R v Nguyen

Case [2013] SASCFC 91


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…

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R v Nguyen [2013] SASCFC 91
Case
[2013] SASCFC 91
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CaseChat Overview and Summary

In R v Nguyen, the Court of Criminal Appeal of South Australia considered an appeal against convictions for drug offences. The central dispute concerned the admissibility of evidence obtained from a police search of a vehicle, which the appellant argued was conducted without reasonable suspicion as required by the Controlled Substances Act.

The primary legal issue before the court was whether the police officers held a "reasonable suspicion" that the vehicle contained illicit substances or evidence of an offence against the Controlled Substances Act at the time of the search. This required the court to determine the legal standard for "reasonable suspicion" under the Act, specifically the balance between the need for police powers and the protection of civil liberties, and to apply this standard to the facts presented.

The court reasoned that a reasonable suspicion requires more than a mere belief or suspicion; the information or material from which the suspicion arises must be capable of engendering that suspicion in the mind of a reasonable person. The court found that while there was material to suggest that individuals associated with the vehicle had previously offended, this material did not support a reasonable suspicion that all persons connected to the vehicle were continuing to offend, nor that evidence of offending would be found in the vehicle at the specific time of the search. The court noted that drugs had been found on only one occasion in the months preceding the search, and a subsequent search yielded no drugs, indicating the vehicle was not constantly or frequently used for drug dealing.

Consequently, the court allowed the appeal, quashed the convictions, and ordered that verdicts of acquittal be entered on both counts, as the Director of Public Prosecutions conceded that the appeal should be allowed if the evidence of the search was excluded.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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