R v P, CM - [2017] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v P, CM
[2017] SADC 137
Reasons for Ruling of His Honour Judge Tilmouth
7 December 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
Knowledge that the accused was suspected of trafficking in methylamphetamine did not require his arrest, but was sufficient to sustain the reasonable belief that a search of his person was authorized by the statutory powers of search and seizure under s 52(6) of the Controlled Substances Act.
Discussion of the exercise of the powers of arrest furnished under s 81(1) of the Summary Offences Act, and of the powers and restrictions on the manner of search thereunder and under the Criminal Law (Forensic Procedures) Act. Applications for exclusion dismissed.
Controlled Substances Act 1984 (SA) s 32(3), s 52(6), ; Summary Offences Act 1953 (SA) s 41(1), s 75, s 78(1), s 81(1), s 81(2) & (3), s 81(6), s 81(4g); Criminal Law (Forensic Procedures) Act 2007 (SA) s 3(1), s 4(1)(b), s 47; R v Warner (1988) 49 SASR 125; R v Perfili (2006) 95 SASR 560; Wendo v The Queen (1962) 109 CLR 559; R v King (1970) SASR 503; Gibson v Ellis (1992) 59 SASR 420; R v Byczko (1982) 30 SASR 578; The Queen v Ireland (1970) 126 CLR 321; Williams v The Queen (1986) 60 ALJR 636; R v Dam & Nguyen (2015) 123 SASR 511; Bain v Police (2011) 112 SASR 10; R v Amad [1962] VR 545; Zoric v Police [2006] SASC 355; Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19; Drymalik v Feldman (1966) SASR 227; R v S, J (1983) 32 SASR 174, referred to.
R v Lavery (1978) 19 SASR 515; R v Easton (1988) 144 LSJS 107; R v Conley (1982) 30 SASR 226, applied.

POLICE - RIGHTS, POWERS AND DUTIES - SEARCH, SEIZURE AND DETENTION OF PROPERTY

R v P, CM
[2017] SADC 137
An Application for exclusion of evidence

The accused P, CM applies by way of pre-trial motion for the exclusion of evidence of search and seizure. He is charged with and pleads not guilty to a charge of trafficking in the controlled drug methylamphetamine, the trial of which is set to commence on 24 April 2018.
Core facts
The precise particulars of the charge laid pursuant to s 32(3) of the Controlled Substances Act 1984 (SA), are that the accused on 13 October 2016 at Munno Para West:
… trafficked in methylamphetamine knowing or being reckless as to the fact the substance was a controlled drug.
As he was refuelling his black VE Commodore Sedan at an On The Run (OTR) service station at Munno Para West on Tuesday 13 December 2016 at around 7.30pm, the accused was questioned and searched by police. On his person was found $1,700 in $50 denominations. From within his vehicle, three mobile telephones and $2,250 cash in a bum-bag were seized. On his person was found 3.16 g of methylamphetamine. Later that evening police officers searched the accused’s home in the nearby suburb of Andrews Farm, when they found $45,690 wrapped in bags hidden at the back of a freezer.
Although it was not expressly stated, the application for exclusion of evidence obtained in the course of these searches is treated for the purpose of these reasons as relating to the search of his car, his person and of his home: R v Warner.[1]
[1] (1988) 49 SASR 125, 128.
The accused is also charged on second and third counts with unlawful possession of the respective amounts of $3,950 and $45,690, contrary to s 41(1) of the Summary Offences Act 1953 (SA). Even though this evidence is plainly admissible as an aspect of, or the indicia of trafficking in drugs, it is likely that a trial judge would sever those counts from the trafficking charge in a trial by jury, because of the confusion entailed in the reverse onus of proof attracted by the offences of unlawful possession: R v Perfili.[2]
[2] (2006) 95 SASR 560, [51].
The search process
At the commencement of his shift on 13 December 2016, Brevet Sergeant Hewish viewed intelligence by way of a ‘Shield Intelligence Report’.[3] This was to the affect that the accused was suspected of being a major methylamphetamine supplier, drove a black VE ‘style’ Commodore, and when making deliveries kept ‘the drugs in his underpants tucked underneath his scrotum’. Hewish received further intelligence that the accused was believed to be delivering methylamphetamine later that day to a regular purchaser at an address in Smithfield. As a consequence, this address was placed under police surveillance, commencing at about 7.00 pm that night.
[3] Exhibit P1.
Some relatively short time later, they observed a black vehicle enter the street from Main North Road and pull into the driveway. The driver was seen to leave the vehicle to walk towards the front door and enter the house. About 15 minutes later he was observed to leave, enter his car and drive off. The vehicle was followed and eventually seen to enter the main entrance of the OTR service station. At one point during the course of this journey, Hewish who was in an unmarked police vehicle, recognised the accused as the driver and only occupant of the vehicle.[4]
[4] T14.14-.25.
Uniformed police travelling in a marked police vehicle pulled up behind the accused’s vehicle, as he filled it with petrol from a petrol bowser. He was spoken to and a search of his vehicle commenced. Hewish pulled up shortly afterwards and parked in a line of car parks to the rear.
Hewish approached the accused who provided his correct name. He complied with a request to remove whatever he had in his pockets, followed by Hewish’s request to walk over to Hewish’s vehicle in order to conduct a search. Brevet Sergeant Hewish had clearly formed the reasonable suspicion by this time that the accused ‘may have had in his possession controlled substances’, and he clearly had resolved to question him about that. He informed the accused of as much:[5]
I explained to him that I would be conducting a search of his person for items obviously in contravention of the Controlled Substances Act.
[5] T16.24-.31.
The search was undertaken between the driver’s side and rear passenger doors, in order to furnish what Hewish described as a degree of ‘privacy’.[6] Upon conducting the search Brevet Sergeant Hewish found the $1,700 tucked in the front of the accused’s underwear. Underneath the testicles, he found a rolled up bundle of paper towel containing the methylamphetamine. On later examination this proved to weigh 3.16 g.
[6] T18.26.
In statements submitted to the court dated 21 November 2016 and 14 December 2016, Brevet Sergeant Hewish referred to this search without much elaboration of the finer details. In his evidence before the court he described the search more specifically in this way:[7]
[7] T18.27
Q.And then what did you do.
A.I advised him that I would be conducting a search of his person and I then placed him in-between the rear door and the front door on the driver's side of my unmarked vehicle.
Q.Why did you do that.
A.To allow [P, CM] some privacy.
Q.What did you do then.
A.I then advised him that I would be searching in his underwear and I requested that he pull his shorts down in order for me to conduct that search. Upon starting that search, I observed an amount of money that was tucked within his waistband inside his underwear. I then removed that money.
Q.At this stage did [P, CM] appear to you to be distressed in any way.
A.He appeared nervous, although he was cooperative.
Q.After you found that money, what did you do with it.
A.I placed the money on the driver's seat as the vehicle was already open, and then I continued searching.
Q.When you say you continued searching, what did you do.
A.I requested [P, CM] pull his shorts further down towards his knees and to pull his underwear down further towards his knees, in order to search within his underwear.
Q.And did he do that.
A.Yes.
Q.Did anything happen as a result.
A.Yes, I observed a package of paper towel within the underwear.
Q.What did you do with that.
A.I seized the package from within his underwear and advised - on searching his underwear, I could see there was no further items within his underwear, I advised him to pull his shorts back up.
It might be added there was no reference to this particular aspect of the search process in Hewish’s handwritten notes made not so long afterwards.
Defence counsel made much of the difference in detail between the statements and this more precise evidence. He was critical of the failure to refer to the accused pulling down his underwear in the statements, such that the court should find Hewish placed his hands directly under the accused’s testicles to remove the package of drugs. It is perhaps surprising that this level of detail was not included in either statement, particularly as the second was prepared in the knowledge that the legality of the search was in issue. On the other hand it is arguable this kind of detail only emerged upon closer and more detailed questioning during evidence-in-chief.
For reasons to appear later the differences such as they are, are of no legal consequence and therefore the disputed factual situation need not be resolved. Matters are further compounded by the fact that the accused himself did not give evidence in support of his version of the events. The onus of proof rests on the accused to prove the facts relied on, on the balance of probabilities: Wendo v The Queen,[8] R v King.[9]
[8] (1962) 109 CLR 559, 565.
[9] (1970) SASR 503, 505.
The arrest
The accused was not placed under arrest before or during the search by Hewish. Shortly after removing the paper towel containing the drugs, Brevet Sergeant Hewish says the accused told him ‘he was sorry and that there was an 8-ball of gear within the paper towel’.[10] This reaction was no doubt prompted by an earlier exchange between the two near the petrol bowser, when Hewish asked the accused if he had any items in his possession that he ‘would like to tell me about’, and to which he responded ‘he did not’.[11] It was shortly after finding the package that the accused was arrested for trafficking in a controlled drug.[12]
[10] T25.9-.11.
[11] T18.16-.19.
[12] T25.12-.15.
Brevet Sergeant Hewish then activated a hand held video camera and advised the accused of his arrest rights. There are agreed facts that the video camera malfunctioned and that he did not video record the search because ‘he did not consider there was any requirement to do so’.[13] Defence counsel was uncritical of this situation. As it transpired, the search was recorded at a distance from two CCTV cameras on the OTR site itself. These were played to the court without sound and became Exhibits. These show that the accused made no movements suggestive of resistance or dejection to what transpired during the search. After explaining his arrest rights and the charging process, the accused was taken to the Elizabeth Police Cell Complex where he was formally processed and subsequently bailed.
[13] T40.18-.22.
There is no controversy that Hewish purported to exercise powers of search conferred by s 52(6) of the Controlled Substances Act 1984 (SA). This provides:
52—Power to search, seize etc
…
(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.
It is clear that this statutory power of search is intended to operate independently of the exercise of the statutory powers of arrest, but the power to search necessarily implies the power to impose restrictions on the liberty of movement necessary to effect the search: Gibson v Ellis.[14]
[14] (1992) 59 SASR 420, 424.
The power to search before arrest
It was the evidence of Brevet Sergeant Hewish that when taking the accused aside, he did not consider he had any grounds for arrest, even though he clearly entertained ‘a reasonable suspicion that [he] may have had in his possession controlled substances’.[15] He further deposed to the fact that he expected to ‘find methylamphetamine on [the accused]’, but nonetheless maintained that he had insufficient justification for arresting him.[16]
[15] T16.24-.26.
[16] T17.16-.21.
The principal point made by defence counsel resides in the fact that in this state of knowledge and belief, Brevet Sergeant Hewish should have arrested the accused. This submission focuses upon s 81(1) of the Summary Offences Act 1953 (SA), which provides:
81—Power to search, examine and take particulars of persons
A person who is taken into lawful custody may be searched in accordance with this section and anything found as a result of the search may be removed.
Given the high degree of reliable information held by Brevet Sergeant Hewish, defence counsel submitted that he ought to have arrested the accused before searching him. This submission misapprehends the nature and extent of the power of arrest so conferred, for reasons to follow.
The general power of arrest is that contained in s 75 of the Summary Offences Act, in these terms:
Part 18—Arrest
75—Power of arrest
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
It is obvious that this power of arrest is permissive. Had Brevet Sergeant Hewish arrested the accused immediately as he might have on the information he had, he ran the risk of failing to substantiate his suspicions if it turned out that no drugs were found on the person of the accused, or in his car: R v Lavery.[17] He was in these circumstances justifiably cautious, bearing in mind that as soon as he effected an arrest, he was obliged to deliver the accused ‘as soon as reasonably practicable to the nearest custodial police station’ as required by s 78(1) of the Summary Offences Act. A premature or hasty exercise of the power of arrest might therefore result in a significant infringement of the liberty of the subject for no good reason in that event.
[17] (1978) 19 SASR 515, 517-518, King J
Once placed in this situation, a police officer must simply ‘decide whether to exercise his power to arrest on suspicion … or not’: R v Byczko.[18] Moreover, it is very clear that Brevet Sergeant Hewish intended to question the accused first, and yet had he arrested him for this purpose it would be unlawful: Drymalik v Feldman,[19] The Queen v Ireland, [20] R v Byczko,[21] Williams v The Queen.[22] Quite apart from these considerations, Brevet Sergeant Hewish required no other statutory authority before he was entitled to ask the questions he did ask: R v Dam & Nguyen,[23] Bain v Police.[24]
[18] (1982) 30 SASR 578, 583.
[19] (1966) SASR 227, 234.
[20] (1970) 126 CLR 321, 334.
[21] (1982) 30 SASR 578, 583.
[22] (1986) 60 ALJR 636, 638.
[23] (2015) 123 SASR 511, [26].
[24] (2011) 112 SASR 10, [17].
The position in these circumstances is as stated in R v Lavery:[25]
A suspect may, voluntarily and without constraint, accede to a police officer's request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect's liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily.
These observations which originate from R v Lavery[26] were cited with approval and applied in R v S, J.[27]
[25] (1978) 19 SASR 515, 516, White J, King CJ and O'Loughlin J agreeing.
[26] Above.
[27] (1983) 32 SASR 174, 185-186 (Mitchell J), 191 (White J).
The situation presented here is indistinguishable in point of principle from that seen in R v Easton:[28]
Mr Game submitted, as I understood him, that the Adelaide detectives were bound to arrest Easton as soon as they entertained a reasonable suspicion that he was involved in the Westpac hold-up, that is to say, as soon as they saw his striking likeness to the man in the photograph. From that moment, he said, they entertained a reasonable suspicion that Easton was involved in that particular hold-up.
The submission is without foundation and contrary to the law as it had developed in this State. The Adelaide detectives had come a long way to investigate Easton’s possible involvement in four armed hold-ups. They were not bound to arrest on their first suspicion as to one of the hold-ups. They were entitled to continue to question Easton on all four matters provided he was there voluntarily and not arrested and not taken into de facto custody.
The detectives conceded in evidence that they would not have allowed Easton to leave after seeing him in person. However, this subjective intention of theirs was never put to the test. Easton made no request, or move, to leave them. They said and did nothing to indicate to him that he was not free to go. There was a change of circumstances in that he knew they knew the game was up, at least in relation to the Westpac hold-up. And they knew he knew this. However, they said and did nothing outwardly to indicate to him their intentions one way or the other.
[28] (1988) 144 LSJS 107, 118.
De facto arrest?
The question was posited during the course of submissions whether the accused was under de facto arrest, particularly as the marked police vehicle was parked across the rear of his vehicle, before the uniformed police began questioning the accused before Brevet Sergeant Hewish arrived on the scene: R v Amad,[29] R v Conley,[30] R v Byczko,[31] R v Easton.[32] It appears tolerably clear that he would not be allowed to leave until the search was completed, even though this was not expressly covered with Brevet Sergeant Hewish during the course of his evidence. Under cross-examination however he virtually conceded as much:[33]
Q.But you accept that the reason why he needed privacy was because you were going to search in his underwear and in his genital region for concealed methamphetamine.
A.The information was that the amphetamine was stored underneath his testicles or scrotum.
Q.Yes and as you just said, that's why you took him away and searched him; do you accept that.
A.I do accept that, yes.
[29] [1962] VR 545, 546-547.
[30] (1982) 30 SASR 226, 239.
[31] (1982) 30 SASR 578, 582-584.
[32] (1988) 144 LSJS 107, 118-119.
[33] T35.6-.13.
This was not however such a situation. The accused voluntarily accompanied Brevet Sergeant Hewish to the unmarked police vehicle, knowing he was to be searched. He in fact co-operated in this. Even though an accused may comply with police requests reluctantly out of respect for authority, or out of a fear that refusal will be construed as an indication of guilt, it remains permissible for police to question the suspect. That was not the situation here either. As King CJ explains in R v Conley:[34]
A person is apprehended for the purpose of ss 75 and 78(1) when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty (The Queen v. King, per King J. at pp. 128-129), even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.
[34] (1982) 30 SASR 226, 239-240, King CJ, White and Cox JJ agreeing.

To this point of time then, there was no illegality or unfair consequence in failing to formally arrest the accused in the circumstances. This was not a situation in which the invitation to go to Hewish’s vehicle conveyed to him that he had no genuine choice other than to accede to it. On the contrary, as noted above he co-operated in the process and in fact made voluntary admissions whilst doing so. He made no attempt or request to leave the area. It was a wise precaution for police to forebear until they had a concrete rather than a prospective basis for suspecting an offence was committed. The situation was therefore fundamentally one in which the accused was not ‘taken into lawful custody’ at material times within the meaning of s 81(1) of the Summary Offences Act.
Forensic examinations
The next point taken by defence counsel was that the search of the accused infringed the protections afforded an accused person from unauthorised ‘intrusive’ or ‘intimate’ searches. These are initially conferred by ss 81(2) and (3) of the Summary Offences Act. In effect these provide that a person who is ‘taken into lawful custody’ may only be searched by a medical practitioner or registered nurse in the case of an ‘intrusive search’ (s 81(2)(a)), and an ‘intimate search’, the search must additionally be recorded by audio visual means (s 81(3)(f)). The subject matter of these provisions is essentially that of examination, as apposed to search.
Section 81(6) of the Summary Offences Act proceeds to define an:
‘intimate search’ as meaning ‘a search of the body that involves exposure of or contact with the skin of, the genital or anal area, the buttocks …’
and an:
‘… intrusive search’ means ‘an internal search involving the introduction of anything into a bodily orifice’.
Clearly what occurred in this case was an ‘intimate’ rather than ‘intrusive’ search on either view of the facts. On Brevet Sergeant Hewish’s version it involved the ‘exposure of the genital area’ and on the alternative version, it involved ‘contact with the skin of the genital area’. This is the reason why it was unnecessary to resolve the factual conflict such as it was, concerning the precise manner of search, as mentioned earlier.
Even then such searches must be carried out discretely, in the manner provided for by s 81(4g) of the Summary Offences Act:
81(4g)      A procedure under this section—
(a)     must be carried out humanely and with care—
(i)    to avoid, as far as reasonably practicable, offending genuinely held cultural values or religious beliefs; and
(ii)     to avoid inflicting unnecessary physical harm, humiliation or embarrassment; and
(b)must not be carried out in the presence or view of more persons than are necessary for properly carrying out the procedure and satisfying any relevant statutory requirements.
These provisions are rightly construed as hedging ‘the power of police to submit suspects to medical examinations with specific conditions which … were obviously enacted for the benefit of the accused’: The Queen v Ireland.[35] For that reason those safeguards must be scrupulously observed: Zoric v Police.[36]
[35] (1970) 126 CLR 321, 334.
[36] [2006] SASC 355, [3].
The search in this case was carried out in circumstances of privacy as best as could be afforded in the prevailing circumstances. Nevertheless as this area was a busy one, it could barely be described as carried out ‘humanely and with care’, despite the exigencies. As explained already, the complete answer to this aspect of the application for exclusion lies fundamentally in the fact that for relevant purposes, the accused was not ‘taken into lawful custody’ within the meaning of s 81(1) of the Summary Offences Act. Still further the search was not carried out pursuant to ss 81(2) and (3) of the Summary Offences Act, which was not engaged for that purpose.
The next matter for consideration relates to the procedures for such searches as are contained in the Criminal Law (Forensic Procedures) Act 2007 (SA). Section 3(1) thereof defines a forensic procedure as:
… a procedure carried out by or on behalf of South Australia Police or a law enforcement authority and consisting of—
…
(b)an examination of a part of a person's body (but not an examination that can be conducted without disturbing the person's clothing and without physical contact with the person);
Section 3(1) thereof further defines an ‘intrusive forensic procedure’ as:
(a) a forensic procedure that involves exposure of, or contact with, the genital or anal area, the buttocks …
Section 47 of the Criminal Law (Forensic Procedures) Act in conjunction with Regulation 5 of the Criminal Law (Forensic Procedures) Regulations 2007 (SA), provide that ‘intrusive forensic procedures’ may only be carried out by a medical practitioner or a registered nurse. Of decisive significance to the resolution of this point, is that s 4(1)(b) of the Criminal Law (Forensic Procedures) Act specifically excludes the application of that Act to ‘a search of a person’. It might be noted in this context that s 5A of the repealed Criminal Law (Forensic Procedures) Act 1998 provided that ‘a search of the person is not to be regarded as a forensic procedure’.
As seen above, what occurred in this case was a mere search of the person pursuant to s 52(6) of the Controlled Substances Act. The circumstances fall short of the accused being ‘taken into lawful custody’, so ss 81(2) and (3) of the Summary Offences Act are not engaged and therefore have no application to the facts of the case. Furthermore there was no examination to which the Criminal Law (Forensic Procedures) Act applies. Just how police might proceed should the prospect of an ‘intrusive’ search arise before arrest, must await resolution for another day.
Discretionary exclusion
Defence counsel submitted the discretion to exclude arose in the first instance because of the breach of the Summary Offences Act under the general discretion conferred at common law, as defined by the High Court in Bunning v Cross,[37] and affirmed in Ridgeway v The Queen.[38] Although the discretion to exclude does not strictly arise given the above conclusions, it is perhaps best to deal with it in light of the submissions of both counsel on the topic.
[37] (1978) 141 CLR 54, 74-75.
[38] (1995) 184 CLR 19, 38-51.
Dealing first with the arrest point, assuming an immediate arrest was required, there was no unfairness as a consequence. The accused necessarily would be taken to the same police station where the same search would be carried out, albeit according to the forensic examination procedures. It might or might not have been the case that the accused did not make the admissions he did in those circumstances. Nevertheless the finding of the drugs where they were, is cogent and if not irrefutable evidence of knowing possession. There was no deliberate cutting of corners and the charge is a serious one. The proper exercise of the common law discretion to exclude could hardly be exercised favourably to the accused in those circumstances.
Turning to the forensic examination aspects of the application, Brevet Sergeant Hewish deposed to the fact that he was aware of the provisions of the Criminal Law (Forensic Procedures) Act. His understanding was that those procedures were required: [39]
… for evidence or material of value that involve examination of a person’s body that may afford evidence in relation to what I’m investigating.
He considered that what he did on this occasion was not an examination within the meaning of the Criminal Law (Forensic Procedures) Act.[40] In his experience orders were not required for the mere search and seizure of drugs.[41] That evidence may be readily accepted in light of the above conclusions.
[39] T17.34-.37
[40] T17.38-18.1
[41] T26.4-.17.
That being so, there was no conscious or deliberate unlawfulness justifying the discretion to exclude, or to bring the facts within the ambit of ss 47(1) and (2) of the Criminal Law (Forensic Procedures) Act:
47—Effect of non-compliance on admissibility of evidence
(1)If a police officer or other person with responsibilities under this Act (other than a person acting as an appropriate representative of a protected person under this Act) contravenes a requirement of this Act in relation to—
(a)a forensic procedure; or

…

evidence obtained as a result of the forensic procedure is not admissible in evidence against the person on whom the procedure was carried out unless—

(d)the person does not object to the admission of the evidence; or
(e)the court is satisfied that the evidence should be admitted in the interests of the proper administration of justice despite the contravention

(2)In deciding whether evidence should be admitted in the interests of the proper administration of justice, the court must have regard to the following matters:
(a)     the probative value of the evidence;
(b)     the seriousness of the contravention and, in particular, whether it was intentional or reckless;
(c)     the extent to which the defendant has been prejudiced by the contravention;
(d)     any other relevant factors.

Insofar as these provisions proscribe the exercise of a statutory discretion to admit, the probative value of the evidence is significant, the supposed contravention was neither ‘intentional nor reckless’, and there is no identifiable prejudice to the accused, other than the fact that incriminating material was found to be in his possession.
Conclusion and orders
The application for exclusion must fail both because the accused was neither a person ‘taken into lawful custody’ within the meaning of s 81(1) of the Summary Offences Act, nor was he subjected to an examination to which ss 81(2) and (3) Summary Offences Act or the Criminal Law (Forensic Procedures) Act applied. The proper exercise of the discretion to exclude favours admission. The application is therefore dismissed.