R v Nguyen

Case [2015] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NGUYEN

[2015] SASCFC 7

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Bampton)

6 February 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES

The appellant was charged in the District Court with two counts of trafficking, namely ecstasy and heroin on 2 July 2013. She applied before trial for exclusion of evidence by two police officers, Detective McFarlane and Constable Munn, of finding the drugs in her handbag on the ground that the detention and search of her Commodore vehicle and  person on that day was unlawful.

Detective McFarlane gave evidence on the voir dire that she formed enough suspicion to pull over the vehicle and search the vehicle and driver. She did not articulate what it was that she suspected.  She identified the grounds for her suspicion being that the house from which the Commodore emerged was associated with drugs and drugs had been found in the Commodore on a previous occasion in a different location being driven by different persons. Detective McFarlane gave evidence that she did not recognise the driver of the Commodore or know of the appellant.

A Judge ruled before trial that the police officers had the requisite reasonable suspicion for the purposes of section 52 of the Controlled Substances Act 1984 (SA) and in any event he would have exercised his discretion not to exclude the evidence. The appellant was subsequently convicted at trial by a jury on both counts.

The appellant appeals against the convictions on the ground that the Judge erred in concluding that the police officers had the requisite reasonable suspicion, and his exercise of discretion.

Held (by the Court):  

1.       On the evidence given at the voir dire, the decision to detain and search the vehicle and person of the appellant was made by Detective McFarlane and the Judge erred by finding that it was implicit in her evidence that the decision was made jointly by Detective McFarlane and Constable Munn (at [24]-[25]).

2. It is a prerequisite to enlivening the power conferred by section 52(6) of the Act to search a person that the authorised officer reasonably suspects the person has in his or her possession a substance or equipment in contravention of the Act. Detective McFarlane’s evidence that she had “enough suspicion to stop, search and detain the vehicle and person” and failure to articulate what it was that she suspected indicated that she did not form the requisite suspicion to justify a search of the appellant (at [26]-[28]).

3.        Attention was required by subsection (6) to be directed to the prospect that the appellant was in possession of drugs, as opposed to whether…

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R v Nguyen [2015] SASCFC 7
Case
[2015] SASCFC 7
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction for drug trafficking. The appellant, R v Nguyen, argued that the sole ground of appeal was the voir dire Judge's error in concluding that the police stop and search of the appellant and her vehicle was lawful. The appellant contended that the evidence obtained from this search should have been excluded. The case was heard by Peek, Blue, and Bampton JJ.

The central legal issue before the court was whether Detective McFarlane possessed sufficient suspicion, as required by the Controlled Substances Act 1984 (SA), to lawfully stop, search, and detain the appellant and her vehicle. The court was required to determine if the basis for Detective McFarlane's suspicion, formed prior to initiating the stop, was legally sound, and if not, whether the evidence obtained should have been excluded in the exercise of the court's discretion.

The court found that Detective McFarlane's evidence did not establish a reasonable suspicion that the appellant was in possession of drugs or was involved in drug trafficking. While Detective McFarlane stated she had formed "enough suspicion" to stop and search, she failed to articulate what specific grounds formed this suspicion. Her knowledge of the address being a "drug address" and a previous, unrelated drug-related incident at the house did not, in themselves, provide a reasonable suspicion directed at the appellant or her vehicle at the time of the stop. The court noted that any subsequent observations made by Detective McFarlane after the decision to stop had already been made were irrelevant to the legality of the initial suspicion. Consequently, the search was deemed unlawful.

Given that the prosecution's case was entirely reliant on the evidence obtained from the unlawful search, the court exercised its discretion to exclude that evidence. As a result, the appeal was allowed, the convictions were set aside, and verdicts of acquittal were substituted on both counts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The sole ground of appeal is that the voir dire Judge erred in concluding that the stoppage and search by police was lawful, and should have exercised his discretion to exclude the admission of evidence obtained as a result of the unlawful search.Evidence on the voir dire Detective McFarlane gave evidence on the voir dire that on 2 July 2013 she was driving an unmarked police vehicle in company with Constable Munn. She drove past a house at Ottaway and observed a blue Holden Commodore parked in the driveway. She parked up the street from the house. She immediately saw the Commodore being reversed out of the driveway. Constable Munn said at that point to Detective McFarlane:'Oh that vehicle, I've stopped it before and located drugs in it'. Detective McFarlane gave evidence that, after reversing out of the driveway, the Commodore overtook her vehicle. She observed that the driver was female and it had no other occupants. She followed the Commodore and activated the lights and horn of the police vehicle requiring the driver to pull over to the side of the road. Detective McFarlane gave evidence that the appellant alighted from the Commodore with her handbag over her shoulder. Constable Munn searched the Commodore while Detective McFarlane searched the appellant and her handbag. Constable Munn did not find any drugs in the vehicle. Detective McFarlane found the ecstasy tablets and plastic bags containing the heroin in the appellant’s handbag. Detective McFarlane gave evidence that she made the decision to stop and search the Commodore and the driver immediately before activating the lights of the police vehicle.[2] She was acting under the Controlled Substances Act 1984 (SA) (the Act). She formed enough suspicion to stop, search and detain the vehicle and person. She did not identify at any point in her evidence what it was that she suspected. Her evidence was as follows:[2] Detective McFarlane gave evidence that, after she made the decision, she observed the driver lean to the passenger side and appear to do something, which further raised her suspicions, but the Judge rightly ignored this when considering whether Detective McFarlane held a reasonable suspicion because it post-dated her decision to stop and search the vehicle and driver and the Director on appeal accepts that this should be ignored.MS SPENCERQ. What did you do after you had this conversation with Constable Munn.A. I formed enough suspicion to pull over the vehicle.HIS HONOURQ. Say that again, I didn't catch it.A. I had formed enough suspicion to pull over the vehicle.MS SPENCERQ. What did you intend to do on pulling over the vehicle.A. To search the vehicle and the driver.Q. Under what power were you intending to conduct those searches.A. Under the Controlled Substances Act.HIS HONOURQ. What did you believe your power to be.A. I had enough suspicion to stop, search and detain the vehicle and person. Detective McFarlane gave evidence of her knowledge or belief concerning the house. She had participated in a search of the house on one previous occasion in January 2011. No drugs were found but an ice pipe was found and a drug diversion notice issued to Cuong Pham. She did not know whether he was living at the house in January 2011 or in July 2013. As at July 2013, Detective McFarlane believed that a woman by the name of Theresa was living at the house. She did not give evidence of any belief about any connection between Theresa and drugs. She did not know who else, if anyone, was living in the house in July 2013. The house was generally regarded by the police as a “drug address”, which meant that it was regarded as premises “at which drugs were consumed or might be trafficked”. She did not suspect that there were drugs at the house on 2 July 2013 and, if she had, she would have searched the house under her general search warrant.

Decision

Reasons for decision

We exercise the discretion to exclude the evidence that resulted from the unlawful search of the appellant.Conclusion The prosecution case against the appellant that she was trafficking in ecstasy and heroin was wholly dependent upon admission of the evidence of Detective McFarlane and Constable Munn, of finding those drugs as a result of the unlawful detention and search. In the absence of that evidence, the appellant’s conviction cannot be sustained. We allow the appeal, set aside the convictions and substitute verdicts of acquittal on both counts.

Ratio Decidendi

Legal Principle Established

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