1991) 54 SASR 580; Pressler v Holzberger (1989) 44 A Crim R 261; R v Cavallaro [2011] SADC 15, considered.

R v LE
[2013] SADC 82
Summary

The accused is charged with two counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). Both offences are alleged to have been committed on 3 August 2011, Count 1 at Ottoway and Count 2 at Mansfield Park.
Prior to his arrest the accused was sitting in the driver’s seat of his vehicle, parked at Beatrice Street Ottoway. Police approached him and subsequently searched the vehicle and the accused. Police found a bag hidden in the accused’s underpants. Subsequent forensic examination revealed that the bag contained heroin. (Count 1)
Police also searched, one Lu, the passenger in Le’s vehicle. Although Lu was initially charged with possession of heroin, those charges did not proceed.
Police also searched the Beatrice Street house outside which the accused had been parked, and there found powder containing heroin. It is not suggested the accused was the occupant of those premises.
Subsequently police searched the accused’s residence at Mansfield Park, and found heroin, other drugs and alleged indicia of sale. (Count 2)
Rule 15 Application
The accused brought an application pursuant to Rule 15 DCCR seeking an order that the evidence obtained as a consequence of the search of the accused and his vehicle be excluded, on the basis that the search was unlawful and the proceeds of the search tainted. The accused contended that the subsequent search of his residence was consequently unlawful, and the proceeds of that search similarly tainted.
The facts relevant to consideration of the application were conveniently summarised by counsel for the accused, Mr Anders, in written submissions. The factual circumstances are not controversial and I reproduce the relevant paragraphs:
·At approximately 8.20pm on 3 August 2011 police Winterfield and Rigano were travelling along Beatrice Street Ottoway in an unmarked police car performing investigational duties.
·The accused was seated in a parked and stationary car. … The accused was seated in this car with another adult male, Phat Anh Lu.
·Police noted the presence of the car in which the accused was seated. It is not suggested that police observed that either the accused or his companion were committing any offence. It is not claimed that the vehicle was incorrectly parked or that there was any other perceived offence under investigation, traffic or otherwise, that required police to approach.
·Despite this, police turned their vehicle twice on Beatrice Street and approached the vehicle in which the accused was seated; in doing so police drove past the vehicle in which the accused was seated twice. They eventually parked behind this vehicle, activated their dome lights and approached, Officer Winterfield passenger side, Officer Rigano driver side.
·Both the accused and his companion were required to alight from the vehicle in which they were seated. A comprehensive search ensued and the drugs the subject of the first count were located by police concealed on the person of the accused.
·As a direct consequence of items located during this initial search a further search was conducted by police at the home of the accused, Mansfield Park. The drugs the subject of Count 2 were located at this time.
·Whilst Phat Anh Lu was initially charged with an offence relating to the drugs the subject of Count 1, that charge was subsequently abandoned.
As a result of the searches, police seized the following items of relevance:
Count 1 - 21.6gm heroin of 73 per cent purity; a plastic bag; two mobile phones; $2565 cash; a foil wrap of unknown substance; and an opened heat seal bag.
Count 2 - A plastic bag containing 1.35gm of heroin of 73 per cent purity; a plastic bag containing a 0.31gm of methylamphetamine of 77.4 per cent purity; a plastic bag containing 3.13gm of heroin of 24 per cent purity; digital scales on which methylamphetamine and heroin were detected; a glass pipe; a plastic bag containing a substance weighing 0.83gm and containing phenethylamine; a plastic bag containing 0.56gm of methylamphetamine of 77.6 per cent purity; a plastic bag containing 1.09gm of methylamphetamine of 55 per cent purity; and a quantity of unused plastic bags.
The grounds relied upon in support of the application are:[1]
[1]    As set out in the application.
1.1There was no proper basis for police to approach the stationary vehicle in which the applicant was seated.
1.2     Police had no power to require the applicant to alight from the vehicle
1.3     There is no suggestion that consent was given to police to conduct the search
1.4Police did not possess the requisite suspicion to enliven their powers to search pursuant to either s 52(9) of the Controlled Substances Act or s 68(1)(b) of the Summary Offences Act.
1.5     The search conducted was without any lawful authority.
Power to Search
Section 52(9) of the Controlled Substances Act provides:
If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a)    require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)     detain and search the vehicle, vessel or aircraft; and
(c)     seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
Section 68(1)(b) of the Summary Offences Act provides:
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.
A concise description of what may amount to a reasonable suspicion was provided by Samuels JA in R v Rondo:[2]
(a)    A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
(b)    Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
(c)    What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
[2]    R v Rondo (2001) 126 A Crim R 562 at [53], having reviewed authorities including Queensland Bacon Pty Ltd v Rees (19996) 115 CLR 266 at 303 per Kitto J, George v Rocket (1990) 170 CLR 104 at 115-116, R v Armstrong (1989) 53 SASR 25 at 27, O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] 2 WLR 1 at 5 & 11, and Anderson v Judges of the District Court (1992) 27 NSWLR 701.
The use of the word “reasonable” imports an objective test. There must be an objectively reasonable suspicion; a suspicion based on objectively reasonable factors.[3]
[3] R v Frantzis and Batas (1996) 66 SASR 558 per Lander J.
The Search
The accused contended that by activating the dome lights police sought to contain and control the freedom of the accused, and that the process of activating lights and controlling the accused by this mechanism was the first step in the process of an unlawful search.
I note that Detective Winterfield gave evidence to the effect that the reason for activating the police dome lights was to reassure the occupants of the vehicle that they were not being approached by strangers motivated by ill will. Similarly, both detectives said that the reason for removing the occupants from the car for questioning was related to an issue of safety.
The initial constraint on liberty, it was submitted, was directed towards the clearly stated motive of furthering inquiries relevant to a suspicion which was general in nature, and primarily related to the Beatrice Street property.
The accused submitted that once the vehicle the accused occupied was controlled, or action was taken by police to require that the vehicle remain stationary, a constraint upon liberty had commenced, and that to take such action, investigating police required some lawful authority.
For reasons which I set out below, it is not necessary to determine whether, by parking behind the accused and activating the police lights, the detectives sought to control the accused.
The accused relied on the reasoning of Olsson J in Coleman v Zanker where, in respect of a police search of a motor vehicle, he held that:[4]
That conduct was unlawful in two ways. The demand that the appellant get out of his vehicle was itself unlawful. He was not being arrested, nor was there any situation giving rise to the exercise of any statutory power to require him to accede to the demand made. Moreover, despite Mr Stevens' strenuous contention to the contrary, it is impossible to escape the clear inference that, at the point at which Constable Mensforth issued her edict to the appellant, that edict was the first active step in the ongoing process of an unlawful search of his vehicle which then ensued, portion of which was the shining of Constable Mensforth's torch into the interior of the vehicle and the finding and seizure by her of the knife. That total process clearly occurred in circumstances other than a situation falling within s 68 of the Summary Offences Act.
[4] Coleman v Zanker (1991) 58 SASR 7 at 15.
Evidence on the Voir Dire
Both of the arresting officers, Detective Winterfield and Detective Rigano gave evidence. Neither said that they held the requisite “reasonable” suspicion as regards the commission of any offence. It was conceded that the vehicle in which the accused was seated was not parked in an illegal or obstructive manner. It was not contended by the arresting officers that police powers to search, pursuant to the two sections to which I have referred, were enlivened.
Detective Winterfield gave evidence that he had previously been involved in a search of the Beatrice Street premises, which resulted in the arrest of the occupants in relation to drug trafficking charges. Ongoing information received by police, which was not specifically identified for public policy reasons, led police to believe that the premises were still being used for the purposes of drug trafficking, or at least drug use. Information to that effect had been received by Detective Winterfield as recently as one week prior to the arrest of the accused.
However it was not suggested by Detective Winterfield that that information was relied upon to justify the search of the accused and his vehicle. Rather, that was the reason Detective Winterfield suggested to Detective Rigano, who was driving their unmarked police vehicle during the course of returning to base after being engaged in other duties, they drive past the Beatrice Street property was to see whether there was any activity observable there.
It may well have been that, had the arresting officers formed a suspicion about illegal drug activity based on the presence of the accused’s vehicle parked, with parking lights on, outside premises known to be, or suspected of being, used for ongoing drug related activities, I would have been satisfied that there was a proper basis for police to form a reasonable suspicion about the commission of an offence.
However as I have said, that was not the basis upon which the detectives approached the vehicle. Rather, Detective Winterfield asserted that they relied upon the powers provided to police by s 40V of the Road Traffic Act 1961 SA (‘RTA’).
Section 40V provides:
(1)    In this section—
personal details, in relation to a person, means—
(a)     the person’s full name; and
(b)     the person’s date of birth; and
(c)     the address of where the person is living; and
(d)     the address of where the person usually lives; and
(e)     the person’s business address.
(2)If an authorised officer or police officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a)     is or may be a responsible (my emphasis) person; or
(b)     has committed or is committing or is about to commit an Australian road law offence; or
(c)     may be able to assist in the investigation of an Australian road law offence or a suspected Australian road law offence; or
(d)     is or may be the driver or other person in charge of a vehicle that has been or may have been involved in an accident, the officer may direct the person to give the officer then and there any or all of the person’s personal details.
(3)If an authorised officer or police officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.
(4)     A person commits an offence if—
(a)     the person is subject to a direction under subsection (2) or (3); and
(b)     the person—
(i)     engages in conduct that results in a contravention of the direction; or
(ii)gives any detail that is false or misleading in a material particular in purported response to the direction; or
(iii)produces any evidence that is false or misleading in a material particular in purported response to the direction.
Maximum penalty: $5 000.
(5)     Subsection (4)(b)(iii) does not apply if the person has a reasonable excuse.
(6)In proceedings for an offence of contravening a direction under subsection (2) in relation to a failure to state a business address, it is a defence if the person charged establishes that—
(a)     the person did not have a business address; or
(b)     the person’s business address was not connected (directly or indirectly) with road transport involving vehicles.
Detective Winterfield contended in evidence that it was necessary to question the passenger, as without doing so it was not possible to ascertain whether he, rather than the driver, was a “responsible person.”
The definition of responsible person is set out in s 5, the interpretation section, of the RTA. I set that definition out in full:
5—Interpretation
(1)     In this Act, unless the contrary intention appears—
responsible person means any person having, at a relevant time, a role or responsibilities associated with road transport, and includes any of the following:
(a)     an owner of a vehicle;
(b)     a driver of a vehicle;
(c)     an operator or registered operator of a vehicle;
(d)     a person in charge or apparently in charge of a vehicle;
(e)     a person in charge or apparently in charge of the garage address of a vehicle or the base of the driver or drivers of a vehicle;
(f)    a person appointed under an approved road transport compliance scheme to have monitoring or other responsibilities under the scheme, including (for example) responsibilities for certifying, monitoring or approving vehicles under the scheme;
(g)     an operator of an intelligent transport system;
(h)     a person in charge of premises entered by an authorised officer or police officer under this Act;
(i)    a person who consigns goods for transport by road;
(j)    a person who packs goods in a freight container or other container or in a package or on a pallet for transport by road;
(k)     a person who loads goods or a container on a vehicle for transport by road;
(l)    a person who unloads goods or a container containing goods consigned for transport by road;
(m)    a person to whom goods are consigned for transport by road;
(n)     a person who receives goods packed outside Australia in a freight container or other container or as a unit load for transport by road in Australia;
(o)     an owner or operator of a weighbridge, or weighing facility, used to weigh vehicles or an occupier of premises where such a weighbridge or weighing facility is located;
(p)     a responsible entity for a freight container;
(q)     a person who controls or directly influences the loading or operation of a vehicle;
(r)    an agent, employer, employee, contractor or subcontractor of any person referred to in the preceding paragraphs of this definition;
At the time the accused was approached by police he was not committing an Australian road law offence, nor was he suspected of so doing. Neither was it suggested that the vehicle had been involved in an accident.
In interpreting a provision which makes significant incursion into individual rights as to the privacy of the person, or of private property, a conservative approach should be adopted. As Vanstone J observed in Police v Dafov:[5]
In construing a provision of a statute suggested to confer the power to enter land without consent, there is a presumption that, in the absence of an express provision or clear implication to the contrary, the legislature did not intend to authorise what would otherwise be tortious conduct: Plenty v Dillon at 648; Morris v Beardmore [1981] AC 446 at 455 per Lord Diplock.
[5] Police v Dafov (2008) 102 SASR 8 at [57].
Whilst Detective Winterfield suggested that he was entitled to make inquiries of the passenger to find out who was the responsible person, in my view the definition of responsible person restricts the inquiry to inquiries of those involved in road transport, that is the commercial transportation of goods or people by road. I do not accept that a wider definition, encompassing the mere driving of a private motor car, is contemplated by the definition.
Detective Winterfield gave evidence that he had previously used s 40V RTA powers, on numerous occasions, in order to stop cars and question drivers, while engaged in the investigation of activities other than breaches of the road laws. I do not consider that that is a permissible use of such power. It may be that Detective Winterfield was confusing the power under s 40V RTA, with the power which formerly existed under s 42 RTA, now repealed. That section provided:
42—Power to stop vehicle and ask questions
(1)     A member of the police force or an inspector may—
(a)     request the driver of a vehicle on a road to stop that vehicle;
(b)     ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner or the operator of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.
(2)     A person must forthwith—
(a)     comply with a request made under subsection (1) to stop a vehicle;
(b)     truthfully answer any questions put under subsection (1).

In any event, Detective Winterfield conceded that the use of the power, such as it was under s 40V RTA, was for an ulterior purpose, namely the questioning of the occupants of the vehicle as to the reason for their presence in Beatrice Street.
It was submitted that the following passage from the judgment of Williams J in R v Chapman, is apposite:[6]
… the distinguishing feature of the present case is that s 42 of the Road Traffic Act has been used in order to create an opportunity to search in circumstances where Parliament has carefully circumscribed police powers of search and the conditions under which they may be exercised - see Summary Offences Act 1953 (SA) s 68 and Controlled Substances Act s 52. I reach the conclusion that the evidence was unlawfully obtained.
[6] R v Chapman [2001] SASC 113 at [17].
Police have been given significant coercive powers pursuant to the terms of section 40V RTA. Such powers should be used solely for the purpose for which they were intended; they are not to be employed to achieve an ulterior purpose.
Detective Winterfield said in evidence that upon opening the passenger door Detective Winterfield recognised the passenger, Mr Lu, and the accused, and knew them to have been previously convicted of drug offences. He saw on the floor a heat sealed bag which had been opened. He recalled having seen similar bags inside the Beatrice Street house when he had searched it some months earlier. He knew such bags to be used in the sale of drugs.
Again, it may well have been that, upon recognising the occupants of the car as people known to have been involved in drug trafficking, together with their presence outside the premises known to have been involved in drug trafficking, I would have made an objective finding that a reasonable suspicion was formed by the arresting officers, thereby justifying a search.
However, it was properly conceded by counsel for the Director of Public Prosecutions, Mr Plummer, that, were I to find that the police officers were not authorised by s 40V RTA to approach the vehicle, and question the occupants, then the search was illegal. It was also conceded, quite properly, that if the search of the car and the accused was illegal, so was the search of the accused’s house at Mansfield Park.
Given the view I have expressed as to the use of s 40V RTA for the purposes conceded by the arresting officers, I am of the view that the search was illegal.
I make the observation however, that given the frank way in which evidence was given, and concessions made by both detectives, I regard the detectives as honest witnesses, who were mistaken about the powers available to them to stop a vehicle, question the driver, and question other occupants. Similarly, whilst each detective agreed that he had discussed with the other the issue of coming to court and the issue of giving evidence, I do not consider that there was collusion between them. Detective Winterfield gave evidence as to the use of s 40V RTA, and the powers contained therein, in a detailed fashion. Detective Rigano initially thought that the section might be “V30” and was rather vague about the contents of that section. Their evidence did not strike me as evidence which was the product of any collusion.
The Exercise of the Discretion
If the Court is of the opinion that the officers did not have a reasonable suspicion, or that the search was otherwise unlawful, it must proceed to determine whether to exclude the evidence pursuant to the public policy discretion referred to in Bunning v Cross.
The balancing exercise was described by Stephen and Aickin JJ in Bunning v Cross in the following terms:[7]
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[7] Bunning v Cross (1977-78) 141 CLR 54 at 74.
The starting point in considering the exercise of discretion to admit evidence, the product of an unlawful search, is perhaps to be found in the following remarks in Bunning v Cross:[8]
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguard the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be "a less evil that some criminals should escape than that the Government should play an ignoble part" - per Holmes J in Olmstead v United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
[8] Ibid at 77 & 78.
Counsel for the accused conceded, quite properly, that the cogency of the evidence discovered as a result of the search had not been affected by any illegality or impropriety, and that the evidence sought to be impugned is of obvious significance to the prosecution case.
However, Mr Anders relied upon the often cited passage in Bunning v Cross:[9]
To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the erroneous view that if such evidence is damning enough that will of itself atone for the illegality involved in procuring it.
[9] Ibid at 79.
I bear in mind that unauthorised searches that gather no evidence will rarely be the subject of scrutiny; it is only those that reveal cogent evidence which are the subject of consideration by the Court and that accordingly, if every unauthorised search that reveals cogent evidence were to be excused, that would effectively render the statutory pre-requisites for a search redundant.
As was observed by Clayton DCJ in R v McKinnon:[10]
If an unauthorised search could be justified whenever a police officer "gets lucky", to adopt the expression of defence counsel, and obtains cogent evidence, that would effectively render the statutory prerequisites for a search otiose. The practical result would be that if a search is conducted and nothing is found, the incident would be forgotten, but if evidence is found, then the illegality should be overlooked. In that event, the legislative safeguards would be meaningless. As Williams J observed in R v Chapman the legislature has set quite deliberate limits upon the police powers to search under the Controlled Substances Act 1984 and the Summary Offences Act 1953.
[10] R v McKinnon [2007] SADC 132 at [43].
Counsel for the accused submitted that this was not an isolated, and merely accidental, non-compliance with statutory safeguards, but rather the conduct was deliberate, wilfully blind, and reckless at the very least, and that the practice engaged in by the detectives was a practice which required correction.
As I have found, the legislative intention in enacting s 40V RTA was not to enable police to approach and search at will. It provides for an incursion into personal liberty for a strictly circumscribed purpose.
As was observed by Legoe J in R v Davidson, albeit with reference to different statutory provisions:[11]
Consequently the wide powers which have been given to police by statute over and above the basic common law restrictions in this regard must be exercised with appropriate caution and supervision from the courts.
[11] R v Davidson (1991) 54 SASR 580 at 584.
The observations of Spender J in Pressler v Holzberger are also apposite:[12]
Where the legislature has defined the circumstances in which a person's liberties might be infringed or their rights curtailed, it should not readily be concluded that conduct outside the defined authorisation should be tolerated or excused. Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of citizens.
[12] Pressler v Holzberger (1989) 44 A Crim R 261 at 272.
I also bear in mind the submission that it is relevant to consider the fact that, whilst serious, this offence is of the category which can be described as a victimless offence although only in the sense that:[13]
… the offence is not one where there is a personal victim who might feel aggrieved that the crime against him received no redress because of lax police investigative work.
[13] R v Cavallaro [2011] SADC 15 at [56].
In R v Chapman, referring to earlier authority, Williams J said:[14]
In the course of his judgment in R v Armstrong (1989) 53 SASR 25, King CJ roundly criticised the arrogation by police officers to themselves of such high-handed purported authority. Whilst the circumstances of that case differed in some respects from those of the instant case, the key principle is identical. If police officers deliberately exceed their authority by embarking on unlawful and unauthorised conduct which impinges upon the normal rights of a citizen then they cannot be heard to complain if the courts, in conformity with the approach enunciated in Bunning v Cross (1978) 141 CLR 54 and R v Ireland (1970) 126 CLR 321, exclude evidence obtained in the course of such activity.
[14] R v Chapman [2001] SASC 113 at [37].
I have found that the arresting police officers did not deliberately exceed their authority, but rather proceeded on a genuine, if mistaken, view as to the extent of their authority.
Counsel for the DPP submitted that the following factors weigh against excluding evidence obtained from an illegal search:
(a) Where the unlawfulness by the police was not deliberate;
(b) Where the police did not act upon trite information;
(c) Where police actions were not of a wilful or malicious nature;
(d) Where the cogency of the evidence was unaffected;
(e) Where the evidence is of considerable probative value in relation to a serious charge.
Counsel for the DPP submitted, and I accept, that all of the above factors applied to the present case, and that, if the officers were acting unlawfully in requesting the accused’s personal details under section 40V RTA it was because they were acting under a misapprehension as to the law. There was no deliberate unlawfulness.
Further, whilst the fact that section 40V RTA had apparently been regularly used by both officers was a significant factor to be taken into account when the exercise of the discretion is considered, the Court could be comforted by the fact that the officers were not deliberately or intentionally acting outside the bounds of their authority. They honestly believed that they were acting under an authority which provided them with the power to ask the accused for his personal details.
Counsel further submitted that, having regard to the police powers previously authorised under the now repealed section 42 RTA, there is added weight to the suggestion that both officers were simply confused about what powers they had. Any unlawfulness in requesting the accused to exit the vehicle was not deliberate. The request was made ancillary to obtaining the accused’s details in a manner that was safe for both the accused and the police. There is no suggestion that police acted with mala fides, or for some improper or malicious purpose in requesting the accused to exit the vehicle. Further, the items seized are of considerable probative value in relation to the charges.
Counsel for the prosecution submitted that it would be inappropriate to exercise the discretion to exclude the evidence of the items found on the accused and in the vehicle, and at the accused’s house, given the nature of the items discovered, the seriousness of the offence of heroin trafficking, the high purity of the drugs found, the evidence of commerciality, and the effect on the community of such offending.
Conclusion
The circumstances of this case present a difficult decision in the exercise of the discretion. The actions of the arresting officers in approaching the vehicle, opening the door and requiring the occupants to leave the vehicle, and the searches that followed, were, because of the erroneous use of powers under the RTA, unlawful.
However, having regard to the cogency of the evidence, the fact that the approach by the officers arose, as I have found, as a result of an honest misunderstanding about the extent of their powers, rather than a deliberate flouting of such powers, the fact that the illegality of the search did not contaminate the evidence, and the seriousness of the offences disclosed as a result, I conclude that, in the exercise of my discretion, the application should be refused, and the evidence admitted.