R v Nguyen - [2018] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NGUYEN
[2018] SADC 15
Reasons for Ruling of Her Honour Judge Schammer
15 February 2018
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with trafficking in a controlled drug - police entered West End Tavern at approximately 5.00 am on a Sunday morning - accused's handbag searched and found to contain a small tub containing a crystalline substance containing at least 10.4 g of methylamphetamine and another tub in a pocket of the handbag containing a smaller quantity of methylamphetamine - application by accused to exclude evidence of the search - whether search was lawful pursuant to s 52 of the Controlled Substances Act 1984.
Held: The search was unlawful. Evidence of the fruits of the search not admitted in the exercise of judicial discretion.
Controlled Substances Act (1984) ss 32(3), 52(6); Summary Offences Act (1953) s 68, referred to.
R v Rogers (2011) 109 SASR 307; R v Willingham (No 2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015[ SASCFC 7; R v Dam & Nguyen (2015) 123 SASR 511; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford [2015] SASCFC 51, discussed.

R v NGUYEN
[2018] SADC 15
Introduction

The accused is charged with the offence of trafficking in a controlled drug pursuant to s 32(3) of the Controlled Substances Act 1984 (‘the Act’).
She has filed an application pursuant to Rule 49 seeking to exclude evidence as to the ‘fruits’ of a personal search conducted on her (‘the search’) on Sunday 16 October 2016 at approximately 5.00 am. The accused contends that the search was unlawful.
The ‘fruits’ of the search included a round plastic tub containing a crystalline paste containing methylamphetamine found in the accused’s handbag and a smaller quantity of methylamphetamine found in another plastic tub in the side pocket of that handbag.
Senior Constable Hardy and Senior Constable Broomhead gave evidence on a voir dire hearing. A bundle of photographs numbered 1–7 depicting what was found during the search was tendered as an exhibit.
Following submissions from the prosecutor and defence counsel I ruled that the search was unlawful. I exercised my discretion to exclude the evidence as to the fruits of the search.
These are my reasons for ruling.
The lawfulness of the search
The relevant question is whether, at the time police made the decision to conduct the search, they had a reasonable suspicion in satisfaction of s 52(6) of the Act.
Section 52(6) of the 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.
Section 68 of the Summary Offences Act 1953 (‘SOA’) also gives the police the power to conduct a personal search in certain circumstances.
That section states:
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
…
(b)     a person who is reasonably suspected of having, on or about his or her person—
(i)stolen goods; or
(ii)    an object, possession of which constitutes an offence; or
(iii)     evidence of the commission of an indictable offence.
…
The power provided for in s 68 SOA is broader than that in s 52(6) of the Act in that it authorises a personal search in circumstances where a police officer reasonably suspects the person of having in their possession any object, possession of which constitutes an offence, rather than a substance or equipment possession of which is in breach of the Act.
If the search was lawful under either of those provisions it is irrelevant whether police acted in misplaced reliance on a power that did not in fact render the search legal (compare The Queen v Romeo[1]).
[1] (1982) 30 SASR 243, 272-275.
In this instance the police involved considered that any power to search was derived from s 52(6) of the Act on the basis of a reasonable suspicion that the accused was in possession of substances or equipment in contravention of the Act.
There are numerous decisions which discuss the concept of what may be a reasonable suspicion, as compared to a simple suspicion, or indeed a belief.
In R v Rogers,[2] in discussing s 52(9) of the Act Justice Duggan said:
It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer.
[2] (2011) 109 SASR 307, 311-312.
In R v Willingham (No 2)[3] (per Gray, Sulan and Stanley JJ) it was said that the test to be applied by a Judge when determining whether a police officer’s suspicion was reasonable was as follows:
The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
[3] [2012] SASCFC 104 at [10].
A number of more recent Court of Criminal Appeal cases have discussed the meaning of reasonable suspicion.
In R v Nguyen[4] the Court said:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
[4] (2013) 117 SASR 432 at [21].
And further, at [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 (R v Davidson (1991) 54 SASR 580, 584). 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.
In R v Nguyen,[5] the Court reiterated these principles regarding what constituted a reasonable suspicion.
[5] [2015] SASCFC 7.
The search
Senior Constable Hardy gave evidence that he was on duty, working with Senior Constable Broomhead on Sunday 16 October 2016.
He said that they attended at the West End Tavern on Hindley Street, Adelaide and entered the gaming room at those premises. As they entered he heard someone yell out ‘cops’ although he did not know who had done so. He described it as being fairly quiet in the sense that there were not many people there.
Senior Constable Hardy said he walked towards the end of the gaming room and started a conversation with a person he later identified as the accused who was sitting in front of a pokie machine. There was a male, who was known to him, near her.
Senior Constable Hardy said he had not met the accused before and did not know of her.
He tried to engage in a conversation with the accused by saying hello, but she remained focussed on the pokie machine in front of her and would not engage in the conversation which he considered unusual. He described her as appearing nervous and fidgety. Later when she did start to engage with him she appeared to have a dry mouth and a clenched jaw. He said her physical presentation was indicative of someone who had used drugs.
He said the accused had a reasonably large handbag and he recalled it being cream in colour. He said the handbag was open in the sense that it was not completely sealed shut. He could not recall whether the handbag was in the accused’s possession or sitting on the chair next to her when he first saw it. However, he agreed with a proposition put to him by counsel for the accused that the accused placed the handbag on the seat next to her as he had instructed her to put it there as he was going to search her.
Senior Constable Hardy said he could see a small round plastic tub, approximately the size of a 50 cent piece, near the top of the accused’s handbag. It had tape around the top. He said that in his experience tubs of this type often contained drugs and he said that tape was commonly used to stop the lid from coming undone and some of the contents being lost.
He said ‘we’ then searched the accused’s handbag. He believed that prior to that search he had asked the accused if she was in possession of drugs and she said ‘she wasn’t sure’. He did not say if this comment was made before or after he made the decision to conduct the search.
Senior Constable Hardy described his understanding of his powers of search. He referred to s 52 of the Act and said that if he ‘believed’ a person to be in possession of an illicit substance or paraphernalia under the Act, then he had power to search that person.
It was clear from Senior Constable Hardy’s evidence that the factors he took into account and which formed the basis for any ‘reasonable suspicion’ to search the accused were:
1.The fact that he heard someone yell out ‘cops’ as he entered the premises.
2.The accused’s unwillingness to engage in a conversation with him and instead remained focussed on the pokie machine and would not say hello.
3.The accused appeared to be nervous and fidgety.
4.When he did speak to the accused she seemed to have a dry mouth and her jaw was clenched.
In response to specific questioning, Senior Constable Hardy said he had informed the accused of his intention to search her before he saw the plastic tub in her handbag.
He agreed therefore that the presence of the tub itself was not a factor in his decision to conduct the search.
Senior Constable Broomhead said that he was a few metres behind Senior Constable Hardy as they entered and walked through the West End Tavern. He did not hear anyone shout out ‘cops’.
He said that by the time he reached the back of the room, Senior Constable Hardy was speaking with a woman who was playing the pokies. That woman, the accused, had a handbag with her. Senior Constable Broomhead said that in notes made by him the following day he had stated that the handbag was on the woman’s shoulder and that subsequently she put the handbag on the seat next to her. He could not recall the colour of the handbag.
He said that he did not tell the accused he intended to search her. He said Senior Constable Hardy may have told her, but that he could not specifically remember him saying that.
He said Senior Constable Hardy removed a small plastic tub from the accused’s handbag which was clearly visible at the top of the bag. He said he then searched the handbag.
Senior Constable Broomhead explained the basis for the power of any search as having a reasonable suspicion that the accused was in the possession of illicit substances or equipment under the Act. He considered there to be ‘reasonable grounds’ to search, with the primary one being the appearance of the plastic container, which he said, as soon as he saw it, he suspected contained methylamphetamine. He said the texture and colour of the substance, the type of tub and the fact it had tape around it were consistent with such a conclusion.
He also referred to other relevant factors as being the time of day – it being 5.00 am – the fact there was a significant sum of money in the pokie machine the accused was playing and the behaviour of the accused. In this respect he described the accused as giving her undivided attention to the pokie machine in front of her, she did not make eye contact with Senior Constable Hardy or react at all to his presence.
He confirmed that at the time he first saw the plastic tub (which was subsequently found to contain methylamphetamine), the accused’s handbag was on the seat next to her.
Findings
It is apparent from the evidence and I find that it was Senior Constable Hardy, rather than Senior Constable Broomhead, who made the decision to search the accused.
He made that decision before the accused moved her handbag onto the seat next to her and therefore before either he or Senior Constable Broomhead observed the small plastic tub containing methylamphetamine near the top of the accused’s handbag.
By reference to Senior Constable Hardy’s evidence, he made that decision because of a combination of the following matters:-
1.He had heard someone yell out ‘cops’ as they entered the premises, arousing his suspicion.
2.The accused was unwilling to engage in a conversation with him and instead remained focussed on the pokie machine in front of her, which he thought unusual.
3.The accused appeared to be nervous and fidgety and when she did speak to him he observed her to have a dry mouth and a clenched jaw.
On his evidence, it was the personal characteristics displayed by the accused which caused him to suspect she was in possession of drugs or drug paraphernalia and to make the decision to search her.
In cross-examination Senior Constable Hardy agreed that there may be other reasons why someone may appear nervous or fidgety when spoken to by police, such as, for example, if there was an outstanding warrant for their arrest. A person may be similarly reluctant to speak to police. He agreed that someone may present with a dry mouth and a clenched jaw for medical reasons unrelated to illicit drug use.
There was no evidence that it was the accused who had yelled out ‘cops’ upon Senior Constable Hardy entering the premises, nor was there any evidence that the accused was observed to react in any way to that utterance.
There was no evidence that either Senior Constable Hardy or Senior Constable Broomhead had any prior intelligence as to the accused’s involvement in any illicit drug activity and Senior Constable Hardy said he had never met the accused before.
There was no evidence before the court, for example, that the West End Tavern was known as a venue where illicit drugs changed hands or that the male who was near the accused, and known to Senior Constable Hardy, was suspected of or had previously been convicted of any drug related offending.
There was no evidence that police had any prior intelligence to point to the likelihood of there being illicit drug activity at the West End Tavern either immediately prior to the search or indeed at any time prior to the search.
While a person’s demeanour may well be a factor taken into consideration by an experienced police officer when determining whether or not to conduct a search,[6] having regard to the circumstances as described by Senior Constable Hardy, his observations of the accused, in the context in which they occurred, did not, objectively, give rise to a ‘reasonable suspicion’ within the meaning of the Act.
[6] See discussion in R v Nguyen [2016] SASCFC 96 at [41].
This is not a matter, as in R v Dam & Nguyen[7] or R v Nguyen[8] wherein Senior Constable Hardy had background information about the accused and/or her drug use and dealing. Rather, his suspicion was based only on general matters and lacked more specific information as to whether the accused was in possession of any substance or equipment in contravention of the Act.
[7] (2015) 123 SASR 511.
[8] [2016] SASCFC 96.
I note what was said by the Court of Criminal Appeal in R v Nguyen,[9] namely:
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in the vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the vehicle.
[9] (2013) 117 SASR 432 at [41].
In my view, the matters relied upon by Senior Constable Hardy, either when viewed alone or in combination, could not form the basis for any reasonable suspicion in the mind of Constable Hardy under s 52(6) of the Act authorising a personal search of the accused.
I find that the search was unlawful.
Discretion
The unlawfulness of the search does not render the evidence as to the fruits of the search inadmissible, however I have a discretion to exclude such evidence if its admission would operate unfairly as against the accused.
In R v Ireland,[10] Barwick CJ stated:
…Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful or unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[10] (1970) 126 CLR 321, 335.
In Bunning v Cross,[11] Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[11] (1978) 141 CLR 54, 74.

I note the seriousness of the offending. Senior Constable Hardy gave frank evidence as to why he made the decision to search and I accept that he did not act in deliberate contravention of the law and that he genuinely believed his observations of the accused’s demeanour at that time gave him the relevant power to search. I also accept that in making decisions of this nature police act on their own experience and perception and that they are required to act instinctively and quickly given the nature of the work they are undertaking.
However, there are other matters of significance in the exercise of the discretion as set forth in R v Rockford:[12]
…it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not to be encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[12] [2015] SASCFC 51, 39.
Many innocent members of the public attend licenced venues and gaming venues including into the early hours of the morning on a weekend. Many will be carrying handbags. It is important to ensure that the police only exercise their powers of search when they have the appropriate power to do so.
I exercise my discretion to exclude the evidence of the fruits of the search.