R v Neal - [2016] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NEAL & ANOR
[2016] SADC 124
Ruling of Her Honour Judge McIntyre
12 October 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused Marc David Neal has applied under R49 of the District Court Criminal Rules for orders that the prosecution not be permitted to lead evidence relating to material from a phone allegedly belonging to Mr Neal and the stopping and search of the vehicle in which Mr Neal was a passenger on 14 February 2015.
Held:
1. That the prosecution not be permitted to lead material from the phone.
2. The application is otherwise dismissed.
Road Traffic Act 1961 s40H; Motor Vehicles Act 1959 s96; Motor Vehicles (Miscellaneous) No.2 Amendment Bill 2009 p4164; District Court Criminal Rules R49; Firearms Act 1977, referred to.
Armstrong v R (1989) 53 SASR 25; R v Kola (2002) 83 SASR 477 at 480; R v Ioannidis (2016) 124 SASR 86; Bunning v Cross (1978) 141 CLR 54, considered.

R v NEAL & ANOR
[2016] SADC 124
Introduction

The accused Marc David Neal has applied under R49 of the District Court Criminal Rules for orders that the prosecution not be permitted to lead evidence relating to:
1. material from the phone allegedly belonging to Mr Neal and;
2. the stopping and search of the vehicle in which Mr Neal was a passenger on 14 February 2015.
Neither application was filed in accordance with R49. Notwithstanding this the court proceeded to hear evidence on the voir dire from Senior Constable Horner, Constable Spiniello and the co-accused Danielle Michelle Booth.
Background
It is uncontentious that on 14 February 2015 at Golden Grove, Senior Constable Horner and Constable Spiniello were in uniform in a marked police car and that they required the vehicle in which Marc Neal was a passenger to stop. The driver Danielle Booth was requested to produce her driver’s licence. Following a check it became apparent that Ms Booth’s driver’s licence was suspended and that she was in breach of a condition of a bail agreement not to occupy the driver’s seat of a vehicle. Senior Constable Horner arrested Ms Booth and placed her in the patrol car. Ms Booth requested that Senior Constable Horner obtain her purse, mobile telephone and handbag from the motor vehicle in order that she could take these to the Holden Hill Police Station. Whilst retrieving these objects Senior Constable Horner located what he suspected to be a firearm. Mr Neal was then arrested in respect of the suspected firearm; other police attended and a search of the vehicle took place locating items including 9 shotgun cartridges in the passenger side glove box. The suspected firearm proved to be a sawn off shotgun. The firearm and the cartridges are the subject of the two charges against Mr Neal and his co-accused Ms Booth.
The mobile telephone
Following Mr Neal’s arrest Constable Spiniello seized a mobile telephone in Mr Neal’s possession. Constable Spiniello gave evidence that he inspected the contents of the mobile telephone on 22 February 2016. The only item of interest that he located what he described as a ‘screen shot’ of a text message exchange. He described this text message exchange as being between Mr Neal and a contact labelled “Brenton Champz”. Constable Spiniello gave evidence of checking the phone number associated with “Brenton Champz” in the police database and of linking that number to a Brenton Champion who was said to be an associate of Ms Booth. Constable Spiniello that he could not find the text message exchange in the messages folder rather he found this screen shot in a ‘camera upload’ folder. The screen shot was saved on 27 November 2014 but there is no date apparent on the saved image in respect of the messages. Constable Spiniello was unable to explain how files might be uploaded into the folder.
I cannot exclude as a reasonable possibility that the messages depicted in the screen shot passed between Mr Champz and someone other than Mr Neal. Further the probative value of the exchange is limited because there is no date attached to the messages. It is my view that the material from the mobile telephone is more prejudicial than probative and accordingly I order that the prosecution not be permitted to lead it.
The traffic stop
This is a somewhat unusual matter in that the traffic stop is challenged rather than the subsequent search. It is conceded by Mr Neal that there was nothing improper in the location of the firearm and the subsequent search. The defence argument is that there was no valid reason to stop the vehicle; in particular it is said that the court ought not to accept the evidence of Senior Constable Horner as to his reasons for stopping the car. The prosecution position is that the traffic stop was a valid exercise of Senior Constable Horner’s powers under section 40H of the Road Traffic Act 1961 (the RTA) and section 96 of the Motor Vehicles Act 1959 (the MVA).
There is limited authority on the scope of those powers. Section 40H(1) of the RTA provides that Senior Constable Horner was only able to direct a vehicle to stop for the purpose of or in connection with exercising other powers under a road law. The power he identified, section 96 of the MVA, is plainly a road law.
Section 40H of the RTA came into force in April 2007 replacing section 42 which was a differently worded provision concerning police powers to stop vehicles. I was referred to the decision of the Court of Criminal Appeal in Armstrong v. R[1]. In particular I note the obiter comments of his Honour Chief Justice King relating to the stop and search of a motor vehicle in that matter, with which Justice Cox agreed. Those comments were as follows:
I do not wish to make any criticism of the police. There may have been some reason for stopping the car which was not disclosed in the evidence. The basis upon which the car was stopped is important. If it was stopped for no better reason than the racial characteristics of the occupants of the car or the absence of an air of affluence about them or about the car, the action of the police would have to be characterised as high-handed and arbitrary. Harassment on such grounds could not be tolerated.[2]
[1] (1989) 53 SASR 25
[2] At 28
I also note the obiter comments of his Honour Chief Justice Doyle in R v Kola[3] where he states:
Section 96 of the Motor Vehicles Act 1959 SA (the MVA) confers a power to require the driver of a motor vehicle to produce his or her licence or learner’s permit. Whether this provision confers a power to stop the driver for that purpose is unclear. It is convenient to mention here s.98 of the MVA which provides as follows:
“The Commission of Police must at intervals of not more than 12 months take such steps as are reasonable practicable to ascertain whether any persons are driving motor vehicles without holding licences”.
That provision might be taken to confer, by implication, a power to stop drivers for that purpose. It is not necessary to decide that here.
[3] (2002) 83 SASR 477 at 480
Section 98 of the MVA was repealed on 4 September 2010. Currently, the legislation is silent as to the enforcement of duty to hold licence; however, the second reading speech to the Motor Vehicles (Miscellaneous) No.2 Amendment Bill 2009 provides that:
The legislative requirement for police to conduct an annual check of driver's licences has been removed. This recognises that the checking of drivers licences is a continuous police activity, made possible by advances in technology e.g. mobile real time computer terminals in every marked SAPOL vehicle. A corresponding amendment to the Road Traffic Act provides for the checking of driver's licences to be combined with any random testing activity undertaken by SAPOL.[4]
[4] P4164
I was referred in argument to the decision of the Court of Criminal Appeal in R v Ioannidis[5]that related to police powers to search for the purpose of ensuring compliance with a firearms prohibition order. Whilst not precisely on point the observations of the Court of Criminal Appeal are of relevance. In particular I note the reiteration the fundamental freedoms of liberty, movement and privacy.[6] I note also the observations of his Honour Chief Justice Kourakis in relation to the construction of s.32(3)(a) of the Firearms Act 1977 where he stated:[7]
It empowers police to search persons who are subject to FPO’s whenever a search is reasonably required and a search will in the absence of countervailing circumstances generally be reasonably required for no other cause than to check compliance with the FPO.
[5] (2016) 124 SASR 86
[6] P117 and following
[7] P93
People who drive motor vehicles on our roads must do so in accordance with the provisions of the MVA; that includes the requirement to have a current valid licence or learner’s permit. The police are entitled to check compliance with the provisions of the MVA. A traffic stop and request for production of a driver’s licence is arguably less intrusive than detaining and searching a person under the provisions of the Firearms Act.
Senior Constable Horner says that he and Constable Spiniello were on general patrols in the north eastern suburbs on 14 February 2015. He explained the nature of the duties they were undertaking in that role. He said that they conducted a traffic stop on the Golden Way at Golden Grove at about 7.44pm. The police vehicle had its red and blue lights activated. Senior Constable Horner’s attention was drawn to a blue Mitsubishi which appeared to be going at a speed exceeding the 25 kilometre per hour speed limit. His attention having been drawn to the vehicle by its speed, he noticed a person sitting in the front passenger seat of the vehicle and he said to his partner, Constable Spiniello that he believed that it was Marc Neal. He described two previous dealings with Mr Neal; in June 2007 in relation to illegal use of a motor vehicle and in 2009 when he dealt with him in relation to a drive disqualified matter. He said that he also knew Mr Neal as a result of attending the same school as him. He said that he was in school for 5 years from 1993 to 1997 and that Mr Neal was there for some of that time. They were not in the same year and he said that he had no relationship with him. It was put to him in cross examination that during the course of his two previous dealings with Mr Neal he became aware of his criminal record. He agreed. He further agreed to the proposition that Mr Neal was a person he would classify as a recidivist offender and that he was in the target group that he and Spiniello were tasked to look out for.
Senior Constable Horner said that the Mitsubishi was in his estimation going faster than 25 kilometres per hour but that he did not believe he had made sufficient observations to issue a fine or be able to prosecute the driver. I note the evidence of Ms Booth where she conceded that she was in fact going faster than 25 km per hour albeit not as fast as Senior Constable Horner’s assessment of her speed which was in the order of 50 km per hour. Senior Constable Horner says that his general practice and training was to approach a vehicle giving a reason for stopping it before asking for a drivers licence. In circumstances of speeding he said it would be an “educational thing” to advise a driver of the need to slow down in similar circumstances in the future.
Defence counsel argues that Senior Constable Horner’s evidence about the speeding is a recent construct by him that is unsupported by the evidence. I do not accept that submission. Neither the evidence nor the matters put by defence cause me to doubt Senior Constable Horner’s evidence. Implicit in the defence argument is that Senior Constable Horner in effect determined to pull the vehicle over as some form of harassment of the passenger Mr Neal. I reject that proposition. I accept Senior Constable Horner’s evidence that having noted the vehicle speeding he determined to stop it for the purpose of undertaking a licence check with the driver. This, on all of the evidence, is precisely what he did and was in my view a valid exercise of his powers.
The Bunning v Cross[8] discretion does not arise as I have found that the evidence obtained in the search was not obtained by unlawful or improper means.
[8] (1978) 141 CLR 54
I would accordingly dismiss the Rule 49 application in relation to the exclusion of evidence relating to the stopping and search of the vehicle.