R v Nguyen - [2014] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NGUYEN
[2014] SADC 86
Reasons for Decision of His Honour Judge Brebner
19 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Application to exclude evidence of a police search of a motor vehicle.
Held: The beliefs held by the police officer were objectively reasonable.
Controlled Substances Act 1984 s52(6), s52(9)(b), referred to.
R v Nguyen (2013) 117 SASR 432, applied.

R v NGUYEN
[2014] SADC 86

The accused is charged with one count of trafficking in ecstasy and one count of trafficking in heroin.
This is an application to exclude evidence of a police search of a motor vehicle she was driving on the day in question.
The two police officers concerned are named McFarlane and Munn. On 2^nd July 2013 they were driving an unmarked police vehicle past a house in the western suburbs where it was suspected that drugs were being consumed or might be trafficked. McFarlane was driving. They observed a blue Holden Commodore parked on the driveway of the house. As, or immediately after they drove past the premises, they observed the Commodore reverse out of the driveway. The accused was driving the vehicle. Munn recognised the vehicle as one in which he had located a quantity of heroin some six and a half months earlier. He informed McFarlane of this. He also informed her of the names of the two men who were associated with the vehicle on that occasion. McFarlane slowed the police vehicle so as to allow the Commodore to drive past. As it did so McFarlane noticed that the driver of the Commodore was female. Neither McFarlane nor Munn had had any previous dealings with the accused and neither knew anything about her. McFarlane then followed the Commodore and activated the lights of police vehicle whereupon the two officers noticed the accused lean over to the passenger’s side of the vehicle as if she was trying to hide something. This caused her to drive over the kerb where she came to a halt. The accused and the vehicle were then searched. A quantity of heroin, some ecstasy tablets, three mobile telephones, $1500 cash and a syringe containing methadone were located.
McFarlane said that she “had enough suspicion to stop search and detain” the vehicle and the driver by virtue of the powers conferred by the Controlled Substances Act 1984 (The Act). She said she discussed stopping the vehicle with Munn and it is implicit in her evidence that they came to the joint conclusion that they had sufficient suspicions to do so. She said that the fact that the accused was female whereas two men had been associated with Commodore when Munn searched it on the earlier occasion did not alter her suspicions because females were also known to traffic in drugs. It is plain that the decision to stop and search was reached before the lights were activated, which in turn was before the two officers observed the accused leaning over to the passenger’s side.
McFarlane also said that the information she had about the house was general in nature and that she had no specific information that any drug related activities were occurring on the premises that day. She said if she had received any such information she would have searched the house. She said that the house was in fact searched some hours after the accused was pulled over.
McFarlane was not asked to explain precisely why she thought she had sufficient suspicions to stop and search the vehicle and the accused, but is nonetheless necessarily implicit in her evidence that she thought that the fact that a vehicle in which drugs had been located was leaving premises where it was suspected that drug taking, or trafficking, might be occurring provided her with adequate suspicion that there might well be drugs in the car.
Munn said that he did not observe the driver when the Commodore passed the police car. Munn knew more about the house and the Commodore than McFarlane. He said that the house had been what he described as a “drug target address” for a “couple of years”. He said that the Commodore was parked at another drug target address when he searched it and located the heroin. He said that those premises were also searched on the same occasion and that the searches were conducted because there was reasonable cause to do so arising out of information police had received to the effect that the men who were associated with the Commodore that day were at the premises for the purpose of trafficking in drugs.
Munn said that he had seen the Commodore parked at the house on numerous occasions. He said that it was generally suspected that criminal activities relating to drugs were taking place at the house, but that as of the day in question he had no specific information, and thus no justification for searching the premises. Like McFarlane, Munn said that if he had any such information, he would have applied for a warrant, or sought the assistance of the holder of a general search warrant. He said that in 2011 he had arrested two people who he believed to be living at the house as of 2^nd July 2012 for drug trafficking. The Commodore was not involved in those arrests and they took place at other premises.
Munn said that after had spoken to McFarlane they followed the Commodore with the intention of stopping and searching it by virtue of the powers conferred by the Act. He said that it was his understanding that the powers could be exercised if “you suspect on reasonable grounds there may be drugs in the vehicle”. He said that he had not searched the vehicle on any of the occasions that he had seen it parked at the premises because he thought a general search warrant would be required and that it would be less likely that there would be drugs in it if it was simply parked in the driveway.
Munn said that he suspected that there may be drugs in the Commodore on the day in question because he had previously found drugs in it, that he had seen it at the target address on a number of occasions and that this was the first time he had seen it on the road since the earlier search.
The relevant powers to search are to be found in s52(6) and s52(9)(b) of the Act. The former conditions the power to search a person on a reasonable suspicion that he or she is in possession of an illicit substance or equipment and the latter conditions the power to search a vehicle on a reasonable suspicion that it contains evidence of the commission of a drug offence.
Counsel for the accused, Mr Graham, submits that McFarlane and Munn’s beliefs were not objectively reasonable in the circumstances. He relied heavily on the recent decision of the Court of Criminal Appeal in R v Nguyen (2013) 117 SASR 432 where the principles engaged were restated and distilled at [20]-[22] and he submitted that the facts of that case were on all fours with the case at bar. Counsel for the prosecution, Ms Spencer submits to the contrary and, in the alternative, if the officer’s beliefs were not objectively reasonable, then the evidence should nonetheless be admitted as an exercise of discretion.
I have applied the well-settled principles identified in Nguyen to my determination of the question of the legality, or otherwise, of the instant search.
Both police officers struck me as being patently honest. Each gave their evidence in an entirely open and forthright manner. There was absolutely nothing in their presentation which suggested that they were telling anything other than the complete truth as they remembered it. Their accounts were broadly consistent and the few discrepancies between what they said were unremarkable and tended to rebut any possibility of collusion. There is nothing in what either of them said which is inherently implausible and they said nothing which suggested that they were falsely engaging in an exercise of self-justification. I thus accept their evidence.
It is necessarily implicit in the evidence of both McFarlane and Munn that they genuinely believed that the power to stop and search had been lawfully enlivened. Acceptance of their evidence carries with it acceptance on my part that they in fact held this held this belief.
The question is thus one of whether, on an objective assessment of the circumstances known to them, a suspicion could reasonably be entertained that a search of the vehicle and the driver might then and there reveal the possession of a drug, or equipment, or evidence of drug offending. The relevant time is when the decision to stop was made which, as I have said, was before the lights were activated which in turn was before the accused leant over to her left.
As stated in Nguyen, for such a suspicion to be reasonable there must be a working hypothesis, for which there is some supporting material, which possesses the capacity to engender in the mind of person thinking reasonably and rationally about the information in the possession of the two police officers a suspicion that a search might then and there reveal evidence of possession of drugs, or equipment or drug offending.
As always, it is a matter of fact and degree, and it is easy to see how, in borderline situations, two rational minds making a reasonable assessment of the relevant information might well arrive at different conclusions.
As set out, drugs had been located in the Commodore some 6 or so months earlier. The Commodore was parked on the driveway of, and to use Munn’s description, a drug target house on day in question and it had been observed on the same driveway on numerous occasions in the lead up to the day the search was conducted. Two of the occupants of the house had been arrested for drug offences some two years earlier, albeit at another location. Obviously drugs will be transported from place to place from time to time. In all the circumstances, there was, in my view, more than mere speculation involved and there was a working hypothesis such that it was, in all the circumstances, and in the moment before the lights were activated, objectively reasonable to suspect that as the Commodore proceeded along the road it was being used to convey drugs from the house to some other place and that a search of both the vehicle and the driver were thus warranted.
I make it plain that I regard it as a near run thing and I accept that others might come to the opposite conclusion.
If I am wrong about this I would nevertheless admit the evidence of the search as an exercise of discretion.
Both McFarlane and Munn genuinely believed that that they were about to embark on a search which was justified at law. It is thus not as if they knew that they were acting illegally, or that they realised that they might be cutting corners. Both said that they either would have searched the house or applied for a warrant or sought the assistance of an officer to whom a general search warrant had been issued if they had any specific information that drugs were on the premises. It is necessarily implicit in their evidence in this regard that they recognised that more than a mere generalised suspicion is required to enliven the powers to stop and search conferred by the Act.
Moreover, Munn was cross-examined extensively about the circumstances in which he believed that the powers to stop and search conferred by the Act could be lawfully exercised. It is plain from his answers that he rightly recognises that the powers cannot be exercised lightly or capriciously and that more than a general suspicion or speculation is required and that there must be something additional which gives rise to a working hypothesis that there are then and there drugs in the possession of the individual concerned, or in the relevant vehicle.
Although McFarlane was not cross-examined extensively on this topic, it is nonetheless implicit in her evidence that she is of more or less the same view.
Furthermore, neither McFarlane nor Munn asserted any mistaken beliefs about the ambit of their powers to stop, search and detain. Their evidence does not disclose any entrenched views contrary to the statutory obligations of the Act of the kind that were present in Nguyen.
If either or both McFarlane or Munn were wrong to believe that their suspicions were reasonable, then they have done nothing more than make an honest error of fact and degree which did not proceed from any entrenched and erroneous views of the reach of their powers. The evidence is plainly cogent. The illegality was relatively short lived. In my view the censure of exclusion is not required and, in any event, any censure of excesses of power has been provided by the decision of Nguyen which was delivered some two months or so after the instant search took place.
In these circumstances I am satisfied that the balance falls in favour of admission.
Mr Graham also submitted that the fact that the accused has been on remand for some 10 months is a relevant consideration which points towards discretionary exclusion. This is unconnected with either the cogency of the evidence, or the way in which it was obtained, and in my view it is thus irrelevant.
The application to exclude the evidence is rejected.