R v Pavic
[2021] SADC 8
•5 February 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PAVIC
[2021] SADC 8
Ruling of his Honour Judge Kimber
5 February 2021
CRIMINAL LAW
Application by defendant to exclude drugs and other evidence found during search of car – whether search unlawful. Application by defendant to exclude evidence of a different drug first seen by police falling from body of defendant after both the search of the car and searches of his person – whether searches of the defendant’s person unlawful.
Held: The search of the car was unlawful. The evidence found during that search excluded in the exercise of the discretion. The personal searches of the defendant were not unlawful. Application to exclude the evidence of the drug first seen falling from the body of the defendant refused.
Controlled Substances Act 1984 (SA) s 32(3); s 52; District Court Criminal Rules 2014 (SA) Rule 49; Summary Offences Act 1953 (SA) s 68(1)(b), referred to.
R v Nguyen (2013) 117 SASR 432; Coleman v Zanker (1991) 58 SASR 7; Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; Pollard v The Queen (1992) 176 CLR 177, applied.
R v PAVIC
Introduction
The defendant is charged on an Information dated 7 August 2020 with three counts of Trafficking in a Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘CSA’). Counts one and two relate to amounts of 4‑Hydroxybutanoic Acid (‘GHB’) and cocaine located by South Australian Police officers in a Mercedes Benz sedan being driven by the defendant. Count three concerns an amount of methylamphetamine located by the same officers. The methylamphetamine was not found during the search of the car. It was seen to fall from the defendant’s person onto the ground.
The defendant has made an application pursuant to Rule 49 of the District Court Criminal Rules 2014, for the exclusion of the evidence of the items seized from the Mercedes Benz sedan and the methylamphetamine.
I grant the application to exclude the evidence of the search of the Mercedes Benz sedan. I decline to exclude the evidence of the methylamphetamine located by the police. My reasons follow.
Background
On 5 August 2019, officers Probationary Constable Lloyd (‘Lloyd’) and Senior Constable Pethers (‘Pethers’) were in a marked police vehicle in the suburb of Findon. At about 12.07 a.m. the officers observed a silver Mercedes Benz sedan (Registration number: WTZ 898) (the ‘car’) travelling east on Grange Road.[1] The car then made a left turn into Noblet Street.[2] A short time later, the officers observed the car reversing into a carpark of a unit complex at 3 Noblet Street.[3] The officers manoeuvred their vehicle in front of the car.[4] The officers observed the defendant exiting the car and another unknown male walking towards the unit complex.[5]
[1] T7.5-10.
[2] T8.9-11.
[3] T10.14-6.
[4] T14.32-7.
[5] T15.5-14, 32-4.
The officers approached the defendant. They intended to perform a check of his identification, as well as, an Alcotest.[6] The defendant did not provide a copy of his driver’s licence, but did provide his contact details.[7] Upon checking the defendant’s details, it was discovered that his driver’s licence had previously been disqualified.[8] The officers then conducted an interview with the defendant using body-worn cameras.
[6] T16.2-19.
[7] T17.16-26.
[8] T19.27-32.
Following this initial interview, the officers conducted a series of further inquiries utilising databases accessible from the police vehicle. Those inquiries predominantly focused on any recent history with police.[9] Having made these inquiries, Pethers decided to search the car.[10] Before the car was opened, but after the decision to search it had been made, Pethers shone his torch into the front passenger side of the car.[11] Pethers viewed what he believed to be a set of electronic scales.[12] Pethers returned to where the defendant and Lloyd were standing and informed the defendant of his intention to search the car.[13]
[9] T23.29-38; 24.1-5.
[10] T31.34-8; 32.1-9.
[11] T32.1-21; Exhibit VDP2.
[12] T31.27-31.
[13] T32.18-20.
Pethers’ evidence was that he believed s 52 of the CSA gave him authority to search the car.[14] He purported to utilise this power as he had a reasonable suspicion that drugs or drug paraphernalia were within the car.[15] He indicated he held this suspicion through the checks conducted,[16] his ‘interaction with [the defendant] and [the defendant’s] driving behaviour getting to the address.’[17]
[14] T34.2-5.
[15] T34.6-12.
[16] T31.27-38; 32.1-9.
[17] T34.10-1.
The officers then had a conversation with the defendant about accessing the car. After a short period, the defendant unlocked the car, at which point Pethers entered the vehicle.[18]
[18] T35.17-22.
The defendant submits that the search of the car commenced when Pethers shone the torch into the car and the subsequent opening of the door and Pethers entering the car was a continuation of that search. The prosecution submits that the search of the car did not commence until after the torch had been shone into the passenger side of the car. I will return to this.
The officers located a set of digital scales in the front passenger foot well.[19] The officers also located a black bum-bag in the rear passenger foot well of the car.[20] Within this bum-bag the officers found: a small bottle of liquid containing 54.4g of GHB (count one), a sealed bag containing 4.54g of cocaine (count two), and other items.[21]
[19] T35.23-30.
[20] T35.33-6.
[21] T35.35-36.
The officers then performed a brief search of the defendant’s person and located some personal items.[22] The defendant was subsequently arrested. At around that time, a second search was conducted of the defendant’s person. Nothing was taken from him at that time. However, very shortly thereafter, and as the defendant was being escorted to the police vehicle, the officers observed an item fall from the front of the defendant’s person.[23] This item was a white package containing 26.3g of crystals with 18.6g of that being pure methylamphetamine (count three).
Section 52 of the CSA
[22] T36.11-4.
[23] T36.27-31.
The defendant submits that the searches conducted, both of the car and of his person, were unlawful as the police officers did not have the necessary reasonable suspicion to exercise their powers pursuant to s 52 of the CSA.
Section 52 relevantly provides:[24]
[24] Controlled Substances Act 1984 (SA).
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.
…
(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.
Evidence of Senior Constable Pethers as to his reasonable suspicion re the car
During evidence, Pethers indicated that at the point he first formed an intention to search the car he considered s 52 of the CSA provided him with the authority to do so.[25]
[25] T34.2-9;47.16-28.
Pethers’ evidence as to him having a reasonable suspicion to search the car was:
QAt the point in which you first formed an intention to search the vehicle what power or authority did you consider you had to search the vehicle.
ASection 52 of the Controlled Substances Act.
QCould you explain the circumstances in which that does give you that power.
AIf we have a suspicion to believe there may be some items of drug paraphernalia or drugs within the vehicle. I formed that suspicion through the interaction with Mr Pavic and his driving behaviour getting to the address.
QWhat was your suspicion in relation to the vehicle.
AInitially it was the driving behaviour which took that initial turn. It's common people turning off when they see a police vehicle. The vehicles turn into an area of high volume crime, drug activity, Mr Pavic when we initially spoke to him initially gave me - well details which were a bit misleading. He continually drew us away from the vehicle. There was another male at the scene; like I said before unable to ascertain whether he was in company with him but he refused to come back into the units. The address that he has given me that No.3 - he couldn't provide a unit number. Checks revealed that he's not linked to the address. And given the recent drug history.[26]
[26] T34.2-26.
The search of the car – the positions of the parties
The defendant submits that not all of the information set out in the answer immediately above was available to Pethers at the time he decided to search the car. He further submits that the information that was available at the time that decision was made was not sufficient to form the necessary reasonable suspicion.
The prosecution submits that the information that was available to Pethers at the time he decided to search the car was sufficient to form the necessary reasonable suspicion.
I find Pethers was an honest witness and that he genuinely believed that there was sufficient information for him to reasonably suspect that there was a substance and/or equipment that would afford evidence of an offence against the CSA at that time he decided to search the car. However, objectively, the information available at that time was not sufficient to form the necessary reasonable suspicion. I find that the search of the car was unlawful.
My reasons follow.
Why was there not a reasonable suspicion?
In evaluating whether there was sufficient information to form the necessary reasonable suspicion, an appropriate starting point is R v Nguyen (2013) 117 SASR 432. In that case, Kourakis CJ, Blue and Stanley JJ stated:[27]
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.
[references omitted]
[27] At [21]-[22].
The test of reasonableness is to be judged by me putting myself in the position of Pethers, with his knowledge and asking whether the suspicion was reasonably held (R v Willingham (No 2) [2012] SASCFC 104 at [10]). In considering whether it was open to Pethers to have the necessary reasonable suspicion, it is important not to consider the pieces of information available to him in isolation. I also bear in mind that Pethers was a police officer of some experience evaluating matters in the field.
Against that background, I turn to each of the matters mentioned by Pethers as giving rise to his reasonable suspicion in the answer set out at [15] above.
The first is the initial turn of the car. As Pethers later conceded, the defendant had not committed any unlawful act in turning left from Grange Road. The fact that the defendant stopped a short distance away, and parked in the fashion that he did (i.e. by reversing), is not particularly consistent with a desire by the defendant to get away from the police as quickly as he could.
The ‘details’ which were said to be ‘misleading’ was the defendant’s name. Pethers originally noted the name as ‘Parvic’. In my view, the issue of the name was not a matter of significance given that by the time Pethers decided to search the car, he had spoken again to the defendant and obtained the correct spelling. My viewing of the video VDP3 leads me to conclude that the defendant gave the correct spelling initially. In all of the circumstances, Pethers had insufficient reason to conclude that the defendant had deliberately misspelt his name when first providing it to him.
An aspect of why Pethers believed that the defendant ‘drew’ him away from the car was him exiting it after parking. Given Pethers’ evidence, I accept that the defendant’s conduct in getting out of the car might not be the usual approach of a member of the public aware that the police may wish to speak to them. However, Pethers’ evidence was that the defendant had already commenced exiting the car when the police pulled up. The evidence falls short of satisfying me that the defendant knew the police were present when he started to exit the car.
As for the defendant’s conduct after he had exited the car, having viewed the video VDP3, and accepting that Pethers was present in the company of the defendant and in a better position to make a judgment about the behaviour of the defendant than me, the defendant does not appear to be making some effort to draw the police away from the car. This is not to find that Pethers misled me. I am satisfied that his belief that it was unusual for a person in the position of the defendant to get out of his car was genuine and, as an officer dealing with events as they unfolded in the field, I think it likely that influenced his view of the defendant’s conduct once out of the car.
I regard the fact that the defendant had parked in what was known as a high-volume crime area where drug activity took place as relevant to the question of whether there was the necessary reasonable suspicion. The fact that another male might have exited the car and then refused to come back was also relevant given that this was an area where drug activity was known to occur. It is notorious that people who supply drugs use their cars to meet with people looking to obtain drugs. It is also notorious that both will sometimes avoid speaking to police if they can.
As for the ‘recent drug history’, the defendant was recorded within two police systems as having some connection with drugs in the past. There was a warning on the MRT system and the following entry ‘14 Jun 2018 CONV Supply or administer drug (not cannabis) to another person’, within that same system. Pethers saw the warning and entry. Pethers also saw the two entries in the Shield System which were: ‘Drug incident @ 03/12/2018’ and ‘[Drugs] @ 31/07/2017’. That information was certainly relevant to whether there was a reasonable suspicion, albeit that Pether did not look further into these entries.
As for the evidence that the defendant ‘couldn’t provide a unit number’, a viewing of the two sets of body cam footage reveals that he was not asked to provide a unit number before Pethers searched the car. Whatever the defendant might have said later in that regard is irrelevant.
Having carefully considered all of the information available to Pethers before he decided to search the car, that information was little more than the fact that the defendant had parked in a high-volume crime area where drug activity took place, had some past drug history and was in the vicinity of a male who declined to engage with police. In all of the circumstances, I am not satisfied that gave rise to the reasonable suspicion necessary pursuant to s 52(9) of the CSA.
Before determining whether the search of the car was unlawful, it is necessary to consider what occurred immediately after Pethers made his decision to search the car, but before the door was opened.
The use of the torch – a search?
As already set out, immediately after forming the view that he had a reasonable suspicion to search the car and deciding to do so, but before entering the car, Pethers shone his torch into the passenger side. Having done so, he saw a set of scales within the car. An issue arises as to whether the search began at the time the torch was used, or only upon entry into the car after the scales were first seen. This issue assumes importance because the prosecution submits that no search was conducted until after the scales were sighted and further submits that if no reasonable suspicion existed before the sighting of the scales, it existed once the scales were sighted.
For the reasons which follow, I find that the looking into the car, aided by the torch, was, in the particular circumstances of this case, an act of searching the car.
An appropriate starting point is Coleman v Zanker (1991) 58 SASR 7 (‘Coleman’). In that case a police officer approached the appellant in a car and asked them to get out. The evidence of the officer was that the request was made so that the car could be checked. Having made that request, the officer then shone a torch into the car. On doing so, the officer saw a knife. That knife was the alleged offensive weapon the subject of a charge laid against the appellant.
Olsson J held that the shining of the torch into the vehicle was for the express purpose of examining the content of the car. In my view, Olsson J further held that the shining of the torch into the car was an act which was part of a search. Olsson J stated:
That conduct was unlawful in two ways. The demand that the appellant get out of his vehicle was itself unlawful. He was not being arrested, nor was there any situation giving rise to the exercise of any statutory power to require him to accede to the demand made. Moreover, despite Mr Stevens' strenuous contention to the contrary, it is impossible to escape the clear inference that, at the point at which Constable Mensforth issued her edict to the appellant, that edict was the first active step in the ongoing process of an unlawful search of his vehicle which then ensued, portion of which was the shining of Constable Mensforth's torch into the interior of the vehicle and the finding and seizure by her of the knife.[28]
[28] Coleman v Zanker (1991) 58 SASR 7, 15.
In submitting that the shining of the torch into the car and looking into the passenger side aided by the torch was not a search, the prosecution relied upon Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223 (‘Question of Law Reserved (No. 3)’).
An issue in that case was whether the police using a drug dog to smell around a bag was a search. If it was, there was no reasonable suspicion at the time that the dog was tasked to smell around the bag. The reasonable suspicion only arose once the dog reacted to the bag.
As to what constituted a search, Prior J stated:
…mere sensory perception, whether by eye, ear or nose, cannot of itself constitute a search.[29]
On the same question, Olsson J stated:
According to its normal connotation the word “search” implies some physical intrusion into what is searched, for the purpose of examining what is in it. That word is not apt to describe the mere act of detection of an odour generated by the content of the item searched, which is released into the atmosphere surrounding it without any positive acts of a third person to effect that release. If it were otherwise ridiculous questions would arise as to how close one would need to get to an item generating an odour before one could be said to be searching it.
In this regard it seems to me that the Crown is on sound ground when it argues that a sensory perception of any type simply cannot constitute an act of searching, because it is a passive act which cannot possibly constitute a trespass.
As Sir Robert Megarry V-C said in Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 640, the reason why a search which is not authorised by law is illegal is that it involves commission of the tort of trespass in relation to the land, goods or person searched. A mere act of enabling a dog to sniff the air in the vicinity of a suitcase involves no trespass to it, just as, to paraphrase the learned Vice-Chancellor, neither the eye nor the ear can be guilty of trespass.[30]
[29] Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223, 224.
[30] Ibid 226-7.
The above passages suggest that merely using one’s eyes to look into a car will not be a search. The act of Pethers in looking into the car was an act done ‘by eye’ and the eye cannot be guilty of a trespass.
However, I find that a search can occur even if a person looks into an item from outside. The context is important. For example, in my opinion, if a security officer asks an owner for consent to look into a bag, consent is given, the bag is opened by the owner and the security officer looks inside without entering the bag, the officer is searching that bag.
Notwithstanding what was said in Questions of Law Reserved (No 3), I find that the shining of the torch into the car for the purpose of looking inside it was, in this particular instance, a search. This case can be distinguished from Questions of Law Reserved (No 3) on the basis that before Pethers looked into the passenger side of the car aided by the torch, he had decided to search it. He then used a device (i.e. the torch) to enable him to see what was inside. That is different to the situation in Questions of Law Reserved (No 3). The decision to search the relevant bag in that case was not made until after the dog had reacted to the bag.
My conclusion does not mean that every time a police officer looks into a vehicle, the act of looking is, of itself, a search. It will depend upon the circumstances. In this case, the conduct of Pethers in looking into the car from outside aided by the torch must be viewed in the context of him already having decided to search the car and then very shortly after making that decision, using a device to see what was inside. In my opinion, the combination of the decision and the subsequent use of a device, makes the looking into the passenger side of the car the first step in the search of the car. I regard this conclusion as consistent with the approach of Olsson J in Coleman. For the reasons which I have given, this case can be distinguished from the approach in Questions of Law Reserved (No 3).
I find that the search of the car commenced with the shining of the torch into the passenger side of the car. I find that the search of the car was unlawful.
The exercise of the discretion
Having found the search of the car to be unlawful, it is necessary to consider whether the items found within should be excluded from evidence.
In R v Ireland,[31] Barwick CJ (McTiernan, Windeyer, Owen and Walsh JJ agreeing) said:
…Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[32]
[31] (1970) 126 CLR 321.
[32] Ibid 335.
In Bunning v Cross,[33] Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves is no simple question of ensuring fairness to a defendant but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the defendant. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the defendant being only one factor which, if present, will play its part in the whole process of consideration.[34]
[33] (1978) 141 CLR 54.
[34] Ibid 74-5.
In R v Swaffield,[35] Kirby J identified the considerations relevant to the exercise of the public policy discretion in Bunning v Cross as follows:[36]
[35] (1998) 192 CLR 159.
[36] (1998) 192 CLR 159, 212-3.
In Bunning v Cross, Stephen and Aickin JJ outlined some of the relevant considerations. One of them was the nature of the offence charged. Also commonly mentioned has been the probative value of the evidence, and its importance in the proceedings. The remaining considerations which Stephen and Aickin JJ listed were:
(i)whether the conduct was deliberate, or resulted from a mistake;
(ii)whether the nature of the conduct affected the cogency of the evidence so obtained;
(iii)the ease with which those responsible might have complied with the law in procuring the evidence in question; and
(iv)the legislative intention (if any) in relation to the law that is said to have been infringed.
To the foregoing, Mason CJ, Deane and Dawson JJ in Ridgeway added an additional consideration:
(v)“whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”
…
Search of the car - discretion
The offences charged based upon the drugs found in the car are serious and there is a public interest in ensuring that those who commit crime are brought to justice.
As already set out above, Pethers was an honest witness. This is not to overlook that he made an error with respect to an aspect of the information known to him at the time he made the decision to search the car, nor to overlook that I have taken a different view as to the significance of some pieces of information to the question of whether there was sufficient to form a reasonable suspicion to search the car. I do not regard Pethers’ unlawful conduct in searching the car as having been deliberate. He was evaluating issues in the field and without the benefit of the reflection which I am able to bring. As already set out above, he genuinely believed that he had the necessary reasonable suspicion to search the car. He knew that the defendant was disqualified from driving. It was perfectly appropriate for him to ascertain other information about him. The appropriate source of such information were the two data systems available to him. Those two systems told him that the defendant had some history with drugs. Pethers genuinely believed that those matters, and the other matters to which he referred in evidence known to him at the moment that he decided to search, gave rise to a reasonable suspicion.
The cogency of the evidence is not effected by the illegality, but I do not regard that as of any great significance to the exercise of the discretion in this case.
In my view, the ease with which Pethers might have complied with the law does not weigh in favour of exclusion of the evidence found in the car. As I have said, Pethers was making evaluations in the field. He made a judgment call. It is in the nature of such judgment calls that they will sometimes be wrong.
The legislative intent is plainly that searches not be conducted unless there is the necessary suspicion.
The evidence in this case does not satisfy me that the unlawful conduct in which Pethers ultimately engaged was encouraged or tolerated by those in higher authority in the police force.
The evidence also falls short of establishing that Pethers’ conduct is suggestive of some broader willingness not to respect the rights of those with whom he deals. I am satisfied that he simply made an error of judgment. This is not to overlook Pethers’ evidence to the effect that he and officers were encouraged to have a presence in the area of the units. That strikes me as appropriate policing in what, on the evidence, was a high-volume crime area with respect to drugs. The evidence does not establish that in having such a presence, there was encouragement by those more senior than Pethers to disregard the rights of members of the public. This is also not to overlook that Pethers misunderstood at least one other issue on this night which was relevant to his powers. He told the defendant that he could be arrested for hindering police if he did not open the car in order that it could be searched. I am not satisfied that he would have been hindering the police had he declined to do so.
In my opinion, the matter of greatest significance in consideration of whether I should exercise the discretion to exclude the evidence obtained as a consequence of the search of the car is the risk of giving curial approval to unlawful conduct.
In Pollard v The Queen (1992) 176 CLR 177, Deane J observed of the passage of Bunning v Cross extracted at [47] above:
As that passage makes plain, the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular defendant. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
In my opinion, a proper exercise of the discretion warrants exclusion from evidence of what was found in the car. While Pethers genuinely believed that he had a sufficient suspicion to search the car; I accept that errors of judgment will be made by police working in the field; the offences charged based upon the drugs found in the car are serious and there is a public interest in the defendant facing a trial, in my view, the information available to Pethers fell significantly below what was necessary to form a reasonable suspicion pursuant to s 52(9) of the CSA. That being so, to admit the evidence risks giving curial approval to a suspicion which was, objectively, significantly below what was necessary.
I exclude from evidence the items found inside the car.
The personal searches of the defendant - background
At the commencement of the voir dire, the defendant made clear he was seeking exclusion of not just the evidence found in the car, but all evidence seized by the police while in the company of the defendant. In particular, any item seized during any search of his person and any item seized which fell from his person. The item which fell from the defendant was the methylamphetamine.
I turn to the above.
The defendant was not searched until after the search of the car had commenced and drugs located. There were three searches of the defendant’s person. The first before his arrest, the second immediately after his arrest and a third after the methylamphetamine was picked up from the ground having apparently fallen from the defendant. The evidence of Pethers as to the first personal search and about the item falling from his person was:[37]
[37] T36.4-35.
Q Did you also conduct a search of the defendant himself.
AAt this time Mr Pavic was getting a little bit agitated. My partner was with him at the time. I gave him a quick very brief pat down to make sure there were no weapons or we weren't going to get hurt in any way. I then went back to the car to continue searching and requested other patrols to assist.
Q Did you seize anything of interest from the defendant's person at the time.
AAt that time not of interest. Looking back at it, it was a mobile phone, maybe some cigarettes, keys.
QWas the defendant arrested while still present alongside the vehicle at Findon.
AFurther patrols come down to assist. He was arrested a short time later, at the back of the vehicle.
QAnd did Probationary Constable Lloyd take over looking after the defendant and dealing with his arrest rights.
AOnce he was arrested he was handcuffed to the rear, we then escorted him towards the police fleet where Probationary Constable Lloyd stayed with him and provided arrest rights.
QAt that stage of events did you locate another item of interest.
AJust after he was handcuffed and being escorted towards the police fleet an item has fallen from his person. White package. It looked like he tried to kick it away from the area. I've seen it hit the floor, I've picked it up and seized that item as well.
QWhat did that item appear to be.
AOnce we opened it up there were some - it looked like paper towelling wrapped around it, but it appeared to be methamphetamine, approximately 30 g of it.
As set out above, the first of the searches located nothing particularly relevant, simply a mobile phone and perhaps cigarettes and keys.
The second personal search occurred at around the time of the defendant’s arrest, but before what turned out to be the methylamphetamine falling from his person. That second search did not result in any item being removed from the defendant by the police. The methylamphetamine was picked up from the ground after falling from the area of the defendant’s body having been first seen immediately after that second search had been conducted, but had ended.
Lloyd did not give oral evidence. Her evidence is within an affidavit. It contains more detail of what occurred shortly after the second search. That affidavit records:[38]
...
13.PETHERS and I arrested the defendant for drug trafficking. I observed PETHERS place handcuffs on the defendant layered, to the rear.
14.I observed PETHERS search the defendant. I started to walk the defendant towards the police vehicle. As the defendant stepped forward, a large resealable plastic bag wrapped in paper towel dropped from the defendant (sic) shorts onto the floor.
15.I observed the defendant attempt to kick the bag away using his right foot. I pulled the defendant a step backwards, away from the bag, and observed PETHERS pick it up from the ground. The defendant stated, words to the effect of “that’s not mine, it was already there.”
16.I observed PETHERS search the defendant again, however no further items of relevance were located.
[38] LLOYD, Derryth (dated 25 September 2019), pp. 3-4.
It is the search referred to in the sentence immediately above which was the third search of the defendant’s person.
There is no evidence of what power was exercised in searching the defendant on any of these three occasions. It is only the first two of those searches which matter as nothing was located during the third search.
The first personal search
I turn to whether the items located during the first personal search of the defendant should be admitted into evidence.
As set out above, there is no evidence of what power Pethers believed he was exercising when he conducted this search. However, there is evidence of why he conducted this search. Pethers’ evidence was that he believed the defendant was agitated and the search was done to make sure that the defendant did not have any weapons.[39] Although drugs had already been located in the car before this first personal search, Pethers did not link the reason for this search to the finding of those items. Given the evidence of Pethers, I put aside s 52(6) of the CSA even though, were it necessary, I would find that at the time of this search, there was, objectively, sufficient information to form the necessary suspicion pursuant to that sub-section.
[39] T36.5-10.
It was not put to Pethers that his concern the defendant might pose a risk and that there was a need to ensure that he did not have a weapon was not genuine. I accept Pethers’ evidence.
Given the reference to a concern about weapons, I regard it as appropriate to consider s 68(1)(b) of the Summary Offences Act, 1953 (SOA). It provides:
(b) a person who is reasonably suspected of having, on or about his or her person—
(i) stolen goods; or
(ii) an object, possession of which constitutes an offence; or
(iii) evidence of the commission of an indictable offence.
I accept Pethers’ evidence that the defendant was ‘a little bit agitated’ before this search despite that not being obvious on my viewing of the body cam footage. That footage will not necessarily have shown what Pethers’ described. Pethers’ evidence is consistent with Pethers’ stopping what he was doing to conduct this personal search and it being obvious to the defendant that incriminating items had been found in the car he had been driving. Pethers’ was dealing with a person he believed to be agitated, at night, in an area of high volume crime having found incriminating items in that person’s car. It is notorious that those involved with drugs sometimes have an offensive weapon. I find that the information available to Pethers was sufficient to give rise to a reasonable suspicion that the defendant had a weapon on his person. Possession of an offensive weapon would have amounted to an offence.
I find this search was lawful.
The second personal search and the finding of the methylamphetamine
I turn to whether I should exclude the evidence of the methylamphetamine collected from the ground.
The defendant submitted that he was still in the process of being searched when that methylamphetamine was found.[40] The prosecution submitted that the methylamphetamine was:[41]
…not found in consequence of a search of either the vehicle or the defendant. It is found in plain sight on the ground having been seen to move from the defendant to the ground. In those circumstances different considerations do apply but I would have to concede that this is one event and but for the initial search of the car the defendant would not have been dealt with in that manner, not have been arrested or manoeuvred and it is therefore unlikely he would have either deliberately discarded the item or accidentally discarded it in the way that it occurred.
[40] T67.15-18.
[41] T69.7-17.
I reject the defendant’s submission he was still being searched when the methylamphetamine was found. I have viewed the videos of the body cam footage, VDP2 and VDP5. I am satisfied the police first became aware of the item that turned out to be the methylamphetamine when the following comment was made during VDP2, ‘Fucking hell where did that come from mate?’.[42] I am satisfied this was after the second of the personal searches had ended.
[42] VDP3, 16.
My rejection of this aspect of the defendant’s submissions does not mean that the finding of the methylamphetamine should be admitted into evidence.
It is convenient to turn at this point to how the methylamphetamine came to be on the ground. In my view, there are three possibilities. First, it had always been there and did not fall from the defendant. Second, it fell from the defendant after he took some deliberate step to discard it. Third, it fell from the defendant without him deliberately discarding it, but because he earlier had placed it on his person in a way which was less than secure.
As to the first of these possibilities, this was the claim made by the defendant at the time the item was located by police. If that claim were truthful, there would be no basis to exclude the evidence. The methylamphetamine had always been on the ground. It was in an area open to the public (i.e. – the carpark of the units). There would be nothing unlawful about the police picking it up. However, I reject this possibility. I accept the evidence of the police officers that the item fell to the ground from the defendant’s clothing, or body. That evidence was not challenged. There is no reason to doubt it.
As to the second and third possibilities, on the evidence, I am unable to choose between them.
As to the second, the defendant was handcuffed at the time that the item fell from him. However, of itself, that does not mean that he could not have deliberately caused the item to fall to the ground without police seeing what the defendant did to cause that to occur. It would depend upon where, and how, the item was on his person. I am unable to make any findings about those matters.
As to the third, the defendant may not have taken any deliberate step to dispose of the methylamphetamine immediately before it was seen to fall from him. He may have earlier placed it in a location that was less than secure. It might have simply fallen from him without him taking any further step to promote that occurring.
I turn to whether the finding of the methylamphetamine should be excluded on the basis, as I have found, that it was not found during any personal search and the defendant either deliberately discarded it, or it simply fell from him, after the second personal search.
There are matters which weigh in favour of exclusion of the finding of the methylamphetamine.
That I have exercised the discretion to exclude the evidence of the search of the car on the basis that search was unlawful and to admit the evidence of what was found therein would risk giving curial approval to the unlawful search of the car is important. Although the methylamphetamine was not found during any search of the car, there is a strong causal link between it being found and that search. The finding occurred immediately after the search of the car. It is inherently unlikely the methylamphetamine would have been seen to fall from the defendant had the police not conducted the search of the car. Had that not occurred, the defendant would not have been searched, nor arrested. The temporal and geographical connections between the unlawful search of the car and the finding of the methylamphetamine could hardly be closer.
There are matters which weigh in favour of not exercising the discretion.
Although Pethers was not asked about why he conducted the second personal search, I find that, objectively, there was the necessary reasonable suspicion pursuant to s 52(6) of the CSA (albeit one based, in part, upon a search of the car that was not only unlawful, but the evidence of which I have decided should be excluded in the exercise of the discretion). It follows that I have not found that either of the two personal searches which preceded the methylamphetamine being seen for the first time were unlawful. I am satisfied that the methylamphetamine was on the defendant’s person during both of those searches. If the methylamphetamine had been found at either of those times, it would have been found during a lawful search, albeit a search to be viewed in light of it only having occurred because of an unlawful search and, for that reason, giving rise to the consideration of the discretion.
Even if I was wrong about the personal searches being lawful, the second personal search of the defendant had ended at the time the methylamphetamine was first seen. It was the conduct of the defendant which caused the methylamphetamine to fall to the ground (i.e. – he either deliberately discarded it, or he had earlier placed it somewhere on his person in a less than secure way). That conduct caused it to be in a public place (i.e. – the carpark). The arrest of the defendant which immediately preceded the finding of the methylamphetamine was not unlawful. An arrest is not unlawful simply because it was the consequence of an unlawful search, even if the evidence of that unlawful search is later excluded in the exercise of the discretion. While the reasons I exercised the discretion with respect to the unlawful search of the car are important and weigh in favour of the exercise of the discretion to exclude the evidence of the methylamphetamine, also relevant, but far less so, are some other findings I have made. At no point was Pethers acting deliberately unlawfully, nor was his earlier unlawful conduct in searching the car encouraged or tolerated by those in higher authority.
I decline to exercise the discretion to exclude the methylamphetamine. The personal searches which preceded the methylamphetamine being seen for the first time were lawful. Even were I wrong about that, the methylamphetamine was not found during any search of the defendant. It was first seen by the police falling to the ground after the second personal search had concluded. The defendant either deliberately discarded that drug, or he had earlier placed it on his person in a way that was less than secure. There was opportunity for the defendant to attempt to hide the item on his person once aware of the presence of police without that being seen by either Pethers or Lloyd. The defendant was with them for some time. There were times at which each was needing to concentrate on things other than the defendant (e.g. – the police car was moved, checks were made using the data systems available and the car was searched). If the defendant deliberately discarded the drug, I would find he chose to discard an item he knew would be of interest to the police and which he did not want to be discovered. In that event, I am not satisfied that to permit the evidence to be led risks giving curial approval to the earlier unlawful search of the car. If the item fell because it had been placed in a location which was less than secure, I would find that the reason for an item of such value to have been placed by the defendant in such a way was because the defendant had done that at some point in the knowledge that he was in the company of the police and as he did not want the methylamphetamine to be discovered. In that event, I am also not satisfied that to permit the evidence to be led risks giving curial approval to the earlier unlawful search of the car.
Conclusion
The search of the car by Pethers was unlawful. I exercise the discretion to exclude the evidence of the search of the car.
The first personal search of the defendant was lawful. I decline to exclude the evidence of that search.
I decline to exclude the evidence of the methylamphetamine.
No submissions were made to the effect that the defendant would be prejudiced in some relevant way if the only evidence given was that after an arrest, the reasons for which may not be able to be stated in evidence as the arrest was because of an unlawful search, the methylamphetamine fell from the defendant and was then seized. For example, it was not submitted that any trial would be unfair if the reason for the arrest were not known. That is no criticism of counsel. Quite properly, the submissions before me were directed to other issues and without knowing of what my rulings might be. Further, I do not know precisely what evidence the prosecution might seek to lead given my rulings. It follows that if the defendant wishes to make any further submission based upon what will now be the limits of the evidence able to be led by the prosecution, he is not precluded from doing so.
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