R v Reed - [2019] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v REED
[2019] SADC 165
Ruling of Her Honour Judge Schammer
6 November 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
A police officer observed the accused, being a person known to him for suspected drug offending, driving a vehicle while he was disqualified.
Upon approaching the vehicle, the police officer claimed to have made observations as to the conduct of the accused and a female passenger, which caused him to hold a reasonable suspicion under s 52(9) of the Controlled Substances Act (1984).
The police officer then searched the vehicle and found a quantity of methylamphetamine, including methylamphetamine inside a lock box found in the front driver foot well.
The accused made an application to exclude the evidence of the search pursuant to r 49 on the basis that the police officer did not make the claimed observations, but that if he did, they did not, in any event, amount to a reasonable suspicion to conduct the search.
The accused maintained that the police officer made the decision to search the vehicle upon recognising him as the driver of the vehicle and on the basis of mere curiosity and speculation.
Whether the search was unlawful and if so whether the evidence of the search of the vehicle and subsequent searches of the accused and his home address should be excluded in the exercise of the public policy discretion.
Held: The search of the vehicle was unlawful. Considerations of higher public policy favour exclusion of the evidence.
Application to exclude the evidence obtained from the search of the vehicle, of the accused and of the accused's home address granted.
Controlled Substances Act 1984 s 32(3), 52(9); Summary Offences Act 1953 s 68, referred to.
The Queen v Romeo (1982) 30 SASR 243; R v Rogers (2011) 109 SASR 307; R v Willingham (No.2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; R v Marafioti (2014) 118 SASR 511; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Golja [2017] SASCFC 61; Ghamrawi v The Queen [2019] SASCFC 108; R v Rockford [2015] SASCFC 51, considered.

R v REED
[2019] SADC 165
Introduction

The accused is charged with the two counts of trafficking in a controlled drug pursuant to s 32(3) of the Controlled Substances Act 1984 (‘the Act’). The alleged offending occurred at Queenstown on 9 March 2018.
On that day, Detective Brevet Sergeant Childs (Officer Childs) and Constable Yeoward (Officer Yeoward) were in an unmarked police car travelling west on Cross Street, Queenstown, intending to turn right at Port Road, to travel north. The accused was observed by Officer Childs driving a red Holden sedan WVO-201 (the vehicle), in the opposite direction along Cross Street. He recognised the accused as the driver and knew he was not the holder of an appropriate licence authorising him to drive the vehicle.
Officer Childs performed a three-point turn intending to follow and stop the vehicle. At, or about that time, the accused parked the vehicle voluntarily in a parking bay in that part of Cross Street which divides the lanes for north and south bound traffic on Port Road. Officer Childs parked the unmarked police car immediately behind the vehicle, with its emergency lights activated.
Officer Childs claims that due to a combination of matters of which he was already aware relating to the accused’s suspected involvement in drug dealing and observations he then made of both the accused, and his female passenger, Sarah-Anne Marks (Ms Marks), he formed a reasonable suspicion that the vehicle contained either a substance or equipment that would afford evidence against the Controlled Substances Act 1984 (the Act). Acting on that suspicion, he then commenced to search the vehicle.
In the driver’s foot well of the vehicle, Officer Childs located a lockbox and zip bag containing three press seal bags with a combined total of 112.8 g of crystals, containing 81.31 g of pure methylamphetamine. Other items located during the search of the vehicle included multiple mobile phones, scales, a taser, a knife and a powder containing a cutting agent.
The accused has filed an application pursuant to r 49 seeking to exclude the evidence of the search of the vehicle, along with evidence of subsequent searches of both the accused and the accused’s home address. The onus rests on the accused to establish on the balance of probabilities the reason or reasons for exclusion of this evidence.
The accused contends that the search of the vehicle was unlawful on the basis that Officer Childs did not have a reasonable suspicion to conduct the search of the vehicle, and that as such, the legality of the subsequent searches was also tainted.
The accused disputes that Officer Childs made the observations upon which he relies, in combination with other prior knowledge he held of the accused, being the basis of his alleged reasonable suspicion. The prosecution conceded that in the absence of the disputed observations, the prior knowledge held by Officer Childs with respect to the accused did not, of itself, constitute a ‘reasonable suspicion’ for the purposes of the Act.
Further, the accused contends that even if Officer Childs made the disputed observations, the combination of what he observed and already knew about the accused did not in any event amount to a ‘reasonable suspicion’ sufficient to justify the search.
The accused contends that as the search of the vehicle was unlawful, I should exercise my discretion to exclude the evidence of the search of the vehicle and subsequent searches conducted of both the accused and his home address.
Voir Dire
The application was heard on voir dire on 20 September 2019.
The prosecution called evidence from Officer Childs and Officer Yeoward.
In addition, the prosecution tendered exhibits namely:
·Exhibit VDP1     Aerial photograph depicting the intersection of Cross Street and Port Road, Queenstown.
·Exhibit VDP2     South Australia Police Department, Police Ancillary Report dated 21 April 2010.
·Exhibit VDP3     Shield Intelligence Report dated 12 January 2018.
The accused gave evidence and also called evidence from Ms Marks and Wayne Perriam, an alleged witness to the interactions between Officer Childs and the accused on Cross Street.
A USB containing an audio recording of a discussion between Officer Childs and Ms Marks at the Port Adelaide Police Station in early 2019 was tendered as Exhibit VDD4.
The Act
Officer Childs made the decision to search the vehicle pursuant to s 52(9) of the Controlled Substances Act 1984 (the Act).
Section 52(9) of the Act provides:
(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 is in any vehicle, vessel or aircraft, the officer may –
(a) require the driver of the vehicle, 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.
Officer Childs did not seek to rely on any power to search the vehicle pursuant to s 68 of the Summary Offences Act 1953 (SOA).[1] If the search was lawful under s 68 SOA, but unlawful under s 52(9) of the Act, it is irrelevant that Officer Childs acted in misplaced reliance on a power that did not in fact render the search legal (compare The Queen v Romeo).[2] However, in the circumstances of this case, if the search was unlawful pursuant to s 52(9) of the Act, for the same reasons it will be unlawful under s 68 SOA.
[1] Section 68 SOA provides:
[2] (1982) 30 SASR 243, 272-275.
There are numerous decisions which discuss the concept of what may be a reasonable suspicion for these purposes, as compared to a simple suspicion, or indeed a belief.
In R v Rogers,[3] in discussing s 52(9) of the Act, Justice Duggan said:
It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer.
[3] (2011) 109 SASR 307, 311-312.
In R v Willingham (No.2)[4] (per Gray, Sulan and Stanley JJ) it was said that the test to be applied by a Judge when determining whether a police officer’s suspicion was reasonable was as follows:
The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
[4] [2012] SASCFC 104, 10.
In R v Nguyen[5] the Court said:
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.
[5] (2013) 117 SASR 432, 21.
And further, at [22]:
Importantly, s 52(6) and s 52(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 (R v Davidson (1991) 54 SASR 580, 584). 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.
In R v Nguyen,[6] the Court reiterated these principles regarding what constituted a reasonable suspicion.
[6] [2015] SASCFC 7.
If the search of the vehicle was unlawful, that does not render the evidence as to the fruits of the search inadmissible, however I have a discretion to exclude such evidence if its admission would operate unfairly as against the accused.
The Evidence
Officer Childs
There is no dispute that the accused and Officer Childs were known to each other before 9 March 2018.
Officer Childs gave evidence, which was not disputed, that on 8 January 2018 he attended an address at Wheadon Street, Osborne, with respect to an alleged serious criminal trespass. The accused was present at the address at the time of Officer Childs’ attendance but was not a person of interest with respect to that offending. Officer Childs spoke briefly with the accused, and noted the accused left within about 15 seconds of his arrival. Later that evening Officer Childs conducted a check of police systems and ascertained the accused’s driver’s licence was disqualified.
Officer Childs said that on a date he could not now recall, but after 8 January 2018 and before 9 March 2018, he drove past the same Wheadon Street address and observed the accused and another person washing a car parked outside that address. He stopped and spoke with the accused for about 30 seconds on that occasion. The conversation was civil and did not involve any discussion about illicit drugs.
Officer Childs said he also had a prior dealing with the accused in April 2010. At that time, he was conducting observations at a suspected drug address at Paradise. There was a vehicle parked out the front of that address. He saw the accused approach that vehicle and appear to check the oil. He had a brief discussion with the accused and entered the relevant information on an Ancillary Report (Exhibit VDP2).
By reference to Exhibit VDP2, at that time the accused was questioned by police as to who drove the vehicle, as the accused held an expired licence. The accused was noted to have a history of trafficking in controlled substances, was associating with others suspected of illicit drug activity and was considered ‘highly likely to continue driving on an expired licence’.
During cross-examination, Officer Childs also described other interactions he had with the accused when he was working with Operation Mantle between 2012 and 2014.
In addition, Officer Childs gave evidence that on a date shortly after 12 January 2018, and before 9 March 2018, he read a Shield Intelligence Report dated 12 January 2018 (the Shield Report). A copy of that report was tendered as Exhibit VDP3.
The Shield Report outlined that police had received information from an untested source to the effect that the accused was supplying methylamphetamine and GHB to three named persons associated with him. Officer Childs gave evidence that although the source of that information was ‘untested’, that did not mean the information was inaccurate. He said he had spoken to the source and aspects of the information were known to be correct, namely, the fact that two of the persons named had a child together. He confirmed that police had assessed the information and determined, as recorded under the heading ‘Assessment’:
All POIs appear to be linked to one another with one degree of separation, with REED appearing to be the link. It is possible with Reed’s antecedence that the information may be true.
As such, as at 9 March 2018 Officer Childs said he knew the accused was disqualified from driving, he had dealt with him at suspected drug addresses previously and he knew an informant had provided information to police that the accused was supplying illicit drugs to others.
Officer Childs gave evidence that on 9 March 2018 he was driving an unmarked police car and was stationary on Cross Street, intending to turn right onto Port Road, when he observed the vehicle heading in the opposite direction along Cross Street. He said he ‘waved’ the driver of the vehicle through, and that as the vehicle drove past him, he recognised the accused as the driver. He believed he had said to his passenger, Officer Yeoward, ‘That’s Shannon Reed, he’s disqualified’ and either at or about that time, he commenced to undertake a three-point turn on Port Road, with the intention of following and stopping the vehicle.
Officer Childs said that as he was in the process of executing the three-point turn, the accused parked the vehicle in a parking bay on the northern side of Cross Street, in that portion of Cross Street which divides north and south bound traffic on Port Road. He then parked the unmarked police car across the back of the vehicle, in the formation of a letter ‘T’, such that the front of the police car was positioned past the driver’s side of the vehicle. He activated the police car’s emergency lights and exited the vehicle.
As he was getting out of the police car, Officer Childs claims to have observed the accused and Ms Marks exiting the vehicle. In cross-examination, he confirmed that that by the time he pulled up in the police car, the accused was standing next to the vehicle by the driver’s door, with the door open, facing the vehicle.[7]
[7] T34 lines 24-35.
He said he then saw the accused appear to throw an unknown black object from his right hand into the driver’s foot well of the vehicle, before closing the driver’s door. He believed that at this time Officer Yeoward was using the police radio to confirm their location with Police Communications, although he was unsure if Officer Yeoward was seated in the police car at this time, or where he was.[8]
[8] T13 lines 19-27.
Officer Childs described having an unobstructed view down the driver’s side of the vehicle over the bonnet of the unmarked police car.
He said that the accused and Ms Marks then both walked to the front driver’s side of the vehicle and the accused handed the keys to Ms Marks. [9]
[9] T12 lines 3-10.
He said that as he approached them, the accused and Ms Marks walked about a half to 2 m out the front of the vehicle and that was when he saw the accused hand Ms Marks the keys, which he presumed were keys to the vehicle.[10]
[10] T13 lines 30-37.
Officer Childs said he then told the accused he was under arrest for driving while disqualified. He then recalled having a short conversation with the accused as to whether Ms Marks could drive the vehicle away and said that he asked Ms Marks if she had a licence. He said Ms Marks replied that she was unsure and asked if someone else could drive the vehicle, to which he replied, ‘If they have a licence’.[11]
[11] T14 lines 4-11.
He said Ms Marks then immediately commenced dialling a number with her phone and started walking away from the vehicle with the keys in her possession. Officer Childs said he thought that her actions in doing so were counter-productive given she was insistent someone else come to drive the vehicle away, but she was walking away from the vehicle with the keys.[12] He was uncertain where Officer Yeoward was, but agreed it was possible he was next to him.[13]
[12] T14 lines 15-25.
[13] T14 lines 32-36.
Officer Childs said he called Ms Marks back to the vehicle, and that it was at this point in time that he made a decision that he ‘felt that reasonable grounds existed to conduct a search of (the) vehicle under the Controlled Substances Act.’[14] In cross-examination he confirmed that he then directed Ms Marks to return the keys for the purpose of him conducting that search.[15]
[14] T15 lines 1-5, noting that this terminology is not that as set forth in s 52(9) of the Act.
[15] T32 lines 22-27.
When asked why he decided to search the vehicle he listed the following matters:[16]
1His prior interactions with the accused which connected him to addresses of interest in terms of the supply of illicit drugs;
2The fact he thought it unusual the accused had left so soon after his arrival at the Wheadon Street address on 8 January 2018, albeit that was not a significant contributing factor to his decision;
3The information he had learned from reading the Shield Report several weeks earlier, namely that an informant had told police the accused was supplying illicit drugs to other persons known to the accused. He was satisfied as to the reliability of this information because it contained other information that he knew to be accurate and information pertaining to the occupants of the Wheadon Street address, which had been targeted for a home invasion, an offence often connected with drug dealing;[17]
4Knowledge he held that the accused regularly drove vehicles registered to others, indicative of him wanting to avoid detection by police. He said this was consistent with someone who may be supplying controlled drugs, but agreed this was also consistent with the accused wanting to avoid being detected for driving while disqualified. In cross-examination, Officer Childs added that he had conducted investigations after 12 January 2018 which involved driving down a street connected with the accused, on one or maybe two occasions, and that during those investigations he had not observed a red Holden Commodore. He said this assisted in forming his suspicion that the accused was a supplier of controlled drugs, and it also informed his suspicion pursuant to s 52(9) of the Act, albeit ‘not greatly’;[18]
5He considered it unusual that the accused and Ms Marks had exited the vehicle upon being stopped by police. He acknowledged however that the vehicle had stopped voluntarily and not in response to any request or direction by police. He clarified that it was highly uncommon for people to exit their vehicle when police were conducting road traffic stops and prior to police approaching their vehicle.[19] He felt that both the accused and Ms Marks were endeavouring to disassociate themselves from the vehicle and/or its contents;
6He felt there was some urgency in having the vehicle driven away – both from the contents of his discussion with Ms Marks about someone else driving it and her actions in walking away from the vehicle while in possession of the keys;
7His observations of the accused throwing the unknown object into the driver’s foot well of the vehicle and then closing the door, being something he could not otherwise understand in the context of police being present. He acknowledged he could not see what the object was. He had later found a black object in the driver’s foot well, being the accused’s mobile phone within a case;[20] and
8His observations that Ms Marks was quite nervous, although he said he did not read much into that, as it was not uncommon for people to appear nervous when interacting with police for the first time, and he had had no previous interactions with her. He agreed that he only had a very quick conversation with her.[21]
[16] T15 line 10 - T16 line 15.
[17] T17 line 30 - T19 line 16.
[18] T28 line 25 - T29 line 33.
[19] T16 lines 21-32.
[20] T16 line 36 - T17 line 7.
[21] T32 lines 11-12.

Officer Childs denied that upon recognising the accused as the driver of the vehicle he had suspected there were drugs in the vehicle and that it was at that time he had made the decision to search the vehicle.[22]
[22] T19 lines 17-22.
Officer Childs provided two affidavits with respect to the investigation. He confirmed that in his first affidavit he had not provided a full list of his grounds for suspicion. He subsequently provided an addendum affidavit including the full list.[23] Neither affidavit refers specifically to Officer Childs’ interactions with the accused during the period 2012 to 2014.
[23] T19 line 34 - T20 line 1. Officer Childs’ first affidavit is dated 8 June 2018. His second (addendum) affidavit is dated 18 March 2019.
During cross-examination, Officer Childs gave evidence that another factor which contributed to his suspicion was his awareness that the accused had been arrested in 2008 for allegedly being in possession of significant quantities of methylamphetamine.[24] This is not referred to in either of Officer Childs’ affidavits.
[24] T26 line 30 - T27 line 1.
In cross-examination, a proposition was put to Officer Childs that it was not uncommon for people to hand others personal effects or property prior to being arrested, to which he agreed. [25] He stated:[26]
It’s not uncommon but my recollection is that the keys were handed to Ms Marks prior to me advising him he was under arrest.
[25] T31 lines 1-6.
[26] T30 lines 5-9.
Officer Childs gave evidence that after finding drugs in the vehicle, both the accused and Ms Marks were arrested for trafficking in a controlled drug, but that only the accused was handcuffed. It was suggested to him that he had decided only to handcuff the accused, and not Ms Marks, because of some bias he held against the accused. He denied this.[27]
[27] T36 lines 14-18.
The following exchange occurred in cross-examination:[28]
QWould you ever describe having a bias against my client.
AI wouldn’t describe that, no.
QYou’d never state to anyone that you were bias (sic) against my client.
AI wouldn’t use the word ‘bias’.
QYou sure about that.
AI don’t believe I would use the word bias.
[28] T36 lines 19-25.
Officer Childs was asked if he recalled having a discussion with Ms Marks in early 2019 at the Port Adelaide Police Station and he agreed he had done so. Although he could not recall the entirety of the discussion, he believed it related to her attendance to obtain a phone number for her grandmother which was in a phone seized from her by police in March 2019.[29] He agreed it was possible that during the conversation Ms Marks stated that drugs found by police during another search in December 2018, following which the accused was arrested and remanded in custody, were her drugs. He agreed it was possible that Ms Marks was upset that police had not dropped the charges against the accused and that he was still in custody. Officer Childs said he was not involved in the investigation relating that alleged offending and that he was not aware of whether people were remanded in custody.[30]
[29] T37 lines 2-33.
[30] T37 line 34 - T39 line 21.
He agreed that during that conversation with Ms Marks he may have said, with reference to the accused; ‘I’m probably a little bit bias [sic] in my view anyway, being completely honest, from what I see and what I hear and what people tell me all over the place.’[31]
[31] T39 lines 26-37.
When asked if that was at odds with what he had said earlier in denying he had ever said he was biased against the accused, he said:[32]
‘Bias’ is not a word that I use on a regular basis, so.
[32] T39 line 38 - T40 line 2.
Counsel for the accused played part of an audio recording of the conversation between Ms Marks and Officer Childs. The USB containing the audio recording was tendered as Exhibit VDD4. Although parts of the recording were muffled, and difficult to hear, Officer Childs can be heard to say to Ms Marks:[33]
I’m probably a little bit biased in my view, anyway, being completely honest, from what I see and what I hear and what people tell me all over the place.
[33] Exhibit VDD4.
When asked why he had said this and if it in fact demonstrated that he was biased against the accused, Officer Childs recalled that Ms Marks was upset about two things, that the accused had been remanded in custody and she was not and that it was stated in an apprehension report that she had refused to answer questions, when in fact she had claimed ownership of the drugs. He said that although he needed to hear the entirety of the conversation to understand the context, he believed he had used these words in reference to comments or views he held as to whether the accused should be remanded in custody or not.[34]
[34] T42 line 34 - T43 line 35.
It was suggested to Officer Childs that because he was biased against the accused, he made the decision to search the vehicle as soon as he had observed the accused driving the vehicle. He denied this.[35] It was suggested to Officer Childs that he was lying about having seen the accused throw an object into the vehicle so as to justify the search. He denied this.[36]
[35] T44 lines 13-20.
[36] T44 lines 25-31.
Officer Yeoward
Officer Yeoward was on duty with Officer Childs and the front seat passenger in the unmarked police car driven by Officer Childs at around 5 pm on 9 March 2017.
He gave evidence that when the vehicle passed them on Cross Street at Queenstown, he recalled Officer Childs saying, ‘That is Shannon Reed, he is disqualified’. Neither the accused nor Ms Marks were previously known to him, nor could he recall having seen any Shield Intelligence Reports referencing the accused.
Officer Yeoward said that Officer Childs conducted a u-turn and pulled up behind the vehicle which had parked in a parking bay on Cross Street. He described the police car as being parked such that the front end of that car was towards the end of the driver’s side of the vehicle.
He believed that he was out of the police car when he saw a female get out of the passenger side of the vehicle and a male get out of the driver’s side, although his view of the male was partially obscured by the vehicle. He said that prior to getting out of the police car he had called in a ‘traffic stop’ which he estimated took about 5 to 10 seconds over the radio. He could not recall what Officer Childs was doing at the time.[37]
[37] T51 lines 3-33.
Officer Yeoward said that once he was out of the police car he recalled the male coming towards him and that he spoke to the male, and asked him if he had a driver’s licence, or something similar, and that he had said no.
He was uncertain if the driver’s door of the vehicle was open or shut at this time, as he would not have had a good view of that.[38] He did not see the male throw anything into the driver’s foot well of the vehicle at any time, but again, he said, his view of the male was obscured by the vehicle.[39]
[38] T52 lines 6-9.
[39] T56 lines 1-5.
He said he lost sight of the female, while he was talking to the male, but that Officer Childs had come up to him, pointed in the direction of the BP and had told him to go and get the female as she was walking off in that direction.[40] He could not recall if there had been any interaction between the male and the female outside of the vehicle.[41]
[40] T52 lines 11-16; T52 lines 28-30.
[41] T52 line 37 - T53 line 1.
Officer Yeoward said that he then followed the female, who was about 10 m or so ahead of him and requested she come back to the vehicle. When the female returned to the vehicle she was carrying her phone but he could not recall her carrying anything else.[42]
[42] T54 lines 3-9.
Officer Yeoward was asked if Officer Childs had started to search the vehicle before he returned to the vehicle with the female and his initial response was ‘Not that I recall, no’, although he remembered that by this time the male had already been arrested and was sitting on the kerb. He could not recall if the male was already handcuffed at this time.[43]
[43] T54 lines 14-31.
However, Officer Yeoward then gave the following evidence:[44]
Q       Once you returned and your recollection is the accused was under arrest, what do you remember happening next.
A       As I said, I brought her back. I was with her – could have been away from her and the defendant – could have been 20 seconds, maybe 30 seconds. I’m not 100% certain how long it was. We came back to the vehicle and she sat down with him and then I believe Childs said he located something in the front seat of the car and that he was placing him under arrest for trafficking as well.
Q       Did the detective searching the car and advising the accused he was under arrest for trafficking occur while you were with Ms Marks.
A       That occurred before I came back.
[44] T54 line 35 - T55 line 9.
In cross-examination, Officer Yeoward gave the following evidence:[45]
[45] T57 lines 1-16.
Q       When you’ve retrieved Ms Marks and brought her back to the vehicle, you were away for a period of time; is that correct.
A       Yes, that’s correct.
Q       It was during that time that obviously Reed was placed under arrest; is that correct.
A       From what I recall, yes.
Q       And Detective Childs had already located something in the passenger foot well of the vehicle hadn’t he.
A       Yes, that’s what I recall.
Q       He didn’t tell you that he was searching the vehicle, did he.
A       No, because I wasn’t there at that point.
Q He didn’t advise both accused that he intended to search the vehicle under the Controlled Substances Act, did he.
A       I wasn’t there. I don’t know. I was with Ms Marks.
He confirmed that Officer Childs made the decision to search the vehicle and although he was not told prior to the search the basis upon which Officer Childs held a reasonable suspicion under the Act, he later learned that Officer Childs searched the vehicle because he had seen the accused throw something in the vehicle, he knew the accused through prior dealings and he considered Ms Marks walking away from the vehicle to be suspicious.[46]
[46] T57 lines 28-35.
The Accused
The accused gave evidence that he was driving the vehicle east along Cross Street, with the intention of turning left onto Port Road. He said he saw the unmarked police car directly opposite him across the road as he recognised it from the lights in the windscreen and then he recognised the driver as Officer Childs.[47]
[47] T59 line 12 - T60 line 2.
He said he had dealt with Officer Childs on 8 January 2018, when he was present at a home of his friend, and Officer Childs had attended there in connection with a home invasion. He said Officer Childs had also driven past him on a later occasion, while he was washing a car outside of that same address and on that occasion they had spoken briefly.[48] In cross-examination the accused confirmed these were the only prior interactions he recalled having with Officer Childs.[49]
[48] T60 lines 3-20.
[49] T66 lines 1-12.
The accused said that Officer Childs put his hand up to indicate for him to go ahead of him, and as he knew that Officer Childs knew he was disqualified from driving, he decided to proceed straight along Cross Street, rather than turn left as he initially intended. He explained that he did that, hoping he would not be followed by police, given they would then be travelling in a direction away from him. When challenged in cross-examination about his intended course of travel, the accused claimed he had in fact been fined for failing to turn left after indicating an intention to do so.
He said he pulled into a park on Cross Street, behind a white Landcruiser. He got out of the vehicle, closed the driver’s door and walked out onto the roadway to see if the police car had followed them. He said as he did so, the police car pulled up ‘alongside’ him. He denied throwing anything.
He said Officer Childs got out of the police car, walked around the front of it and told him he would be arrested for driving disqualified. He was told to put his hands in the air, was frisked and Officer Childs then walked him over to sit on the gutter between the vehicle and the Landcruiser.
The accused then said that he had missed something out. He explained that after being told he was going to be arrested, he asked Officer Childs if Ms Marks could drive the vehicle and he said that was fine. The other officer had then said words to the effect of ‘So long as it’s a valid licence’ and Ms Marks had said she was not sure about that. The accused had then asked Ms Marks to ring his daughter to come to get the vehicle, and Officer Childs had said that was fine, as long as she had a licence.
The accused gave evidence that he had then told Officer Childs he wanted to lock the vehicle as it was a Friday afternoon. He said he walked over to the vehicle, opened the driver’s door, put the key in the ignition, put the electric windows up, shut the door, locked it and then gave Officer Childs the key. He said by this stage Ms Marks had started to walk away to make the phone call and Officer Yeoward was also out of his sight. He said it was then that Officer Childs had walked him over to sit on the gutter.[50]
[50] T62 line 1 - T63 line 5.
The accused said that after he sat down Officer Childs told him he would be read his arrest rights but that he needed to get a camera. He then gave the following evidence:[51]
Q       Did he approach the car at all.
A       Not at that stage. When the other officer came back, Childs got up and walked around towards the back of the car and to the driver’s side, and I was sitting down and the other officer was watching me, and then I seen the lights light up on the car, and he opened the driver’s door and he lent into the car – Childs – and he was looking through the car and then all of a sudden he looked up at me, he had this funny look on his face, looked through the window. He got out the car and he had a phone in his hand which he put on the roof of the car. He shut the car and he looked at me and said – excuse my language – ‘You’re fucked now, you’re both under arrest, I’m going to search the car’ and I’ll never forget that because –
Q       Where was Marks at this stage.
A       She was still on the lawn on the phone.
Q       Where was Yeoward.
A       He was sitting in front of me, - standing in front of me as I was – I was sitting in the gutter.
Q       Did Officer Childs at any point advise you that he was going to search the car.
A       No - only after he’d got out of the car and said ‘You’re fucked now, you’re both under arrest, I’m going to search the vehicle’.
[51] T64 line 18 - T65 line 4.
He said that Officer Childs then handcuffed him and read him his rights for the driving while disqualified charge. Officer Childs then called for Ms Marks to come back, the other officer walked over towards her, and when Ms Marks came back Officer Childs spoke with her and she sat on the gutter next to him.
In cross-examination, the accused explained that he knew Officer Childs knew he did not have a licence because of something the officer with him had said to him on the day they drove past him when he was washing the car. He maintained that he thought he had a better chance of avoiding being followed if he drove straight past the police car, rather than turn left onto Port Road and travel in front of the police car.
He repeated that he had got out of the vehicle, shut (but not locked) the driver’s door and was standing on the road by the time the police car pulled up. He denied giving Ms Marks the keys and maintained that he had given them to Officer Childs. He was adamant that Officer Childs had already unlocked the vehicle and found the mobile phone, before Ms Marks returned to the vehicle.
When asked how the mobile phone came to be in the driver’s foot well of the vehicle, the accused denied that he had put it there, stating that it was dangerous for it to be there, and said he did not know how it got there.[52]
[52] T73 lines 3-28.
Ms Marks
Ms Marks gave evidence that she first became aware of the police car when the vehicle was at the intersection of Cross Street and Port Road. She said she knew it was an unmarked police car because of the aerial. She denied that there was any conversation between her and the accused about this.
When asked what happened next, she said:[53]
We were going to the left but then decided to go straight as the BP – we were going to the BP.
[53] T79 lines 14-15.
She said they had then parked in the area between Port Road on Cross Street. She denied having any conversation with the accused as to why he had pulled up there.
She said that she and the accused both got out of the vehicle. All of the doors were shut. She stayed near the rear passenger door of the vehicle and the accused walked to the rear of the vehicle and then went up to the roadside. She said the police did a three-point turn and then pulled up behind the vehicle. She maintained the accused was already standing on the road by the time the police car pulled up.[54]
[54] T79 line 31 - T80 line 9.
Ms Marks said Officer Childs got out of the police car and told the accused he was getting arrested for driving disqualified and started to pat him down. She recalled that one of the two officers asked her if she could drive and that she responded that she did not know, as she was uncertain as to her licence status. She said she asked the officer if she could call the accused’s daughter to come and drive the car as she knew she had a licence and the officer said that was okay.
Ms Marks said she then started to walk on the grass area in front of the vehicle towards the BP and used her mobile phone to call the accused’s daughter. She had her back to the officers and the accused. She then heard Officer Childs call out to her, so she turned around and started to walk back towards the vehicle. She said:[55]
They took my phone off me. They put it on flight mode and put it next to another phone that was on top of the car.
[55] T82 lines 10-12.
She explained that before giving her phone to Officer Childs he had told her she was being arrested for trafficking in a controlled substance.
She denied ever having the keys to the vehicle in her possession at any time and denied seeing the accused throw any object into the vehicle at any time. She denied walking away from the vehicle in an attempt to distance herself from it. She denied the police had properly searched the vehicle before arresting her and the accused for trafficking in drugs.
Mr Perriam
Mr Perriam gave evidence that he met the accused about three to four years ago through his work as a self-employed plumber.
He said that on the relevant day, he was parked on the western side of Port Road, about 15 m or so from Cross Street, on the city side, checking his emails. He said his attention was drawn to a bronze coloured Commodore, which did a three-point turn on Port Road, and then parked in the middle of the road in front of a man, who he thought he recognised as the accused. He claimed to have a perfect view of this, with no trees or other obstructions.
Mr Perriam was asked if he saw the man when the police car was turning and said:[56]
Yeah, he was just standing on the road like he wasn’t in any vehicle, near the vehicle, he was standing on the road. There was a vehicle parked behind him from where he was standing.
[56] T91 lines 13-16.
He said he saw the driver of the unmarked police car get out of the car, walk around the front and talk to the man. He saw the man with his hands in the air, being patted down. He said he could see the top half of the man, despite the presence of the parked police car, but he acknowledged he could not see the lower half of the man’s body. He had left at or about that time and did not see any more of the incident.
Mr Perriam said he had seen the accused a few weeks after and it was then that it was confirmed that the man he had seen was the accused. He denied that his evidence was reconstructed based on what the accused had told him.[57]
[57] T93 lines 27-37.
Submissions

Counsel for the accused focussed on the evidence given by Officer Childs which was in contention, namely:
1Did the accused give Ms Marks the keys to the vehicle; and
2Did the accused throw anything into the driver’s foot well of the vehicle.
Counsel submitted that the evidence given by Officer Yeoward was consistent with that given by both the accused and Ms Marks that Ms Marks never had the keys. Officer Yeoman was quite sure that Officer Childs commenced the search of the vehicle before he and Ms Marks had returned to the vehicle. Officer Childs’ evidence was that he called Ms Marks back to the car to retrieve the keys after forming the requisite suspicion. He said he viewed the actions of the accused and Ms Marks as being an attempt to both disassociate themselves with the vehicle and ‘also to effectively deny any access to that vehicle by walking away’ with the keys.[58]
[58] T31 lines 13-14.
Although not expressly stated, it can be inferred from the evidence of Officer Childs that he needed the keys to obtain access to the vehicle. As such, if he started to search the vehicle while Officer Yeomans was still away from the vehicle with Ms Marks, Ms Marks could not have had the car keys in her possession at that time.
If the accused did hand Ms Marks the car keys, and she did walk away with them, it was submitted that in any event, as agreed by both officers, it was not uncommon for persons who know they are to be arrested to hand items of personal property to others who are with them for safe keeping.
Further, counsel for the accused submitted that despite Officer Childs’ evidence that he found the black mobile phone in the driver’s foot well as being consistent with his claimed earlier observation of the accused throwing an unknown black object into that part of the vehicle, I should reject the latter evidence. He submitted it was inconsistent with the evidence of all three defence witnesses, namely that the accused had walked to the rear of the vehicle and was standing on the road behind the vehicle when the police car pulled up. It was submitted that having regard to the time it would have taken for Officer Childs to conduct the three-point turn, there was plenty of time for the accused to get out of the vehicle and move to that position before the police car pulled up.
It was submitted that the fact Officer Yeoward did not see the accused throw any object should also cause me to have a doubt as to the credibility and reliability of this evidence. Even if Officer Childs did see the accused throw something into the vehicle, he did not see what it was that he threw, and as such, this observation should have had very little weight in the formation of any requisite suspicion.
As to the Shield Report, it was submitted that the source of the information contained therein was untested, and that the information related to alleged supply of drugs nearly two months earlier, with nothing in that report suggesting that on the relevant date, 9 March 2018, the accused was driving around, dealing in drugs.
There were other matters that Officer Childs had listed as being relevant to forming his suspicion, but which, as his evidence unfolded, he confirmed he had placed minimal reliance upon. These included the alleged information he had that the accused was driving vehicles registered to others and the fact that Ms Marks appeared nervous. Officer Childs agreed that as the accused did not have a licence that may explain why he sought to drive and be undetected, and that his conversation with Ms Marks on the relevant date was very brief.
Further it was submitted that the prior interactions Officer Childs claimed to have had with the accused – which he expanded upon considerably in cross-examination – fell short of bolstering any suspicion held by Officer Childs to the requisite degree.
It was submitted that even if I accepted the evidence of Officer Childs with respect to the keys and the thrown object, Officer Childs’ state of mind was no more than one of curiosity and speculation having regard to all of the circumstances. It was submitted that Officer Childs did not hold a reasonable suspicion in accordance with s 52(9) of the Act prior to conducting the search and that as such I should find the search was unlawful.
In written submissions, defence counsel outlined that in the circumstances of this case, I should exercise my discretion to exclude the evidence of the search.
It was submitted that Officer Childs’ intentions upon first observing the accused were to search the vehicle for drugs, given his prior knowledge of the accused, and that Officer Childs had subsequently sought to justify the search by endeavouring to point to other evidence, which when carefully scrutinised, did not, in any event, amount to ‘reasonable suspicion’ within the meaning of s 52(9) of the Act. In the circumstances, he argued that following the relevant authorities, the Court should not approve of the unlawful procuring of evidence in this manner, and should exclude the evidence of the search, so as to uphold the integrity of the administration of criminal justice.
The prosecutor submitted that Officer Childs’ evidence was both credible and reliable and that as such, I should have little difficulty in finding the search was undertaken lawfully.
He acknowledged that the information Officer Childs held from having read the Shield Report, of itself, was insufficient to found the basis for ‘reasonable suspicion’. However, the additional observations made by Officer Childs, coupled with this earlier intelligence, was sufficient.
It was submitted that Officer Yeoward’s failure to see the accused throw the object into the vehicle was explained by the fact that he was engaged in using the radio to contact Police Communications at or about the time the police car pulled up behind the vehicle, and further that from his position, his view of the driver’s side of the vehicle was partially obscured. The fact Officer Yeoward recalled later being told by Officer Childs of this observation also supported Officer Childs’ evidence to this effect. Further, it was submitted that the fact Officer Childs made no attempt to embellish this evidence, by purporting to have seen the accused throw a phone, or a box, rather he acknowledged he could not identify what was thrown, lent weight to the proposition that this evidence was reliable and honest.
The prosecutor emphasised that on all of the evidence, the primary concern of the accused in his discussions with the officers was to remove the vehicle from the area as soon as possible, rather than any concern about the next step in the process, namely whether he would be taken to the station and the effect of the arrest. This, together with the accused’s voluntarily exit from the vehicle, were contributing factors to the suspicion.
It was submitted that when all of the factors mentioned by Officer Childs were considered in combination, this was more than just idle speculation or curiosity, rather those factors combined amounted to a ‘reasonable suspicion’. Officer Childs had supporting material for his working hypothesis.
On the issue of purported bias, the prosecutor submitted that the relevant conversation occurred in a certain context, more than nine months after the search, and any views Officer Childs may have expressed at that time were irrelevant to his state of mind at the time he made the decision to search the vehicle. He submitted that Officer Childs’ response to hearing the audio recording was frank, having regard to his experience and dealings with persons charged with multiple drug offences.
It was submitted I should put no weight on the evidence of either Ms Marks or Mr Perriam, on the basis that Ms Marks simply repeated the accused’s version of events and I could have no confidence in Mr Perriam’s ability to make the observations he claimed to have made, from the location he is said to have made them.
Finally, it was submitted that if I was satisfied that the search was unlawful, I should not exercise my discretion to exclude the evidence, as in acting in the way he did, Officer Childs was acting in good faith, and genuinely believed he had a legitimate basis to conduct the search, which uncovered a large volume of methylamphetamine and other indicia consistent with commercial level drug trafficking. It was submitted that in the circumstances, allowing the evidence would not be condoning any sort of impropriety or the misuse of police power.
Findings
Was the search of the vehicle unlawful?
Both Officers Childs and Yeomans gave evidence that Officer Childs recognised the accused as the driver of the vehicle as it passed them on Cross Street at Queenstown, with Officer Childs immediately stating words to the effect of ‘That’s Shannon Reed, he’s disqualified’. They both also gave evidence that as a result, Officer Childs made the snap decision to execute a three-point turn and follow the vehicle, with his intention being to stop the vehicle.
There was no dispute that the police had the power to stop the vehicle in those circumstances. In any event, all of the witnesses gave evidence that the accused stopped the vehicle voluntarily, rather than in response to any request to do so by police.
Counsel for the accused argued that it was upon recognising the accused, that Officer Childs made the decision to conduct a search of the vehicle, and that he did so based solely on his prior knowledge of the accused and his suspected prior involvement in drug dealing. I agree with that submission.
When the evidence of Officer Childs is carefully considered, and in particular, the evidence he gave as to his prior dealings with the accused, it is apparent that the accused was someone he recognised, not because of any extensive prior dealings with him for driving while disqualified, but because Officer Childs knew the accused to be a person suspected of drug dealing.
On the evidence before me, all of Officer Childs’ previous interactions with the accused related to him conducting observations relevant to or incidental to suspected drug dealing. These include:
·The interactions between Officer Childs and the accused at Paradise on 21 April 2010 as outlined in VDP2. While the report mentions the fact the accused had an expired licence, the reason for Officer Childs’ attendance was related to suspected drug activity.
·The brief interaction between Officer Childs and the accused at the Wheadon Street address on 8 January 2018. While the purpose of the attendance was relevant to an alleged serious criminal trespass, it is apparent from Officer Childs’ evidence that he suspected that alleged offence was related to drug activity connected with either that address or the people residing there. While Officer Childs claims to have a recollection potentially consistent with the accused leaving that address shortly after his arrival, in a manner which may have involved him committing a driving offence, the emphasis placed by the officer on his memory of this minor aspect of that attendance was unusual, given the seriousness of the alleged offending he was investigating on that date, and the fact the accused was not a suspect in such offending.
The further brief interaction between Officer Childs and the accused when Officer Childs drove past the Wheadon Street address sometime after 8 January 2018. Officer Childs’ evidence in cross-examination was that he had driven down that street in response to the information contained in the Shield Report, being information relevant to the accused’s alleged drug dealing.
The prior interactions described by Officer Childs in cross-examination, for the first time, pertaining to his dealings with the accused between 2012 and 2014 relevant to drug investigations undertaken by Operation Mantle.
Further, the information in the Shield Report was all relevant to the accused’s suspected involvement in illicit drug dealing. This was information fresh in Officer Childs’ mind as at 9 March 2018 and had clearly been the focus of some of his attention between 8 January 2018 and 9 March 2018, given the officer’s evidence about having driven down Wheadon Street during that period.
As such, while I do not doubt Officer Childs may have also understood the accused did not hold a valid driver’s licence, I find that his interest in the accused and his recognition of him on 9 March 2018 was because of the accused’s suspected drug dealing, not because of his potential to drive disqualified, which was merely incidental to this.
Similarly, the accused gave evidence that when he saw and recognised Officer Childs, he drove straight ahead along Cross Street, instead of turning left as he had intended, hoping he would not follow him. His evidence was that he recognised Officer Childs and he knew that Officer Childs knew he was disqualified from driving, because of something said by another officer in Officer Childs’ presence outside Wheadon Street a few weeks earlier.
That evidence was extremely unconvincing. The prior interactions between the accused and Officer Childs had, either as a sole focus or as an incidental focus, the issue of the accused’s suspected illicit drug dealing.
Although I accept the accused’s evidence that he recognised Officer Childs as the driver of the unmarked police car, opposite him on Cross Street, I reject as highly unlikely his claimed immediate recollection of the brief comment made by Officer Childs’ partner as to his licence status during the earlier interaction outside the Wheadon Street address. I find the accused recognised Officer Childs because of his prior dealings with him which had as their primary focus the officer’s involvement in the investigation of illicit drug dealing.
It follows that I have some doubts as to the reliability of the evidence of both the accused and Officer Childs. I consider each has substantially downplayed the nature of their prior interactions with each other and why it was that each acted the way they did upon observing each other on 9 March 2018.
The matters relied upon by Officer Childs as critical in him forming the alleged requisite suspicion, over and above what he already knew or suspected of with respect to the accused, were:
·The fact the accused and Ms Marks both behaved in a way consistent with them seeking to disassociate themselves with the vehicle (in that they immediately exited the vehicle) and were more concerned with the vehicle being driven from the scene than the accused’s arrest for driving disqualified (in that the accused gave Ms Marks the keys, she walked off with them, and tried to call someone else to come and get the vehicle); and
·His claimed observation of the accused throwing the unidentified black object into the driver’s foot well of the vehicle.
As to the first issue; Officer Yeoward was quite certain that Officer Childs had already commenced searching the vehicle when he was some distance away from the vehicle and still with Ms Marks. While I have considerable reservations as to the reliability and credibility of the evidence given by both the accused and Ms Marks, the evidence of Officer Yeoward supports the evidence they both gave on the critical issue of the car keys, namely that Ms Marks did not walk off, away from the vehicle, in possession of the car keys.
In those circumstances, I simply cannot accept the evidence given by Officer Childs that the accused gave Ms Marks the car keys and that she then walked away from the vehicle, with the keys. This was a critical component which formed the basis for Officer Childs’ alleged suspicion.
The discovery of the accused’s mobile phone in the driver’s foot well of the vehicle is consistent with Officer Childs’ claimed observation of the accused throwing an unidentified black object into that area of the vehicle. Officer Yeoward was preoccupied contacting Police Communications at or about the time the police car pulled up behind the vehicle. Further his position in the police car, and his view of what was happening on the driver’s side of the vehicle was somewhat obscured. If the accused did throw an item into the vehicle, Officer Yeoward’s failure to see that happen can be explained on this basis.
However, I note these events occurred at approximately 5 pm on a Friday evening. Although there was no evidence as to the level of traffic in the area at the time, Port Road is a notoriously busy road, particularly during peak travel times. Officer Childs said he only recognised the accused as he drove past him. It was only then that he made the decision to follow him and to execute the three-point turn. Although there was only a short distance from where that turn was conducted and the position where the accused parked the vehicle, I consider it unlikely that the accused was still in the process of exiting the vehicle at the time the police car pulled up behind the vehicle.
On any interpretation of the accused’s evidence, he recognised Officer Childs and I consider it likely, and find, that he parked where he did, in an effort to avoid being detected by the police. This is consistent either with the accused’s desire to avoid being found driving while disqualified and/or the alleged offending. As such, I find the accused exited the vehicle shortly upon parking it, being consistent with an attempt to distance himself from the vehicle. As such, I consider it likely that the accused had stepped some distance away from the vehicle, and closed the door behind him, as he, Ms Marks (and Mr Perriam) all claimed, by the time the police car pulled up behind the vehicle.
Contrary to the submissions made by the prosecutor, I consider that if Mr Perriam was parked in the position he says he was, he would have been able to see the matters he claimed to have seen. It is possible Mr Perriam’s evidence was concocted to support that of the accused. However, what he claims to have seen, is not inconsistent with my interpretation of all of the evidence.
In light of these findings, I cannot be satisfied to the requisite degree that Officer Childs observed the accused throw anything into the driver’s foot well of the vehicle, being another critical element of his alleged suspicion. The fact he subsequently found the accused’s phone in the driver’s foot well of the vehicle is consistent with the accused having thrown it there. Having found the phone there, and having regard to his suspicions the accused was a drug trafficker, Officer Childs may have simply assumed that the phone came to be in that position because it had been discarded there by the accused when he got out of the vehicle. Drug traffickers are known to use mobile phones as a tool of trade. However, I cannot be satisfied that Officer Childs in fact saw the accused throw any object in the vehicle.
Although the accused was keen to distance himself from the vehicle, this is also consistent with him being concerned not to be caught driving while disqualified. While both officers gave evidence that it was unusual for the occupants of vehicles stopped by police to immediately get out of their vehicle, in this case the police did not stop the vehicle – the accused stopped the vehicle of his own accord. Officer Childs only activated the emergency lights of the police car after pulling up behind the already parked vehicle.
Similarly, Officer Childs’ claimed knowledge that the accused regularly drove vehicles registered in the names of others is consistent with him seeking to avoid being detected while driving illegally.
Officer Childs’ interactions with Ms Marks were very brief and it was the first time either he or Officer Yeoward had dealt with her. There is insufficient evidence before me to support a finding that Ms Marks was quite nervous, given both officers’ limited interactions with her.
Further, it is normal for any law-abiding citizen to appear anxious when interacting with the police, as agreed by Officer Childs.[59] Such nervousness does not necessarily indicate illegality and could only play a very minor role in the forming of any requisite suspicion by Officer Childs under s 52(9).[60]
[59] T31 lines 1-6.
[60] R v Marafioti (2014) 118 SASR 511 at 12-13.

Officer Childs acknowledged that his claimed suspicions relating to the accused departing the Wheadon Street address so soon after he arrived there on 8 January 2018 were not, and indeed I find, could not, have been a significant contributing factor to any suspicion held by him pursuant to s 52(9) of the Act.
I find that that Officer Childs’ suspicion was based, largely, if not solely, on his prior interactions with the accused and from what he had learned from reading the Shield Report.
Although the source of the information referred to in the Shield Report was ‘untested’, I accept that aspects of the information were correct, lending weight to suspicions based on the contents of that report.
However, the vehicle was searched on Cross Street at Queenstown in March 2018. The Shield Report contained information to the effect that the accused was supplying illicit drugs to three persons otherwise known or linked to him in January 2018. I accept that any such alleged supply may involve, as an element of that supply, a requirement that the drugs be transported by vehicle for the purpose of supply.
However, in my view the suspicion that Officer Childs held on 9 March 2018 that there was any substance or equipment that would afford evidence of an offence against the Act in the vehicle, was in the nature of mere curiosity or speculation about the existence of that fact, rather than a suspicion based on a rational connection between the supporting information and the suspicion.
On the evidence that I accept, I am not satisfied that the suspicion Officer Childs held at the time he made the decision to search the vehicle was a ‘reasonable suspicion’ within the meaning of s 52(9) of the Act.
I find that the search of the vehicle was unlawful.
Discretion
The unlawfulness of the search of the vehicle does not render the evidence as to the fruits of that search inadmissible, however I have a discretion to exclude the evidence if its admission would operate unfairly as against the accused.
In R v Ireland,[61] Barwick CJ stated:
…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 or unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[61] (1970) 126 CLR 321, 335.
In Bunning v Cross,[62] Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves is no simple question of ensuring fairness to an accused 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 accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[62] (1978) 141 CLR 54, 74.
The principles governing the exercise of a discretion to exclude relevant and admissible evidence based on public policy considerations, where the evidence has been obtained illegally or unlawfully were outlined in detail in R v Golja.[63]
[63] [2017] SASCFC 61 at [33]-[35] per Stanley J.
Those matters which may play a role in informing the exercise of the discrete include:
·The nature of the offence charged.
·The probative value of the evidence sought to be excluded.
·Whether the conduct of the police was deliberate or resulted from a mistake.
·The ease with which the law could have been complied with to procure the evidence.
·The legislative intention of the law said to have been infringed.
·In the case of unlawful conduct, whether the conduct in question is tolerated or encouraged by those in higher authority in the police force.
I also note the recent observations made by both David AJ and the Chief Justice in Ghamrawi v The Queen,[64] wherein reference is made to the proper balance that needs to be struck between individual liberty and privacy and the enforcement of the criminal law. In particular, I note the Chief Justice’s observation:[65]
[64] [2019] SASCFC 108.
[65] [2019] SASCFC 108 at [2].
Police officers should be guided by a good working knowledge of those powers and their limits. They should not act on their subjective view of what they ought to be free to do and then hope, after the event, that they have observed the limits of the law.
In finding that the search was unlawful, I make it clear that I have rejected any suggestion that Officer Childs is, or was as at 9 March 2018, biased against the accused.
I accept Officer Childs’ explanation as to the meaning he intended to convey when he spoke the words he did pertaining to the accused in his discussion with Ms Marks at the Port Adelaide Police Station in early 2019. I accept that in using the words he did, Officer Childs intended to outline his personal view that persons charged with multiple offences of drug trafficking should not be released on bail. These words were spoken many months after 9 March 2018, and after the accused had been arrested for alleged subsequent offending. I consider this personally held general view to be irrelevant in terms of my findings as to both the lawfulness of the search and Officer Childs’ intentions and motivations at the time of the search.
However, the decision Officer Childs made to search the vehicle was based on suspicions he held that the accused was a drug trafficker, because of his previous interactions with him, and what he had read in the Shield Report. Put another way, Officer Childs held general suspicions that the accused may have been a drug trafficker and in my view, this was what informed his decision to search the vehicle.
I consider that in the context of Officer Childs’ prior dealings with the accused, he acted spontaneously, in the context of the circumstances as they presented to him, not giving careful and proper consideration to the requirements of the Act. In this respect, although Officer Childs is a relatively experienced police officer, I note that when discussing why he decided to search the vehicle, he used the terminology that he believed ‘that reasonable grounds existed’ to conduct the search. Section 52(9) of the Act required Officer Childs to reasonably suspect that any substance or equipment that would afford evidence of an offence against the Act was in the vehicle. While the difference in the terminology used by the officer in his evidence may have been inadvertent, and seem somewhat technical, his use of that terminology, in my view, supports a finding that he subjectively believed there to be ‘reasonable grounds’ for the search, rather than the officer actually having turned his mind to the specific requirements of s 52(9) of the Act at the time he made the decision to search the vehicle.
I note the seriousness of the alleged offending.
I further note that as the defendant was driving while disqualified, the police had the power to impound the vehicle, being something that Officer Childs overlooked at the time. It may well be that had the vehicle been impounded, the relevant evidence would have come to light.
However, I have found that Officer Childs searched the vehicle because of the general suspicions he held that the defendant was dealing in drugs. That suspicion, alone, did not enliven his power to conduct the search and he acknowledged this in his evidence. To condone the unlawful conduct in these circumstances, despite the seriousness of the alleged offending, would amount to an abrogation of the legislature’s safeguard of individual liberties.
In R v Rockford the court stated: [66]
…it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not to be encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it 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 and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[66] [2015] SASCFC 51, 39.
Having conducted the balancing exercise of the various competing considerations as discussed in Ghamrawi v The Queen,[67] I consider in these circumstances it appropriate to exercise my discretion to exclude the evidence of the search of the vehicle.
[67] [2019] SASCFC 108.
It necessarily follows that the search of the accused and of his address were also unlawful and the evidence pertaining to such searches is also excluded in the exercise of the discretion.

(1) A police officer may do any or all of the following things, namely, stop, search and detain—
(a) a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i) there are stolen goods; or
(ii)there is an object, possession of which constitutes an offence; or
(iii) there is evidence of the commission of an indictable offence;
(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.
(2) In this section—
"stolen goods" includes goods obtained by the commission of an offence.