R v Nguyen - [2016] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2016] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Doyle)
26 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
The appellant was convicted following a trial by judge alone of two counts of trafficking in a commercial quantity of a controlled drug, money laundering and unlawful possession. On the voir dire, the appellant challenged the legality of the police searches that led to the discovery of methylamphetamine and cash in the appellant’s vehicle, and the later discovery of further methylamphetamine and cash in the appellant’s house. The trial judge ruled that the searches were lawful.
On his appeal against conviction, the appellant challenged the trial judge’s rulings as to the lawfulness of the searches of the appellant and his vehicle. The appellant contended that the trial judge erred in holding that the police officers held the requisite reasonable suspicions at the time they decided to carry out their searches. Accordingly, the appellant contended that the evidence obtained from them ought to have been excluded in an exercise of the Court’s discretion to exclude illegally obtained evidence.
Held per Doyle J (with Vanstone and Bampton JJ agreeing), dismissing the appeal:
1. The combination of matters known to the police officers at the time was sufficient to establish a reasonable suspicion.
Controlled Substances Act 1984 (SA) s 52(6), s 52(9), referred to.
R v Nguyen [2015] SASCFC 7, distinguished.
Bunning v Cross (1978) 141 CLR 54; George v Rockett (1990) 170 CLR 104; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v Dam & Nguyen (2015) 123 SASR 511; Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) 112 SASR 10; R v Fazio (1997) 69 SASR 54; Azar v Director of Public Prosecutions (NSW) (2014) 239 A Crim R 75, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"reasonable suspicion"

R v NGUYEN
[2016] SASCFC 96
Court of Criminal Appeal – Vanstone, Bampton and Doyle JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons written by Doyle J.
BAMPTON J: I agree with the reasons of Doyle J and would dismiss the appeal.
DOYLE J:
The appellant was convicted following a trial by judge alone of two counts of trafficking in a commercial quantity of a controlled drug (counts 1 and 2), money laundering (count 3) and unlawful possession (count 4).
On the voir dire, the appellant challenged the legality of the police searches that led to the discovery of methylamphetamine and $950 cash in the appellant’s vehicle, and then later to the discovery of further methylamphetamine and $143,950 cash in the appellant’s house.
The trial judge ruled that the searches of the appellant, his vehicle and subsequently his house were all lawful. A short trial ensued where the prosecution case was presented on the papers without objection. The appellant did not adduce any evidence in his defence.
In this appeal against his conviction on all counts, the appellant challenges the trial judge’s rulings as to the lawfulness of the searches of the appellant and his vehicle. He contends that the trial judge ought to have held that the searches were unlawful, and the evidence obtained from them ought to have been excluded in an exercise of the Court’s discretion to exclude illegally obtained evidence.[1]
[1] Bunning v Cross (1978) 141 CLR 54 at 74-75, 77-78.
In respect of the search of his house, the appellant relies upon a prosecution concession that if the evidence of the other two searches was excluded, then the evidence from the search of the house should also be excluded.
Factual circumstances of the police search
At approximately 12.40 am on Monday, 21 July 2014, police officers Shepherdson, Cheek and Wise were on plain clothes duties travelling in an unmarked police car in a north-easterly direction on Clairville Road, Campbelltown. Shepherdson was driving. The appellant was driving a Toyota sedan travelling in the opposite direction on Clairville Road and approaching the police vehicle. There was a passenger in the vehicle driven by the appellant.
As the vehicles approached each other, the appellant’s vehicle slowed considerably and then turned left into Pine Street. The police vehicle turned right into Pine Street and followed the Toyota. After travelling about 50 metres, the Toyota pulled into the driveway of a property at 9A Pine Street. It parked in the mouth of the driveway, on an angle of between 30 and 45 degrees to the road, with the front of the car on the verge or footpath, and the rear of the car protruding beyond the mouth of the driveway onto the road. Shepherdson brought the police vehicle to a halt, in the street and adjacent to the Toyota.
The address of 9A Pine Street was a location of interest to the police as it was known to be an address connected to drug activity. A person named Natasha Wallace was believed to reside at the premises. Both Shepherdson and Cheek had spoken to her at that premises about a year earlier.
Whilst following the Toyota into Pine Street, Cheek conducted a police check on the registration of that vehicle. It was registered to Van Nguyen, who was subsequently determined to be the appellant’s father.
After stopping adjacent to the Toyota, Shepherdson wound down the passenger side window of the police vehicle and enquired of the appellant whether he had a driver’s licence. The appellant exited his vehicle and approached the front passenger side of the police vehicle. The appellant was observed to be nervous and agitated, and the police believed he was attempting to dissociate himself from the motor vehicle. He appeared flustered and did not make eye contact. Shepherdson left the police vehicle and went to speak with the appellant.
Shepherdson asked the appellant who he knew, or was intending to visit, at the address where he had stopped. The appellant said “Wayne King or Dom”. Shepherdson then asked if the appellant knew Natasha Wallace. The appellant responded that he thought Dom was her boyfriend.
The appellant was unable to produce a driver’s licence but advised Cheek of his licence number. Upon conducting mobile computer checks from the police vehicle, Cheek confirmed the identification of the appellant and noted that approximately one week earlier the appellant had property lodged with the police. Relying on this information, Cheek enquired of the appellant if he had been issued a drug diversion notice at any time recently. The appellant advised Cheek that he had received one about a week earlier following the police stopping him and finding methylamphetamine in his possession.
Relying upon that information, in combination with other circumstances, Shepherdson suspected that the appellant had drugs or equipment in his possession in contravention of the Controlled Substances Act 1984 (SA). Shepherdson asked the appellant if he had any “gear” on him. The appellant said he did not.
Shepherdson then requested the appellant empty his pockets and place the contents onto the bonnet of the police vehicle. The appellant produced two mobile phones, a cigarette lighter and a small notebook. Shepherdson suspected those items were indicative of drug dealing. He then conducted a pat down search of the appellant and inspected the notebook. It contained within it what appeared to be references to monetary amounts and drugs.
At the relevant time, Cheek was still inside the police vehicle, and saw the appellant produce, amongst other things, the two mobile phones and place them on the bonnet of the police vehicle. Cheek then got out of the police vehicle having formed an intention to search the appellant’s vehicle because he had a suspicion there would be controlled substances in it.
Upon checking the Toyota, Cheek located methylamphetamine in a resealable bag under the steering column of the vehicle. This formed the basis of the count 1 charge of trafficking in a commercial quantity of a controlled drug. He found $950 cash in the centre console of the vehicle, which was the subject of the charge of unlawful possession (count 4). Cheek also seized a third mobile phone which was mounted on the windscreen of the Toyota.
The appellant was arrested at the scene by Shepherdson shortly before 1.00 am. Based on the drugs and money the police had found, Shepherdson and other police officers subsequently searched the appellant’s home at Mansfield Park. They did so under the authority of a general search warrant issued to Detective Brevet Sergeant Burrage. Various items were located, including a further quantity of methylamphetamine and $143,950 in cash. The methylamphetamine was the subject of the second count of trafficking in a commercial quantity of a controlled drug (count 2). The cash was the subject of the charge of money laundering (count 3).
Issues arising
The power to search the appellant and the vehicle he was driving existed under ss 52(6) and (9) of the Controlled Substances Act respectively. Those sections are in the following terms:
(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.
The primary issues on appeal are whether the trial judge erred in holding that Shepherdson and Cheek held the requisite reasonable suspicions at the time they decided to carry out their searches under ss 52(6) and (9) respectively. However, a preliminary issue arises as to whether the police had earlier detained the appellant’s vehicle (within the meaning of s 52(9)(b)) when they parked their vehicle adjacent to his vehicle, such that the police were required to hold a reasonable suspicion at that earlier point in time.
It is convenient to commence with some general observations as to the nature and content of the reasonable suspicions required under ss 52(6) and (9) of the Controlled Substances Act, before addressing the contention of an earlier detention of the appellant’s vehicle, and then the trial judge’s findings that the two police officers held the requisite reasonable suspicions at the time they determined to carry out their searches of the appellant and his vehicle.
A reasonable suspicion under the Controlled Substances Act
The subject matter of a search empowered by s 52(6) of the Controlled Substances Act is a person. The power in that subsection is conditioned upon the police officer reasonably suspecting that the person has in his or her possession a substance or equipment in contravention of the Act. The subject matter of a detention or search empowered by s 52(9) is a vehicle, vessel or aircraft. The power is conditioned upon the police officer reasonably suspecting that a substance or equipment (that would afford evidence of an offence against the Act) is in the vehicle, vessel or aircraft.
The requirement of a reasonable suspicion under these subsections entails satisfaction both that the relevant police officer held the suspicion at the time he or she decided to carry out the search, and that the suspicion was (objectively) reasonable given the facts and circumstances then known to that police officer.
In R v Nguyen[2] the Court made the following observations as to the concept of a “reasonable suspicion”:[3]
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.
Importantly, s 52(6) and (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. 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.
[2] R v Nguyen (2013) 117 SASR 432.
[3] R v Nguyen (2013) 117 SASR 432 at [21]-[22] (omitting citations). See also George v Rockett (1990) 170 CLR 104 at 115-116 and Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.
No earlier detention of the appellant’s vehicle
In his reasons for ruling the search evidence admissible, the trial judge made reference to the evidence of Shepherdson and Cheek to the effect that the Toyota driven by the appellant “pulled into the mouth of the driveway at 9A [Pine Street] … straddling the footpath at an angle of between 30 and 45 degrees.” He described the police vehicle as having “pulled up alongside, more or less parallel with the driver’s side of the Toyota.” Later, his Honour said:
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.[4]
[4] R v Nguyen (2013) 117 SASR 432 at [30].
On appeal, the appellant contends that there was a detention of the appellant’s vehicle at the moment the police vehicle pulled up alongside it, and that for this to be a lawful exercise of power under s 52(9), the police were required to hold the relevant reasonable suspicion as at this earlier point in time. For the reasons that follow, I do not accept that there was any detention of the appellant’s vehicle in exercise of the powers under s 52(9) at this earlier point in time.
I do not consider that the trial judge went as far as holding that there was a detention at this earlier point in time. While his Honour made a finding that the Toyota was “for practical purposes hemmed in”, his Honour stopped short of a positive finding of constructive detention. His Honour found merely a “potential” constructive detention.
To the extent that the appellant presses this Court to go further and hold that there was a constructive detention for the purposes of s 52(9), I am not prepared to so hold. I do not think the evidence supports such a conclusion.
In support of his conclusion that there was to a “potential” constructive detention, the trial judge referred to the earlier decision of this Court in R v Nguyen.[5]In the paragraph of that decision referred to by the trial judge, the Court said:[6]
Finally, the power to search vehicles conferred by s 52(9) of the CSA is a power to “detain and search”. The power to detain is to be exercised for the purpose of conducting a search. Constable Koch acknowledged, in cross-examination, that he and Constable Beatty intended to “detain” the Laser by parking the police car immediately behind. Objectively viewed, any movement of the Laser which might still have been possible along the driveway was so confined by the police car blocking the driveway as to constitute a detention of the Laser. Constables Koch and Beatty acknowledged that they had in mind searching the vehicle, even though Constable Koch’s provisional decision to do so might have been revised depending on who the driver was found to be. It is not to the point that the appellant had already voluntarily stopped the car in the driveway. The common law recognises, in the context of unlawful imprisonment, that there may be a detention even if the person detained is unaware of the detention.
[5] R v Nguyen (2013) 117 SASR 432.
[6] R v Nguyen (2013) 117 SASR 432 at [30] (omitting citations).
On the evidence of Shepherdson and Cheek, there was no equivalent blocking of the appellant’s vehicle in this case. As mentioned, their evidence was that the appellant’s vehicle came to a halt in the mouth of the driveway to 9A Pine Street on an angle of between 30 and 45 degrees to the street, whereas the police vehicle came to a halt alongside the appellant’s vehicle, with the passenger window of the police vehicle approximately level to the driver’s window of the appellant’s vehicle, but with the police vehicle parked on the street and aligned parallel to the street. As Cheek explained in his evidence, the positioning of the police vehicle left a “wedge” shaped gap between the two vehicles.
The evidence of Shepherdson and Cheek differed slightly as to the distance between the two vehicles. Cheek said the police vehicle was parked on the left side of Pine Street and hence only two to three metres from the appellant’s vehicle. Shepherdson on the other hand said the police vehicle was over the other side of the (relatively narrow) street, and so a metre or two further from the appellant’s vehicle than Cheek suggested. But I do not think this difference in their evidence matters. On both police officers’ evidence, the police vehicle was parked adjacent to the appellant’s vehicle and was not impeding any forward or backward movement of that vehicle. Both police officers rejected the suggestion made to them in cross-examination that the vehicle had blocked the appellant’s vehicle.
In the absence of any other evidence I do not think the evidence supported a finding of constructive detention. In my view, the evidence did not support a finding that the appellant’s vehicle was “hemmed in”. But even if it was accurate to describe the positioning of the vehicles in this way, I do not think it was sufficient to constitute a detention of the appellant’s vehicle for the purposes s 52(9).
Nor do I consider that there was any other assertion of police authority sufficient to amount to detention of the appellant or his vehicle prior to Shepherdson and Cheek determining to make the searches they made. The police officers were entitled to engage in the conversation they did, and ask the questions they did, without any statutory authority or reasonable suspicion.[7] Neither did or said anything to mislead the appellant as to their powers or the appellant’s obligations.[8]
[7] R v Dam & Nguyen (2015) 123 SASR 511 at [26]; Police v Moukachar (2010) 107 SASR 450 at [13]; Bain v Police (2011) 112 SASR 10 at [17].
[8] R v Dam & Nguyen (2015) 123 SASR 511 at [27]; Bain v Police (2011) 112 SASR 10 at [18]-[19].

It follows that the lawfulness of the searches falls to be determined by reference to the nature of the suspicions relied upon by officers Shepherdson and Cheek at the time they determined to carry out their respective searches.
Shepherdson’s search of the appellant
Shepherdson’s evidence was that he searched the appellant (by asking him to empty his pockets and then patting him down) upon forming a suspicion that the appellant was in possession of either a substance or equipment in contravention of the Controlled Substances Act.
He formed that suspicion following his learning that the appellant had only a week or so earlier been found in possession of methylamphetamine. He based his suspicion upon the combination of the following:
1.   The manner in which the vehicle was driven by the appellant (and in particular its slowing considerably on Clairville Road as the police vehicle approached).
2.   The fact that the vehicle stopped in or across the driveway of 9A Pine Street, an address known by Shepherdson to be connected with drug activity involving Natasha Wallace. The appellant mentioned his intention to visit “Wayne King or Dom”, and said that he thought the latter was the boyfriend of Wallace.
3.   The appellant appeared nervous, fidgety, agitated, flustered and was avoiding eye contact. The appellant also spent time “fidgeting around” in the rear of his vehicle purportedly looking for photo identification after he had not been able to produce his driver’s licence.
4.   The appellant appeared to be attempting to dissociate himself from his vehicle, voluntarily exiting from his vehicle to approach the police. This contrasted with Shepherdson’s usual experience, which was that there was usually an opportunity for the police to exit their vehicle first and speak with the driver through their window.
5.   As the appellant was looking for photo identification, Shepherdson was advised by Cheek (following checks conducted by Cheek) that the appellant had been dealt with by police a week or so earlier. He learned that this related to a drug diversion notice issued to the appellant after police had located an amount of methylamphetamine in his possession.
As Shepherdson acknowledged, and the trial judge found, the first matter listed above was of little or no significance. While the “considerable” slowing of the vehicle may well have been sufficient to attract interest, it was possible that the appellant recognised the unmarked car as a police vehicle, and it was common that vehicles slowed when in the vicinity of police vehicles. It was also relevant that the vehicle was about to turn the corner, which may have explained its slowing down.
The trial judge also discounted the relevance of the appellant’s conduct in quickly exiting his vehicle, and his nervousness and fidgeting, on account of his vehicle being “hemmed in” by the police vehicle.
However, the trial judge went on to accept that Shepherdson acted on the basis of a reasonable belief. His Honour reasoned:
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.
In my view, it was appropriate for Shepherdson to attach some significance to the appellant’s demeanour, including his conduct in appearing to attempt to dissociate himself from his vehicle.[9] Given his experience as a police officer, and in the investigation of drug offending, Shepherdson was well qualified to identify conduct which was out of the ordinary for a person when approached or spoken to by police, and which might contribute to the formation of a relevant suspicion on the part of the police.[10] That said, I do not suggest, and it is not necessary to find, that this conduct alone was sufficient. As the trial judge explained, there were other more significant matters, namely the connection to the premises at 9A Pine Street, and the appellant’s acknowledgment that he had been found in possession of methylamphetamine approximately a week earlier.
[9] R v Fazio (1997) 69 SASR 54 at 60-61.
[10] Azar v Director of Public Prosecutions (NSW) (2014) 239 A Crim R 75 at [38]-[39].
In challenging the sufficiency of the connection to 9A Pine Street, the appellant relied upon R v Nguyen (2013) 117 SASR 432, and a later case of the same name, R v Nguyen [2015] SASCFC 7.
In the earlier of these decisions, the police had been maintaining surveillance on a home unit. They had information to suggest a person was trafficking drugs from that unit. They saw a vehicle enter the driveway of the unit, and had information to the effect that the vehicle in question had previously been searched and that its driver on that occasion (not the defendant) had been found in possession of a small quantity of drugs. However, at the time of determining to search the vehicle on this occasion, the police had no information as to the identity of the driver of the vehicle, or as to any involvement on his part with the historical information about the house or vehicle.
In holding that the police officers in that case did not have a reasonable suspicion for the purposes of ss 52(6) or (9) of the Controlled Substances Act, the Court focused on the generality of the suspicion relied upon. Their Honours held that a reasonable suspicion that a vehicle or place has been involved in the commission of an offence in the past would not ordinarily and without more found a reasonable suspicion as to the presence of evidence of offending against the Controlled Substances Act at the present point in time.[11] There would need to be further information, for example, as to the identity of the occupant of the vehicle or place on the occasion in question, or as to the possible use being made of the vehicle or place at that time.
[11] R v Nguyen (2013) 117 SASR 432 at [23]-[26].
In the second of these decisions, the suspicion relied upon in stopping and searching a vehicle and its driver was again of a very general nature. The grounds for the suspicion were that the house from which the vehicle emerged was one associated with drugs, and that drugs had previously been found in the vehicle in question (but when it was being driven by a different person in a different location). However, at the time the decision was made to stop and search the vehicle and its driver, the police officers knew nothing of the driver. The Court held not only that the officer failed to turn her mind to the nature of the suspicion required by ss 52(6) and (9), but also that she did not have objectively reasonable grounds to form the requisite suspicion. The mere fact that some person (with whom there was no reason to believe the defendant was associated) had used the vehicle in question to transport drugs, at some unknown time in the past, did not found a reasonable suspicion that an unknown person driving the vehicle at the time it was stopped by the police was in possession of drugs.[12]
[12] R v Nguyen [2015] SASCFC 7 at [26]-[32].
In R v Dam & Nguyen,[13] Vanstone J distinguished both of these earlier cases. The police officer making a search of a vehicle and its occupants in that case had not only background information as to one of the occupants, and her drug use and dealing, but also made relevant observations as to the actions and statements of the occupants of the vehicle immediately prior to determining to carry out the search.[14]
[13] R v Dam & Nguyen (2015) 123 SASR 511.
[14] R v Dam & Nguyen (2015) 123 SASR 511 at [36]-[40].
The present case is also distinguishable from those earlier cases. Shepherdson was not reliant merely upon information as to a historical association between drugs and the premises at 9A Pine Street. Rather, he also made observations which related to the vehicle and its driver, the appellant, which were of greater temporal significance. Not only did he make observations as to the appellant’s manner of driving, and his demeanour upon the vehicle pulling over, but Shepherdson also had information that the appellant had recently been found in possession of methylamphetamine himself, and information suggesting some present, albeit indirect, connection with the person (Wallace) whom Shepherdson believed had been involved in dealing drugs from the premises at 9A Pine Street. In my view, the combination of matters known to Shepherdson at the time he determined to search the appellant was sufficient to establish the reasonableness of the suspicion that he held.
It is true that the information that the police had as to the association of 9A Pine Street with drugs, through Wallace, related to events a year or so earlier. However, the relevant point is that the police officers believed Wallace remained connected with those premises, and that this was to some extent confirmed by the appellant’s reference to her being the girlfriend of one of the persons he was visiting at that address.
It does not matter that the information relied upon by Shepherdson included information in relation to the drug diversion notice issued a week earlier to the appellant. The officers did not obtain this information by misleading the appellant or by otherwise acting in an unauthorised way. The mere fact that the issuing of a drug diversion notice does not result in a conviction being recorded, or even amount to an admission of guilt, does not mean that it is not information available to police and able to be relied upon in forming a relevant suspicion. Here the information was volunteered by the appellant in response to a query that the police were entitled to make. It was information that the police were entitled to take into account in forming a suspicion.
Cheek’s search of the vehicle
Cheek’s evidence was that he observed Shepherdson’s search of the appellant, and saw the items placed on the bonnet of the police vehicle, including the two mobile phones. It was at this point that he formed a reasonable suspicion that the vehicle would contain a substance or equipment that may afford evidence of an offence under the Controlled Substances Act, and so determined to search the vehicle.
His suspicion was based upon similar considerations to those relied upon by Shepherdson. Cheek referred to the appellant’s manner of driving both in slowing down on Clairville Road, and in the way he pulled into or across the driveway of 9A Pine Street. He referred to his knowledge of the connection between that address and drugs (through Wallace), and his knowledge of the appellant’s reference to one of the people he was intending to visit that night being the boyfriend of Wallace. He referred to the appellant’s attempts to try and separate himself from the vehicle and draw attention away from the vehicle, which in Cheek’s experience was a common theme in such circumstances. He referred to the appellant’s demeanour, both in the way he was standing and appearing not to enjoy the attention, and in his being flustered, and stumbling or choking on his words. He also referred to the appellant’s acknowledgment that a week or two earlier he had received a drug diversion notice when the police had stopped him and found methylamphetamine in his possession.
In addition to these matters (which were essentially the five matters set out above in relation to Shepherdson), Cheek also relied upon the fact that Shepherdson’s search revealed that the appellant was in possession of two phones. In Cheek’s experience, having more than one mobile phone was common with drug dealers.
In concluding that Cheek held the requisite reasonable suspicion, the trial judge reasoned:
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 appellant complains that the trial judge erred in making reference to the notebook. While Cheek did see the notebook before commencing his search of the vehicle, the appellant correctly points out that it was not something that, on Cheek’s evidence, informed his suspicion as to the presence of drugs or equipment in the vehicle. Certainly he was not aware of the content of the notebook prior to determining to conduct his search of the vehicle.
As such, the trial judge fell into error in relying upon the notebook in concluding that Cheek’s suspicion was objectively reasonable. However, in my view, this error is of no consequence. Bearing in mind all of the other matters known or believed by Cheek, I am satisfied that the suspicion he held was objectively reasonable. My reasons for so concluding are essentially the same as those set out above in the context of my consideration of Shepherdson’s suspicion found in his search of the appellant. While the reasonable suspicion for the purposes of s 52(9) needed to relate to the vehicle rather the appellant himself, there is little in that distinction in the circumstances of this case. If, as I have held, there were reasonable grounds to suspect that the appellant had a substance or equipment in his possession, then it was just as likely to be in his car as on his person.
The trial judge’s misstatement of the requisite reasonable suspicion
The appellant complains that the trial judge misstated the suspicion required under ss 52(6) and (9) of the Controlled Substances Act. The appellant relies upon the references in the final sentences of the trial judge’s reasoning in relation to each of the two searches (as extracted above) to Shepherdson’s reasonable suspicion that the appellant “may” have methylamphetamine in his possession, and to Cheek’s reasonable suspicion that methylamphetamine “might” be found in the vehicle.
Strictly speaking, ss 52(6) and (9) require more than this. They require a reasonable suspicion that the appellant “has” (rather than “may have”) a substance in his possession, and a reasonable suspicion that a substance “is” (rather than “might be”) in the vehicle. However, in the circumstances of this case, I do not consider that this error on the part of the trial judge is of any consequence.
First, when his Honour’s reasons are read as a whole, I am not satisfied that his Honour did proceed on the basis of a misunderstanding as to the relevant suspicions under ss 52(6) and (9). His Honour had earlier set out the terms of the relevant subsections, and in summarising their effect correctly set out the content and nature of the requisite suspicions. His Honour also referred in several places to the leading authorities in this Court as to the content and nature of the reasonable suspicions required. In my view, the references to “may” and “might” are slips rather than indicative of a misunderstanding on the part of the trial judge.
Secondly, while accepting that there is a difference between a reasonable suspicion that someone has a substance in their possession and a reasonable suspicion that someone may have a substance in their possession,[15] the difference is unlikely to be one of great practical significance. As a suspicion, by its very nature, connotes something less than established facts, it necessarily requires consideration of what may or might be the fact.
[15] R v Nguyen [2015] SASCFC 7 at [25], footnote 6.
Thirdly, it is significant in this case that both Shepherdson and Cheek, when giving evidence on the voir dire, correctly articulated the suspicion required by ss 52(6) and (9) respectively. They expressed themselves in terms of a suspicion that the appellant had (rather than “may” have had) a substance in his possession, and that a substance was (rather than “might” have been) in the vehicle.
Bearing in mind these three considerations, together with my own view that the evidence supported a finding that the suspicions entertained by Shepherdson and Cheek were reasonable suspicions of the type required by ss 52(6) and (9), I am not satisfied that error has been established in the trial judge’s conclusion that the searches carried out were lawful.
Other issues
Given my conclusion that the searches of the appellant and his vehicle were lawfully carried out, there is no occasion or need for me to consider whether the Court should exercise its discretion to exclude illegally obtained evidence.
There is also no need for me to consider whether the prosecution made, and should be held to, a concession to the effect that, if the evidence from the searches of the appellant and his vehicle are to be excluded in an exercise of the Court’s discretion to exclude illegally obtained evidence, then the evidence from the later search of the appellant’s house should also be excluded as the tainted fruits of the earlier searches. While it appears that the concession was made, and relied upon in the conduct of the voir dire and trial such that the prosecution should be held to its concession, it is not a matter upon which I need to express a concluded view. I also refrain from expressing any view as to the soundness of the concession apparently made.
Conclusion
For these reasons, I would dismiss the appellant’s appeal.