R v Nguyen
[2016] SADC 30
•4 April 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v NGUYEN
[2016] SADC 30
Reasons for Rulings of His Honour Judge Tilmouth
4 April 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
Knowledge that the accused was recently reported for the possession of methylamphetamine in his car, coupled with the fact that he pulled into the driveway of a house known to be of interest to police in respect of drugs, held sufficient to sustain the reasonable belief that a search of the accused and his car was authorised by the statutory powers of search and seizure.
Discussion of the factors and the weight to be given to the considerations relevant to the discretion to reject evidence unlawfully or unfairly obtained.
Controlled Substances Act 1984 (SA) s 32(2), s 52(6), 52(9); Summary Offences Act 1953 (SA) s 41; Criminal Law Consolidation Act 1935 (SA) s 138(1); R v Rondo (2001) 126 A Crim R 562; R v Warner (1988) 49 SASR 125; R v Bainbridge [1999] NZCA 180; R v Williams [2007] NZCA 52; Yuen v Police (2012) 222 A Crim R 149; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; R v Bass [1953] 1 QB 680; O'Sullivan v Waterman [1965] SASR 150; Power v Huffa Unreported Supreme Court No 3270, 28 March 1977; Gillespie v Steer (1973) 6 SASR 200; R v Van Beelen (1973) 6 SASR 534; Evans v Sparrow (1973) 6 SASR 519; R v Singh (1977) 15 SASR 591; R v Marafioti (2014) 118 SASR 511; R v Dam & Nguyen (2015) 123 SASR 511; Gibson v Ellis (1992) 59 SASR 420; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; Bain v Police (2011) 112 SASR 10; Lippl v Haines (1989) 18 NSWLR 620, referred to.
Ireland v The Queen (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Dam & Nguyen (2015) 123 SASR 511; Bain v Police (2011) 112 SASR 10; Ridgeway v The Queen (1995) 184 CLR 19, applied.
R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; R v Rockford (2015) 122 SASR 391, discussed.
R v NGUYEN
[2016] SADC 30A preliminary application to exclude evidence
By pre-trial motion, the accused Mr Nguyen moves for the exclusion of evidence obtained following a search of his person and of a vehicle on 21 July 2014, and later at a residence in Mansfield Park in which he resided. These reasons explain why the impugned evidence is admitted.
The broad contention is that the evidence was unlawfully or improperly obtained and requires exclusion as a result. It is submitted that if the evidence of the initial searches is excluded, the evidence of the later house search must also fall with it. The prosecution concede that if the former searches were unlawful and the fruits thereof excluded, then the latter search would be tainted and should then be similarly excluded as resulting from ‘the fruits of illegality’: R v Rondo,[1] R v Warner,[2] R v Bainbridge;[3] compare R v Williams,[4] Yuen v Police.[5]
[1] (2001) 126 A Crim R 562, [5].
[2] (1988) 49 SASR 125, 127-128.
[3] [1999] NZCA 180.
[4] [2007] NZCA 52.
[5] (2012) 222 A Crim R 149, [29].
Undisputed facts
An unmarked police car driven by Senior Constable Shepherdson was on mobile ‘investigation duties’ on Clairville Road, Campbelltown, a north eastern suburb of metropolitan Adelaide, in the early hours of Monday 21 July 2014. Shepherdson and his front seat passenger Constable Cheek,[6] observed a Toyota sedan travelling in the opposite direction, turn left into Pine Street. They followed it to a house at number 9A where it was seen to stop in the mouth of the driveway. In the meantime Cheek made certain checks over a Mobile Data Terminal from the police vehicle, during which he ascertained registration particulars of the Toyota. They pulled up alongside the Toyota where Shepherdson engaged the driver, the accused Mr Nguyen, in conversation, by identifying themselves as police and by requesting if he had a driver’s licence: Shepherdson Declaration 14/11/14, pp2-3, Cheek Declaration 14/11/14, p2. Another check revealed that Mr Nguyen was recently reported for the possession of methylamphetamine.
[6] Ranks are those as at this time. At the time of giving evidence Shepherdson was promoted to the rank of Detective Brevet Sergeant and Cheek to Senior Constable.
Shepherdson conducted a search of Mr Nguyen’s person, during which two mobile phones and a small notepad were produced.[7] Cheek thereupon undertook a search of the Toyota, during which he found a plastic resealable bag underneath the steering wheel column of the vehicle. This contained crystals and crystalline powder weighing 136 g, of which 104 g was methylamphetamine. This find forms the basis of count 1, a charge of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (CSA). Cheek next located $950 cash in the centre console of the vehicle, the subject of an unlawful possession charge laid on count 4, contrary to s 41 of the Summary Offences Act 1953 (SA). Mr Nguyen was arrested for trafficking in a controlled drug by Shepherdson, shortly before 1.00 am that morning at the scene.[8]
[7] T19.26-.29.
[8] T21.6-.7, T71.34-72.6.
Based on the drugs and the money so found, Shepherdson and other police subsequently went to the accused’s home at Mansfield Park, entering under the authority of a General Search Warrant intending to search it for drugs. They were shown and searched Mr Nguyen’s bedroom where a bag of crystals and crystalline powder weighing a total of 276 g, and containing 216 g of pure methylamphetamine, wrapped in a sealed plastic bag inside a black sock was located in a clothes basket at the base of a bed, the subject of count 2, a second charge of trafficking in a commercial quantity of a controlled drug.
Police further discovered a set of digital scales, numerous plastic resealable bags, four mobile phones, a notepad and a total of $143,950 in cash secreted in various places within the bedroom. This cash is the subject of a charge of money laundering on count 3, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA). This cash was stored in bundles of approximately $20,000 within socks inside the ceramic base of a vase, and in a desk drawer.
The power of search and seizure
There is no doubting the discretion to exclude evidence unlawfully or improperly obtained; Ireland v The Queen;[9] Bunning v Cross.[10] A primary function of the discretion is rooted on an insistence that those whose duty it is to enforce the law, themselves respect the law in doing so; Bunning v Cross;[11] Cleland v The Queen.[12] Accordingly evidence secured by the aid of unlawful or unfair acts obtained at too high a price is liable to exclusion: Ireland v The Queen.[13]
[9] (1970) 126 CLR 321, 334-335.
[10] (1978) 141 CLR 54, 74-75.
[11] Above, 75.
[12] (1982) 151 CLR 1, 8-9.
[13] Above, 335.
In this instance the power to search Mr Nguyen and the vehicle he drove, resides in s 52(6) and s 52(9) of the CSA respectively:
52—Power to search, seize etc
(1)Subject to this section, an authorised officer may—
…
(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.
There is no suggestion that both police officers concerned were other than ‘authorised’ for the purpose of these provisions. It is clear these several statutory powers of search and seizure are intended to operate independently of the apprehension of a suspect and under circumstances in which the suspect was not necessarily arrested: Gibson v Ellis.[14]
[14] (1992) 59 SASR 420, 424.
In each instance the power to search is conditional upon the searching Officer, individually forming the reasonable suspicion that a suspect has in his or her possession ‘any substance or equipment’ in contravention of the CSA. A ‘suspicion’ is a state of conjecture or surmise lacking in proof, a state of mind fundamentally different from and less than belief: George v Rockett,[15] Williams v The Queen.[16] That suspicion must be entertained by the very time the search is undertaken, it must attach to the specific person or vehicle in question, and there must exist a rational connection between the supporting material and the suspicion so entertained in the mind of a person thinking reasonably about the information on which the requisite suspicion is based: R v Nguyen,[17] R v Nguyen.[18] The word ‘reasonably’ imports an objective test: Director of Public Prosecutions (Vic) v Le.[19]
[15] (1990) 170 CLR 104, 115.
[16] (1986) 161 CLR 278, 304.
[17] (2013) 117 SASR 432, [21], [24] and [41].
[18] [2015] SASCFC 7, [23], [30]-[31], [38].
[19] (2007) 232 CLR 562, [127].
The Police evidence
Both Officers spoke of Mr Nguyen’s vehicle behaving unusually in that it ‘slowed down considerably … when it had observed us coming from the opposite direction’ or ‘slowed down … to a point … almost to a stop’ in Clairville Road.[20] As a result they followed as it turned left into Pine Street, where it pulled into the mouth of the driveway at 9A, some 50 m from Clairville Road, straddling the footpath at an angle of between 30 and 45 degrees. [21] In the meantime Cheek undertook vehicle checks of the Toyota. He ascertained that ‘the registered owner, the date of birth didn’t marry up to the driver’.[22] The vehicle was in fact registered to a Mr Van Nguyen of Mansfield Park, the accused’s father.[23] They pulled up alongside, more or less parallel with the driver’s side of the Toyota.[24] Mr Nguyen then left his vehicle with the engine running and approached the passenger (or Cheek’s) side of the police vehicle.[25]
[20] T11.18-.22, 60.16-.24.
[21] T13.6-.34, T60.29-61.5.
[22] T12.5-.10, 62.22-.30.
[23] T12.36-.37.
[24] T14.11-15.7, T61.6-62.3.
[25] T15.7-.9.
Shepherdson asked Mr Nguyen, ‘if he had a driver’s licence’.[26] Both Officers considered him to exhibit signs of nervousness and agitation at this time.[27] Mr Nguyen provided accurate personal particulars, but was unable to produce a driver’s licence, so he returned to the car in order to retrieve photographic evidence of identification from the rear of the vehicle.[28] In doing so he was seen to be ‘fidgeting around’ and agitated for some 30 seconds as if he wanted to leave, before returning to Shepherdson’s position.[29]
[26] T14.38-15.7.
[27] T16.1- .18.
[28] T16.22-.36.
[29] T16.23-.17.18, T45.3-.5.
Shepherdson then asked ‘who he knew was at that address or who he was there to see’, to which Mr Nguyen responded ‘Wayne King or Dom’.[30] Next asked if he knew ‘Natasha and if King was a friend of hers’ he replied ‘he did and he thought Dom was her boyfriend’.[31] This line of questioning from Shepherdson stemmed from his prior knowledge of the address acquired over the course of seven years attached to the Eastern Adelaide CIB Operation Mantle, as ‘of interest in relation to drug activity’ and of his knowledge that a person having the name Natasha was an occupant and a ‘person of interest to the police’ to whom he had spoken ‘a couple of occasions prior’ outside the premises, ‘probably a year before’.[32]
[30] T18.9-.13.
[31] T8.6-.9, T18.9-.18, T14.35-14.10.
[32] T13.35-.10, T18.16-.18, T31.33-34.7, T53.10-54.17.
During this period of time Cheek undertook further checks over the mobile terminal, which revealed that Mr Nguyen was ‘issued with a drug diversion recently … in relation to being in possession of suspected methamphetamine’ in his car.[33] It was then that Shepherdson claimed to have ‘suspected that Mr Nguyen had a drug [methamphetamine] or paraphernalia’ in contravention of the CSA.[34] As a consequence he asked Mr Nguyen if he had ‘any gear on him’, to which he responded ‘no’.[35] It was shortly thereafter that Mr Nguyen emptied his pockets from which came the two mobile phones and the notepad.
[33] T18.26-.38, T69.3-.13.
[34] T19.1-.8.
[35] T69.15-.16
Shepherdson’s evidence-in-chief concerning the basis upon which he formed this suspicion was this:[36]
QAt what stage had you considered you had the appropriate suspicion to search Mr Nguyen.
AIt was following the receiving information that he was recently in possession of the methylamphetamine that sort of made me suspect he had something on him. It was a combination of incidents leading up to that.
QCan you just tell us what those incidents leading up to that were.
AHis behaviour, his manner of driving, his attempt to disassociate himself with his motor vehicle. His fidgeting around in the rear of the car.
Under cross-examination he repeated that his suspicions justifying the personal search arose from ‘a combination of events’,[37] and that because Mr Nguyen was previously stopped for the possession of methamphetamine, he suspected him to be in the possession of that drug.[38]
[36] T19.1-.11.
[37] T41.16-.24.
[38] T48.30-49.2.
As to the search of the Toyota, it was after ascertaining that Mr Nguyen had recently lodged property with the police that he was asked if ‘he had been issued a drug diversion recently’, to which Mr Nguyen volunteered that ‘he had received a drug diversion … with respect to a small quantity of methamphetamine ‘only a few days ago’ in his car.[39]
[39] T18.26-.37, T47.8-.13, T66.25-67.32, T69.3-.13.
Cheek maintained that his own suspicions were ‘building up’ as time went on, to the point that he considered Mr Nguyen ‘may be in possession or involved with drugs’.[40] His reasons for forming this suspicion were expressed during his evidence-in-chief, in this way:[41]
[40] T67.15-.28.
[41] T67.29-69.6.
QI want you to explain to us what things were in your suspicion at that point in time when you asked about a drug diversion. You said from the time you first saw the car, what things precisely; if you can.
AThe way we first saw his car driving at a normal speed, driving regularly. The behaviour, the manner, of driving changed as we got closer.
QIn what way.
AIt slowed down, it was just not - described like it was kind of mimicking our behaviour. In my opinion his manner of driving changed in a way that a bit of the attention was drawn from actually the driving. Then going into the street, the address that he had driven into, the way that he had driven into it, again still his manner of driving. The way he spoke when he first came out of the car was - I didn't think he really enjoyed the attention, I suppose. He was a bit stumbling with words. How he got out of the car straightaway upon the first question. Often you - sometimes someone is trying to separate themselves from the car. The way that he was standing, to my opinion he didn't enjoy the attention from police being there.
QIn your experience what sort of situation does that occur in.
ASimilar to this one, drug offences; as simple as that.
QI'll just take you back, you said one of the factors was the way he drove in. Can you tell us what that was about, what that means 'the way he drove in'.
AHe didn't make a complete normal turn into a driveway that you and I would do when you're attending someone's house.
Q'Stumbling of words', what do you mean by that.
AJust not fluent. Not fluent conversation. Just almost like trying to think of - stumbling chokingly on his own words. Almost like he was a bit flustered, is the way I'd describe it.
QYou told us you asked him a question about drug diversion.
AYes.
QCan you tell us, as best you can recall, 'I said/he said'. What was said.
AI haven't record it as 'I said/he said' to the exact word.
QWhat was your recollection.
AHe said he had received a drug diversion where police had stopping him and found methylamphetamine in his possession.
At the time of formulating his suspicions Cheek was in the police vehicle, and saw Mr Nguyen take the notepad and a mobile phone from his pockets at the direction of Shepherdson.[42] The notepad itself contained writing of ‘dollar amounts’ which Shepherdson believed to be ‘drug amounts’.[43] He then alighted from the vehicle with the intention of searching the Toyota, on account of a suspicion developed that ‘there would be controlled substances in there’, these latter events adding to his prior suspicions.[44]
[42] T69.25-70.6.
[43] T20.13-.17.
[44] T70.7-.19.
Cheek elaborated on the basis for forming the decision to search the Toyota in further examination-in-chief:[45]
[45] T71.13-.33.
QSo you just told us you had a suspicion about Mr Nguyen or the vehicle and the potential for drugs and you wanted to search. Where did your power come from to conduct a search.
AMy power to search was from the Controlled Substances Act which I decided to utilise when I got out of the car when I saw the mobile phones out.
QWhat was your decision to search based on.
AHis manner of driving, the area we were in.
QBy 'area' what do you mean.
APine Street, Campbelltown.
QThe particular address in Pine Street.
AYes, the manner of driving into the address, the address itself, his behaviour from getting out of the car, his response about the property, and mobile phones out of his pocket.
QWhen you say 'response about the property'.
AJust the fact that he had received a drug diversion recently for methamphetamine.
QTaking those things into account what did you do.
AI searched his vehicle.
It was during this search that he discovered the methamphetamine underneath the steering wheel column, the cash of $950 in the centre console and a phone from a mount on the windscreen.[46] Mr Nguyen was soon after arrested and accorded his arrest rights, as recorded by video camera, first activated at this time.[47]
[46] T71.34-72.20.
[47] T72.34-73.14, Exhibit VD P5.
Defence criticisms of police evidence
Mr Edwardson QC was especially critical of Senior Constable Shepherdson and Constable Cheek for preparing notes in relation to these events, which were arguably largely similar and in a few respects, identical. It can be accepted that there is a distinct air of similarity about them in several places suggestive of a degree of collaboration in their preparation, a prospect however denied by both.[48] It is unnecessary to resolve this issue since the evidence of certain of their observations is largely discounted so far as it informs the requisite belief to search, for the reasons to come, and because the material on which reliance is placed as supporting those beliefs, is uncontroversial.
[48] T24.16-30.32, T82.24-84.35.
Police Officers should however appreciate that it is permissible to collaborate in making notes, but they should disclose when they do so, since ‘(C)ollaboration would appear to be the better explanation of almost identical notes than the possession of superhuman memory’: R v Bass,[49] O'Sullivan v Waterman,[50] Power v Huffa.[51] Furthermore, there is nothing wrong with a witness refreshing memory from notes made by another, which the witness has read and found to be in accord with his or her own recollection: Gillespie v Steer,[52] R v Van Beelen,[53] Evans v Sparrow,[54] R v Singh.[55] However neither contingency arises here.
[49] [1953] 1 QB 680, 686.
[50] [1965] SASR 150, 156-158.
[51] Unreported Supreme Court No 3270, 28 March 1977, Zelling J pp 3-4.
[52] (1973) 6 SASR 200, 201-202.
[53] (1973) 6 SASR 534, 53.
[54] (1973) 6 SASR 519, 527.
[55] (1977) 15 SASR 591, 593-594.
Defence counsel was further critical of the police over the failure to record the searches, or to confirm on video prior conversations before the decision to record was actually made. The legal obligation to record conversations with suspect persons arises under s 74D(1) of the Summary Offences Act 1953 (SA). It arises when the investigating officer forms the suspicion, or has reasonable grounds to suspect the suspect person of having committed an indictable offence. That point had not arrived until after both searches were completed, neither Officer reached the point of suspecting an offence until after the Toyota was searched, so that the operation of s 74D was not as yet triggered.
Although it was reasonably practical to have done so on this occasion, and whilst they might have been better advised to have done so as soon as the search of Mr Nguyen was completed before embarking upon the search of the car, there was no obligation to do so: compare Coleman v Zanker.[56] Nor is there any potential for unfairness since the information as to the reputation of the premises, its occupants, and as to the report for the earlier possession of drugs, are not in doubt.
Searches – analysis
[56] (1991) 58 SASR 7, 16.
General considerations
It is not uncommon to weigh specific individual items of evidence allegedly giving rise to a reasonable suspicion triggering rights of statutory search and seizure, but in truth it is more often than not the combination of in situ factors that is more telling: compare R v Dam & Nguyen,[57] R v Marafioti.[58]
[57] (2015) 123 SASR 511, [36].
[58] (2014) 118 SASR 511, [11]-[13].
The fact that Mr Nguyen slowed down was sufficient to excite interest in him as the driver of the Toyota, but not so as to arouse any suspicion referable to drugs. Moreover as he was about to turn left into a narrow street in darkened conditions, meant it was necessary to slow down considerably, so nothing more turns on this consideration.
Both Police Officers denied blocking the egress of the Toyota, but the fact of the matter is that it was for practical purposes hemmed in and thereby potentially constructively in detention: R v Nguyen.[59] This serves to explain why Mr Nguyen got out of his car and may have appeared nervous and fidgety and indeed why he might have appeared anxious to depart.
[59] (2013) 117 SASR 432, [30], T39.6-.20, 80.3-.34.
On the other hand the police required no statutory authority or to have entertained any reasonable suspicion of an offence before becoming entitled to ask Mr Nguyen the questions they did: R v Dam & Nguyen,[60] and Bain v Police.[61] Equally, the correct responses Mr Nguyen gave to the identity inquiry could not have reasonably served to enhance either their interest or suspicions insofar as controlled drugs were concerned.
[60] (2015) 123 SASR 511, [26].
[61] (2011) 112 SASR 10 [17].
Search of the person of Mr Nguyen
Stopping his vehicle at an angle in the entry to the driveway was unusual and could only have operated to continue the police interest in it. Of more importance is that both Officers understood the premises to be associated with illicit drugs. Although their firsthand experience of the residence was dated, they had no basis to understand anything had changed in that respect. A second consideration of importance was the admission by Mr Nguyen of the recent possession of a small quantity of methamphetamine in his car. A further factor of relevance is that the information Mr Nguyen gave to Shepherdson as to the occupants of the premises correlated to an extent with the information he already had about that subject, which rather suggests Mr Nguyen had some prior involvement with the premises and its occupants. A final consideration of relevance is that he pulled into the driveway of the house further suggesting some connection or familiarity with it or its occupants. The police knowledge of the premises and the admission of the recent possession of methylamphetamine in combination, was enough to sustain the reasonable suspicion that Mr Nguyen may have in his possession methamphetamine.
Search of the Toyota
Much the same considerations underpin the belief entertained by Cheek that the car could be lawfully searched. Additionally, Cheek saw the notebook and the mobile phones produced from Mr Nguyen’s person as quite reasonably fuelling his belief that methamphetamine might be found in the Toyota, as it is notorious that notebooks containing so-called ‘tick lists’ hand-in-hand with multiple mobile phones, are common indicia of drug dealing.
The discretion to exclude
The exercise of the discretion to exclude evidence on the basis of unlawfulness or unfairness, requires weighing the competing public interests of the need to bring to conviction those who commit criminal offences, against the protection of individual liberty and from unlawful and unfair treatment: R v Ireland.[62] This exercise is concerned with broader questions of high public policy, in which unfairness to an accused may be a factor playing a part: Bunning v Cross.[63] This fundamental principle is safeguarded and enforced by the courts by exercising vigilance to ensure they are not demeaned in being too acquiescent or encouraging of unlawful conduct on the part of those whose task it is to enforce the law: Bunning v Cross.[64]
[62] (1970) 126 CLR 321, 335.
[63] (1978) 141 CLR 54, 74-75.
[64] Above, 77-78.
In the course of their oft cited joint judgment in Bunning v Cross, Stephen and Aickin JJ identified a number of considerations bearing upon the exercise of this discretion, which might be summarised as:
·whether the unlawfulness was the result of a mistaken belief on the part of the police officers rather than a conscious appreciation that they were deliberately or recklessly acting unlawfully (at CLR 78);
·whether the nature of the illegality affected the cogency of the evidence in demonstrating guilt of the offence, a consideration generally playing no part in the exercise of discretion where the illegality involved is intentional or reckless, (at CLR 79);
·the ease with which the law might be complied with in procuring the evidence in question, so that a deliberate "cutting of corners" tends against the admissibility (at CLR 79-80);
·the nature of the offence and the comparative seriousness of the offence and of the unlawful conduct (at CLR 80);
·the intention on the part of the legislature (or otherwise) to interfere with personal liberty, or to narrowly restrict police powers (at CLR 80).
These principles were affirmed in Ridgeway v The Queen,[65] in which Mason CJ, Deane and Dawson JJ observed of the various considerations mentioned by Stephen and Aickin JJ (footnote omitted):
The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence - the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement - will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.
…
The discretion to exclude all evidence will ordinarily fall to be exercised on the assumption that the offence has been committed and that the effect of the exclusion of the evidence is that the prosecution will be shut out completely from proving guilt and that a guilty person will walk free. …
[65] (1995) 184 CLR 19, 38, to similar effect see Brennan J at 51.
Weighing and balancing the competing interests
No question of the mistaken use of the powers of search arises here, as both Police Officers consciously, genuinely adverted to those powers available to them under the CSA. On the above findings there was more than sufficient material to sustain their reasonable suspicions. There is no question of a mistaken belief on their part as to their powers, and there is no evidence to suggest they were deliberately or recklessly acting unlawfully, although they did act somewhat peremptorily in hemming in Mr Nguyen’s vehicle, which as indicated above, is to his advantage in exploring what otherwise might be reasonably perceived as unusual or suspicious behaviour. Even then, nothing they did remotely affects the cogency of the evidence.
There were no alternative means of procuring the evidence other than perhaps by securing a warrant, which was of no practical utility in a fluid operational situation such as this. The powers of arrest under general search warrant, assuming they held them, were equally conditioned on a co-extensive suspicion, and the higher test of reasonable belief at common law was probably unsatisfied: Lippl v Haines.[66] Hence there was no deliberate ‘cutting of corners’.
[66] (1989) 18 NSWLR 620, 622-623.
The nature of the offences of trafficking in a relatively large commercial quantity of a controlled drug of high purity, known to be widespread and dangerous, completely overshadows any smidgeon of unlawful conduct. The evidence is obviously highly cogent.
On the other hand the legislature clearly intended interference with personal liberties in as much as it permitted search and seizure in circumstances falling short of the power to arrest (which was not permitted at common law), whilst at the same time restricting police powers to those circumstances in which the requisite suspicion is both reasonably and genuinely held on the basis of adequate supporting material. Once the required belief is so entertained, the infringement of civil liberties is authorised to the extent permitted by s 52 of the CSA.
Finally, in the circumstances as found above, there is no reason at all to suppose the conduct of the police in this instance was encouraged or tolerated by those in higher authority in the police force, or for that matter that it was representative of a systemic practice within SAPOL. On the contrary, this was a chance, idiosyncratic and isolated encounter by police on the beat operationally, in which the circumstances evolved, rather than one in which circumstances to bring about statutory rights of search were engineered, or supported by ‘strained euphemisms’, or by misconceived notions as to the extent of statutory powers of search and seizure.
Each of the above circumstances weigh in favour of admission, heavily so in their combined weight. If, contrary to that view it is considered the search of Mr Nguyen was unjustified, the discretion to admit should be exercised favourably to the prosecution, essentially because the illegality was slight in comparison to the abject seriousness of the offence charged on count 1, and when no intentional or reckless unlawfulness was involved.
The applications for the exclusion of the evidence obtained from Mr Nguyen’s person and of the Toyota he was driving in the early morning of 21 July 2014, are therefore dismissed. The evidence obtained therefrom will be admitted accordingly.
South Australian authorities
The trilogy of recent decisions of the Court of Criminal Appeal: R v Nguyen,[67] R v Nguyen,[68] and R v Rockford,[69] do not dictate any different conclusion. Each decision applied established and authoritative principle to the particular facts in hand. It may be that those decisions are perceived as swinging the balance towards the liberty of the subject, and as reinforcing the integrity of court process by discouraging unlawful conduct on the part of police who enforce the law, whilst according less weight to such considerations as cogency and seriousness of the charged offence. Most certainly there has been a surge in the number of applications to exclude evidence of search and seizure since, for example: R v White,[70] R v Ngo,[71] R v Khan,[72] R v Marafioti,[73] R v Nar,[74] and R v Clothier.[75]
[67] (2013) 117 SASR 432.
[68] [2015] SASCFC 7.
[69] (2015) 122 SASR 391.
[70] [2014] SADC 33.
[71] DCCRM-13-1399, unreported 30 April 2014.
[72] [2014] SADC 206.
[73] (2014) 118 SASR 511.
[74] DCCRM-15-289, 10 March 2016.
[75] DCCRM-14-1680, 2 March 2016.
As pointed out in Ridgeway in the passage quoted above, and as was acknowledged in Dam & Nguyen,[76] the weight to be given to the various considerations to be balanced in the discretionary process will vary according to the particular circumstances.
[76] Above, [38].
A closer examination of the local decisions reveals unique considerations were influential in the result. However the three cases turned on the perception that the misconduct evinced in each was institutional. So for instance in the first, the decision of the Court of Criminal Appeal to quash convictions stemmed from ‘an entrenched view’ that the possession of mere information that a person, vehicle, or house was involved in drug dealing in the recent past, was sufficient to establish a reasonable suspicion enlivening the powers in s 52(6) and s 52(9) of the CSA, a view which:[77]
…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.
[77] (2013) 117 SASR 432, [38] and [40].
Then in R v Nguyen,[78] the court seized on the perception that it was not a peculiar or isolated belief held by the police officers in question, that liberty to exercise the compulsive powers of search conferred by the CSA arose merely because an unknown person drove a vehicle in which drugs were historically found and because the vehicle emerged from premises associated with drugs, regardless of any connection between the driver or the person found in possession of drugs in the vehicle, or the persons residing in the house: compare R v Dam and Nguyen.[79] Finally in R v Rockford,[80] it was considered that erroneous views held by the police as to the scope of their powers of entry, if tolerated were ‘calculated to lead to widespread and arbitrary infringements on civil liberties’. None of these systemic attributes are evident in the present case, for the reasons given earlier.
[78] [2015] SASCFC 7, [38]-[39].
[79] Above [38].
[80] (2015) 122 SASR 391, [41].
Nothing in these local decisions suggests that as a matter of general principle, certain factors relevant to the discretion to exclude unlawfully or unfairly obtained evidence, authoritatively determined by the High Court of Australia, are to predominate at the expense of others. Still further, nothing in those cases impinge upon the statement of principle in Ridgeway in the passage quoted above.
It is to all events for the earlier reasons that the evidence in question is admitted.
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