R v Nguyen
[2015] SASCFC 7
•6 February 2015
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 the house from which the Commodore emerged or the Commodore were or had been associated with drugs. The matters known or believed by Detective McFarlane concerning the house and the vehicle were incapable of amounting to reasonable grounds to suspect that the appellant, who was unknown to Detective McFarlane, was in possession of illicit drugs on the occasion in question (at [31]-[32]).
4. The search was unlawful and it falls to the Court on appeal to exercise the discretion whether evidence obtained as a result of it should be excluded (at [33]).
5. Detective McFarlane’s conduct demonstrated a fundamental misconception about the state of mind she was required to form as a prerequisite to exercising those powers. Her focus was upon the house and the vehicle as having a general or historic association with drugs and not upon the appellant as an individual. No evidence was adduced showing that Detective McFarlane’s mistaken understanding of the breadth of the powers conferred by the Act was a peculiar or isolated one. Evidence of the search should be excluded in the exercise of the discretion (at [37]-[41]).
6. The prosecution case being wholly dependent upon the evidence of the search, appeal allowed, convictions set aside and verdicts of acquittal substituted (at [42]-[43]).
Controlled Substances Act 1984 (SA) s 32(3), s 52(6), s 52(9), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Ireland (1970) 126 CLR 321; R v Nguyen [2013] SASCFC 91; (2013) 117 SASR 432, discussed.
R v NGUYEN
[2015] SASCFC 7Court of Criminal Appeal: Peek, Blue and Bampton JJ
THE COURT:
This is an appeal against conviction.
The appellant, Diep Thi-Thu (Nicki) Nguyen, was charged on information in the District Court with two counts of trafficking on 2 July 2013 at Ottaway in a controlled drug, namely 3,4–methylenedioxymethylamphetamine (ecstasy) and heroin.[1] Ten tablets containing 0.36 grams of ecstasy and two plastic bags containing 0.57 grams of heroin were located in the appellant’s handbag after she was stopped in her vehicle and searched by police.
[1] Controlled Substances Act 1984 (SA) s 32(3).
The appellant applied before trial to exclude evidence of the results of the search on the ground that, the stopping of the vehicle and the search of the appellant’s handbag was unlawful because the police officers did not have reasonable ground to suspect that there was a controlled substance in the vehicle and in her possession. The Judge who heard the application concluded that the stoppage and search was lawful, and that in any event he would have exercised his discretion not to exclude admission of the evidence.
The trial of the appellant subsequently proceeded before a different Judge and jury. The evidence of the search was the principal evidence relied upon by the prosecution at trial. The appellant was convicted by the jury on both counts.
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 SPENCER
Q. What did you do after you had this conversation with Constable Munn.
A. I formed enough suspicion to pull over the vehicle.
HIS HONOUR
Q. Say that again, I didn't catch it.
A. I had formed enough suspicion to pull over the vehicle.
MS SPENCER
Q. 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 HONOUR
Q. 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.
Detective McFarlane gave evidence of her knowledge or belief concerning the Commodore. After she drove past the house and saw the Commodore, Constable Munn told her that he had previously searched the vehicle and found drugs in it. He did not say when this occurred. He gave her the names of the two male occupants of the Commodore at the time of the search, the name of one of whom she recalled in evidence and who she knew to be in his fifties. She did not recall the name of the second occupant given to her, but it may have been another male whose name was put to her in cross-examination and who she knew to be in his fifties. She did not know who owned the vehicle when she made the decision to search it and the driver.
Detective McFarlane gave evidence that she did not know, or know of, the appellant when she made the decision to search the vehicle and driver.
Constable Munn gave evidence generally confirming Detective McFarlane’s account of the events of 2 July 2013.
Constable Munn gave evidence of his knowledge or belief concerning the house in Ottoway. He said that he had participated in previous searches at the house but no drugs had been found. The persons who lived at the house changed frequently. The house was generally regarded by police as a drug address, meaning that “drug activity” was occurring at the address. Cuong Pham was not living at the house in July 2013. As at July 2013, Theresa, her boyfriend and mother were the only persons living at the house to Constable Munn’s knowledge. Constable Munn had arrested Theresa and her boyfriend for drug trafficking in October 2011 when they were living at Croydon. The Commodore was not involved in that drug trafficking. He did not suspect that there were drugs at the house on 2 July 2013, and if he had, he would have searched the house acting under Detective McFarlane’s general search warrant.
Constable Munn gave evidence of his knowledge or belief concerning the Commodore. He had previously searched the Commodore in December 2012 at an address five or six kilometres away at Croydon Park. Two 8 balls of heroin were located in the vehicle which was unoccupied, but which had been driven to that address by two males in their fifties. One of them was living at the Ottoway house as at December 2012. He had seen the Commodore at the Ottoway house on various occasions. As at July 2013, it was registered to a woman whose address was at Pennington.
The Judge’s reasons
The Judge summarised the evidence given by Detective McFarlane and Constable Munn. He made a favourable credit finding in respect of each and said that he accepted their evidence.
The Judge inferred from Detective McFarlane’s evidence that the decision to detain and search the vehicle and driver was a joint decision of both officers. The Judge inferred from the evidence of Detective McFarlane and Constable Munn that, they genuinely believed that the power to stop and search had been lawfully enlivened.
The Judge referred to the recent statement of principles made by this Court in R v Nguyen.[3] The Judge then said:
As always, it is a matter of fact and degree, and it is easy to see how, in borderline situations, two rational minds making a reasonable assessment of the relevant information might well arrive at different conclusions.
As set out, drugs had been located in the Commodore some 6 or so months earlier. The Commodore was parked on the driveway of, and to use Munn’s description, a drug target house on [sic] day in question and it had been observed on the same driveway on numerous occasions in the lead up to the day the search was conducted. Two of the occupants of the house had been arrested for drug offences some two years earlier, albeit at another location. Obviously drugs will be transported from place to place from time to time. In all the circumstances, there was, in my view, more than mere speculation involved and there was a working hypothesis such that it was, in all the circumstances, and in the moment before the lights were activated, objectively reasonable to suspect that as the Commodore proceeded along the road it was being used to convey drugs from the house to some other place and that a search of both the vehicle and the driver were thus warranted.
I make it plain that I regard it as a near run thing and I accept that others might come to the opposite conclusion.
[3] [2013] SASCFC 91; (2013) 117 SASR 432.
The Judge said that, if he had concluded that the search was unlawful, he would nevertheless have exercised his discretion to admit the evidence resulting from it. Detective McFarlane and Constable Munn did not know that they were acting illegally or realise that they might be cutting corners. They made an honest error of fact and degree. They did not assert any mistaken beliefs about the ambit of their powers to stop, search and to detain. Their evidence did not disclose any entrenched views contrary to their statutory obligations. Any illegality was relatively short lived.
The existence of the requisite suspicion
Subsections 52(6) and (9) of the Act provide:
(6) An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
...
(9)If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b) detain and search the vehicle, vessel or aircraft; and
(c) seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
The subject matter of a search empowered by subsection (9) is a vehicle, vessel or aircraft and the power to stop, detain, search, seize and remove is confined to the vehicle, vessel or aircraft and a substance or equipment in it. The subject matter of a search empowered by subsection (6) is a person.
The power to search a vehicle conferred by subsection (9) is conditioned upon the authorised officer reasonably suspecting that a substance or equipment that would afford evidence of an offence against the Act is in the vehicle. The power to search a person conferred by subsection (6) is conditioned upon the authorised officer reasonably suspecting that the person has in his or her possession a substance or equipment in contravention of the Act.
In R v Nguyen,[4] this Court said:
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, s 52(6) and (9) of the CSA require more than an actual suspicion; 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.[5]
[4] (2013) 117 SASR 432.
[5] Ibid at [21].
Detective McFarlane gave evidence that she made a simultaneous decision to detain and search the Commodore, which on her evidence could only have been empowered by subsection (9), and to detain and search the person driving the Commodore, which on her evidence could only have been empowered by subsection (6).
In her evidence-in-chief extracted at [9] above, Detective McFarlane unequivocally said that she formed enough suspicion to pull over the vehicle, that she intended to search the vehicle and the driver and that she was intending to conduct those searches under the Act. There was no basis for the Judge to infer that the decision was made jointly with Constable Munn. This is inconsistent with Detective McFarlane’s evidence. Detective McFarlane was driving the police vehicle, was senior in rank and the more experienced officer. Detective McFarlane, was a detective and held a general search warrant. These matters all confirm that Detective McFarlane made the relevant decision. Since the decision to detain and search the Commodore and driver was made by Detective McFarlane, the relevant question was whether Detective McFarlane held the requisite reasonable suspicion and it was not directly relevant whether Constable Munn held such a suspicion.[6]
[6] Constable Munn did not give evidence that he reasonably suspected that the driver was in possession of illicit drugs. He gave evidence that he believed that the Act empowered a stoppage and search of the vehicle if it was suspected on reasonable grounds that there may be drugs in the vehicle. He did not give evidence that he actually held such a suspicion. This would not in any event amount to the requisite suspicion, because section 52(9) of the Controlled Substances Act 1984 required a suspicion that illicit drugs are in the vehicle, not merely that they may be.
As noted above, Detective McFarlane articulated the suspicion that she formed merely as being “enough suspicion to pull over the vehicle … and search the vehicle and driver”. Detective McFarlane did not give evidence that she suspected, and believed that she had reasonable grounds to suspect, that a controlled substance was in the vehicle as required by subsection (9) to empower a search of the Commodore. Detective McFarlane did not give evidence that she suspected, and believed that she had reasonable grounds to suspect, that the driver had in her possession a controlled substance as required by subsection (6) to empower a search of the appellant and her handbag.
While the ultimate onus of proof lay on the appellant who was seeking to exclude the admission of evidence in the exercise of the Court’s discretion, in circumstances in which the lawfulness of the search was challenged and Detective McFarlane alone could give evidence of her state of mind, an evidential onus lay upon the Director to adduce evidence that Detective McFarlane at least suspected that there were drugs in the vehicle – to justify the detention and search of the vehicle – and drugs in the possession of the appellant – to justify the search of the appellant. That evidential onus was not discharged by the Director.
The fact that Detective McFarlane articulated her suspicion in terms of its being “enough” to justify detention and search is evidence that she did not address her mind to the requisite questions whether she reasonably suspected that there were drugs in the vehicle and there were drugs in the possession of the appellant.
In any event, on the basis of what she knew and was told by Constable Munn, objectively Detective McFarlane did not have reasonable grounds to suspect that there were drugs in the possession of the vehicle or the appellant. The suspicion entertained by Detective McFarlane was based solely on two matters that she knew or believed:
1.the house from which the Commodore emerged was believed by police over a sustained period to have been the location of drug taking, and perhaps drug dealing, by undisclosed persons; two and a half years previously the house had been searched by Detective McFarlane and an ice pipe located in the possession of Cuong Pham; and Detective McFarlane did not reasonably suspect on 2 July 2013 that there were drugs in the house; and
2.the Commodore that the appellant was driving had at an unknown time (in fact six months) earlier been searched by Constable Munn and been found to contain heroin after it had been driven by two men probably in their fifties.
Detective McFarlane did not know the identity of the driver of the Commodore. She did not know the appellant or anything about her. Subsection 52(6) required as a pre-requisite for a lawful search of the appellant that, Detective McFarlane reasonably suspected that the appellant was in possession of illicit drugs. The subject matter of the requisite suspicion was the person, not the place or the vehicle as such.
Attention was required by subsection (6) to be directed to the prospect that the appellant was in possession of drugs, as opposed to whether the house from which the Commodore emerged was associated with drugs. Similarly, subsection (9) required as a prerequisite for a lawful search of the vehicle driven by the appellant that Detective McFarlane reasonably suspected that drugs were in the vehicle while it was being driven by the appellant, and not merely that the vehicle had historically been associated with drugs.[7]
[7] R v Nguyen (2013) 117 SASR 432 at [23] per Kourakis CJ, Blue and Stanley JJ.
The fact that other persons, with whom Detective McFarlane had no basis to believe the appellant was associated, who had lived in the house may have taken, or even dealt, in drugs could not lead to a reasonable suspicion that an unknown person leaving the house in a vehicle was in possession of drugs. This is particularly so because Detective McFarlane acknowledged that she did not hold a reasonable suspicion that there were drugs in the house at that time. The fact that other persons, with whom Detective McFarlane had no basis to believe the appellant was associated, had used the Commodore to transport drugs an unknown time previously could not lead to a reasonable suspicion that an unknown person driving the Commodore was in possession of drugs. The combination of these two facts could not lead to a reasonable suspicion that an unknown person leaving the house in the Commodore was in possession of drugs.
Exercise of discretion
Having overturned the Judge’s determination that the conduct by which the incriminatory evidence obtained was lawful, the discretion to exclude that evidence by reason of the unlawfulness of that conduct falls to be considered afresh by this Court.[8]
[8] Ibid at [36] per Kourakis CJ, Blue and Stanley JJ.
In R v Ireland,[9] Barwick CJ (McTiernan, Windeyer, Owen and Walsh JJ agreeing) said:
… Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[10]
[9] (1970) 126 CLR 321.
[10] Ibid at 335.
In Bunning v Cross,[11] Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.[12]
[11] (1978) 141 CLR 54.
[12] Ibid at 74.
The factors weighing against exclusion of the evidence identified by this Court in R v Nguyen[13] apply equally here:
The evidence of the appellant’s possession was cogent, indeed overwhelming, evidence of the commission of serious offences. The infringement of the appellant’s civil liberties was moderate. The unlawful entry was limited to the common driveway of the home unit. The Laser was only detained after it had already come to a stop. Those considerations tell against the exclusion of the evidence.
[13] (2013) 117 SASR 432 at [37] per Kourakis CJ, Blue and Stanley JJ.
On the other hand, as noted above, Detective McFarlane did not address her mind to the relevant question whether she held a reasonable suspicion that there were drugs in the possession of the appellant at the time she was driving the Commodore. Her conduct in detaining and searching the Commodore and the appellant demonstrated a fundamental misconception about the state of mind she was required to form as a prerequisite to exercising those powers. Her focus was upon the house and the vehicle as having a general or historic association with drugs and not upon the appellant as an individual. It was the appellant’s civil rights as an individual that were infringed.
It is apparent from the evidence given by Detective McFarlane that she considered that she was at liberty to exercise the compulsive powers conferred by subsections 52(6) and (9), merely because an unknown person is driving a vehicle in which drugs have historically been found and because the vehicle emerged from premises associated with drugs, regardless of any connection between the driver and either the person historically found in possession of drugs in the vehicle or the persons residing in the house.
As in R v Nguyen,[14] no evidence was adduced to show that Detective McFarlane’s mistaken understanding of the breadth of the powers conferred by the Act was a peculiar or isolated one. It appears that detectives assigned to drug-related investigations do not receive comprehensive training identifying the requisite reasonable suspicion required to be held before the powers of detention and search conferred by the Act are enlivened or about matters capable of comprising reasonable grounds to found such a suspicion.
[14] Ibid at [40] per Kourakis CJ, Blue and Stanley JJ.
The following observation of this Court in R v Nguyen[15] is apposite in this case:
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.
[15] Ibid at [41] per Kourakis CJ, Blue and Stanley JJ.
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.
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