R v Nguyen
[2013] SASCFC 91
•11 September 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2013] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
11 September 2013
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, following a trial by jury, was found guilty of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“the CSA”). The appeal against conviction is principally on the ground that the evidence of his possession of the illicit drugs was the product of an unlawful search.
The appellant was found in possession of illicit drugs, namely heroin and methylamphetamine, following a police search of his person and the Laser motor vehicle (“the Laser”) that he had been driving. The search occurred after the police drove their police car into the common driveway of a townhouse block, blocking the Laser’s egress. The police were acting on a history of general information connecting the premises and the vehicle to drug trading activity.
At trial, on the voir dire, the appellant asked the Judge to exclude the evidence of the police search. The Judge, in refusing to exclude the search evidence, held that the information possessed by the police was sufficient to raise a reasonable suspicion for the purposes of s 52(9)(b) of the CSA, and to justify a search of the Laser. In prescribed circumstances, the CSA confers powers on police to search persons, under s 52(6), and detain and search a vehicle, under s 52(9). The Judge went on to hold that, even if the search had been unlawful, he would have had “no hesitation” in declining to exercise his discretion to exclude the evidence of the search.
The appellant also appealed against conviction on several other grounds. One of those grounds involved the Judge’s inadvertent disclosure to the jury of evidence given on the voir dire. The Director of Public Prosecutions conceded that the inadvertent disclosure had caused a miscarriage of justice and, for that reason, an order remitting the matter for re-trial would not be opposed.
The Director accepted that, if the evidence of the police search was excluded, the appeal should be allowed, the convictions set aside and verdicts of acquittal entered on both counts of trafficking.
Held per the Court (allowing the appeal):
(1) The information available to police was insufficient to support a reasonable suspicion that there was evidence of drug trading in the Laser when it was detained (at [23]-[26]).
(2) In the absence of a reasonable suspicion or a warrant issued pursuant to s 52(4) of the CSA, the police officers unlawfully drove onto, and blocked, the driveway of the home unit (at [27]-[35]).
(3) The judicial discretion to exclude the evidence of the search was enlivened and the Judge erred in failing to so find (at [35]).
(4) The discretion to exclude the evidence of the search therefore falls to be considered afresh by this Court (at [36]).
(5) The Court exercises its discretion to exclude the evidence of the search. It is necessary to do so to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the CSA (at [42]).
(6) It is not necessary, given the finding on the admission of the evidence of the search, to deal with the other grounds of appeal (at [43]-[44]).
(7) Appeal allowed, convictions set aside and verdicts of acquittal entered on both counts (at [45]).
Controlled Substances Act 1984 (SA) s 32, s 32(3), s 52, s 52(1), s 52(2), s 42(4), s 52(6) and s 52(9); Summary Offences Act 1953 (SA) s 67, referred to.
Bain v Police (2011) 121 SASR 10; R v Rogers (2011) 109 SASR 307; Coleman v Zanker (1991) 58 SASR 7; Myer Stores Ltd v Soo [1991] 2 VR 587; Marshall v Watson (1971) 124 CLR 640; R v Lobban (2000) 77 SASR 24; R v Davidson (1991) 54 SASR 580; Watson v Cade (1971) 124 CLR 621; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, considered.
R v NGUYEN
[2013] SASCFC 91Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ
THE COURT: After a trial by jury the appellant, Mr Nguyen, was found guilty of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). Mr Nguyen appeals against his convictions on the ground that the evidence of his possession of the drugs, namely heroin and methylamphetamine, was the product of an unlawful police search.
Before the empanelment of the jury, the appellant asked the Judge to exclude the evidence of the police search of his person and the Laser motor vehicle (the Laser) that he had been driving, and in which the drugs were found.
The CSA confers on police, in prescribed circumstances, powers to search persons under s 52(6) and to detain and search motor vehicles under s 52(9).
The Judge refused to exclude the evidence of the search, holding that the information possessed by the police was sufficient to raise a reasonable suspicion for the purposes of s 52(9)(b) of the CSA, and to justify the search of the Laser. The Judge went on to hold that, even if the search had been unlawful, he would have had “no hesitation” in declining to exercise his discretion to exclude the evidence of the search.
The appellant contends that the Judge erred in finding that the police officers who conducted the search held the reasonable suspicion on which the powers are conditioned.
We have concluded that the Judge erred in finding that the conditions enlivening the powers of detention and search conferred by the CSA were satisfied when the police officers first embarked on their exercise.
The power to search
It is convenient to begin by setting out the relevant provisions of s 52 of the CSA.
52—Power to search, seize etc
(1)Subject to this section, an authorised officer may—
(a) enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and
(b) if reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and
(c) for the purposes of paragraph (a) or (b), require the driver of any vehicle, the master of any vessel or the pilot of any aircraft to stop that vehicle, vessel or aircraft.
(2)While an authorised officer is in or on any premises pursuant to this section, the officer may—
(a) inspect or search the premises or any equipment or other thing on the premises;
…
(d) examine any substance, equipment or device;
(e) take and remove from the premises samples of any substance or goods;
…
(i) if the officer suspects on reasonable grounds that an offence against this Act has been committed, seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence;
(j) give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer's powers under this Act.
(3)The powers conferred by subsection (1)(b) may only be exercised by an authorised officer who is a police officer.
(4)An authorised officer must not exercise the powers conferred by subsection (1)(a) and (b) except on the authority of a warrant issued by a senior police officer, magistrate or justice, unless the powers are being exercised in relation to— [licensed or non-residential premises]
…
(5)A senior police officer, magistrate or justice must not issue a warrant under subsection (4) unless satisfied, on information given on oath—
(a) that there are reasonable grounds for suspecting that an offence against this Act has been, is being, or is about to be, committed; and
(b) that a warrant is reasonably required in the circumstances.
(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.
…
Detention and search
On 30 July 2011, Constables Koch and Beatty were maintaining surveillance on one (the home unit) of a number of two-storey home units in a block of units (the townhouse block) on Hawker Street, Ridleyton. They saw the Laser being driven down Hawker Street and into the common driveway which serviced the townhouse block. They could not, at that time, make out who the driver was. For reasons which will become apparent shortly, they decided to approach the vehicle with a view to searching it. Constable Beatty drove the police vehicle across Hawker Street from a nursing home car park, located opposite the home unit, and brought it to a stop on the common driveway immediately behind the Laser, blocking its egress back on to Hawker Street. Constable Koch went to the driver’s side door of the Laser and showed the driver his police identification through the window. He saw the driver put his hand down the side of the seat, between the centre console, and the other hand lock and then unlock the driver’s door. Constable Koch told the driver to “get out of the car”.
When the appellant alighted from the Laser, Constable Koch noticed a bulge in his pocket. By then Constable Beatty had also come up to where the Laser was in the driveway and told Constable Koch that the driver was Tony. Constable Koch searched the appellant and found an “ice” pipe. Constable Koch also found $2,250 in the appellant’s wallet and three rubber bands in his back pocket. Constables Koch and Beatty then searched the Laser. They located 3.29 grams of heroin and 3.23 grams of methylamphetamine. Other items associated with illicit drugs were also found.
Police information
Both officers claimed that they searched the appellant and his vehicle pursuant to s 52 of the CSA. The information in their possession, which was said to justify the searches, can be shortly stated.
In about April 2011, Constables Koch and Beatty became aware of intelligence reports that an Asian male known as “Tony” in a unit in the townhouse block was trafficking in drugs. Thereafter, they and other police kept the home unit under surveillance.
Between May 2011 and 30 July 2011, police received information about the home unit through telephone calls made to the “Crime Stoppers” number. On three occasions, police were told that cars were seen coming and going from the home unit at all hours of the day and night. There was nothing in the “Crime Stoppers” material that indicated whether the telephone calls were made by the same or different persons. The last call was made shortly before the day of the search.
On 5 June 2011, Constable Beatty went to the home unit and searched it under the authority of a general search warrant. Constable Beatty found the appellant in bed in an upstairs bedroom with Lily Nguyen. Another woman, Anh Lu, was also present in the home unit. The appellant gave his name as Phong Nguyen and was arrested on outstanding warrants. At the time, Constable Beatty believed that Phong Nguyen may have been the Asian male “Tony”, about whom he had received the police intelligence mentioned in the preceding paragraph. Constable Beatty acknowledged that his belief was not based on anything more than the appellant’s presence at the home unit. Constable Koch did not take part in the search of 5 June 2011 but was told about it. Constable Koch testified that he was told that the appellant had in fact given his name as Tony but, as just observed, Constable Beatty had no recollection of the appellant giving his name as Tony. No drugs or other evidence of offending against the CSA were found.
On 15 June 2011, Constable Beatty conducted a search of the Laser after Lily Nguyen was seen to do a drug deal from the car. A quantity of about 8 grams of methylamphetamine was found in Lily Nguyen’s handbag. A search of the home unit on the same day located drugs in the same second storey bedroom in which the appellant and Lily Nguyen had been seen on 5 June 2011. Constable Koch also took part in the search of the home unit on that day and was aware that the drugs were found. Lily Nguyen and Anh Lu were both arrested and charged with drug related offences. The appellant was not in the home unit on that day; he was still in custody as a result of his arrest on 5 June 2011.
On 19 July 2011, Constables Beatty and Koch observed the Laser and another vehicle, a blue Commodore, leave the home unit. The Laser was searched but no drugs were found in it. It was being driven by Anh Lu. A very small quantity of a drug was found in the blue Commodore.
Anh Lu was the registered owner of the Laser and her registered address was the home unit address. Police believed that Anh Lu was the principal occupant of the home unit.
The framing of the issue at trial
At trial, the Director of Public Prosecutions relied on s 52(6) and s 52(9)(b) of the CSA in support of the legality of the search of the appellant and the Laser respectively. There is a difference, which is not material in this case, in the subject matter of the prescribed suspicion for each provision. The former provision, s 52(6) of the CSA, conditions the power to search a person on a reasonable suspicion that the person possesses an illicit substance or equipment. The power to search a vehicle is conditioned on a reasonable suspicion that it contains material which is evidence of an offence against the CSA.
The Judge framed the question for his determination to be:[1]
… whether either or both of Constable Koch and Constable Beatty as authorised officers … ‘reasonably suspected that any substance or equipment that would afford evidence of an offence against s 52 of the Controlled Substances Act’.
[1] AB 57, [26].
It should be noticed that in regard to s 52(9) of the CSA, the question so framed elides the phrase “is in any vehicle”. However, after implicitly accepting that Constables Beatty and Koch had effectively “detained the Laser by positioning the police vehicle immediately behind it”, the Judge concluded:[2]
Applying the relevant authorities to the facts as I have set them out above, once the police became seised [sic] of the further information over and above everything that they already knew of the events and circumstances dating back to March/April 2011, the events of 15 June connected to the Laser vehicle, the events of 19 July connected to the Laser vehicle, and the continuation of complaints above the activity that inferentially there was drug dealing from the premises, especially the use of cars visiting at all hours of the day and night in late July 2011, sufficient information existed to raise a reasonable suspicion there were substances or equipment in the Laser vehicle that would afford evidence of an offence against the Controlled Substances Act.
...
After about an hour-and-a-half’s observations the Laser vehicle returned to the unit car park at about 7.32 pm. At that time Constable Koch had formed the view that there was a basis for him to form a reasonable suspicion for a s52(9)(b) of the Controlled Substances Act based upon all of the information he possessed, going back to March 2011, sufficient to detail the motor vehicle and make a search. His view was qualified only by the identity of the driver of the motor vehicle. His evidence was that he would not make merely a random search; inferentially at least his interest was in the persons he knew to be the occupants of the premises.
Constable Koch corrected a misapprehension that may have been created by his earlier evidence and he said that he did not intend to search the vehicle irrespective of the driver. Having regard to everything that he did know, I accept that Constable Koch would not have conducted a random search of the vehicle and understood that he had no such power under s52 of the Controlled Substances Act.
[2] AB 57, [29]; AB 56, [21]-[22].
What is a “reasonable suspicion”
Before explaining why we would hold that the information available to the police, as summarised, is insufficient to support a reasonable suspicion that there was evidence of drug offending in the Laser when it was detained, it is necessary to say briefly something about the concept of a “reasonable suspicion”.
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.[3]
[3] Bain v Police (2011) 121 SASR 10, [28]-[29]; R v Rogers (2011) 109 SASR 307, [22].
Importantly, s 52(6) and s 52(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.[4] 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.
[4] R v Davidson (1991) 54 SASR 580, 584.
Not reasonable to suspect evidence of offending in Laser
We readily accept that at the time Constables Beatty and Koch saw the Laser on 30 July 2011, there was material on which they could reasonably have suspected that some persons who had an association with the Laser had committed offences against the CSA and that they were continuing to offend. However, that material could not support a reasonable suspicion that all persons who had a connection, or association, with the Laser were continuing to offend against the CSA. Nor did the material support a reasonable suspicion that there was evidence of offending against the CSA in the Laser at the point in time when the police saw an unidentified person drive it down Hawker Street at 7.30 pm on 30 July 2011.
In order to support a reasonable suspicion that evidence of a contravention of the CSA would be found in the Laser at that time, more was required. That is, more was required than a belief or suspicion that on some earlier occasions, a driver or passenger of the Laser had engaged in conduct proscribed by the CSA. Information that the Laser has been constantly, or even frequently, used to convey drugs may be a sufficient basis for that suspicion, but, even then, much may depend on who the driver or passenger is at the critical time. For example, even if it is known that a particular car is used frequently by a young man to deal in drugs, it may not be reasonable to suspect that evidence of offending will be found in that car if the only occupant of the car at the time of the proposed search is the youth’s grandfather who is found driving it into the carpark of his local bowling club.
In this case, over a period of several months of close surveillance, illicit drugs were found in the car on a single occasion, 15 June 2011. Methylamphetamine was found in the handbag of Lily Nguyen, a handbag being property of a personal nature usually kept in the custody and close control of its owner. Lily Nguyen was in the Laser with the handbag in her custody and under her control. It will be remembered that the appellant was still in custody at that time. On a subsequent search of the Laser on 19 July 2011, no drugs were found. On the information known by the police on 30 July 2011, it was reasonable to suspect that the Laser would again, at some time, be used by Lily Nguyen to deal in drugs, however there was no reason to think that it was constantly or frequently used for that purpose or used by the appellant for that purpose.
When Constables Koch and Beatty saw the Laser driven into the common driveway by an unidentified driver, nothing more was known by them which could crystallise the possibility that the Laser would continue to be used from time to time to traffic drugs into a reasonable suspicion that it carried evidence of trafficking at that very time. A reasonable suspicion that a vehicle, person or place has been involved in the commission of an offence does not, without more, entail a reasonable basis. Indeed, Constable Koch’s evidence that he had not yet decided to search the vehicle when he and Constable Beatty first drove up behind it, and that he had reserved that decision until he had identified the driver, suggests that Constable Koch himself did not regard the information on which the Judge relied as sufficient to enliven the powers conferred by s 52 of the CSA.
Unlawful exercise of s 52 CSA powers
The powers conferred by s 52 of the CSA include a power to enter any premises for the purposes of ascertaining whether the provisions of the CSA have been complied with, or have been contravened, but only on the authority of a warrant issued pursuant to s 52(4) of the CSA.[5] Constables Koch and Beatty purported to exercise that power, without the warrant to do so, when they drove the police car onto the common driveway of the home unit. They did not enter the driveway of the home unit pursuant to an implied invitation to visit the occupants. They acknowledged that they entered the front yard of the home unit to exercise powers pursuant to s 52 of the CSA.
[5] Controlled Substances Act 1984 (SA) s 52(1)(a).
In any event, such implied invitations as there might be to members of the public to use the common driveway does not extend to blocking vehicular ingress and egress. Nor did Constables Beatty and Koch claim to be exercising powers pursuant to a general search warrant, issued pursuant to s 67 of the Summary Offences Act 1953 (SA) (SOA), when they entered the driveway. Even if one of them held a general search warrant, and there is no evidence to that effect, in the absence of a reasonable suspicion, a general search warrant could not authorise the blocking of the driveway. It follows that, in the absence of a reasonable suspicion or a warrant issued pursuant to s 52(4) of the CSA, the police officers unlawfully drove onto, and blocked, the driveway of the home unit.
Section 52(2)(j) of the CSA authorises an officer, whilst on premises pursuant to the power conferred by s 52(1) of the CSA, to give such directions as are reasonably necessary for, or incidental to, the effective exercise of the officer’s powers under the CSA. That power was purportedly exercised by Constable Koch when he asked the appellant to get out of the car. Again, the exercise of that power was not authorised by a warrant.[6]
[6] Coleman v Zanker (1991) 58 SASR 7, [15].
Finally, the power to search vehicles conferred by s 52(9) of the CSA is a power to “detain and search”. The power to detain is to be exercised for the purpose of conducting a search. Constable Koch acknowledged, in cross‑examination, that he and Constable Beatty intended to “detain” the Laser by parking the police car immediately behind. Objectively viewed, any movement of the Laser which might still have been possible along the driveway was so confined by the police car blocking the driveway as to constitute a detention of the Laser.[7] Constables Koch and Beatty acknowledged that they had in mind searching the vehicle, even though Constable Koch’s provisional decision to do so might have been revised depending on who the driver was found to be. It is not to the point that the appellant had already voluntarily stopped the car in the driveway. The common law recognises, in the context of unlawful imprisonment, that that there may be a detention even if the person detained is unaware of the detention.[8]
[7] Myer Stores Ltd v Soo [1991] 2 VR 597.
[8] Ibid.
It is also likely that Constable Koch detained the appellant when he told him to get out of the car. In the circumstances, an inference could readily be drawn that the appellant did as he was told in submission to the assertion by Constable Koch, in producing his police identification, of his authority as a police officer.[9] However this point was not taken below, and it is not necessary to further consider the matter.
[9] Watson v Marshall (1971) 124 CLR 621, 626; Marshall v Watson (1971) 124 CLR 640, 642.
The Director of Public Prosecutions did not rely at trial, or on appeal, on the general search warrant power conferred by s 67 of the SOA. The relationship between the powers conferred by s 52 of the CSA and s 67 of the SOA raises difficult questions of construction. In the ordinary course, there is little reason to read down powers conferred by separate enactments. However, s 52 of the CSA, on its face, prescribes a detailed and nuanced code for the exercise of search and entry powers in the course of investigations of the conduct it proscribes. Those questions must be left for another day. We observe only that the powers available under the SOA are also conditioned on reasonable suspicion about the existence of evidence of offending.
It follows that Constables Koch and Beatty exercised powers to detain the Laser, to enter onto the driveway of the home unit and to direct the appellant to get out of the Laser when there was no reasonable suspicion that it contained any relevant evidential material. All of those powers were exercised for the purpose of searching the vehicle if, after ascertaining the identity of the driver, Constable Koch saw fit to do so.
We accept, in the context of all of the preceding intelligence available to Constables Beatty and Koch, and the apparent attempt to hide something in the car, that the bulge in the appellant’s pocket may have supported a reasonable suspicion that he might be in possession of an illicit substance or piece of equipment. The observations in the driveway of the house unit crystallised the general suspicion of drug activity involving the home unit and Laser into a fixed suspicion that evidence of offending might be found of illicit substances or equipment on the appellant and in the Laser if it were searched at that time.
However, critically, those observations were only made whilst the police were unlawfully on the driveway of the home unit and when they had already embarked, without statutory authority, on the exercise of the power to “detain and search” conferred by s 52 of the CSA. The unlawful conduct of Constables Koch and Beatty “enabled the prosecution to obtain” the evidence of the appellant’s possession of the drugs and enlivened the judicial discretion to exclude that evidence.[10] The Judge erred in failing to so find.
[10] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, 287-288 (Doyle CJ); R v Lobban (2000) 77 SASR 24, [32]-[40].
The discretion
The unlawfulness of the conduct by which the incriminatory evidence was obtained enlivens a discretion to exclude it. Having overturned the Judge’s determination that the conduct was lawful, that discretion falls to be considered afresh by this Court.
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.
On the other hand, the evidence of the police officers revealed that the decision to detain the Laser and to enter the home unit proceeded from an entrenched view that information that a person, vehicle, or house had been involved in drug dealing in the recent past was, without more, sufficient to establish the reasonable suspicion which enlivened the powers in s 52(6) and s 52(9) of the CSA. That view, and the extent to which it allows police a broad discretion to stop, search and detain vehicles and persons, is readily apparent from the following extract of Constable Koch’s evidence:[11]
[11] T38-41.
QDo you think that if drugs had been found in the car on a previous occasion that you are justified to have a look and search that car on a subsequent occasion that you see it.
ANot on that fact alone. But other suspicions that I held in relation to the people, the house, that’s what formed my suspicion.
QIf, for example, you were to search a car on 15 June, for example, and find drugs –
AThat’s correct.
Q– the fact that you then see that car six weeks later doesn’t justify you in searching it again, does it, or do you think that it does.
AIn general matters we would stop the vehicle anyway with a suspicion that we may locate something. We are suspicious by nature as police officers, that is our role to try to detect these things. We would normally stop that vehicle, yes.
QAs of July 2011 was it your practice to do that; that is to stop cars as a follow‑up to previous –
AIf I had a suspicion on a vehicle that it may have been involved with drug dealers or drug dealing or drugs and then, yes, I would stop it with an intention to search the vehicle.
QOn the basis of what had happened six weeks or two months before.
AOn the compounding information I had over the previous two months and my association, my known – what I felt towards the house and the vehicle and people around that house, that’s what formed my suspicion.
QI am just talking about generalities here and your approach to policing, okay. I am not talking about this case at this stage. As of 2011 if you arrested someone and found drugs in the car and then saw them driving along, say, six weeks later or eight weeks later, would you stop them.
AI would stop to speak to them, yeah, as a general rule of thumb and then submit an ancillary in relation to what I spoke to them about or what happened or where.
QThe purpose that you would stop them would be to check to see if they had any drugs on that occasion.
AYes, for general intelligence purposes previous to that and if my suspicion was aroused while stopping the vehicle, for instance the person has acted suspiciously while pulling it over, then I would conduct a search, but not in every instance.
QYou would stop them in order to give yourself an opportunity to see if they were acting suspiciously.
AI would stop them for numerous reasons, intelligence purposes, to see – to ascertain just generally what they have been doing for future reference, for that purpose only. Then if my suspicion was aroused in relation to the vehicle and the person and where they were or where they have come from, then I will conduct a search once I have made that decision.
QWhat power would you rely on to stop them in the first place.
…
QYou have told us in general terms that you would stop vehicles as a follow-up to your pervious search and arrest and location of drugs; that’s right.
AYes.
QThat’s something that you were in actual fact doing as of 2011/2012.
AYes, we would stop vehicles to ascertain who the driver was because the same person doesn’t drive the vehicle every time, and that assists us with the intelligence. We would ascertain who the driver is and ascertain what intelligence we presently had on them, and that is a general rule of thumb as well which we would do. If my suspicions became apparent from them then I would conduct a search of the vehicle.
QI suppose on numerous occasions you have stopped cars and found drugs and arrested people.
AYeah, I have arrested people in possession of drugs, yes.
QAnd in relation to those arrests you have seen them driving the car around the place at some later time and you have stopped them.
AI can’t think of any specific instances but, yes, I would have. Yes, I have.
QWhen you stopped on those follow-up occasions what did you understand authorised you to do that.
AI had to have a reasonable suspicion to search the vehicle and to search the person under the Controlled Substances Act. Under other Acts I could have power to stop and to obtain their driver’s licence and to see who was driving the vehicle. Each individual instance is on its own merits as to what my suspicions are and what has come about as a result of the way that they are driving, where, when, who they are.
QIs the truth of it is that you would use the power that you have to check on their driver’s licence, for example, to really check up and see if they might still be dealing in drugs and those sort of things.
AThat is not why I would stop them. I don’t stop any person in any vehicle for that purpose. Those vehicles are vehicles I have known to be associated with drug dealing and drug dealers and that is why I stop them and obtain their driver’s licence, and then if my suspicion – if I have a suspicion that they are drug dealers, and sometimes I know from that whether my suspicion is raised to search the vehicle by the way that they are acting, what they have done, what is located on the person, things likes [sic] that, compounding to add to my suspicions. But I don’t just stop random vehicles with random occupants and conduct drug searches on them, no.
QYou stop vehicles that you have in the past located some drugs in.
AOr I am aware of their association to drug dealing and drugs dealers.
We have already observed that the prosecutor did not rely on any powers other than those conferred by the CSA. Nonetheless, we make some observations about Constable Koch’s reference to police powers pursuant to the Road Traffic Act 1961 (SA) (RTA). Until 30 April 2007, s 42 of the RTA conferred a power on police officers to stop a vehicle on a road for the purpose of ascertaining whether an offence against the RTA had been committed. Thereafter, with the making of the uniform Australian Road Rules, the powers of search and detention have been even more closely prescribed. The evidence of Constable Koch discloses that his purpose in detaining and searching cars and persons in the way described in his evidence was not to investigate the commission of Road Traffic Act or Australian Road Rules offences, but to discover evidence of offending against the CSA. The provisions of the RTA have never authorised the detention of motor vehicles in private premises. Nor have its provisions ever given a general power to require drivers to alight from the vehicles detained.
Constable Koch’s view of the scope of the powers conferred by s 52(6) and s 52(9) of the CSA greatly exceeds their true limits. It is a view which is calculated to lead to widespread and arbitrary infringements on civil liberties. The testimony of Constable Koch well illustrates that danger. On Constable Koch’s attitude, power designed to facilitate investigations can readily be misused as instruments of harassment. No evidence was adduced to show that the mistaken understanding of the breadth of the powers shared by Constables Koch and Beatty was a peculiar or isolated one.
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 s 52(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.
The Court exercises its discretion to exclude the evidence of the appellant’s possession of heroin and methylamphetamine on 30 July 2011. We do so because it is necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the CSA.
Other grounds
The appellant also appealed against the conviction on several other grounds. On one of those grounds the appellant complained that the Judge disclosed to the jury, in the course of his summing up, that the police held a reasonable suspicion that the appellant was involved in drug trafficking. As one would expect, no such evidence was given on the trial. The Judge inadvertently disclosed to the jury the evidence which had been given on the voir dire. The Director of Public Prosecutions conceded that the inadvertent disclosure had caused a miscarriage of justice and, for that reason, an order remitting the matter for re-trial would not be opposed.
Because of the view the Court has taken on the admission of the evidence of the search, it is not necessary to deal with the other grounds, nor to remit the matter for re-trial. The Director accepted that, if the evidence of the search was excluded, the appeal should be allowed, the convictions set aside and a verdict of acquittal entered on both counts.
Conclusion
The Court allows the appeal, quashes the convictions and orders that verdicts of acquittal be entered on both counts.
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