R v Nguyen - [2024] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
R v NGUYEN
[2024] SADC 79
Reasons for Decision of her Honour Judge Thomas
9 July 2024
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
Rule 39 application to exclude evidence of searches of the defendant’s person, bag and residence.
Held: application dismissed.
Controlled Substances Act 1984 (SA) s 32(3), 52, 52(6); Joint Criminal Rules 2022 (SA) r 39.1(d); Summary Offences Act 1953 (SA) Part 17, s 67, 67(4) 74D, 79A, referred to.
R v Cardy [2018] SADC 3, applied.
Bunning v Cross [1978] HCA 22; R v Romeo (1982) 30 SASR 243; R v Adlard (1825) 107 ER 1247; Reg v Brown (1871) 174 ER 522; R v Nguyen [2016] SASCFC 96; George v Rockett (1990) 170 CLR 104; Hussien v Chong Fook Kam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Bae v R; Koo v R (2020) 135 SASR 522; R v Nguyen (2013) 117 SASR 432; McHugh v R [2020] SASCA 5; R v Dolan (1992) 58 SASR 501; R v Lavery (1978) 19 SASR 515; R v Conley (1982) 30 SASR 226, considered.

R v NGUYEN
[2024] SADC 79
Criminal
Introduction

The defendant is charged with one count of trafficking in a controlled drug in contravention of s 32(3) of the Controlled Substances Act 1984 (SA).[1] It is alleged that on 8 February 2021, at Prospect, the defendant trafficked in methylamphetamine.
[1] Referred to below as the Controlled Substances Act.
On Monday 8 February 2021, at about 1:00 pm, plain clothes police officers attended outside a secure apartment building on Prospect Road to search Unit 205, under the authority of a general search warrant.[2] Unit 205 was the defendant’s last known residential address.[3] At about 1:05pm, the defendant and a female (later identified as Ms Pakkawan) came down the emergency access stairs of the building alighting out of the door at the bottom in front of the group of police officers who were standing outside. After some conversation with two of the officers, a search was conducted of the defendant’s person and of the grey bum bag that was strapped to his chest. Two mobile phones were found on the defendant and two resealable bags containing respectively 55.9 grams and 28 grams of mixed methylamphetamine were found inside the bag.[4]
[2] Exhibit VDP6.
[3] Exhibits VDP6 and VDP7. T61.24-.25.
[4] Exhibit VDP11.
A search of Unit 205 was then conducted by police officers under the general search warrant. Police found two sets of digital scales, three mobile phones and various amounts of suspected illicit substances.[5]
[5] T81 [DBS Mobbs]. FDN 59 [15].
The defendant made an application pursuant to Rule 39.1(d) of the Joint Criminal Rules 2022 for the exclusion of the evidence found in police searches of the defendant, his bag and the premises where he resided.
In written argument,[6] the defendant challenged the lawfulness of the searches of his person and bag on the grounds that the information available did not support a reasonable suspicion that he possessed an illicit substance or equipment warranting a search of his person or his bag. The officer who searched his bag did not have the requisite suspicion and he was unlawfully detained. The conversation allegedly had between the defendant and police about what was in his bag was not recorded contravening Part 17 of the Summary Offences Act 1935[7] and occurred prior to his rights being given in breach of ss 74D and 79A of the SO Act.
[6] FDN58 dated 15 August 2023.
[7] Referred to below as the SO Act.
It is for the trial judge to determine the admissibility of the recorded interview with police. However, the alleged breach of s 74D of the SO Act is relevant as regards this Court’s discretion to exclude the evidence of the search of the defendant’s person and bag.
As to the search of Unit 205, the defendant challenged the lawful use of the general search warrant by reason of the alleged failure of the warrant holder to present it, or his suspicions as to why he was searching Unit 205 as soon as reasonably practicable. Further, the searching police officers did not have reasonable cause to suspect, nor justify the use of the general search warrant as required by s 67 of the SO Act.
Further, the Court should exercise the public policy discretion in Bunning v Cross to exclude the evidence found in these searches in light of the unlawful conduct of the police.
A voir dire hearing was held and evidence was called from Detective Brevet Sergeants Mobbs (DBS Mobbs), West (DBS West) and Foster-Lynam (DBS Foster-Lynam). The defendant did not give evidence.
The voir dire hearing was adjourned a number of times.
On the first day, during the course of DBS West’s evidence-in-chief it became apparent that the redactions made in the police intelligence reports were incorrect. Out of fairness to the defendant, cross-examination was adjourned to the following day. The next day, further additional disclosure occurred of the same documents with different redactions. A further adjournment was granted to permit the defendant’s counsel the opportunity to take instructions and prepare cross-examination on the basis of the new material.
There were then difficulties with the availability of a prosecution witness. The voir dire hearing eventually continued. After DBS West and DBS Mobbs had given their evidence, the prosecution sought an adjournment to consider whether to tender a declaration of the third officer, DBS Foster-Lynam who was involved in the search of the defendant’s bag.
An addendum statement from DBS Foster-Lynam was disclosed during the adjournment. The defendant made an application for leave to issue a subpoena to the Commissioner of Police and argument proceeded on that application. The prosecution adopted the submissions made by the Commissioner of Police opposing leave being granted. The Court ruled against the defendant. The voir dire hearing resumed. DBS Foster-Lynam gave evidence and oral submissions were heard.
Ultimately, there is a dispute as to which officer made the decision to search the defendant’s bag under s 52(6) of the Controlled Substances Act and which officer was required to hold the requisite suspicion: DBS West or DBS Foster-Lynam. The prosecution’s primary position is that DBS West was the relevant decision-maker and the officer required to have the requisite suspicion, not DBS Foster-Lynam who merely assisted him. In the alternative, if DBS Foster-Lyman was a relevant decision-maker, the prosecution submits he had the requisite suspicion to enliven his power to lawfully search the defendant’s bag under s 52(6).
The defendant submits the Court must have regard to DBS Foster-Lynam’s suspicions and his alone since he conducted the search of the defendant’s bag and therefore, he must have the requisite suspicion under s 52(6) to lawfully search it. The defendant submits the Court should find he did not. Further, the inquiry stops there because DBS Foster-Lynam affirmed he had his own suspicions and was not directed by DBS West to search. In any event, DBS West’s suspicions were not objectively reasonable. Even if DBS West held the requisite suspicion and directed DBS Foster-Lynam to assist him. If properly construed, there is no implied grant of power for a police officer to be assisted by other officers in conducting a search under s 52(6). Insofar as the prosecution relies upon the decisions in R v Romeo[8] or R v Cardy,[9] this Court is not bound by them and they are distinguishable on the facts.
[8] (1982) 30 SASR 243.
[9] [2018] SADC 3.
Supplementary written submission were filed as regards the proper construction of s 52(6) of the Controlled Substances Act, and specifically whether there is an implied power for a police office to have the assistance of other officers for the purposes of conducting a search under s 52(6).
Conclusion
I dismiss the defendant’s application to exclude the evidence found as a result of the searches of the defendant’s person, his bag and Unit 205. My reasons follow.
The Witnesses
DBS Mobbs
Since 2019, DBS Mobbs is and was at the time of the searches an experienced police officer, who was stationed in the Serious Crime Task Force (SCTF) in the Serious Organised Crime Branch (SOCB). Prior to that, he was a Detective at the Southern District CIB, in the Volume Crime Tactical Team. He had joined the force in 2006. His work involved investigations into organised crime, targeting drug trafficking which he had done for some five to six years. These investigations often took a number of months before resolving in any arrests and involved covert methodology, including police surveillance and intelligence gathering about persons and places of drug interest.
In February 2021, DBS Mobbs was involved in Operation Guild, an ongoing investigation into the criminal activity of the Tinh Bahn street gang. The main objectives of Operation Guild were to declare this network as an organised crime syndicate and to investigate related drug trafficking. The defendant was identified as a close associate of known Tinh Ban members and a person of drug interest from intelligence gathered from Operation Guild and other operations conducted by the SCTF from late 2019 and throughout 2020.
DBS Mobbs was the warrant holder and deployed as the exhibits officer for the search of the unit. He gave evidence about the police intelligence supporting his suspicions for the execution of the general search warrant at the unit. When the tactical plan changed on the day, DBS Mobbs gave a second briefing to the officers concerned including DBS West and DBS Foster-Lynam. Later, at the scene, it was DBS Mobbs who had the first interaction with the defendant when he unexpectedly came out the locked door that the police were having difficulty opening. DBS Mobbs then passed responsibility for dealing with the defendant to DBS West whilst he dealt with Ms Pakkawan.
The defendant makes two criticisms of DBS Mobbs’ dealings with the defendant. The first concerns the objective reasonableness of his suspicions as the basis for the lawfulness of the search of Unit 205 conducted under his general search warrant. The second concerns his alleged delay in presenting his warrant and his suspicions as to why he was searching Unit 205 to the defendant. His cross-examination focussed on these topics. There was no real challenge to the truthfulness or reliability of his evidence.
DBS Mobbs’ evidence should be accepted as honest and reliable. He gave evidence in a straightforward and clear manner. His recall of relevant events and the intelligence grounding his suspicions was detailed and credible. For the reasons discussed below, it should be accepted DBS Mobbs held the requisite suspicion to search Unit 205 under s 67 of the SO Act and he presented the warrant as soon as reasonably practicable in the circumstances.
DBS West
In February 2021, DBS West was also stationed in the SCTF and involved in what he described as mid-level drug investigations. He was tasked to assist with the search of Unit 205 as part of Operation Guild on 8 February 2021. Although he was not directly involved in Operation Guild, he already knew about it and its objectives.
DBS West had been the investigating officer for an 18-month investigation into another Vietnamese drug syndicate, known as Operation Vinegar. From this operation DBS West knew the defendant was a person of drug interest and the subject of intelligence about his involvement in illicit drug activity. On 5 March 2020 Operation Vinegar resolved with the search of premises at Pennington at which the defendant was present and where police found a heroin press. The defendant was arrested for offences under the Controlled Substances Act relating to heroin but not charged.
At the scene, it was DBS West who had the second interaction with the defendant and searched his person, took his bag from him and gave it to DBS Foster-Lynam. For the reasons discussed below, I consider it was DBS West who was required by s 52(6) of the Controlled Substances Act to have the requisite suspicion to lawfully search the defendant’s person and his bag, not DBS Foster-Lynam.
DBS West was thoroughly cross-examined about events, including as to his purpose in questioning the defendant and the basis of his suspicions. DBS West gave clear and cogent evidence. He recalled with detail the intelligence relied upon and relevant events.
There is one aspect of DBS West’s evidence I have not accepted. In examination-in-chief, DBS West gave a different account of the second question he asked the defendant[10] compared to the version he repeated to the defendant on camera some three minutes later. Whilst I note DBS West’s explanation that it may have been an omission in the follow up conversation, I find the recorded version of the second question more reliable than DBS West’s memory three years later, noting the defendant agreed to the recorded version at the time.
[10] T16.18-24.
Nonetheless DBS West’s evidence should be accepted as honest and otherwise reliable.
I have not accepted the defendant’s submission that I should prefer the inconsistent evidence of DBS Foster-Lynam to DBS West’s evidence that he directed DBS Foster-Lynam to search the bag. There are several reasons why I have not.
First, when the evidence is properly analysed it is not simply a question of whose evidence should be preferred. DBS West said he directed DBS Foster-Lynam to search the bag. DBS Foster-Lynam disagreed he was being directed and said he was certainly assisting because DBS West was dealing with the defendant. As the video footage shows,[11] whilst DBS West did not expressly direct DBS Foster Lynam to search the defendant’s bag he in effect directed him to do so by what he told the defendant DBS Foster-Lynam was going to do. That is, in the presence of DBS Foster-Lynam, DBS West told the defendant he was going to get DBS Foster-Lynam to search the bag he had removed from the defendant’s person and handed to DBS Foster-Lynam earlier and off camera. DBS West told DBS Foster-Lynam not to decant the contents of the bag until the video camera was activated.
[11] Exhibit VDP4.
In the circumstances, it is clear that DBS West, as the more experienced officer, had assumed responsibility for searching the defendant’s person, including the bag strapped to his chest and DBS Foster-Lynam was assisting at DBS West’s request.
Secondly, for the reasons discussed below, if it were necessary to choose between their evidence, I would prefer DBS West’s evidence to that of DBS Foster-Lynam. DBS West’s evidence was a more detailed and reliable recollection of events. Further, bearing in mind the concessions DBS Foster-Lynam made in cross-examination that in giving evidence three years’ later he was ‘working backwards’ must be borne in mind.
For the reasons also discussed below, it should be accepted DBS West held the requisite suspicion to search the defendant’s person and bag under s 52(6) of the Controlled Substances Act, did not unlawfully detain the defendant or by his conversation with the defendant breach ss 74D and 79A of the SO Act.
DBS Foster-Lynam
On 8 February 2021, DBS Foster-Lynam had been in the SOCB for about a week. Whilst he had some 20 years of experience as a police officer, he had limited experience in drug investigations, having recollected perhaps some six investigations. He was previously stationed at the anti-corruption branch and the internal investigation section and neither of which involved a great deal of drug trafficking.
DSB Foster-Lynam was ultimately called because he conducted the physical search of the defendant’s bag and his suspicions were in issue. He gave evidence that he held his own suspicions that the defendant would be in possession of illicit drugs and the reasons for his suspicions.
DBS Foster-Lynam had no prior knowledge of the defendant, or Operations Guild, Vinegar, or Fortune. He did not attend the morning briefing given by Detective Sergeant Schollar (DS Schollar). Nor did he read the tactical operation order or any of the referenced intelligence reports. In those circumstances, he was tasked to work with DSB Mobbs and conduct surveillance of Unit 205 on the morning of 8 February 2021. Whilst conducting surveillance sitting in a car for three and half hours, he said they discussed the investigation in detail and what he was told formed the basis of his suspicions that the defendant would have illicit drugs on his person.
DBS Foster-Lynam attended the 12:15pm briefing by DBS Mobbs for the purposes of searching the defendant’s residence, under the authority of DBS Mobbs’ general search warrant.
I found DBS Foster-Lynam’s recollection three years later of his suspicions regarding the defendant having drugs on his person and the reasons for them unpersuasive. His evidence on this topic was generalised and lacked detail. Essentially, all he could recall being told by DBS Mobbs was that the investigation had been ongoing for a minimum of three months and the defendant had been observed travelling to various northern suburb addresses where suspected drug trafficking was occurring. He also recalled the defendant had some unexplained wealth. He gave as a further reason for his suspicions that they had originally been tasked to intercept the defendant, search him, potentially arrest him, as well as search Unit 205. He was unable to identify an objective or discernible basis for his suspicions beyond being told by DBS Mobbs that police officers suspected the defendant was trafficking drugs for reasons he could no longer fully recall.
DBS Mobbs did not give any evidence about his conversation with DBS Foster-Lynam whilst they were observing 171 Prospect Road.
In cross-examination, DBS Foster-Lynam made a number of important concessions. First, he conceded he made no notes about his suspicions at the time of the search (breaching the general orders). Secondly, he did not mention anything about his suspicions in his first statement dated 20 April 2021. Thirdly, he was candid when giving evidence that he was relying on his memory. Fourthly, he was frank in his concessions while giving evidence that he was ‘working backwards’.[12]
[12] T146.2-.4; 156.9-.31.
Whilst I do not doubt the truthfulness of DBS Foster-Lynam’s evidence, he was a poor historian. Understandably he had difficulty three years later in recalling events that took place over the course of a morning and culminated in some ten minutes or so of relevant interaction between the police and the defendant in an investigation in which he had no substantive or ongoing involvement. I find DBS Foster-Lynam has reconstructed events and in particular, his suspicions, relying as best he could on his poor memory. He was unable to articulate any substantial factual basis for his suspicions.
For these reasons, I am not persuaded DBS Foster-Lynam turned his mind at all to whether he had the requisite suspicion to search the defendant’s bag or if he did, held the requisite suspicion. He did as DBS West directed him. Because he assisted DBS West and I have found DBS West held the requisite suspicion, my assessment of DBS Foster-Lynam’s evidence and findings as regards his suspicions do not affect the lawfulness of the search of the defendant’s person and bag under s 52(6) of the Controlled Substances Act.
Findings
The defendant was known to police and specifically to DBS Mobbs and DBS West by the alias ‘America’ or ‘My America’ and by various spellings of his name and at the relevant time as living at Unit 205, 171 Prospect Road, Prospect.

The defendant was the subject of ongoing police intelligence gleaned over the course of more than a year from Operations Guild, Vinegar and Fortune suggesting he was trafficking illicit drugs. Both heroin and methylamphetamine were mentioned and as DBS Mobbs said, the police were mindful that drug dealers are not exclusive to one drug. Because of this intelligence, the defendant and his residence (Unit 205) were the targets of a tactical operation order prepared on 7 February 2021[13] and authorised by DS Schollar as part of Operation Guild. The stated mission was to safely search Unit 205 for serious offences against the Controlled Substances and the Criminal Law Consolidation Acts under the authority of a general search warrant held by DBS Mobbs.
[13] Exhibit VDP2.
DBS Mobbs prepared a record of a general search warrant use (PD23A)[14] that same day (7 February 2021) to justify use of his general search warrant at Unit 205 and support his reasonable cause to suspect. He referenced four intelligence reports,[15] a street check report[16] and information from Operation Fortune conveyed to DBS Mobbs by his supervisor, DS Scholler, all of which linked the defendant by his name or his alias to ongoing illicit drug activity gathered over the course of the previous year.
[14] Exhibit VDP6.
[15] Exhibits VDP5, VDP7, VDP8 and VDP9.
[16] Exhibit VDP10.
At around 8:00 am, on Monday 8 February 2021, DBS West was tasked to assist in the search of Unit 205. He and others attended an operational briefing conducted by DS Schollar in relation to the ongoing Operation Guild. As already stated, DBS West already knew Operation Guild concerned Vietnamese organised crime and drug trafficking.
DBS West received and read the tactical operation order.[17] Within the order was a summary of intelligence from 22 December 2020 to August 2019 about the defendant’s suspected involvement in/or connection to illicit drug activity and drug trafficking. Four intelligence reports were referenced, two of which were received into evidence[18] as well as the defendant’s antecedents and other operationally relevant information. The tactical operation order identified the defendant’s residential address as Unit 205 and that it was in a secure apartment complex. DBS West recalled being briefed about this address and that it had been confirmed in January 2021 as the defendant’s current home address.
[17] Exhibit VDP2.
[18] Exhibit VDP5 and VDP8.
The most recent intelligence in the tactical operation order was from 22 December 2020[19] and suggested the defendant by his alias ‘America’ was dealing large amounts of heroin and living on Prospect Road. DBS West read this report in its entirety.
[19] Exhibit VDP5.
The tactical operation order read by DBS West contained further important intelligence. On 9 November and 19 October 2020 police had seen the defendant attend a drug address of interest. Police observed activity they suspected to be illicit drug deals occurring whilst the defendant was there. Yet further intelligence from 7 October 2020 suggested the defendant was supplying heroin to another person of drug interest who was dealing from another address of drug interest.
There was intelligence from March 2020 about the defendant and his ex-partner’s arrest for offences under the Controlled Substances Act related to heroin. This information concerned Operation Vinegar which DBS West already knew because, as already stated, he was the investigating officer for that operation. He gave evidence that when Operation Vinegar resolved on 5 March 2020 it included a search of an address at Pennington where the defendant was present and a heroin press was found.
The operational plan was for police to observe Unit 205, wait for the defendant to leave in his vehicle, conduct a vehicle stop and search him and then use the general search warrant held by DBS Mobbs to safely search Unit 205.[20] The intention was to mitigate the risk of any evidence being destroyed if the premises search was executed when the defendant was present.
[20] T71.26-.36 [DBS Mobbs].
DBS Foster-Lynam was tasked to conduct surveillance of the defendant’s residence with DBS Mobbs. At about 8:00 am, they drove to Prospect Road and spent approximately three and a half hours sitting in a car together observing 171 Prospect Road. According to DBS Foster-Lynam, they discussed in detail the ongoing investigation DBS Mobbs was involved in and specifically the ongoing investigation of the defendant’s suspected drug trafficking.
The operational plan changed when the defendant was not seen to leave Unit 205 during the course of the morning. The decision was then made to execute the general search warrant anyway.
DBS Mobbs conducted a second tactical briefing around 12:15pm at a rendezvous near the scene, also attended by DBS West and DBS Foster-Lynam, and others. The briefing touched on the topic of the defendant’s suspected drug trafficking but its primary focus was the tactical deployment of the search of Unit 205.
Shortly before 1:00 pm, plain clothes police officers attended the secure apartment complex 171 Prospect Road, where Unit 205 was located. At about 1:05 pm, while the police were trying to unsuccessfully gain entry into the building through a locked door, the defendant came down the emergency access stairs and came out the same locked door the police were trying to get in. The defendant was with Ms Pakkawan. They both came to a standstill in front of the assembled group of police.
DBS Mobbs immediately recognised the defendant and identified himself and the others as police and that they were there to conduct a search of the defendant’s premises, under the authority of a general search warrant. For operational safety reasons, DBS Mobbs separated the defendant and Ms Pakkawan by directing the defendant towards DBS West, who was standing to his left, leaving DBS Mobbs to speak to Ms Pakkawan.
DBS Mobbs did not show the defendant his general search warrant at this time or give a verbatim or more fulsome explanation of it.
It was DBS Mobbs’ evidence that as he directed the defendant towards DBS West, he said to DBS West words to the effect of: ‘Can you deal with him for now’ but did not expressly say ‘search him’. DBS West’s evidence was that DBS Mobbs asked him to search the defendant.
It is unnecessary to resolve this inconsistency between their evidence as to whether DBS West was told to search the defendant’s person or not, whether expressly or impliedly. This is because I have found DBS West is the relevant decision-maker for the purposes of the search of the defendant’s person and bag under s 52(6) of the Controlled Substances Act, not DBS Mobbs.
DBS West proceeded by asking the defendant whether he had anything in his bag that would hurt him or the other detectives to which the defendant said no. DBS West then began a search of the defendant’s person. When he touched the defendant’s right pocket the defendant took out two phones and gave them to DBS West who handed them to DBS Foster-Lynam who was standing near him.
After DBS West had pulled out the defendant’s pockets, he then asked a second question: ‘Do you have anything in the bag you wish to make me aware of?’ The defendant responded ‘Yes, two ounces’.
DBS West then took the bag off the defendant’s chest and instructed another officer to get a camera prior to searching the bag. DBS West then handed the bag to DBS Foster-Lynam and told him not to decant it until the camera was activated. DBS West then cautioned the defendant and told him there would be no conversation until the camera was activated.
These initial interactions between the police and the defendant that took place over the course of about three minutes were not recorded.
The video camera was activated at 1:08 pm by Constable Leedham at the direction of DBS West. Footage of the video taken was received in evidence, which I have reviewed.[21]
[21] Exhibit VDP4.
Constable Leedham at the start of the video recording told the defendant the purpose of the police presence was to conduct a search under the authority of a general search warrant held by DBS Mobbs. DBS West then identified himself and asked the defendant to state his name, date of birth and home address, then cautioned the defendant and told him he was not under arrest. At this point, DBS West asked the defendant further questions to confirm the version of events and conversation that had just occurred, which the defendant confirmed as correct.
DBS West then told the defendant he was going to get DBS Foster-Lynam to go through his bag which DBS Foster-Lynam did. When he did, he found a plastic bag of a crystalline substance which he put on the ground in front of DBS West, the latter describing it for the video as a bag of crystalline substance consistent with methamphetamine. DBS West then told the defendant he was going to be placed under arrest and gave him his rights on arrest.
Consideration
Search of the Defendant’s Person
Which Officer?
It is first necessary to resolve the dispute about which officer’s suspicions were relevant before considering the issue as to whether such suspicions were reasonably held or not.
The prosecution’s primary submission is that it is the reasonable suspicion of DBS West that is relevant because he was the officer who decided to conduct the search of the defendant’s person and effectively conducted it. The defence disagreed, submitting that only DBS Foster-Lynam’s suspicions are relevant because he conducted the physical search of the bag in which the drugs were found.
On the evidence, I have found it was DBS West who conducted the search of the defendant’s person, including his bag.
He started the search by touching the defendant’s pocket and when the defendant handed him his two phones, he gave them to DBS Foster-Lynam, who was nearest to him. It was DBS West who removed from the defendant’s person the bag strapped to his chest, which he also handed to DBS Foster-Lynam, directing him not to decant the contents until the video camera he had called for was activated. When the camera was activated, DBS West told the defendant he was going to get DBS Foster-Lynam to go through the bag.
In the circumstances, I consider DBS Foster-Lynam was assisting and acting at DBS West’s direction in decanting the contents of the bag. This was done following DBS West’s search of the defendant’s person and removal of the bag from the defendant’s chest. Given the way the search unfolded, it is artificial to separate the search of the defendant’s pockets from that of the bag strapped to the defendant’s chest that DBS West removed from the defendant’s person and contend that the searches were separate.
The defendant submits the assertion DBS Foster-Lynam was assisting must fall over in circumstances where he identified his own reasonable suspicion and this was an important consideration. This submission should be rejected. It may have been important if I had accepted DBS Foster-Lynam’s evidence on this topic and found he had genuinely held his own suspicion, which I did not. As already stated, I found DBS Foster-Lynam’s recollection three years later of his own suspicions and the reasons for them unpersuasive. In any event, having regard to the video footage and DBS West’s evidence, I am satisfied that DBS Foster-Lynam’s involvement is properly characterised as assistance.
Right to Assistance
The next question concerns the defendant’s challenge of the power of a police officer to be assisted by another officer in conducting a search of a person under s 52(6) of the Controlled Substances Act. It was submitted there is no implied power for a police officer to have the assistance of another officer who does not also hold the requisite suspicion for the conduct of a lawful search under s 52(6). The defendant emphasised the civil liberties abrogated by the exercise of the power to search under s 52(6) as necessarily confining the power to search and contrasted it to the express provision of assistance provided in s 67 of the SO Act. It was submitted that the holder of a general search warrant is entitled to assistance because not every police officer holds such a warrant whereas s 52(6) extends to any police officer who holds the requisite suspicion.
I disagree. The lawful right for a police officer who holds the requisite suspicion to call upon the assistance of another officer to search a person should be considered implicit in the power conferred by s 52(6). As both Justice Cox in R v Romeo[22] and Judge Davison in R v Cardy[23] said, there is often a reasonable need for such assistance and the need for assistance to be granted must have been in the contemplation of the legislature in enacting s 52(6). Accordingly, the right to call for help may reasonably be considered to be implicit in the grant of power itself. This is all the more so when the longstanding right of a police officer to call upon others to assist in exercise of lawful authority is appreciated.[24]
[22] (1982) 30 SASR 243 at 271.
[23] [2018] SADC 3 at [36].
[24] R v Romeo op cit, citing R v Adlard (1825) 107 ER 1247 and Reg v Brown (1871) 174 ER 522.
Properly analysed, the assistance of another officer to a police officer who holds the requisite suspicion in conducting a personal search involves no further abrogation of civil liabilities or unfairness to the person searched. This is not a ground for denying an implied grant of power to call for assistance in s 52(6).
If it were otherwise, the clear purpose of the Act in regulating or prohibiting the manufacture, supply and possession of controlled drugs would be undermined by unreasonably constraining the effective exercise of the power of a police officer who holds the requisite suspicion to search a person for drugs. It would be both impracticable and potentially dangerous if a police officer holding the requisite suspicion to search could not call on others to assist in the dynamic and varied circumstances in which suspected offences under the Controlled Substances Act routinely occur without first requiring the officer who rendered assistance to also hold the requisite suspicion.
The Requisite Suspicion
Sub-section 52(6) of the Controlled Substances Act provides:
(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.
The power to search the defendant under s 52(6) of the Controlled Substance Act is conditioned on both DBS West holding the suspicion at the time he decided to search and his suspicion being objectively reasonable given the facts and circumstances known to him.[25] It was not in issue that DBS West held a genuine suspicion, and I have found he did hold a genuine suspicion. The question is whether the suspicion he held was objectively reasonable on the basis of all the information, both inculpatory and exculpatory, known to him at the time he decided to search.
[25] R v Nguyen [2016] SASCFC 96 at [24].
Suspicion, as distinct from belief, and the concept of reasonable grounds for the suspicion were considered by the High Court in George v Rockett.[26]The High Court referred to the statement in Hussien v Chong Fook Kam[27] that suspicion “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’”. That some factual basis for the suspicion must be shown was explained as follows, citing Queensland Bacon Pty Ltd v Rees:[28]
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
[26] (1990) 170 CLR 104 at 115-116.
[27] [1970] AC 942 at 948 per Lord Devlin.
[28] (1966) 115 CLR 266 at 303 per Kitto J.
The South Australian Supreme Court has considered the concept of reasonable suspicion and reiterated the same principles in numerous authorities in the context of s 52 of the Controlled Substances Act.[29] In R v Nguyen, in discussing the difference between suspicion and belief, the Court of Criminal Appeal said: [30]
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.
(Citations omitted)
[29] More recently in Bae v R; Koo v R (2020) 135 SASR 522.
[30] (2013) 117 SASR 432 at [21]-[22].
The requirement for the ‘reasonableness’ of the suspicion means the known information from which the suspicion arises must rationally produce a suspicion in the mind of the authorised police officer and must engender the suspicion in the mind of a person thinking reasonably about the information. ‘Reasonableness’ is to be evaluated in the context of the statutory power and the civil liberties abrogated by its exercise.[31]
[31] Ibid at [22].
It is important to reiterate some further salient observations made by the Court of Criminal Appeal in Bae v R; Koo v R.[32] In considering the requirements of reasonable suspicion for the purposes of s 52(6) and (9) of the Controlled Substances Act, Kelly J explained that the requisite suspicion does not require anything other than the police officer to hold a relevant suspicion and that suspicion is objectively reasonable, meaning that a reasonable person in the position of the police officer would entertain the same suspicion.[33] Further, it must be a relevant suspicion in the sense that it must relate to the requirements of the section that the search will afford evidence that the person is in possession of a substance or equipment in contravention of the Controlled Substances Act.[34] It does not dictate that any threshold be reached by requiring the strength of the suspicion to be assessed on some sliding scale.[35]
[32] Op cit.
[33] Ibid at [75].
[34] Ibid at [67].
[35] Ibid at [75].
Properly analysed, a police officer’s opinion of whether their suspicion was sufficient to trigger a s 52 power to search is irrelevant to the question of its objective reasonableness.[36]
[36] Ibid at [78].
With the principles in mind, I turn to consider the matters said by DBS West to give rise to his suspicion that the defendant had in his possession any substance or equipment in contravention of the Controlled Substances Act.
DBS West gave evidence that he was acting under s 52 of the Controlled Substances Act when he searched the defendant’s person. He confirmed in cross-examination he understood the difference between authority to search a person under the Controlled Substances Act and an address under a general search warrant.
I accept DBS West’s evidence that he had already formed a suspicion that the defendant would have drugs on him before he saw him at the scene. His suspicion was based on his historic knowledge of the defendant’s drug trafficking, the information conveyed in the tactical briefing given by DS Schollar that morning, the information on the tactical operation order and intelligence report he had then read, all suggesting the defendant was continuing to drug traffic and the fact that it was confirmed he was still residing at Unit 205.
As I have already said, DBS West was thoroughly cross-examined and recalled the detail of the matters he relied on in forming his suspicion. An analysis of the information he relied on[37] and his own knowledge of the defendant’s suggested ongoing involvement in drug trafficking over the course of more than a year aroused in DBS West an objectively reasonable suspicion in relation to the defendant having illicit drugs on his person. It was rational for him to connect the series of intelligence reports about the defendant’s involvement in suspected drug activity as suggesting ongoing drug trafficking. It was rational for him to consider the defendant would continue to drug traffic until detected and disrupted by police.
[37] See paragraphs [46]-[50] above.

Contrary to the defendant’s submission, there is nothing unusual about considering that if a person is suspected to be drug trafficking, that a person may possess drugs or equipment on their person and there may also be in their place of residence, evidence of or things used for the proposes of committing offences under the Controlled Substances Act. This was the natural inference to be drawn from the constellation of matters known to DBS West about the defendant. All of his suspicions combined led to more than “mere curiosity, speculation or idle wondering” on his part.[38]
[38] R v Nguyen (2013) 117 SASR 432 at [21]-[22].
The defendant challenged the information DBS West relied on as being too general and dated. It was submitted that it was not reasonable to infer from the police intelligence to which he had regard that the defendant was trafficking, as distinct from being interested in drugs. Further, there was nothing to reasonably suggest that the defendant would have on his person drugs or equipment on the occasion in question, six weeks after the latest intelligence report.
I disagree.
Again, it is in the nature of drug trafficking that it is continuing activity and continues for some time and often until detected and disrupted by police. The period between the most recent intelligence and the search did not detract from the cogency of the information in the circumstances of this case.[39]
[39] McHugh v R [2020] SASCA 5.
That said, it should of course be acknowledged that each of the matters to which DBS West had regard carried some weight and some were of greater significance than others, and in this case any in isolation would not have been enough to form a reasonable suspicion that there was a controlled substance or equipment on the defendant’s person when he presented at the door. However, it must be borne in mind in assessing the reasonableness of DBS West’s suspicion, it was formed from the constellation of information conveyed at DS Schollar’s briefing and contained in the tactical operation order and intelligence report he read, in combination with his knowledge and experience of drug trafficking generally and specifically in connection with Operations Vinegar, Fortune and Guild.
‘Reasonableness’ is not tested by individually assessing the quality and weight of each matter relied on and summing their weights. Rather, an assessment is to be made as to whether there is a positive link between the entirety of the constellation of information relied on and the suspected illegality in the entirety of the circumstances. In this way, in assessing the reasonable of DBS West’s suspicion, consideration is to be given to the accumulation of relevant information, inculpatory and exculpatory, and the suspicion was either objectively reasonable or not.
In the circumstances, on the evidence I have found, I am satisfied that DBS West had an objectively reasonable suspicion that was and rationally supported. His search of the defendant’s person and bag under s 52(6) of the Controlled Substances Act was therefore lawful and the evidence found as a result of his search lawfully obtained.
Breach of ss 74D and 79A of the SO Act
The defendant submits he was not cautioned before he was questioned and his questioning by DBS West was not recorded, in breach ss 74D and s79A of the SO Act.
Ultimately, whilst the initial conversation DBS West had with the defendant was not recorded, the defendant accepts (and properly so) that the first question was concerned with securing safety at the scene
The second question was contentious:
Have you got anything else in the bag you wish to make me aware of?
The defendant submits the second question did not concern safety and should not be interpreted as such. It was reasonably practicable for a video camera to have been obtained (as it was a few minutes later) and as DBS West acknowledged in cross-examination, best practice would require a caution to be administered before asking the second question. Further, because there was no caution, the defendant would have felt compelled to answer DBS West’s question and that ought to have been obvious to an experienced officer like DBS West.
I do not accept the defendant’s submissions.
Having regard to the way in which the defendant unexpectedly presented in front of police and circumstances unfolded at the scene, I accept DBS West’s evidence that it was not practicable for him to first call for a video camera. As plain clothes police they were not wearing body cameras in accordance with usual practice and had attended to execute a search of premises, intending to activate a video camera when the premises were safely secured.
In the circumstances, it was also not necessary for DBS West to administer a caution or record his initial conversation with the defendant before he had it. A suspicion sufficient to justify a search under s 52(6) of the Controlled Substances Act does not of itself require either to have first occurred. It is well established that it is only when police reach the ‘accusatory stage’ of their investigation that a caution is required and it would then otherwise be unfair to admit any statements given by an accused if a caution had not been previously given.[40]
[40] R v Dolan (1992) 58 SASR 501 at 505.
As I have already said, DBS West accepted in cross-examination that in hindsight it would have been best practice to caution the defendant between the two questions he asked.[41] However, as he also said, that was not practical at the time because he was in the process of safely searching the defendant. I accept his second question was directed at safety. Since he was going to search the defendant regardless, he said it was better for the defendant to tell him what he had than for him to find needles and other things when he searched.
[41] T 52.16-.21.
In the circumstances, I consider it was reasonable and necessary for DBS West to prioritise safety at the scene, bearing in mind both the specific cautions noted in the intelligence reports for the defendant and DBS West’s experience that it was common practice for drug traffickers to carry weapons for self-protection.[42]
[42] For example, Exhibit VDP5 page 2.
It should therefore be accepted that both DBS West’s questions were directed at securing the safety of the scene and not accusatory or the start of a systematic interview. There was therefore no involuntariness or unfairness arising from a lack of caution being given to the defendant and him answering the questions asked by DBS West.
There was ultimately no unfairness in the initial conversation not being recorded. It was immediately addressed by DBS West stopping the search when the defendant volunteered he had ‘two ounces’, calling for a video camera and cautioning the defendant both off and on camera, then repeating what had been said before he directed DBS Foster-Lynam to search his bag. The delay in starting the recording was approximately three minutes.
DBS West properly gave a caution as soon as the defendant said he had ‘two ounces’, arousing in DBS West a sufficiently strong suspicion that the defendant had committed an alleged offence, to warrant the giving of a caution.
Detention
The defendant submits he was unlawfully detained.
Having regard to the principles governing de facto arrest considered in R v Lavery[43] and R v Conley,[44] it should be accepted that police detained the defendant when he presented in front of them. However, in the circumstances I have found the defendant’s detention does not amount to a de facto arrest. His detention was lawful and justified by the implied power of DBS West to detain him for the purpose of safely conducting a search of his person under s 52(6) of the Controlled Substances Act.
[43] (1978) 19 SASR 515.
[44] (1982) 30 SASR 226.
Search of Unit 205
The defendant challenges the lawfulness of the search of Unit 205 on two grounds and therefore seeks an order excluding the evidence found by police from the search of Unit 205.
The first is that there was no reasonable cause to suspect. The second is that DBS Mobbs did not present his general search warrant of his suspicions as to why he was searching the defendant’s address as soon as reasonably practicable.
Reasonable Suspicion for Searching Unit 205
The exercise of the powers of entry and search etc of any house, building, premises or place conferred by s 67(4) of the SO Act is conditioned on the named officer having reasonable cause to suspect that it is where an offence has been recently committed or is about to be committed, there are stolen goods or there is anything that may afford evidence as to the commission of an offence or that may be used for the purpose of committing an offence.
Having regard to the evidence, I consider DBS Mobbs had reasonable cause to suspect that the defendant had recently committed or was about to commit an offence, namely the trafficking of illicit drugs, and that Unit 205 as his residence was a building, premises or place where there were drugs or other things that may afford evidence of or may be intended to be used for the purpose of committing offences under the Controlled Substances Act.
DBS Mobbs prepared the record of general search warrant use (PD23A)[45] relatively contemporaneously with the search of Unit 205, at midday the preceding day, 7 February 2021. He stated in the supporting notes the intelligence he relied on as a basis for his suspicions that the defendant as the occupant of Unit 205, was dealing in illicit drugs and therefore Unit 205 were premises of drug interest, among others. In evidence he explained the stated basis of his suspicions as recorded in the PD23A in detail. He said he had read all of the referenced intelligence reports before he prepared the PD23A and had been told certain information about the defendant that police knew as a result of another police investigation (Operation Fortune).
[45] Exhibit VDP6.
The intelligence on which he based his suspicions was as follows.
DBS Mobbs had been involved for some months in an ongoing investigation into the Tinh Ban criminal network and related drug trafficking, known as Operation Guild. He knew from his work in this investigation that the defendant had been identified as an associate of known members of the syndicate (that is, his uncle and mother) and there was reliable and recent intelligence suggesting the defendant was drug trafficking. At the time, it was not known whether the defendant was a member of the Tinh Ban syndicate or the suggested drug trafficking involved the syndicate.
DBS Mobbs had identified the defendant’s last recorded address as Unit 205, 171 Prospect Road from a police licence check (VLS) as at 23 January 2021 (some two weeks earlier).
On the first page of the PD23A, DBS Mobbs referenced intelligence received on 5 February 2021 identifying the defendant as linked to an Asian male as owning an Australia Post outlet and verifying fake documents.[46] This was of relevance because in DBS Mobbs’ experience, drugs were frequently sent through the post.
[46] Exhibit VDP7.
Again on the first page of the PD23A, he referenced the police intelligence received on 22 December 2020 (some six weeks earlier) suggesting the defendant (aka America) was selling large amounts of heroin, the relevant report number[47] (that he had read) and that this report also corroborated the defendant’s current address as Unit 205. DBS Mobbs gave evidence that the defendant was known to police as ‘America’ and ‘My America’ and his name was referred to in reports with alternate spellings.
[47] Exhibit VDP5.
On the second page of the PD23A, DBS Mobbs referenced police observations made during the course of Operation Fortune of the defendant on 9 November 2020 attending a drug premises of interest at McQueen Street, Paralowie. The occupants were observed attending the front passenger window of the defendant’s vehicle for a short passage of time consistent with the modus operandi for drug dealing. This intelligence was conveyed to DBS Mobbs by his supervisor DS Sergeant Schollar, who liaised with officers from the other investigation.
DBS Mobbs referenced a second occasion on the PD23A of 19 October 2020 on which the defendant was observed by police in the course of Operation Fortune attending McQueen Street, Paralowie.
He next referenced further police intelligence received in October 2020 concerning yet another drug person of interest who was suggested as dealing large amounts of heroin from a Globe Derby Park address and was supplied by the defendant and another person of interest.[48] Because of his involvement in Operation Guild, DBS Mobbs knew this person of interest was searched as part of that investigation.
[48] Exhibit VDP8.
DBS Mobbs referenced further intelligence for suspecting the McQueen Street address (where police had observed the defendant twice) was an address involved in illicit drug activity. The first was intelligence received on 10 September 2020 about the occupants of McQueen Street, Paralowie suggesting the occupants were dealing in illicit drugs from that address and the second was intelligence received on 3 March 2020 about a drug person of interest who was recorded as living at McQueen Street, Paralowie.[49] A street check report[50] from July 2019 for McQueen Street, Paralowie was also referenced.
[49] Exhibit VDP9.
[50] Exhibit VDP10.
Finally, DBS Mobbs gave evidence that he was mindful of some unexplained wealth of the defendant. He said whilst he did not document it, he was suspicious that the defendant had acquired the high end vehicle that he was driving by selling drugs.
On the basis of the police intelligence reports he had read, what he had been told by his supervising officer was known from Operation Fortune and what he knew from his involvement in Operation Guild, DBS Mobbs gave evidence that he suspected the defendant was trafficking in controlled drugs as a mid-level supplier. Whilst the recent intelligence reported dealing in heroin, DBS Mobbs said he was mindful and it was his experience that drug dealers were not exclusive to one drug.
Having regard to the nature and significance of all of the intelligence relied on by DBS Mobbs, his knowledge from his work and involvement in Operation Guild and experience in investigating drug trafficking generally, I have concluded the suspicions held by DBS Mobbs that the defendant was trafficking in controlled drugs were genuinely held and objectively reasonable. Having connected the defendant to Unit 205 as his current address, DBS Mobbs suspicions about it being premises of drug interest were objectively reasonable and rationally supported by all information he had. This was a rationale and natural inference to draw from the relevant intelligence about the defendant’s continuing involvement in drug trafficking, particularly given the December and November 2020 intelligence.
The defendant submitted that of the intelligence relied on was dated (apart from the February 2021 intelligence that did not relate to Unit 205) or at its highest, showed the defendant only had an interest in drug transactions, namely heroin. These submissions should be rejected for the reasons discussed above.[51]
[51] See [90] above.
As the prosecution submits, it should be borne in mind that the general search warrant was issued in the context on an ongoing investigation of many months. The more significant intelligence was relatively recent: from December (six weeks prior), November (three months prior) and October (four months prior). The intelligence expressly suggested drug trafficking, not merely an interest in drugs.
I am satisfied DBS Mobbs had the requisite reasonable cause to suspect.
Presentation of the Warrant
DBS Mobbs read his general search warrant verbatim to the defendant approximately nine minutes after the video was activated and thus within about eleven or twelve minutes from when he first spoke to the defendant. Their first interaction properly involved DBS Mobbs identifying himself and the others as police and informing him that they were there to conduct a search of his address, Unit 205, under the authority of his general search warrant. In between, the defendant was searched and when drugs were found in the bag he was carrying, he was arrested.
The defendant submits DBS Mobbs did not present his general search warrant nor his suspicions as to why he was searching Unit 205 as soon as reasonably practicable. As a result, the use of the warrant was unlawful. The prosecution contends otherwise, submitting it was impracticable for the warrant to have been presented and explained more fully before first attending to operational safety.
The prosecution submission should be accepted. It was appropriate for DBS Mobbs’ first concern to be attending to operational safety. He separated the defendant and Ms Pakkawan, by directing the defendant to DBS West. DBS West then dealt with the defendant and undertook the search of the defendant’s person and directed DBS Foster-Lynam to search the defendant’s bag. It was not practicable for DBS Mobbs to interrupt those dealings in order to formally present his general search warrant and suspicions to the defendant. He took the first practicable opportunity to do so.
Exclusion of Unlawfully Obtained Evidence
Given my conclusion that the evidence of both searches was lawfully obtained, my discretion to consider excluding the evidence from the searches undertaken for public policy reasons arising where evidence has been obtained unfairly or unlawfully is not enlivened.
If I am wrong that the search of the defendant’s bag was unlawful as a result of Detective Foster-Lynam conducting it or for any of the criticisms made of DBS West’s lack of the requisite suspicion or dealings with the defendant in alleged breach of ss 74D or 79A of the SO Act, I have a discretion to admit the evidence if, after giving consideration to the principles in Bunning v Cross,[52] I consider that would be appropriate. The same applies to the criticisms made of DBS Mobbs’ dealings with regard to execution of his search warrant.
[52] (1978) 141 CLR 54.
An important consideration is whether there has been any unfairness to the defendant.
In the circumstances, it is difficult to see how there was. The defendant presented unexpectedly in front of the police. As plain clothes police, they did not have body worn carmeras and were not yet prepared to activate a video camera. The first priority was to secure the safety of the scene, which DBS Mobbs did by directing the defendant to DBS West and DBS West did by his initial conversation with the defendant about safety and his search of the defendant’s person. When the defendant said he had ’two ounces’, DBS Mob cautioned him, stopped the search called for the video camera and instructed DBS Foster-Lynam not to search the bag until the camera was activated.
This process took approximately three minutes off camera. I have considered the video.[53] All of the recorded dealings with the defendant were respectful.
[53] VDP4.
The search of the defendant’s bag that DBS West removed from his person was conducted by DBS Foster-Lynam at DBS West’s direction. His search is properly characterised as assisting an officer who had formed the requisite suspicion.
DBS Mobbs promptly identified himself and the others as police and their purpose for being at the scene. He formally presented his general search warrant and read it verbatim as soon as reasonably practicable, after DBS West had conducted a search of his person, and formally cautioned him, no more than twelve minutes later.
It cannot be suggested any unlawfulness was motived by mal fides or was malicious. If there was any unlawfulness, it was inadvertent. Furthermore, the cogency of the evidence of both searches was unaffected and is of considerable probative value. I would therefore admit the evidence of both searches in the exercise of my discretion.