R v PANAGIOTIDIS - [2018] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PANAGIOTIDIS
[2018] SADC 24
Reasons for Ruling of Her Honour Judge Chapman
20 March 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
Police directed vehicle driven by accused to stop for random licence check - police formed reasonable suspicion to search the accused following observations of his behavior - conversation with accused prior to search with no caution given by police - whether caution should have been given because police had by that stage formed a reasonable suspicion to search the accused - whether evidence of drugs located following searches should be excluded due to failure to caution accused.
Held: No requirement for police to caution the accused - police entitled to gather further information from the accused by asking questions prior to search - application to exclude the evidence obtained from the searches refused.
Controlled Substances Act 1984 s 52(6), s 52(9); Road Traffic Act 1961 s 40H; Summary Offences Act 1953 s 67; Motor Vehicles Act 1959 s 96, referred to.
R v Dolan (1992) 58 SASR 501; Abbott v Ramm Debelle J, Unreported, 31 March 1995, BC9503114; R v Nguyen (2013) 117 SASR 432, considered.

R v PANAGIOTIDIS
[2018] SADC 24

The accused applied pursuant to Rule 49 of the District Court Criminal Rules 2014 to exclude evidence of the searches of his person, his vehicle and then his home address which were conducted by the police on 16 March 2016. On 22 January 2018, I refused the application. My reasons for doing so follow.
The accused is charged with three counts of trafficking in a controlled drug on 16 March 2016. Count 1 relates to methylamphetamine which was found on his person after the police stopped his vehicle at Mile End South for a random licence check. Count 2 relates to cannabis oil which was found following the police search of the accused’s vehicle at the roadside. Other relevant items, not the subject of a charged offence, were also located during that search. Dried cannabis found by the police at the accused’s home address later that evening is the subject of count 3.
The accused applied for exclusion of the evidence arising from the initial search by the police of his person on the basis that it was unlawful. One ground for that exclusion was that the police improperly exercised their authority to stop the vehicle pursuant to s 40H of the Road Traffic Act 1961 (SA) (the RTA), it being suggested the police had prior knowledge of the vehicle. That ground was abandoned after evidence was completed. The defence did not ultimately challenge the evidence of the two police officers that they were conducting random licence checks and had no other information about the accused’s vehicle or its occupant prior to directing the stop on South Road at Mile End South. I find they properly exercised their authority to direct the vehicle to stop pursuant to s 40H of the RTA having in their mind s 96 of the Motor Vehicles Act 1959 (SA) [1], which then gave rise to a duty upon the accused to stop his vehicle[2].
[1] Section 96 – Duty to produce licence or permit
[2] R v Neal (2017) 128 SASR 20 at [40]
The remaining ground for exclusion was that the failure of the police to caution the accused rendered the subsequent search of the accused and his vehicle unlawful.
The searching police officer, Brevet Sergeant Van Dijk (Van Dijk), gave evidence on a voir dire hearing, as did his partner, Brevet Sergeant Heinze (Heinze). The accused was self‑represented for part of the voir dire hearing. He had instructed a solicitor, but failed to provide funds in order for counsel to appear on his behalf. He had also failed to make an application for legal assistance, despite a number of directions to do so. After the evidence of the first witness on the voir dire, the accused made an application for legal assistance which was granted. Ms Mansfield appeared for the accused as counsel for the remainder of the voir dire hearing, which included a recall of the first witness.
Factual Background
At 12.01am on 16 March 2016, Van Dijk and Heinze were on general patrol duty on South Road at Mile End South. They were both attached to the Special Task and Rescue Group Operations Section of the SA Police but were conducting general patrol duty at the time to assist the local service area. They saw the accused’s white van travelling in a southerly direction in front of them. Van Dijk decided to direct the accused’s vehicle to stop for the purpose of conducting a random driver’s licence compliance check. After the vehicle stopped, Van Dijk observed the accused exit the driver’s door and walk to the rear of his vehicle.
Van Dijk advised the accused he had been stopped for a random driver’s licence check. The accused produced his licence to Van Dijk who handed it to Heinze to conduct checks over the radio. Van Dijk then had a conversation with the accused to the following effect (the first conversation):
Van Dijk:     Is your licence all good and current?
Accused:     Yeah, it should be.
Van Dijk:     Where are you heading tonight?
Accused:     Just home to Blackwood.
Van Dijk:     Whereabouts have you been tonight?
Accused:     Just a friend’s house.
Van Dijk:     Oh, yeah, what area is that in?
Accused:     Mile End.
Van Dijk gave evidence that immediately on speaking with the accused it became evident to him that the accused was nervous and uncomfortable in the police presence. He appeared concerned about his surroundings, looking uneasily to his left and right. Small beads of sweat began forming on his forehead which Van Dijk considered was unusual given the time of night and the cool temperature. When he shone his torch in and around the accused, he noticed the accused’s pupils were not reacting normally and his eye movements were rapid and erratic.
Based upon his nine years of experience as a police officer, Van Dijk suspected the accused was affected by a controlled drug and, in particular, some sort of amphetamine type drug. He suspected the accused might be in possession of an ice pipe or still have some of the drugs with him. His suspicion at that time was directed more to his person rather than the vehicle. He believed he had sufficient suspicion based on those observations to justify a search of the accused’s person pursuant to s 52(6) of the Controlled Substances Act 1984 (SA) (the CSA).
Despite having that suspicion, his evidence was that he felt it prudent to ask further questions to gather more information. He had the following conversation with the accused (the second conversation):
Van Dijk:     Are you on bail or parole at the moment?
Accused:     No.
Van Dijk:     Have you got any history with the police?
Accused:     Yeah, a while ago.
Van Dijk:     What type of stuff?
Accused:     Drug stuff, but not for a long time.
Van Dijk:     Do you still use drugs?
Accused:     Not really.
Van Dijk:     Not really or no?
Accused:     Only a little bit.
Van Dijk:     Do you have anything on you tonight that you shouldn’t have?
Accused:     No.
Van Dijk:     Be honest. Is there anything in the car that shouldn’t be?
Accused:     Maybe only a little bit of stuff.
Van Dijk:     What stuff? Amphetamine?
Accused:     Yeah.
At that point, Van Dijk believed he had exhausted all means of talking with the accused about his drug use. He gave evidence the conversation confirmed the suspicion he already had for the purpose of a search of the accused’s person and led him to believe there were also drugs in the vehicle.
Upon searching the accused’s left trouser pocket, Van Dijk found a mobile phone. Inside the cover of that mobile phone were eleven $100 notes and a plastic resealable bag containing six smaller bags each of which had small amounts of a white crystalline substance which he suspected to be methylamphetamine. During the search he asked the accused the following: ‘Do you have anything concealed on you, anything I should be aware of?’.The accused replied something to the effect of ‘Yes, but I think it has fallen down my pants.’. The accused pointed towards the right cuff of his right trouser leg where Van Dijk then located another bag containing a white crystalline substance which he suspected to be methylamphetamine. Count 1 relates to all the methylamphetamine found on the accused’s person.
Van Dijk commenced a search of the accused’s van. Inside a backpack were a number of Tupperware containers, two small glass jars and a couple of plastic resealable bags containing what he suspected was cannabis. There were also three jars of what he believed was cannabis oil (the subject of Count 2), a set of unused resealable plastic bags, two glass ice pipes and digital scales. Heinze located a shopping bag inside the vehicle containing plastic resealable bags and what appeared to be dried cannabis. The accused was arrested and taken to the Sturt Police Station.
Van Dijk obtained a warrant to search the accused’s premises at Blackwood. That search occurred from about 3.50am. During a search of one of the bedrooms, the police found loose cannabis in a number of glass bowls and plastic bags which is the subject of Count 3.
Absence of Caution
For the accused, Ms Mansfield submitted the accused should have been cautioned by Van Dijk before commencing the second conversation. He had formed the suspicion to search the accused pursuant to s 52(6) of the CSA and therefore suspected him of committing criminal offences of possession of drugs and possession of an implement to administer drugs. She also submitted the second conversation amounted to an interrogation, referring particularly to the latter part of the conversation when Van Dijk told the accused to ‘be honest’.
Section 52(6) of the CSA is as follows:
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.
Van Dijk agreed that prior to the second conversation he suspected the accused may have committed the criminal offence of possession of a hypodermic syringe, a pipe or some other type of implement to administer drugs and/or committed the criminal offence of possession of an illicit substance. Based on his observations of the accused’s behaviour, he suspected the accused had consumed a controlled drug. He ‘highly suspected’ personal possession by the accused, but without conducting a search, he ‘had no idea’ whether or not the accused was committing any such offences. He asked further questions to gather more information. He did not consider he needed to caution the accused prior to the second conversation because he felt he did not have enough to substantiate an offence and had not formed a firm belief the accused was a suspect for a crime.
In regard to the requirement of police to administer a caution, King CJ stated the following in R v Dolan (1992) 58 SASR 501 @ 505:
It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution. At that point there can be no question of involuntariness or unfairness arising out of omission of the caution. It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a person, he ought not to interrogate that person without advising him of his right not to answer questions. That is particularly so, where the police officer is about to embark upon a systematic interview issuing in a typed record of interview or audio or audio‑visual tape. Omission to administer the caution at the commencement at such an interview, must put the answers at risk of being rendered inadmissible or excluded in the exercise of the judge’s discretion.
Before embarking upon the second conversation, I do not consider Van Dijk had reached the stage of his investigations which required him to administer a caution. His suspicions were strong ones, however, they were based entirely upon his observations of the accused. There was no unfairness in him embarking upon the second conversation without cautioning the accused. He was entitled to gather more information by asking questions and/or by searching the accused.
The submission made by the accused equates a suspicion sufficient to justify a search pursuant to s 52(6) of the CSA with an accusatory stage of an investigation having been reached such that a caution needs to be given to a suspect as a matter of fairness. I do not consider that is correct as a matter of general principle.
In Abbott v Ramm[3], Debelle J rejected the general submission that once police held a suspicion sufficient to justify a search of premises pursuant to a general warrant under s 67 of the Summary Offences Act 1953, a caution must be given before any conversation. The police may have the relevant suspicion for a legal search, but still be at an investigatory stage involving the gathering of information. He stated the following:
A police officer may have reasonable cause to suspect that evidence of the commission an offence might be found in premises occupied by a person and even that the evidence might implicate that person in the commission of the offence. But it does not necessarily follow that he has at that stage formed reasonable grounds for suspecting that person of having committed the offence. He is at that stage still gathering information for the purpose of determining whether he has reasonable grounds for suspecting that person. For example, if the search finds nothing, he may have no reasonable grounds at all for suspecting that person. In this case Howells had information which gave him reasonable cause to suspect that the appellant might still have the keys, code book and some stolen goods and that a search of his premises would reveal them. He was then acting on information he had gleaned in the course of his investigations. He was still gathering information and, as part of that process, intended to follow up his suspicions that the appellant still had the keys, code book and some stolen goods. He had not, therefore, reached the stage at which he was required to caution the appellant before the first interview.[4]
[3] SASC, Debelle J, Unreported 31 March 1995, BC9503114
[4] Abbott v Ramm, at page 22
In this particular case, I find that although Van Dijk held a reasonable suspicion necessary for a search of the accused pursuant to s 52(6) of the CSA, he was still gathering information and was entitled to do so by asking further questions. His suspicion that the accused was in possession of relevant substances or equipment was less certain than a belief.[5] His suspicion was sufficient for a lawful search of the accused person. It did not equate to him being at an accusatory stage of the investigation such that fairness required a caution to be given.
[5] R v Nguyen (2013) 117 SASR 432 at [21]
The submission was made on behalf of the accused that the questioning amounted to an interrogation when Van Dijk told the accused to ‘be honest’. I do not agree. He was not obliged to accept the prior answer from the accused. There was nothing improper or unfair in him telling the accused to ‘be honest’. He gave evidence that when the accused answered the question ‘Do you have anything on you tonight that you shouldn’t have?’ in the negative, the answer was not firm or confident; ‘it was almost giving me an answer but hoping I wouldn’t ask further’. He denied that he was interrogating the accused by telling him to ‘be honest’. He described the exchange as a simple conversation.
Even if a caution should have been given before the second conversation or at some stage during the second conversation, I would not have exercised my discretion to exclude the evidence of the search of the accused or of the vehicle. Prior to the second conversation, Van Dijk had formed a reasonable suspicion to search the accused pursuant to s 52(6) of the CSA. That was not challenged, and indeed, the accused’s submission regarding the absence of a caution relied upon the fact that such a reasonable suspicion had been formed.
Further, methylamphetamine was located on the accused as a result of the lawful search of his person. That in itself would give rise to a reasonable suspicion to search the vehicle, regardless of the accused’s answers during the second conversation. The product of both lawful searches would give rise to proper grounds for a warrant which was executed at the accused’s address that morning.
At most, if I had found that fairness required a caution at some stage prior to or during the second conversation, then the evidence of the second conversation, or part of it, may have been excluded.
The application to exclude the evidence arising from the search of the accused’s person, the accused’s vehicle and the Blackwood premises is dismissed.