R v McKinnon - [2007] SADC 132

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MCKINNON
[2007] SADC 132
Reasons for Ruling of His Honour Judge Clayton
14 December 2007
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Police officers stopped vehicle of the accused for traffic offences - an officer noticed a round tin in the pocket of the accused and a sticker referring to a motorcycle club on the vehicle - in response to the officer's request the accused produced the tin which contained 23 Ecstasy tablets.
HELD: Police officer did not have beleif required by s.68 of the Summary Offences Act 1953 - search illegal - discretion exercised to exclude evidence.
Summary Offences Act 1953 (SA) s 68; Controlled Substances Act 1984 s 52, referred to.
Gibson v Ellis (1992) 59 SASR 470; R v Chapman (2001) 79 SASR 342 at 351; R v Ireland (1970) 126 CLR 321 at 335; Bunning v Cross (1978) 141 CLR 54, discussed.

R v MCKINNON
[2007] SADC 132

These are the reasons for a ruling which I delivered on an application on the voir dire on 12 December 2007.
Kelly Charles McKinnon was charged with possessing 3,4-methylene-dioxymethamphetamine for sale. He applied for an order excluding evidence of a search of himself at the roadside of Tapleys Hill Road at about 9.30am on Sunday, 27 November 2005 and the items found in a “Tattoo Goo” brand container on the ground that the search was unlawful.
Mr McKinnon is the owner of a Nissan Skyline motor vehicle which he uses for the sport of drifting. The vehicle is adorned with the type of decoration seen on racing and rally cars. Photographs show that the interior of the vehicle had been modified. The passenger seat had been removed and the vehicle was intended for sporting use rather than as a conveyance.
On 27 November 2005, three police officers in the Special Task and Rescue Operations Section were travelling east in a 4-wheel drive vehicle along West Beach Road at the junction of that road with Tapleys Hill Road. One of the officers was Brevet Sergeant Heaver. The police vehicle was towards the front of a queue in West Beach Road waiting for the traffic lights to change.
In evidence, Brevet Sergeant Heaver said that a vehicle travelling north on Tapleys Hill Road executed a U-turn at the traffic lights and then headed south on Tapleys Hill Road. During the process it spun its wheels excessively and the back of the vehicle slid out. The traffic was quite heavy. The vehicle then travelled south along Tapleys Hill Road.
The STAR Force police officers activated the lights and sirens on their vehicle and followed and stopped the vehicle about 700 metres south of the junction. At the time the vehicle carried out the U-turn Brevet Sergeant Heaver noticed that it was not a standard vehicle, that there was a lot of fancy paintwork on it and it was a racing style vehicle covered in numerous stickers and paintwork. It was Mr McKinnon’s vehicle.
The intention of Brevet Sergeant Heaver was to speak to the driver about the U-turn and the manner of driving. He relied upon the powers contained in section 42 of the Road Traffic Act 1961.
Mr McKinnon’s vehicle stopped to the east of the bitumen carriageway on Tapleys Hill Road, Brevet Sergeant Heaver alighted from the police vehicle and approached the driver’s side. Initially, he could only see the driver, but as he got closer he noticed a woman lying on the floor where the front passenger seat would normally be.
Before he spoke with the driver Brevet Sergeant Heaver noticed a sticker with the letters “SYLF” which he knew to be an abbreviation for “support your local Fink”. He knew the Finks to be a motorcycle club.
Mr McKinnon climbed out of his car and a conversation took place. Brevet Sergeant Heaver asked Mr McKinnon to produce his licence details which he did. Brevet Sergeant Heaver then started to take details in his notebook. While they were standing on the side of the road Brevet Sergeant Heaver noticed that Mr McKinnon had an outline of a round tin in his front right trouser pocket.
Brevet Sergeant Heaver gave evidence that his past policing experience, especially when he was on the beat in Hindley Street, was that it was common for people to conceal objects in tins in their pockets. He said generally they were illegal substances. He said he found tins on persons whom he had searched on numerous occasions and that “pretty much always” those tins contained illegal drugs.
Brevet Sergeant Heaver gave evidence that he said to Mr McKinnon words to the effect of “what’s in the tin mate?” and indicated Mr McKinnon’s front right trouser pocket to which Mr McKinnon responded by taking the tin from his pocket and placing it on the ground in front of him.
Brevet Sergeant Heaver was asked what power he thought he was exercising when he asked the accused what was in the tin and he replied “section 68 of the Summary Offences Act, stop search and detain”. When asked what was required before the power in section 68 could be used he replied “just to have a reasonable suspicion”.
When asked what was the basis of his reasonable suspicion at the time that he asked what was in the tin, he replied “yes, it’s just mainly my previous policing experience that tells me that tins carried on people generally contain illegal substances”. He continued “coupled with the SYLF sticker it just hardened my suspicions as to what that tin may contain”. He said it was not on the basis of the SYLF sticker that he decided to search Mr McKinnon.
The tin contained 23 tablets with a Mitsubishi logo on one side. They were Ecstasy. Mr McKinnon was arrested.
In cross-examination, Brevet Sergeant Heaver was asked whether the type of tin in question could be used for quite a number of things other than a container for holding drugs. He responded “possibly yes”.
In addition to arresting Mr McKinnon, police officers seized his vehicle.
In cross-examination the following dialogue took place:
QIsn’t it the case that when you saw the outline of that shape in Mr McKinnon’s pocket, rather than having a suspicion about drugs, you just wanted to see what was in there just to satisfy yourself.
AI thought there was something there but I wasn’t 100% sure what, quite frequently it is normally cannabis.
I digress to interpolate if it had been cannabis that would have resulted in a summary offence and an expiation notice.
Detective Senior Constable First Class Richmond was stationed at the Sturt CIB. He gave evidence that on 27 November 2005 he spoke to some members of the STAR Force group who had arrested a person. One of those officers was Brevet Sergeant Heaver who appeared to be the investigator or the officer who was “sort of in charge”. Brevet Sergeant Heaver showed him a total of 24 tablets. During the discussion the topic of what powers had been exercised on Tapleys Hill Road was mentioned. Detective Richmond said:
I certainly didn’t assume his powers. When they came to the police station they asked for our assistance and advice more so. Through our discussions I found out what powers he purportedly used when he searched Mr McKinnon and Mr McKinnon’s vehicle.
...
….. he said that they stopped the vehicle under the Road Traffic Act and he, after making some observations, he formed a suspicion and utilised a ControlledSubstances Act to search Mr McKinnon and his vehicle.
As I have mentioned, Brevet Sergeant Heaver’s evidence was that he had utilised section 68 of the Summary Offences Act 1953.
STAR Force officers are assigned to more specialised areas of police operations and do not normally become involved in traffic offences or the search for drugs.
The accused gave evidence on the voir dire. He referred to his conversation with Brevet Sergeant Heaver and said that he was asked to produce his licence which he did. The licence was in his wallet in his front left pocket. The accused said he had a tin in his front right pocket. He said that Brevet Sergeant Heaver gave his licence to another person to do a check and then “he asked me to empty my pockets onto the ground” which Mr McKinnon did “because I felt the way he asked me, he was - by law, I had to empty out all my pockets like I was going to be searched”.
At the time Mr McKinnon did not know what the police powers were in relation to searching people. He said he would not have handed over the tin to the police voluntarily because he knew what was inside it.
On the basis of the evidence of Detective Richmond I find that at the time Brevet Sergeant Heaver conducted the search he did not rely upon section 68 of the Summary Offences Act 1953.
The fact that Brevet Sergeant Heaver told Detective Richmond that he had relied upon the Controlled Substances Act 1984 contradicts his own evidence that he had relied upon section 68 of the Summary Offences Act 1953. The inference is that Brevet Sergeant Heaver did not identify the power in section 68 until after he had spoken with Detective Richmond.
There is a conflict between the evidence of the accused and the evidence of Brevet Sergeant Heaver as to the precise terms of the conversation between them. I accept the evidence of Mr McKinnon. His actions in placing the tin upon the ground are more consistent with the direction “would you please empty your pockets onto the ground” than the question “what’s in the tin mate?”. If Brevet Sergeant Heaver had only asked what was in the tin it would have been unnecessary for Mr McKinnon to remove the tin from his pocket. A verbal answer would have been sufficient. The fact that the tin was in fact placed on the ground supports Mr McKinnon’s version.
Another difference is that on the evidence of the accused, Brevet Sergeant Heaver did not focus on the tin alone, but directed his comment to the contents of Mr McKinnon’s pockets generally.
The accused’s version of the conversation is not consistent with Brevet Sergeant Heaver having a specific belief that the tin may contain drugs. On the evidence of Brevet Sergeant Heaver himself, his statement was only an inquiry, not an assertion that Brevet Sergeant Heaver believed the tin did contain drugs. Of course, the statement may not have been the same as his state of mind, but it is some indication.
Brevet Sergeant Heaver gave evidence that he relied upon section 68. The prosecution attempted to justify the search on the basis of section 68. The prosecutor did not attempt to justify the search by reference to section 52 of the Controlled Substances Act 1984.
It can be inferred that the claim by Brevet Sergeant Heaver that he relied upon section 68 of the Controlled Substances Act 1984 was an afterthought. That inference causes me to doubt whether Brevet Sergeant Heaver did have the belief which he claimed at the time of the conversation. If he did not think of section 68 until after he had spoken with Detective Richmond it is unlikely that he would have formed the specific belief required by section 68 at the time of his conversation with the accused.
Section 68 of the Summary Offences Act 1953 provides:
(1)a police officer may do any or all of the following things, namely, stop, search and detain-
(a)     ......
(b)     a person who is reasonably suspected of having, on or about his person -
(i)    stolen goods; or
(ii)    an object, possession of which constitutes an offences; or
(iii)     evidence of the commission of an indictable offence.
It is to be noted that section 68 requires a specific belief. A person can only be searched if the police officer reasonably suspects that the person has an object or evidence on or about his person. A suspicion that the person may have or could have an object or evidence on or about his person is not sufficient.
The prosecution accepted that the search must be justified by reference to section 68 of the Summary Offences Act 1953 and did not attempt to invoke section 52 of the Controlled Substances Act 1984.
I find that the request by Brevet Sergeant Heaver implied that the accused was compelled to comply with the request. The accused knew what the tin contained and it was unlikely that he would have handed it over unless he believed that he was compelled to do so.
It seems to me that before a police officer can rely upon section 68 he must first be aware of its provisions. The power to stop, search and detain is dependent upon the police officer having the reasonable suspicion which is required in subsection (b). Accordingly, if at the time Brevet Sergeant Heaver conducted the search, he did not specifically have section 68 in mind, the search could not have been conducted pursuant to that section.
In any event, I find that the state of mind of which Brevet Sergeant Heaver gave evidence fell short of what is required by the section, because Brevet Sergeant Heaver only had a suspicion that Mr McKinnon may have drugs on his person. He had no reason to suspect that Mr McKinnon did have drugs on his person.
The present case is to be contrasted with cases such as Gibson v Ellis[1] where a police officer who had pulled a vehicle over for a possible driving offence noticed a spoon with the filter tip of a cigarette on it. In that case the police officer knew from his experience those items were used for the purpose of taking heroin.
[1] (1992) 59 SASR 470
In order to rely upon section 68 of the Summary Offences Act 1953 Brevet Sergeant Heaver was required to have reasonably suspected that the accused had in his possession either an object the possession of which constituted an offence or evidence of the commission of an indictable offence. I have referred to Brevet Sergeant Heaver’s evidence (T27-30) that the contents of tins are “quite frequently” or “normally” cannabis. If cannabis had been found in the accused’s tin he would not have committed an indictable offence, but a summary offence which attracts an expiation notice (T27-31).
I find that the search was not conducted pursuant to section 68 of the Summary Offences Act 1953. I find that there was no statutory authorisation for the search and the search was therefore illegal.
However, that does not necessarily have the result that the evidence should be excluded. There is a discretion to be exercised.
It could be argued that the search was justified on the basis of what was found. However, that is not the test. The justification for a search must exist at the time the search is conducted. A search cannot be justified retrospectively on the basis of what is subsequently discovered.
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[2] 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.
[2] (2001) 79 SASR 342 at 351
Even if the prosecution did rely upon section 52 of the Controlled Substances Act 1984 that provision is subject to similar constraints. Subsection (6) provides:
Subject to subsection (7), an authorised officer who is a member of the police force may search any person whom the officer believes on reasonable grounds has in his or her possession any substance or equipment in contravention of this Act. (emphasis added)
Again the police officer must believe that the person has the substance in his or her possession, not suspect the person may have the substance in his or her possession.
I find that the presence of a round object in the pocket of the accused did not by itself provide a reasonable basis for the belief required by section 68. Nor did the SYLF sticker on the car. Nor did the two matters taken in combination.
However, as I have mentioned that is not the end of the matter. There is still the discretion to be exercised. The fons et origo of the principle underlying the discretion to exclude evidence was stated by the Chief Justice in R v Ireland[3] as follows:
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit a criminal offence. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[3] (1970) 126 CLR 321 at 335
I am conscious of what Stephen and Aickin JJ said in Bunning v Cross[4] at 74:
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 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.
Stephen and Aickin JJ also said at 78:
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 Stated (1927) 277 US 438 at p470. Moreover the courts should not be seen to be acquiescent in the fact 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.
[4] (1978) 141 CLR 54
The prosecutor submitted that this was not a case of blatant disregard for the law. On the findings which I have made, this was a case of conducting the search without consideration of a statutory provision and then seeking to justify the search on the basis of section 68 of the Summary Offences Act 1953 after the discussion with Detective Richmond had taken place. I accept the defence submission that the reference to section 68 was an afterthought.
I think there is substance in the defence submission that the search was conducted without consideration to the law relating to searches.
I find that when Brevet Sergeant Heaver asked the accused to empty his pockets he was in effect “fishing” to see what he might find. As Mr Stewart put it, “he got lucky”. To allow the admission of the evidence would be to disregard the limits set by the legislature.
For the above reasons I ruled that the evidence of the contents of the tin should be excluded.