R v Ndreka
[2020] SADC 101
•29 July 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NDREKA
[2020] SADC 101
Reasons for Ruling of His Honour Judge Press
29 July 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with one count of cultivating a commercial quantity of cannabis and one count of possessing prescribed equipment – police were conducting surveillance on a property when the accused was seen in the front yard – a determination was made by the police officers to search the house and to stop and search the accused at that time – the police officer with the most knowledge of the investigation did not execute his search warrant in relation to the house, that role was undertaken by another police officer in the car – the police officer with the most knowledge of the investigation stopped and detained the accused and spoke with him without issuing a caution – whether the police officer who stopped and detained the accused had sufficient cause to do so – whether the accused ought to have been cautioned prior to being spoken to – whether the police officer who executed his search warrant for the house held suspicion – whether the police officer’s suspicion was reasonable – exercise of the discretion to exclude unlawfully obtained evidence.
Summary Offences Act 1953 s 67, s 68, s 79A, referred to.
R v Nguyen (2013) 117 SASR 432; R v Nguyen (2015) 248 A Crim R 398; Manley v Tucs (1985) 40 SASR 1; R v Rogers (2011) 109 SASR 307; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177; Question of Law Reserved (No 1 of 1998) 70 SASR 281; R v Rockford (2015) 122 SASR 391; R v Marafioti (2014) 118 SASR 511; R v Willingham (No 2) [2012] SASCFC 104; Kadir v The Queen [2020] HCA 1; Police v Pocius [2018] SASC 38; Abbott v Ramm 1994 Unreported Judgment BC9503114; R v Dolan (1992) 58 SASR 501; Police v Pocius [2018] SASC 38; R v Dolan (1992) 58 SASR 501; Police v Moukachar (2010) 107 SASR 450; Police v Bain (2011) 112 SASR 10; R v Armistead [2019] SASCFC 85; Bae v The Queen; Koo v The Queen [2020] SASCFC 7; R v Golja [2017] SASCFC 61; Forrest v Normandale (1973) 5 SASR 524; R v Dam & Nguyen; Case stated on Question of Law (No 2 of 2015) (2015) 123 SASR 511; [2015] SASCFC 131; DPP v Smith (1994) 179 LSJS 25; BC9400911 Unreported Judgment, considered.
R v NDREKA
[2020] SADC 101
The accused is charged with one count of cultivating a commercial quantity of cannabis (27 plants) and one count of possessing prescribed equipment. The accused applied for the exclusion of evidence. The following are my reasons for refusing that application.
Rule 49 application
By application pursuant to r 49 of the District Court Criminal Rules 2014 the accused sought orders that;
1the evidence obtained as a consequence of a search of the accused be excluded;
2the evidence obtained during a search of a premises in Clarence Gardens be excluded;
3the evidence of a prosecution witness, GS, be excluded;
4the evidence of conversations between police and the accused be excluded.
The application as regards the witness GS was subsequently abandoned on the basis the accused accepted further enquiries needed to be made prior to such an application. I agree those enquiries are necessary. Whether that application is reagitated at a later date will depend on the result of those enquiries.
As to the remaining orders, the grounds relied upon can be respectively summarised as;
1The police officer who stopped and detained the accused did not have the requisite suspicion as required by s 68 of the Summary Offences Act 1953 and there was no other basis upon which the accused could lawfully be stopped, detained and searched.
2The police officer holding the search warrant which was used to search the premises did not hold the requisite suspicion required by s 67 of the Summary Offences Act 1953.
3It would be unfair to the applicant to admit evidence of his comments to police when police failed to caution him prior to asking him about his connection to the relevant premises and it would further be unfair to admit the evidence of his comments when police failed to administer his rights pursuant to s 79A of the Summary Offences Act 1953.
Voir dire hearing and summary of evidence
A voir dire hearing was held on 11 and 12 June 2020. Four witnesses were called by the prosecution: Detective Brevet Sergeant Lengyel (hereinafter referred to as DBS Lengyel), Detective Brevet Sergeant Elliott (‘DBS Elliott’), Detective Brevet Sergeant Everlyn (‘DBS Everlyn’) and Detective Brevet Sergeant Hawgood (‘DBS Hawgood’).
On 16 May 2018 DBS Lengyel was assigned an investigation in relation to a property at 3 Abercrombie Street, Clarence Gardens as a result of information received by police. That information was to the effect the house had previously been used by a man, MP, to cultivate cannabis but it was unknown whether it was still being used for that purpose. MP was known to DBS Lengyel as he had arrested MP in October 2016 for cultivating a significant amount of cannabis.
DBS Lengyel accessed other information held by police, checked residential tenancy records and then attended at the house on the afternoon of 16 May to observe the premises. He drove past the house and then walked past it. He saw that both the outside and inside blinds were down, there was no movement at the house and there was a car in the driveway. His investigations into the registered owner of that car revealed the name was not on the police database and it had only recently been added to the database for licences and motor vehicle registration. The address of the person as recorded was also incomplete. He believed the name to be false.
Approximately two weeks later on 4 June 2018, DBS Lengyel and the three previously named police officers were driving nearby to the house and he determined to drive past the house as it was on their way back to the office. He wished to conduct some further observations of the house. DBS Lengyel suspected the house was being used at that time to grow cannabis. He believed that while he had sufficient grounds to execute his warrant he wanted to continue his investigations to determine whether there were any connections with MP or other houses or people. The police were not in uniform and were in an unmarked vehicle.
As the four police officers drove slowly past the house, each witnessed the accused in the front yard of the premises on or near a path which leads from the front door to the driveway. The accused was walking towards the road and away from the house. DBS Lengyel stated the accused looked hard at the police car and continued to watch the car until they passed out of his line of sight.[1] DBS Lengyel and DBS Elliott believed the accused had identified them as police officers. DBS Elliott stated he saw the accused deviate in the direction he was walking however the other police officers did not refer to that. The evidence of DBS Elliott on this issue was disputed.
[1] T22.
DBS Lengyel stated he would not have initiated any searches if the accused had not seen them. He would have tried to follow him for a short distance and observed where he was going or whether he had a vehicle.[2] DBS Lengyel felt that the accused seeing them had ‘forced his hand’. As a result of his belief the accused had identified them, DBS Lengyel determined that the house would be searched and the accused would be stopped, detained and searched. He suspected the accused had come from inside the house. The police drove a short distance, did a U-turn and returned to the house. The accused by that time had started walking down the street in the opposite direction to that which police had originally travelled. Police stopped the car next to him when he was level with a neighbouring house. It would later become known that the accused’s car was parked in front of the premises and he had in fact walked past it and continued down the road on foot.
[2] T23.
It was determined prior to police stopping that DBS Lengyel would stop and detain the accused and DBS Elliott would execute his search warrant in relation to the house. Both DBS Lengyel and Elliott were in possession of general search warrants. DBS Elliott gave evidence he had a suspicion prior to stopping and speaking with the accused that the house was an ‘active grow house’ and that he intended to execute his search warrant. There was a dispute as to the nature and extent of the information DBS Lengyel had provided to DBS Elliott prior to DBS Elliott determining he had such a suspicion.
Prior to the search of the house DBS Lengyel and Elliott spoke with the accused. Prior to any caution being given and in answer to a question related to his attendance at the house, the accused denied being in the house or coming from the house. The accused was then searched and keys were located.
At that point the house was opened using those keys and it was searched. Inside the house police located 27 cannabis plants. That evidence is the subject of the application to exclude.
The keys from the accused were found to open the car parked at the front of 3 Abercrombie Street. That car was later found to be registered to a person with the same surname as the accused. It was submitted that his act of walking past his own car was only consistent with the impression of the police officers that he had identified them as police.
There was no evidence of any trespass by police onto the premises prior to the keys being located. To the contrary, all police remained in the vicinity of the accused and the police car until after the keys were located on the accused.
The issues which potentially arise for determination are:
1Did DBS Lengyel hold a reasonable suspicion as to the house being used to cultivate cannabis as at 4 June 2018 and if so, how is that relevant to the issues on the voir dire?
2Did DBS Lengyel suspect that the accused was in possession of evidence as regards the suspected cultivation of cannabis and if so, was that suspicion reasonable?
3If DBS Lengyel had a reasonable suspicion in relation to the accused was he required to caution the accused prior to speaking to him and if so, should that statement be excluded on the basis of it being unfair to admit the statements of the accused in the absence of a caution?
4If DBS Lengyel detained the accused, did his failure to advise the accused of his s 79A rights result in unfairness or unlawfulness such that the initial conversation ought to be excluded?
5If DBS Lengyel’s suspicion as regards either the house or the accused were not reasonable, was there a power to nonetheless ask the accused questions?
6Did DBS Elliott hold a suspicion as to the house being used to cultivate cannabis as at 4 June 2018 and if so, was that suspicion reasonable?
7What information was conveyed to DBS Elliott by DBS Lengyel?
8Did DBS Elliott see the accused deviate away from the car as the accused walked away from the house?
9Lastly, if DBS Elliott’s suspicion was either not held or not reasonable at the time he determined to search the house, but he came into possession of other information which did enliven a reasonable suspicion prior to him entering the property, was that search unlawful and if so should it be excluded in the exercise of the discretion?
10The exercise of the discretion to exclude evidence.
Relevant provisions
For the purposes of this voir dire the following is relevant;
67—General search warrants
(1)…..
(2)…..
(3)…..
(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b) ……
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 ….
(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.
Discussion as to the evidence
I have used initials or a letter as a means of hiding identities revealed in the evidence.
Credibility and reliability
I say at the outset that I consider each of the police officers was attempting to tell the truth as they remembered it. There were some criticisms by the accused as to the differences in some of their accounts. I do not consider those differences to reflect a lack of honesty on the part of any of the police. To the contrary the differences in their accounts are the antithesis of what might otherwise have been expected if they had put their heads together. I also consider the concessions made at various times, particularly by DBS Elliott, further reflect their honesty. Whilst I accept that demeanour is not always an accurate indicator of honestly – particularly for witnesses with some experience in giving evidence – the impression I formed as to each of the witnesses was that they were being honest.
I further note the accused did not directly attack the honesty of any of the witnesses although I accept some aspects of DBS Lengyel’s evidence as regards the lack of a caution were by implication not accepted by the accused. I was also invited to treat some of the evidence of DBS Elliott with caution on the basis there was reason to doubt the ‘accuracy and reliability’ of his evidence. It was not however suggested directly to either witness that they were lying. This is not itself determinative of this issue however it is not irrelevant. The accused did not question the reliability of either DBS Everlyn or Hawgood. To the contrary, where their evidence was different to that of DBS Elliott I was invited to prefer their evidence.
I will return to the issue of DBS Elliott’s reliability and in particular his notes. Whilst I consider a PD23A (the document prepared after a search warrant is executed) may serve as contemporaneous notes and whilst I have some sympathy for police as regards the manner in which events overtook them, I do consider the notes made by DBS Elliott should have been more carefully and fulsomely made. There should have been a greater attention to detail in that note taking. I agree with some aspects of the accused’s submissions in this regard and I will deal with these issues in the course of these reasons.
Information possessed by DBS Lengyel and investigations conducted by him prior to 4 June 2018
DBS Lengyel was aware of a man, MP, as he had arrested him in relation to trafficking a large commercial quantity of cannabis at Daw Park on 17 October 2016. MP had organised the lease for the house under a false identity and some 90 plants were grown at the house.[3]
[3] T9; Exhibit VDP3; T14.
As a result of his earlier involvement with MP, DBS Lengyel was allocated two intelligence submissions, SAI 1800057823 (Exhibit VDP1) and SAI 1800057830 (Exhibit VDP2) on 16 May 2018.These reports included information provided by an unknown source and other information known to police.
VDP1 was dated 6 May 2018 and summarised the intelligence as ‘MP had a grow house in the Seacliff area.’
VDP2 was also dated 6 May 2018 and contained more information. Relevantly it included the following summary; ‘3 Abercrombie St, CLARENCE GARDENS was previously used by MP as a grow house, it is unknown if it still is. This premises is owned by D who owns that property herself as well as 2 others with K who has previously rented out premises where cannabis crops have been found.’ (my emphasis) Within the report it was also recorded that K owned a property which was relatively close to the Seacliff area[4] and that no current tenancy agreement on the Clarence Gardens address was recorded with the Residential Tenancies and none had been recorded since 2011.
[4] T33.
DBS Lengyel knew that K was D’s partner.
Both intelligence submissions referred to other intelligence reports. DBS Lengyel accessed those reports as part of his investigation. One dated 13 August 2017 connected MP to a well known drug syndicate and stated that a member of that syndicate entered Australia unlawfully and stayed with MP in April 2017. The other dated 12 January 2018 referred to a business transaction between MP and a person known by DBS Lengyel to have associations with cannabis cultivation.[5]
[5] T36-37.
DBS Lengyel believed that MP’s role within the syndicate was to organise the premises and then put other persons in charge of the day to day cultivating. In this particular syndicate ‘they would source a house or several houses under a false identity and they would then organise someone to look after that house and take care of the cultivation of the cannabis plants that were growing within and that person generally was just known to be a grower, not necessarily… responsible for the final distribution of the product.’[6]
[6] T10.
He accepted in cross examination that the content of these reports was insufficient to justify a reasonable suspicion that the house was presently being used to cultivate cannabis. This was obviously correct. He further accepted that the reports made clear that the information received was unverified, that the source’s reliability was unknown and that the information of a previous cultivation could have related to a cultivation months or years ago.[7] His investigation was to determine whether there was evidence of a current offence occurring at that house.
[7] T29.
He read VDP1 as indicating MP was currently involved in cannabis cultivation in Seacliff. He conducted investigations but was unable to locate such an address.[8] He also checked an address owned by K which was near the Seacliff area.[9] He also stated he read another report which suggested MP was still involved in cultivation. It is unclear to me whether he was there referring to VDP1 and Seacliff or some other report.[10]
[8] T33.
[9] T80.
[10] T11.
In any event, having been assigned the investigation DBS Lengyel first read the other intelligence reports referred to in VDP1 and VDP2 and then made enquiries. It therefore appears that notwithstanding the intelligence reports referred to the owners of the premises and the results of tenancy checks he conducted his own checks on those matters. He also made enquiries as to the history of the owners and the details contained in other intelligence reports referred to in VDP1 and VDP2.[11]
[11] T11; T36.
I consider these initial investigations conducted by DBS Lengyel to be instructive. They do not suggest he was inclined to take shortcuts or jump to conclusions or simply take information at face value. This is relevant to one aspect of the accused’s submissions wherein it is suggested his failure to make more enquiries about a particular matter (the registered owner of the car) is consistent with such characteristics.
DBS Lengyel also attended the premises ‘in the afternoon…it was definitely daylight’ of 16 May.[12] He initially drove past the house, then parked around the corner and walked past the property.[13] He observed a blue Daihatsu Terios registration number (provided) in the driveway of the premises. All of the windows at the front of the house had outside blinds or awnings which were down and all the windows had inside blinds which were down.[14] He believed this was suspicious as ‘during that time of the day and with a car in the driveway most houses would have some blinds up.’[15] He didn’t notice any person present or any movement.[16]
[12] T11.
[13] T12.
[14] T12; Exhibit VDP3.
[15] T38.
[16] T12; Exhibit VDP3.
He was of the view that it was a ‘typical looking grow house’ in that it looked similar in appearance to other grow houses he had investigated, in that ‘[it] would typically have a car in the driveway registered to an unknown person, …to give the appearance of someone residing there. All the blinds are commonly down so people couldn’t see into the house.’[17]
[17] T15; T44.
He subsequently conducted checks on the vehicle. The vehicle was registered to a ‘GS’ (name supplied) and the address recorded was Unit 44 Glynburn Road, Hectorville.
Firstly, his checks of the police database showed no record of that name.[18] Secondly, the name had only been ‘recently’ registered with the Department of Motor Vehicles and driver’s licence database when the vehicle had been purchased by GS.[19] Thirdly, the registration details were obtained from a notice of disposal submitted by the person who sold the vehicle. That the person GS had not actually advised the department himself of his details further added to DBS Lengyel’s suspicion that GS did not actually exist.[20] Fourthly, he stated the address did not ‘make sense’ as there was either no street number or no unit number if the reference to 44 was the street number. [21] He checked the address and 44 Glynburn Road is a block of 20-25 units. He believed the address did not exist and it was a false address.
[18] T12.
[19] T12; T39.
[20] T15; Exhibit VDP3.
[21] T13.
I note the detective did not make enquiries with border force or immigration as to the name and he did not physically attend that address.
DBS Lengyel stated that he suspected the name was false. He believed the vehicle was registered under a false name to be left at that address to give the appearance that the address was being lived in, consistent with his ‘experience’ and the evidence he had as to the way MP operated.[22]
[22] T13; T40.
DBS Lengyel stated he ‘suspected the name was false’ and that he ‘assessed that the name was false’. In making that assessment he appears to have taken into account that using false names is consistent with his experience of MP. I agree with the accused’s submission that there may be ‘an element of circularity’ involved in DBS Lengyel's reasoning. His suspicion that a car at the premises was registered in a false name was relevant to whether the house was currently being used to cultivate cannabis plants. If he suspected it was false because MP would use false identities, this assumes that MP was using the house to grow cannabis as a basis for suspecting the name was false. I will return to this issue later as this may be an unfair interpretation of DBS Lengyels’ reasoning process. In any event, I do not consider it impacts the question whether he held a suspicion and the enquiries he made remain relevant to whether the suspicion was reasonable.
Based on the above information DBS Lengyel stated he formed the suspicion that this was an active grow house and that it was going to be part of MP’s syndicate.[23] DBS Lengyel believed his ‘reasonable suspicion’ would have justified using his general search warrant at that time. He did not however intend to do so as he wanted to investigate further. He knew that a search of a vacant grow house would be unlikely to identify the persons responsible as evidence of their identities is not often located. He wanted to determine if he was able to connect the house to a specific person or persons in the syndicate. His objective ‘was to find evidence that would connect MP to that grow house and/or any other persons involved with that grow house and/or identify any other grow houses involved in that syndicate.’[24]
[23] T16.
[24] T16.
Lastly, he saw the accused looking hard at the police car as it drove past. He made eye contact with the accused and believed they had been identified as police. The police drove a short distance, turned around and pulled up alongside the accused at the front of a neighbouring property. By that time the accused had walked away from the house and was walking away from police.
There is no evidence that DBS Elliott informed DBS Lengyel of his observation or belief that the accused had deviated from the direction he was taking toward the car parked on the road. This did not form part of the suspicion held by DBS Lengyel.
The accused has the onus on this application however I indicate I am satisfied beyond reasonable doubt that DBS Lengyel did have a suspicion that it was an active grow house at that time. I am satisfied he gave his evidence honestly and such a conclusion is consistent with his decision to drive past the house that day, his actions upon seeing the accused and the information he had at that time.
Re Facts known by DBS Lengyel- was the suspicion as to the house reasonable?
The law in relation to reasonable suspicion was considered in R v Nguyen:[25]
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
Importantly, … more than an actual suspicion [is required]; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
[25] (2013) 117 SASR 432 at 437.
The facts known by DBS Lengyel as at 4 June 2018 and from which the suspicion arose were therefore:
(i)He knew MP was involved in 2016 in cultivating cannabis at a grow house in Daw Park using false identities on leases;
(ii)In 2017 a member of a group of people known to cultivate and sell cannabis unlawfully entered Australia and stayed with MP;
(iii)A source had informed police that MP had previously used the premises at 3 Abercrombie for the purposes of cultivation. That information was however qualified in that; there was no indication of when that occurred, it was expressly stated that it is unknown whether it is still being used for that purpose, there was no evidence of cannabis having been found at that address by police previously, the source of the information was noted as ‘untested’ and the evaluation of the intelligence was assessed as ‘cannot be judged’.
I note the significance of the absence of a time frame is diminished by the unchallenged evidence of DBS Lengyel that houses used for the cultivation of cannabis tend to stay within a syndicate for a long period of time and can be used for many years. This is I consider a matter of common-sense and also tends to diminish the significance of no cannabis previously being located by police at the house. If such an event occurred I would expect the house may not be used again. Some circumspection therefore had to be afforded this information but it retained some weight as to connecting MP to this address;
(iv)The registered owner of the house owns another house with K (her partner), a person known to have rented out another property in Mitchell Park at which a cultivation of cannabis occurred;
(v)He believed there was information that MP was presently cultivating cannabis in Seacliff;
(vi)Houses used for the purpose of cultivating cannabis often:
(a)leave a car in the driveway registered to a false identity;
(b)use blinds to provide privacy;
(c)have no one at home.
After attending at the premises on 16 May he saw a car in the driveway, the blinds both inside the house and outside the house were down, and there was no movement at the house. I consider the use of blinds both inside and outside is a relevant consideration- particularly when a car is in the driveway. However, the lack of movement at the house does not contribute to the reasonableness of the suspicion in any way, in my view. DBS Lengyel was only present at the house for a very short period of time, he did not knock on the door and it was the middle of the afternoon. A lack of movement for the short time that he observed the house is of no significance;
(vii)Upon checking the registration of the car in the driveway, the name to which the car is registered was not in the police database and only had a short history in the database relating to registrations and licences. He knew it was not difficult to obtain a driver’s licence in a false name and further, only the person who sold the car notified the Department of Motor Vehicles of the name of the person who bought the car. This latter fact was not inconsistent with a reluctance to divulge the name to authorities;
(viii)The address recorded on the database was potentially incomplete.
I consider it is an overstatement to suggest the address ‘did not make sense’. The road and the suburb existed and on its face the issue appeared to be that it either failed to record the unit number or it failed to record the property number. Whilst an incomplete address may still be consistent with someone using a false identity, there are other explanations. It may be explained by the seller innocently recording or providing the details incorrectly or by GS not providing all the details. In light of his non-attendance at the address to make further enquiries I do not consider this factor to be of great relevance in itself although I accept again that it is not inconsistent with a person using a false identity. That fact is relevant to whether it was incumbent on DBS Lengyel to make further enquiries about the name before relying on the evidence suggesting it was false.
I further note that the absence of any recorded tenancy is also not inconsistent with a person using a false identity.
I have already indicated there may have been a degree of circularity in the reasoning of DBS Lengyel’s formation of the belief that the car was registered in a false name. This faulty reasoning, if that is what it was, is not however determinative of the issue of reasonableness. That he may have given it more weight for a particular reason does not mean it may not still have significant weight for another valid reason on the basis of the facts as they were known to him.
(ix)There was no car parked at the address as they drove past the house on 4 June 2018. I do not consider this to be of any great weight. If the house was under observations and the car was absent for a long period of time, this would undermine his suspicion as he had stated that syndicates often park a car in the driveway to give the appearance of someone being home and it is the use of a car attached to a false name which contributed to his suspicion. That it was absent at that particular moment is not of itself significant. In any event, the presence of the accused in the yard was clearly unexpected and distracting. It is not surprising the absence of the car did not predominate in his reasoning.
I note the suspicion must relate to the house and it must relate to an offence being committed currently. I note that a person may take part in the cultivation of cannabis for sale prior to any cannabis plants being grown. There was some criticism by the accused that it would not be possible to know the stage at which any cultivation would be. I do not however consider this to be determinative of any issue. Setting up the house to make it ready for the imminent delivery of plants would still amount to taking part in the cultivation of plants.
Conclusion
The accused sought assistance from the decision of the Court of Criminal Appeal in R v Nguyen[26] on the basis the information held by police bore some resemblance to the ‘drug car’ information held to be insufficient to justify a search in that case. In Nguyen the police officer had information that at an unknown time in the past the car had been found with heroin in it after it had been driven by two men in their fifties. As to the house at which the car had just been seen, the police officer believed it had been used for a sustained period as a place of drug taking ‘and perhaps drug dealing’. However, as at the date of the search she did not suspect that there were drugs in the house. The evidence of the suspicion held by the police officer and her knowledge of the law as to using her powers to detain and search were clearly less than adequate. In any event information that drugs were located at some unknown time in the past in a car driven by people with no apparent connection to those in the car at the time police stopped it, raises far different questions to the factual matrix in this matter. DBS Lengyel was clearly aware of the need to suspect that the house was currently being used and his investigations were directed at that issue.
[26] (2015) 248 A Crim R 398.
Whilst another intelligence report may have been capable of being interpreted as indicating MP was currently involved in another grow house in Seacliff, that report would appear to suffer from the same qualifications as regards the reliability of the source. In any event the crucial issue is whether it was reasonable to suspect the house at Clarence Gardens was presently being used. That the source was untested and that the information provided by the source was only that it had been used in the past was important. However, DBS Lengyel already had personal knowledge that MP had an interest in cultivating cannabis for sale and that he had been arrested for doing so in October 2016- approximately 18 months before. The information from the source linking MP to the address was untested but the linking of MP to cannabis growing was supported by other facts known to DBS Lengyel. Further, the information from the source linking the premises to cannabis growing was indirectly supported by the registered owner of the house owning another property with her partner K, a person known to have owned a house at which cannabis was cultivated. The registered owner of the premises therefore has links to cannabis and the source refers to MP, a person with an interest in such cultivations, having a link to the premises.
This information must also be assessed in light of his experience that houses stay within the same syndicate for years and are used by the syndicate to cultivate cannabis for a long period of time. This continuity of use is not insignificant.
I consider the presence of a car in the driveway when both the inside and the outside blinds are down is consistent with the house being used in May 2018, but those factors in conjunction with the links to which I have referred above would not justify a reasonable suspicion as to the use of the house to grow cannabis in June 2018.
The facts relevant to the car at the premises being registered in a false name at a time proximate to their attendance on 4 June 2018 were also significant to DBS Lengyel and, I consider, correctly so.
He not only accessed a database which provides details of licences and registration of vehicles but also a police database. The absence of any reference to the name on the police database is important when considered in conjunction with the name only recently being recorded on the database for licences and vehicle registration. DBS Lengyel gave evidence he suspected it was a false name. No evidence was led as to the age recorded for the person ‘GS’ as contained on his licence but it was not suggested to DBS Lengyel in cross-examination that the age of GS could have been explained by him only being of a young age and only recently obtaining his licence and a car. It was not necessary for there to be information which showed beyond reasonable doubt that the name was false. What is required is an evaluation of all the circumstances as they are known. There will obviously be some people who have never had contact with police and will have no traffic infringements or arrests. However, each factor need not be considered in isolation. It is open to reason that it is highly suspicious that a name with no history of recorded infringements on the police database, then obtains a licence and registers a car shortly before that car happens to be parked at a house at which all the blinds are down and which may have previously been used by MP to cultivate cannabis, and which is presently owned by a person whose partner has links to cannabis growing.[27] The continuity of use of grow houses to which I have referred above, that the person did not provide the details to the registration and licence department himself, that the address was not complete and that the suspected grow house had no registered tenant only provides further support for that suspicion. I consider his suspicion that the house was an active grow house as at 4 June was reasonable.
[27] I have earlier been critical of DBS Lengyel for what I perceive to be circular reasoning. If in fact DBS Lengyel was simply trying to convey the type of reasoning to which I have just referred then my criticism was unfair. I obviously do not consider the reasoning I have employed to be circular. It is simply a matter of considering all of the circumstances and determining whether the suspicion that the house was an active grow house was reasonably raised by those circumstances. The potential difference in the reasoning is that DBS Lengyel may have determined it was false, whereas I consider the evidence suggesting it was false is simply one further factor to be assessed in light of all other factors, when determining whether it is reasonable to suspect that the house is currently being used as a grow house.
That he was in fact incorrect as to the name being false is not determinative. A suspicion founded on information subsequently discovered to be wrong does not negative the existence of the suspicion or its reasonableness.[28] As Jacobs J observed in Manley v Tucs:[29]
Not only does "suspicion" carry less conviction than "belief", but to say that a suspicion is "reasonable" does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
[28] R v Rogers (2011) 109 SASR 307 at 312.
[29] (1985) 40 SASR 1 at 9 (cited with approval by Duggan J in R v Rogers (2011) 109 SASR 307 at 312, [22].
In any event the information he relied on was correct -it is simply that further enquiries would have revealed an alternative explanation for the information on the databases. I have considered whether the failure to make further enquiries about the name or the address undermines the reasonableness of the suspicion. I do not consider they do. A person who accepts the word of an unknown source without any further inquiry may not hold a reasonable suspicion and a person who chooses to turn a blind eye in case further investigations undermine his suspicion may similarly not have a reasonable suspicion. I note DBS Lengyel investigated a number of issues prior to forming his suspicion. Whilst I agree a police officer must not be too quick to draw such a conclusion I do not consider his previous practice suggests such a tendency. Of more significance however, is that he did not have information which undermined that suggestion or would reasonably have caused him to question his suspicion. The fact he could have done more is not determinative of whether the suspicion is reasonable. There will always be something else which could be done.
His checks were not unreasonable when considered against the purpose of the powers he would have used if he searched the house or the power he used to stop, detain and search the accused. DBS Lengyel’s suspicion was not based upon flimsy material or mere speculation and did not require further investigation before it could be lawfully acted upon.
Finally, I have also considered a number of cases in which a suspicion has been held to be reasonable. I note in particular R v Marafioti[30] and R v Willingham (No 2).[31] I consider the facts upon which DBS Lengyel formed his suspicion to compare more than favourably with those cases.
[30] [2014] SASCFC 8, [11-14]; (2014) 118 SASR 511.
[31] [2012] SASCFC 104, [14 -18].
Of course, his suspicion as to the house is insufficient to exercise the power in s 68 and a further enquiry must be undertaken as to this act. It will however be relevant as to whether any amount of information given to DBS Elliott would have been sufficient to ground a reasonable suspicion and it will be relevant to his state of mind when considering the act of detaining the accused and whether a caution or the s 79A rights ought to have been given. I also consider it will be relevant to whether to exclude the evidence of the search if DBS Elliott did not hold a reasonable suspicion.
The decision to stop, detain and search the accused and the conversation with the accused
Each police officer described seeing the accused in the front yard walking in the direction of the road away from the front door. No one saw him at the front door or holding keys. The location each police officer described first seeing him was slightly different but I do not consider those difference are of any significance.
DBS Hawgood was driving and his view was ‘fleeting’. DBS Everlyn was in the rear right passenger seat and he first saw the accused walking from a location near the front door towards the road across the front yard of the address. He first saw him in about the middle of the two posts either side of the front door seen in Photo A of VDP5. This is at a point slightly closer to the house than DBS Lengyel saw the accused. DBS Lengyel was in the rear left passenger seat and therefore furthest from the house when he saw the accused at about the intersection of a small path which connects the driveway to the veranda of the house. He saw the accused at about the point where the path meets the driveway as he was walking away from the house.[32] DBS Elliott, who I am satisfied was in the front left passenger seat even though he did not specifically recall where he was sitting, first saw the accused at a position just off the veranda on the pathway which connects the veranda to the driveway as he was walking towards the driveway.
[32] DBS Lengyel marked VDP5, Photo A with an ‘X’ at the location he first saw the accused.
I note at this point that there was no cross-examination of any of the police officers that they had not seen the accused in the front yard or that they had not seen him walking in the direction away from the house. The accused suggested the evidence of DBS Lengyel, Elliott and Everlyn was inconsistent. I disagree. The differences in their evidence as to where they first saw the accused are within about two to five metres of each other. Given the accused was walking their evidence is readily explainable on the basis they each saw him at a slightly different moment. In any event they each saw him on the small pathway leading to the driveway albeit at different points on that short pathway. Those difference do not cause me to have any doubts as to either their honesty or their reliability as regards this evidence. The failure of DBS Everlyn to have referred to the precise position in his ‘reasonably thorough’[33] notes or his affidavit does not undermine that conclusion. It cannot be expected that every minute detail will be recorded in either notes or a statement.
[33] As described by the accused in his written submissions at [52].
I accept the evidence of DBS Lengyel that he had no intention to search the house on that date. I accept his evidence that he wanted an opportunity to investigate further and that their attendance that day was solely for the purpose of observing the house. I further accept as truthful and reliable the evidence of both DBS Elliott and DBS Lengyel that the accused looked at them and that both formed the impression that the accused suspected they were police. Firstly, I accept it because the evidence makes sense. It is clear given the way events unfolded that police considered their hand had been forced and that they had to act. That he would otherwise have preferred to follow the accused to determine whether other people including MP may be involved is believable and what I would expect of a detective with an opportunity to investigate an unlawful syndicate. Secondly, at the point at which the police stopped to speak with the accused, the accused had walked past his car and had started walking down the street away from the house and his car. This act is entirely consistent with him suspecting that the car which had driven past him contained police officers. That he had formed that suspicion is entirely consistent with their impression that he done so.
DBS Lengyel and Elliott approached the accused after the police vehicle was stopped ‘along side the accused’.[34] At that point the accused had walked past the vehicle parked outside 3 Abercrombie Street. DBS Lengyel approached the accused, introduced himself as a Detective and showed him his identification. DBS Lengyel stated: ‘I asked him what he was doing at that address. I think words were(sic), to that effect “What were you doing at that address?”. He looked puzzled and I then, specifically, said “We just saw you come from 3 Abercrombie Street, what were you doing there?” and he denied that, he denied that he'd come from there.’ [35] He then asked the accused whether he had any identification and the accused produced a driver’s licence. He informed the accused he believed he was connected to the house and that he was going to be searched.[36]
[34] T25.
[35] T25.
[36] T25-26.
The record of interview between DBS Lengyel and the accused was tendered as part of the voir dire. I note that at the commencement of that interview, the content of that conversation was recounted to the accused in the following terms:
Ok at about 2.50 this afternoon I was in a police car with the other police officers and we drove past number 3 Abercrombie Street, Clarence Gardens at that time I saw you walking down the driveway out of that property we turned around and I stopped you[37] near a car, a Kia Grand Carnival (registration supplied). I identified myself to you as a police officer I asked you what you were doing at that house at 3 Abercrombie, you denied being in the house or coming from the house I then told you I am detaining you until we have a look at that house because I suspect that you have been in that house. Mm I then searched you and upon searching you I found a set of keys in your front right pocket of your jeans. Another police officer used those keys to gain access to that house, inside that house we located two bedroom purpose cannabis grow house…
[37] This word is not contained on the transcript but it is audible on the tape.
DBS Hawgood remained in the car and DBS Everlyn stood slightly apart and observed the conversation. DBS Hawgood could overhear the conversation and he recalls the accused being asked something to the effect of ‘did you come from that house?’ or ‘did you come from inside the house?’. He recalled the accused saying or gesticulating that he had not come from that particular house.[38] DBS Everlyn did not have a specific memory of the precise content of the conversation however he made a note that the accused appeared vague and nervous and that he demanded a lawyer.
[38] T175.
DBS Lengyel agreed that he had not seen the accused holding any keys and he did not know how long the accused had been on the property. He had turned his mind to the possibility of arrest but he was not clear that he was going to do so. He suspected the accused would have keys which would be evidence relevant to the commission of an indictable offence. He stated he did not caution the accused because he had not established that an offence had been committed. Whilst he suspected that the house may be used for growing cannabis, he did not know that as a fact. He therefore did not think it was an appropriate stage to give a caution.
There was evidence from DBS Elliott that he also asked a question. I consider it is more likely than not that DBS Elliott did not ask such a question and that the conversation was exclusively between DBS Lengyel and the accused. It was DBS Lengyel who introduced himself and showed the accused his identification, it was DBS Lengyel who had determined he would stop, search and detain the accused and it was DBS Lengyel who recounted the conversation between himself and the accused in the subsequent record of interview. I have no doubt DBS Elliott was present and listened to the conversation but I consider it unlikely he asked the question.
Discussion re decision to stop, detain and search
The decision of DBS Lengyel to utilise s 68 of the Summary Offences Act was therefore made spontaneously in response to the circumstances which confronted him. I accept the accused’s submission that in circumstances in which decisions are made spontaneously there may well be a greater risk that a decision is made on an insufficient basis. I do not however consider this to be such a case.
It was submitted by the accused that in circumstances in which DBS Lengyel did not know the accused and did not see him exit the front door it was mere speculation on his part that the accused had been inside the house and that he may have keys to the house. It was suggested DBS Lengyel had engaged in ‘hindsight reasoning’.
For the reasons which follow I consider the suspicion of DBS Lengyel was reasonable on the facts as he knew them as he exited the car. For that reason I will not consider an alternative argument to the effect no power was required to approach the accused and ask him why he had been at the house, but once police did and the accused appeared to lie about being at the house, there was a sufficient basis to the search and detain the accused using s 68.
I have already determined that DBS Lengyel reasonably suspected that the house was an active grow house as at 4 June 2018. Police saw the accused walking towards the road on a path which led directly from the front door. There was therefore no ‘idle speculation’ on the part of DBS Lengyel as to the accused being connected, in some way, to the house.
The accused submitted that the use of the phrase ‘coming from the house’ by DBS Lengyel and Elliott put a gloss on what they saw. I do not agree. In the context in which their evidence was given they were clearly referring to seeing him coming from the direction of the house. This is an accurate description of what they saw. Whether he was coming from ‘inside the house’ is of course a different matter but I do not agree that their evidence indicated a ‘tendency of the police officers to contort an observation that the applicant was in the front yard of number three into an observation that he was seen coming from the house’.[39] The applicant’s submission pays no regard to the fact the accused was walking and that he was walking in a particular direction. The accused was not simply seen ‘in’ the front yard.
[39] See Applicant’s Written Submissions at [103].
As outlined previously, a suspicion is something less than a belief and I bear in mind the accused has the onus of proof on the balance of probabilities. There was no evidence or cross-examination that the accused was in a uniform or that there was a car or van with signage nearby or that he had a folder or an iPad or a badge, any of which may have otherwise explained his presence to an onlooker. I further note he was walking in a direction which was only consistent with having come from the front door. Once it is accepted that it is reasonable to suspect the accused had been at the front door there were only two possibilities – the accused had come from inside the house or he was merely visiting and had stopped at the front door. In the absence of any signs that he was a visitor, I do not consider it can be said to be idle speculation on the part of DBS Lengyel that he had come from inside. To the contrary, I think it was reasonable to suspect he had come from inside the house. It would not have been reasonable to believe he had come from inside but it was certainly reasonable to suspect he had done so.
I agree with the accused’s submission that the relevant suspicion to satisfy s 68 had to relate to the person – not the premises. However, a person’s presence at or connection with premises suspected to be an active grow house is clearly not irrelevant to whether the person may have evidence of the commission of an indictable offence on their person. The accused again places some reliance on the decision in R v Nguyen.[40] It is submitted DBS Lengyel only suspected the house and not the person. There is however a substantial difference between seeing an unknown person walking from the direction of the front door of a house which is suspected of currently being used to grow cannabis and the factual matrix in Nguyen. In Nguyen, two unknown people were seen leaving a house in a car which had contained drugs some unknown time before when driven by different people and the police officer did not suspect there were drugs at the house the people had just exited. That difference adequately explains why the decision in Nguyen that the suspicion was not reasonable has no particular relevance to this matter.
[40] (2015) 248 A Crim R 398.
I am satisfied DBS Lengyel had a suspicion that the accused had come from inside the house and that he would have keys and that such a suspicion was reasonable. The act of stopping and ultimately searching the accused was therefore lawful.
Should a caution have been given? If so, should the evidence be excluded? Alternatively, should he have been given his s 79A rights? If so, should the conversation be excluded?
There was no submission put that the evidence was inadmissible. The challenge to the conversation was directed at the lack of a caution and the failure to give s 79A rights before engaging with the accused.
I note that DBS Lengyel could have exited the vehicle and approached the accused without any recourse to s 68 of the Summary Offences Act. [41] The car could have been stopped, the Detective could have introduced himself and asked ‘what is your connection with the house at which we just saw you?’ As Vanstone J stated in R v Dam & Nguyen:[42]
A police officer, like any other member of the community, is entitled to ask another person questions. He does not need any statutory authority, or any reasonable suspicion of an offence, to do so.
[41] Police v Moukachar (2010) 107 SASR 450 at [13]; R v Bain (2011) 112 SASR 10 at [17]; R v Armistead [2019] SASCFC 85 at [89] to [95].
[42] R v Dam & Nguyen; Case stated on Question of Law (No 2 of 2015) (2015) 123 SASR 511; [2015] SASCFC 131 at [26]; Bae v The Queen; Koo v The Queen [2020] SASCFC 7
Of course, that is not what DBS Lengyel purported to do. DBS Lengyel had determined to stop, search and detain the accused pursuant to s 68. I further note that DBS Lengyel believed the accused was detained from the moment he determined to search him.[43] I note however that the accused’s apparent lie occurred prior to police informing him he was detained.
[43] T69.
DBS Lengyel stated he did not give a caution because he had not established that an offence had been committed. Whilst he suspected that the house was being used to grow cannabis he did not at that point know whether that was correct. He did not think it was an appropriate stage to give a caution and he did not believe he was required to give a caution at that stage.
DBS Lengyel stated that in asking the question he was not attempting to gain an admission. He said it was a common language sort of question introducing why they had stopped him and why they wanted to speak to him.[44] Once the police had determined that the premises were in fact being used to cultivate cannabis the accused was arrested and the appropriate rights administered.
[44] T64.
The accused submits that there is a tension between DBS Lengyel reasonably suspecting the accused of having evidence of the commission of an indictable offence and yet not having reached a point that required a caution to be given as a matter of fairness. In the circumstances of this matter I do not consider there is such a tension and I do not consider that the accused was under de facto arrest such that the s 79A rights had to be given as a matter of law or that it was unfair to the accused not to caution him.
As to whether s 79A was engaged I note Doyle J in Police v Pocius,[45] when considering a detention under the Road Traffic Act identified the issues as:
(i)Whether the facts and circumstances involved the threshold level of detention or interference with the liberty of the respondent to warrant a conclusion that he was de facto apprehended, and;
(ii)Whether, even if the facts and circumstances might have been sufficient to warrant this conclusion, there was nevertheless some other lawful basis or justification for the detention or interference such that it does not require a conclusion of de facto apprehension. One such justification might be the existence of some implied power on the part of a police officer to detain or interfere in the relevant way, without making any arrest.
[45] Police v Pocius [2018] SASC 38, [49].
That s 68 of the Summary Offences Act stands separate and apart from s 79A of the Summary Offences Act has been judicially recognised for some time. Importantly, the detention to which s 68 refers falls short of the apprehension or arrest of a person referred to in s 79A.
I further consider the conversation could have been undertaken by police prior to any detention pursuant to s 68 of the Summary Offences Act. The interference with his liberty – being approached by police and asked a question – was able to be achieved without any de facto apprehension or detention. I note that the discussion as to the meaning of detention in Bae v The Queen; Koo v The Queen[46] acknowledges that it is not every interference to the right of freedom of movement which will amount to a detention in the legal sense.
[46] [2020] SASCFC 7.
The conversation between the accused and DBS Lengyel occurred prior to the accused being told he was being detained. I note the accused gave no evidence on the voir dire. I do not consider a police officer getting out of the car and identifying himself as a police officer and then asking what he had been doing at the house amounted to an apprehension or would have led the accused to believe he was under arrest or that he was being detained – irrespective of the intention of DBS Lengyel.
I do not therefore consider the accused was apprehended for the purposes of s 79A when police asked him about being at the house. The failure to give those rights has not occasioned any unlawfulness or unfairness.
As to whether there was nonetheless a need to caution as a matter of fairness, it is not the case that a decision to search an individual must be accompanied by a caution.[47] Section 68 by its terms does not require a suspicion that the accused has committed an offence. More importantly however s 68 is recognised as a section by which police may gather information for the purpose of determining whether he/she has reasonable grounds for suspecting a particular person of a particular crime. As was recognised in Abbott v Ramm,[48] if the search finds nothing the police officer may have no reasonable grounds at all for suspecting that person.
[47] Abbott v Ramm 1994 Unreported Judgement BC9503114 at 22-23; DPP v Smith (1994) 179 LSJS 25 BC9400911 Unreported Judgment.
[48] 1994 Unreported Judgment BC9503114.
The accused has submitted that the approach taken in Abbott v Ramm reflects an ‘outdated view’ of the circumstances in which a caution is required. Whether a caution is required will obviously be a matter of fact and degree however Debelle J took into account the decision in R v Dolan[49] and the statements of King CJ. The relevance of the decision in Abbott v Ramm is that simply because a police officer has a suspicion sufficient for the purposes of a search it does not mean, as the accused now suggests, that there is ‘serious tension’ between using s 68 and failing to caution.
[49] (1992) 58 SASR 501.
In R v Dolan at 504 -505: King CJ discussed the obligation to caution a suspect. His Honour said:
The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to the voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.
The questioning of a suspect who is under arrest or who is otherwise in custody, tends naturally to the conclusion that he is not acting in the exercise of free choice in answering the questions. In such circumstances the caution is virtually an indispensable condition of the admissibility of the answers. The need for the caution is almost as compelling where, although the arrest has not actually been made, the police officer has decided to make the arrest.
…
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions. This is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audiovisual tape. Omission to administer the caution at the commencement of such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.
The most that could be said of DBS Lengyel’s suspicion is that he suspected the accused of having evidence of an offence which he suspected was occurring. This bespeaks a police officer in the investigatory stage gathering information.
It is relevant that DBS Lengyel had considered the possibility he may be arrested but it is of greater significance that he had not determined to do so – particularly as he did not yet know whether an offence was in fact occurring at the house. DBS Lengyel had a reasonable cause to suspect that the accused may have upon his person evidence of the commission of an offence but without confirming the premises were in fact being used as a grow house he had not reached that stage of his investigations when a caution was required to avoid unfairness to the accused.
The accused is correct to say that fairness may dictate a caution be given even before the accusatorial stage. It will depend on the circumstances. When a police officer knows or believes that an offence has been committed, the officer knows that questions of any type may illicit answers which incriminate and therefore it may be unfair not to give a caution. If there exists uncertainty as to whether any offence has been committed then I consider the nature of the questioning may be significant. A more formal interview even in those circumstances may require a caution as a matter of fairness. Those are not however the circumstances in which the accused was asked this question.
Lastly, whilst I do not place substantial weight on this factor I note the evidence of DBS Everlyn and DBS Elliott that the accused immediately asked for a lawyer after he denied being at the house. It would therefore appear the accused was aware of his rights and chose to exercise those rights immediately. Whilst awareness of his rights does not abrogate any responsibility on the part of the police to give rights which are required, that knowledge is I consider relevant to the unfairness argument and whether the evidence ought to be excluded.
For the above reasons I do not consider the accused was apprehended for the purposes of s 79A and the discretion in Bunning v Cross is not therefore enlivened. Further I am not satisfied there is unfairness in using the evidence of his attempt to distance himself from the house as a result of police not cautioning him. I will not exclude the evidence of the accused’s conversation with DBS Lengyel.
If I had excluded this evidence on the basis of unfairness to the accused I note I would nonetheless have considered it to be admissible on the voir dire as to the suspicion held by DBS Elliott at the time he entered the house using his warrant. This apparent lie was said in front of DBS Elliott prior to the keys being obtained from the accused and prior to any search of the house commencing. In circumstances in which evidence is excluded on the basis of an unfairness to the accused I do not consider that precludes the police from acting upon the apparent lie he told when speaking with them. In those circumstances the question asked by police was not unlawful and I see no impediment to taking into account that question and answer in determining the lawfulness of the search by DBS Elliott.
The information known by DBS Elliott prior to his decision to execute his warrant and the subsequent search of the house on 4 June 2018
Neither DBS Everlyn nor Hawgood had search warrants with them. It was only decided that DBS Elliott would execute his warrant in the time it took to do a U-turn and return to where the accused was walking on the footpath. That decision appears to have been motivated by DBS Lengyel’s decision that he would or should stop and search the accused. These circumstances were not ideal for the formation of a reasoned and considered suspicion but I am satisfied DBS Elliott nonetheless held a suspicion the house was ‘an active grow house’ on that day. As I have indicated, I consider he gave his evidence honestly and, for the reasons which follow, I accept the information he did have was a basis upon which a suspicion is likely to have been formed. Its reasonableness is however another matter.
In cross examination, DBS Elliott said that it had been determined before they alighted from the police car that the house was going to be searched.[50] He said he had a sufficient basis to execute his warrant before getting out of the car.[51] I will therefore consider the state of his knowledge both at the time he initially determined he would search the house and at the time he in fact searched the house.
Prior to exiting the car
[50] T95.
[51] T95.
DBS Elliott gave evidence that the team had been working together on another job on 4 June 2018. As the end of the day approached the team drove past number 3 as DBS Lengyel had an ‘ongoing investigation whereby he received information that number 3 Abercrombie Street...was or had been used as a cannabis...grow house...’.[52] DBS Elliott stated: ‘I was aware that DBS Lengyel had already been past the address on at least one other occasion and on that occasion he’d seen a vehicle on the driveway and there was also intelligence reports indicating that the premises was or has been used as a current grow house.’[53]
[52] T84.
[53] T85.
It was not disputed that within the team there were discussions as to the different jobs people were working on. This was common practice. DBS Everlyn for example stated that they were aware of the investigations being conducted by others, that they had weekly meetings and also general discussions in the workplace.[54] I accept that DBS Elliott had some knowledge of the house and the investigations conducted by DBS Lengyel prior to 4 June 2018. DBS Elliott did not make notes of those casual conversations as they occurred and that is to be expected. He obviously did not foresee the manner in which events would unfold on 4 June.
[54] T155.
DBS Elliott stated that prior to 4 June 2018 he knew that information had been received that the premises was or had been used as a grow house and that DBS Lengyel had driven by the house and seen a vehicle in the drive. He stated that DBS Lengyel had told him that ‘he’d done a drive by the premises on 16 May, that there was intelligence reports on 6 May and on the driveway on 16 May there was a blue Daihatsu Terios. He gave me a registration number (provided) which was on the drive. He said all the blinds were down, there was nobody seen at the address and from his experience he told me it appeared a suspected grow house. He told me who the car was recorded to and encompassing with the intelligence reports that were received, he’d drawn the conclusion it was, in fact, a working cannabis cultivation grow house.’[55] DBS Elliott knew that the intelligence submissions related to MP.[56]
[55] T85.
[56] T85.
DBS Elliott was pretty sure he was aware of the information as summarised in the PD23A[57] which amounted to a summary of Exhibit VDP2 prior to 4 June 2018 but could not recall if he had read VDP2.[58] He further stated he became aware of this after he first became aware of DBS Lengyel’s investigation within the office upon general discussions but he could not recall when that was.[59] DBS Lengyel had also discussed it on 4 June when indicating he wanted to drive past the premises.[60]
[57] Exhibit VDD9.
[58] T98-99; T102.
[59] T85; T109-110.
[60] T102; T104.
There was however a degree of vagueness about the precise information he had to hand. He said: ‘I was aware that 3 Abercrombie Street had intelligence linked to it suggesting it was or is a grow house, and somewhere in my mind the other things that had been told to me by DBS Lengyel, so I was convinced it was a cannabis grow house and I saw a person coming from it so joined the dots.’ [61]
[61] T130; T130-131.
Explaining his evidence that he had information 3 Abercrombie Street was a grow house, DBS Elliott said ‘that's just the information I had in my mind, in my head, from the intelligence’.[62] In cross examination when he was asked to explain what he meant when he said ‘that's just the information I had in my mind, in my head, from the intelligence’. He said: ‘Look, and there was discussions with Lengyel as well, at some point, and where it's all come from it's just all blended into the fact that it led to the suspicions to search the premises. The premises was being used or had been used as a grow house.’ [63]
[62] T113.
[63] T151.
Whilst it is not necessary to note every step in the process of reasoning I agree that DBS Elliott’s subsequent recording of the information upon which he relied to form his asserted suspicion was less than ideal. Once he executed his search warrant it was incumbent upon him to note in some detail the matters he had relied on.
Whilst he clearly filled in the PD23A on the following day as a result of executing his warrant, the similarity between some of the information in the intelligence report and the PD23A leads to the inescapable conclusion that he had regard to the intelligence report when he was filling in the PD23A. I would be surprised for example if he had been given the details of the registration of the car by DBS Lengyel and yet that is detailed in the PD23A. I have no doubt he had discussed aspects of the investigation with DBS Lengyel prior to their attendance on 4 June and that he had a general knowledge of what had been done.
In trying to recall specifics he did not have many notes but he did have recourse to the matters he recorded in the PD23A. His reliance on the intelligence report to fill in the PD23A however undermines to a degree the significance of the information he has recorded in the PD23A given his uncertainty as to whether he had even read those reports.
I consider it is readily apparent that DBS Elliott relied in part on DBS Lengyel’s experience and that DBS Lengyel thought it was an active grow house.
When asked in examination in chief to identify the basis upon which he executed his general search warrant, he said: ‘Based on the information I had that had been relayed to me through a course of leading up to the entire operation on the job with regards to the intelligence reports dated 6 May, other intelligence reports indicating that the person suspected of being there had a further grow house there, the person had a history of trafficking drugs there, previous attendances by DBS Lengyel at the address, one of which where he saw a car on the drive, curtains drawn, all the blinds were down, and again to DBS Lengyel by all intents and purposes with his experience it looked like a grow house. [64]
[64] T93.
I note that DBS Lengyel only made one prior attendance and there was no suggestion of curtains however at least one aspect of his suspicion relied on DBS Lengyel’s experience and opinion.
The prosecution submitted it is implicit in cases such as Bae v The Queen; Koo v The Queen[65]; Kadir v The Queen[66] and R v Golja[67] that officers executing warrants can appropriately rely on the information obtained from other sources including other police officers. That is clearly correct however there is a difference between conveying information and conveying an opinion based on information. Any opinion had to be deconstructed to at least some degree to form the basis for a reasonable suspicion.
[65] [2020] SASCFC 7. I have noted that the information upon which police acted in Bae v The Queen; Koo v The Queen is only partly recorded in the judgment. I have had regard to the reasons for verdict in that matter and it appears some further information was available to police. It does not therefore appear to be a case wherein the opinion of one police officer was relied on by another officer as the basis for a search.
[66] [2020] HCA 1.
[67] [2017] SASCFC 61.
From the moment they saw the accused, the time frame in which to discuss matters was very limited. However as they drove to the premises I accept some information would have been imparted by DBS Lengyel. This is what would be expected given their intended destination. He stated he informed the others that he ‘suspected it was a grow house and that I'd previously been there and what I'd already said in evidence, I told them it looked like a grow house’.[68] He did not recall ‘going into specifics’ but believes he told them there was a Terios and he suspected the house to be a grow house.[69] He acknowledged, however, that he ‘didn't go into that much detail’ about the basis for his suspicion that number 3 was a grow house.[70] He did not tell the others the details of the intelligence reports[71] because, essentially, they did not need to know.[72]
[68] T47.
[69] T49.
[70] T48.
[71] T48.
[72] T49.
DBS Elliott could not recall exactly what was discussed on the way to 3 Abercrombie Street [73] and he made no notes on the day other than a note that ‘Advised by Lengyel this is a suspected grow house through IS’.[74] I also note DBS Elliott accepted that there would have been no need for DBS Lengyel to have provided lots of information about his investigation ‘because general talk in the office, we were all aware of each other's jobs’.[75]
[73] T123; T125.
[74] T106-107.
[75] T112.
I am satisfied that the enquiries which suggested the car was registered in a false name were not known by DBS Elliott. Whilst VDD9 makes reference to the registered owner of the Terios and the registration number, the notes of DBS Lengyel, Elliott and Everlyn are silent as to any suggestion that this information was relayed. Whilst DBS Lengyel initially stated he believed he did mention the false name while in the car he later stated he did not recall referring to it while they were in the car and he only recalled referring to the fact they were looking for a car.[76] DBS Everlyn recalled DBS Lengyel saying it was a grow house and to look out for a car. He did not recall any information about false names being discussed. Importantly DBS Elliott could not recall if he had been told that fact. The prosecution suggested this does not mean he was not told and has since forgotten however I do not accept that submission. I consider it far more likely that DBS Lengyel would have simply conveyed his ultimate suspicion that it was active than to have relayed each matter upon which he relied. In those circumstances and given the limited time they had to converse I am inclined to the view it was not said in the car. It is possible it was conveyed to DBS Elliott in the course of casual conversations however the absence of any note to that effect close to the time the warrant was executed means I am satisfied it is more likely not to have been said or even if said, not remembered by DBS Elliott.
[76] T53.
I consider the information suggesting the name was false was a significant aspect of the suspicion of DBS Lengyel. In the absence of that information I do not consider the suspicion of DBS Elliott was reasonable as at the moment he determined he would use his search warrant to search the house.
Before considering the events after he exited the car I note I am not prepared to assess the reasonableness of the suspicion on the basis DBS Elliott stated he saw the accused deviate away from ‘a car that he was clearly going to’ which was parked on the road upon seeing the police in the car.[77]
The deviation by the accused away from his car
[77] T93.
DBS Elliott said that as the police drove past number 3 at around 10-15km/h, he noticed a male coming from ‘the front door area of the house which was a little footpath leading onto the driveway and then coming off the driveway towards a silver Kia that was parked on the road literally outside the No 3 and I remember eye contact being made and I remember an obvious deviation away from the car which (a) coming from the house I thought was a bonus for me because we rarely see somebody coming from a house that we suspect as being a grow house and (b) mannerisms indicated that something wasn't quite right...I felt that when we got seen there was an obvious deviation from the car...'.[78]
[78] T88.
DBS Elliott suggested there was a ‘clear link between the person and the car’ but could not remember what that link was – whether it was ‘an outstretched arm and then a deviation’ or ‘whether it was just approaching the car and then spun away’.[79]
[79] T89.
As I have previously indicated I consider DBS Elliott gave his evidence honestly on this point however I am satisfied on the balance of probabilities that I cannot rely on the reliability of his account as to the accused appearing to deviate away from his car after identifying the police in their car. I provide two examples of why I have some doubts as to the reliability of the recollection of DBS Elliott:
(i)DBS Elliott was present when the accused was searched and keys discovered. He stated however that he was the person responsible for testing the keys and he tested them in the Kia before the house was searched.[80] DBS Everlyn, who took notes on this topic and recorded the times at which events occurred indicated he had tested the keys on the car at 15:12 hours and he did so after entry was gained to the house at 14:55 hours.[81] This was consistent with DBS Lengyel who stated he handed the keys to DBS Everlyn and asked him to try them on the car.[82] DBS Lengyel's note that, at 15:17 hours, DBS Everlyn advised him a key worked on the Kia, provides further support for this.
Whilst I could not exclude as a possibility that DBS Elliott ‘borrowed’ the keys from Everlyn and tested them in the car at some point, it seems very unlikely it could have occurred prior to the search of the house. I also note DBS Everlyn appears to have taken precise notes and he had no note of this occurring.
(ii)As I have indicted above I consider it is more likely than not that it was DBS Lengyel who asked the questions of the accused. I therefore consider there is a question as to the reliability of DBS Elliott’s recollection that he asked the relevant question of the accused.
[80] T92-93.
[81] T168-169.
[82] T26.
Whilst it is correct that the other three police officers do not refer to having seen that does not necessarily trouble me. DBS Elliott was in the front passenger seat and his field of vision was therefore better than others. He was more able to turn in his seat as the car went past the accused so that he could continue to watch him. DBS Elliott did not refer to turning in his seat however I would not necessarily expect him to recall such a movement some two years later.
I accept that a change in direction may almost be imperceptible and simply leave the observer with an impression but his inability to articulate whether he ‘spun away’ or had an ‘outstretched arm’ suggests something more physical. DBS Elliott made no note of this particular observation at the time and in the PD23A he made the following note: [83]
Male walking from the front door of the premises towards a car on road outside. Male saw police and continued walking past the car.
[83] VDD9.
In light of the position at which his car was parked the accused would have been walking in the general direction of the car as he left the premises so whilst this note is factually correct there is no reference to a ‘deviation’.
DBS Elliott clearly became aware shortly thereafter that the accused had in fact attempted to avoid the car. In the absence of any notes on the day or in the PD23A and the other matters DBS Elliott was simply unable to recall in evidence[84] I consider there is a danger of some reconstruction in his mind as to when and why he suspected the accused of suspicious behaviour.
[84] T103-106.
I further note the evidence of DBS Lengyel wherein he indicated that after the car had turned around and headed back towards 3 Abercrombie Street he ‘could see that Mr Ndreka had reached the footpath and he was walking in a southerly direction along the footpath. As we approached the house, he continued to walk south, past a Kia station wagon that was parked on the street’. Whilst there is a degree of in exactitude about the timing of these events, the evidence of DBS Lengyel would appear to suggest the accused had not got close enough to the car to deviate from it as they went past it in the first instance. In light of the inexactitude I do not place a great deal of weight on it however it is one further matter which supports the accused’s submission that the ‘alleged deviation’ by the accused is not a matter I should take into account in determining whether DBS Elliott held a reasonable suspicion. My doubts about the reliability of his recollection are such that the accused has satisfied me that at the time police entered onto the property and into the house this was not a factor of which DBS Elliott was aware and which was capable of informing the nature of his suspicion.
After he exited the car
DBS Elliott said that he also had regard to the fact that the accused tried to distance himself from the house in the first instance and that he then demanded a lawyer.[85] As regards the conversation with the accused he stated: [86]
It's suspicious, the nature of the conversation was suspicious in itself which just added to my suspicions that I already had that the house was a grow house.
…he's come from the house, then he's avoided questions with regards to coming from the house, going to the car, so it just caused a suspicion, a further suspicion that he was linked to the house.
…I already had in my mind that the house was, indeed, a grow house, and we already knew that, or I had suspected that, it just added strength to them suspicions with his erratic behaviour…
[85] T93-94.
[86] T94; T137; T142-T143.
The accused is critical of any reliance being placed on the accused’s denial of an association with the house as any denial must necessarily depend on the precise question asked of him. DBS Lengyel was I consider precise and in any event, the conversation he recounted in evidence was clearly sufficient to raise a suspicion that the accused was lying about where he had been and that he was attempting to distance himself from that house.
Discussion
I am satisfied DBS Elliott as at 4 June 2018 had the following information prior to any police entering the property or the house:
(i)Police received information that number 3 was previously used as a grow house but it was unknown whether it was still being used;
(ii)DBS Lengyel had been investigating whether it was active;
(iii)DBS Lengyel had recently driven past the property and observed blinds down, no-one present and a car in the driveway;
(iv)The above observations were consistent with an active grow house;
(v)DBS Lengyel believed it to be active as a result of his investigations;
(vi)On 4 June 2018 the accused was walking in a direction away from the front door of number 3 and towards the road and when asked a question about the house gave an answer which gave DBS Elliott the impression he was trying to distance himself from the house.
I note the fact he asked for a lawyer was also relied on by DBS Elliott. This is however not a relevant consideration. An adverse inference may not be drawn against a person for exercising a right and I consider this applies equally to a police officer forming a suspicion.[87]
[87] In Forrest v Normandale (1973) 5 SASR 524, the accused was found with $17,239. When initially asked by police, she declined to say where the money had come from and said that they didn’t believe in banks. It was held that while no inference could be drawn against the accused for failing to answer questions after she had been cautioned, an inference could be drawn against her from her failure to give a satisfactory explanation from the outset.
I further have no regard to the apparent nervousness of the accused. Being confronted on the road by three police officers and being asked questions may cause anyone to become flustered or appear nervous.
The question asked left both DBS Lengyel and Elliott with the impression that the accused lied about having no connection with or having attended at those premises. Whilst the suspicion must relate to the house and not the person, the subject of this apparent lie is significant. His attempt to distance himself from the house was strongly indicative of an illegal activity occurring at that house at that time.[88]In combination with the other information he had to hand I consider his suspicion at the time he entered the house was reasonable. I have not taken into account his knowledge that DBS Lengyel believed it to be active in making this determination however I consider some regard may be had to it given he was aware of his experience and that he had engaged in some investigations. At the very least I consider it is relevant to the weight he could reasonably give to the apparent lie by the accused. If I am correct as to that, this simply strengthens my view that the suspicion was reasonable.
[88] In Forrest v Normandale (1973) 5 SASR 524 the court held that although the reasonable suspicion must attach to the personal property, and not merely the person in possession of it, the behaviour of that person in relation to the property may afford a reasonable ground of suspicion of the property.
DBS Elliott intended to execute his search warrant but did not act on that intention until he and another police officer trespassed on the land at 3 Abercrombie Street, Clarence Gardens. I consider he was fortunate that he did not act upon his intention to execute the warrant until after he had heard the accused attempt to distance himself from being at the premises.
The High Court in Kadir v The Queen recently considered the Bunning v Cross discretion. The court stated:[89]
Bunning v Cross is an exclusionary discretion that applies in criminal proceedings and requires the court to balance the desirable goal of convicting wrongdoers against the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law.
[89] [2020] HCA 1.
The court confirmed that the focus of the discretion is on the question of whether evidence ‘that has been improperly or illegally obtained by the police’ should be excluded.
I consider the discretion in Bunning v Cross is enlivened upon the commission of an unlawful act or improper behaviour which then results in the obtaining of evidence. There must be a direct causal link between the two. The illegality and impropriety to which the discretion is directed does not arise until both an improper intention and an improper act coincide. The discretion to exclude referred to in Bunning v Cross is not therefore enlivened upon a police officer mistakenly believing he has a reasonable suspicion where no act accompanies that mistaken belief and where no evidence is directly obtained as a result of that mistaken belief.
In those circumstances I consider it is the act of entering onto the land and then into the house which resulted in the evidence being obtained and at that time I consider his suspicion was reasonable and he was entitled to lawfully enter the house. I therefore do not consider any question arises as to the unlawfulness of the search of the house and I decline to exclude the evidence.
Bunning v Cross
I will not consider how I would have exercised my discretion to exclude on the basis each of my decisions is wrong. There are too many permutations and the nature of any error will necessarily impact whether the discretion to exclude should be exercised. I do however make two observations.
Firstly, if I am wrong about the reasonableness of the suspicion held by DBS Lengyel I do not consider that the error made by DBS Lengyel is of a type considered in either R v Rockford,[90] R v Nguyen[91] or R v Nguyen.[92] The nature of the matters he investigated and the checks he had undertaken do not suggest the unlawfulness was an example of police excess or a disregard for civil liberties.[93]
[90] (2015)122 SASR 391.
[91] (2013) 117 SASR 432.
[92] (2015) 248 A Crim R 398.
[93] R v Nguyen (2013) 117 SASR 432; R v Nguyen(2015) 248 A Crim R 398.; Question of Law Reserved (No 1 of 1998) 70 SASR 281, 287-288.
Secondly, if I am wrong about DBS Elliott’s suspicion being assessed as at the time he entered the premises I do not agree with the accused’s submission that it was immaterial whether DBS Lengyel held a reasonable suspicion. I agree that whether DBS Lengyel held a suspicion cannot inform the unlawfulness or otherwise of DBS Elliott’s execution of the search warrant however I do not agree that it is ‘immaterial’ for all purposes. The accused relied on the decision in R v Nguyen[94] as authority for the proposition that it is ‘irrelevant’ that the other police officer – who was not the searching officer – may have held the requisite suspicion. As I have indicated previously, that decision is not factually comparable with the case at bar and nor is it authority for the proposition that the presence of another police officer with a reasonable suspicion and a general search warrant will be ‘immaterial’ for all purposes, including the exercise of the discretion to exclude.
[94] (2015) 248 A Crim R 398.
In R v Nguyen the court found that there was no basis for the trial judge to infer that the decision was made jointly between the two police officers. The officer with the general search warrant was the police officer who made the decision. I consider there is a real sense in this matter that the decision to search the house was in fact a joint decision. It was the investigation of DBS Lengyel and the only reason he did not execute his search warrant was that he was otherwise occupied with the detention of the accused. Whilst that does not alter the fact DBS Elliott used his search warrant, I do consider it is relevant to the exercise of the discretion.
It is also significant that in R v Nguyen the second police officer did not give evidence that he either held a suspicion or that he considered it was reasonable in the sense he was empowered to stop and search the vehicle. The Court was not therefore tasked with considering the potential relevance of the second police officer’s suspicion as to the exercise of the discretion to exclude.
The circumstances in which it was determined DBS Elliott would execute his search warrant was largely a matter of happenstance. Whilst it is obviously essential that police accept and respect the responsibility bestowed upon them by a general search warrant, I consider the gravamen of DBS Elliott’s wrongdoing was to have placed too much weight on the opinion of his team member. I do not consider the events of 4 June 2018 exhibited a disregard for the significance of police taking the execution of a search warrant seriously.
Therefore notwithstanding the shortcomings in the approach of DBS Elliott to note taking I would have admitted the evidence of the search of the house if my only error was in determining the relevant time was the time at which he initially determined to search the house.
I further consider the reasoning in Bae v The Queen would strongly support a conclusion that the evidence of the search of the house ought not be excluded in the exercise of the discretion.
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