R v Richards
[2023] SADC 4
•23 January 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS
[2023] SADC 4
Reasons for Decision of his Honour Judge Durrant
23 January 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - POWERS OF ARREST - STATUTORY POWERS
COVID 19 lockdown of South Australia - police observe defendant and another in a vehicle - drugs found by police during search of the defendant - drugs and indicia of drug trafficking found in a backpack in the vehicle - messages indicative of drug trafficking found on phone of defendant - lawfulness of search of the person of the defendant - whether evidence of the drugs found should be excluded - whether evidence of the subsequent search of the backpack and mobile phone and comments to police made by defendant should be excluded - whether the defendant tricked by police into unlocking his phone - whether defendant tricked by police into providing his phone PIN - whether phone messages indicative of drug trafficking should be excluded - whether defendant apprehended and under de facto arrest - whether full arrest rights given as soon as reasonably practicable - whether comments to police prior to provision of his arrest rights should be excluded.
Held:
1. The search of the person of the defendant by police was lawful.
2. The search of the backpack found in the Uber was lawful.
3. The search of the mobile phone of the defendant by police was unlawful, and evidence obtained during that search should be excluded from being led as evidence at trial.
4. From the time the defendant declined to provide his PIN, the defendant was not free to leave and had been apprehended and should have been given his arrest rights.
5. It was unfair to the defendant that he was not given his arrest rights and his comments made to police from the time he declined to provide his PIN until his arrest should be excluded from being led as evidence at trial.
Controlled Substances Act 1984 (SA) ss 32(3), 32(5), 52(6), 52(9) and 68(1)(b); Emergency Management Act 2004 ss 23(1) and 25; Evidence Act 1929 (SA) s 34P; South Australian Public Health Act 2011 (SA) s 90C; Summary Offences Act 1953 (SA) ss 79A(1)(a)-(b) and 68(1)(b), referred to.
R v Nguyen (2013) 117 SASR 432; R v Nguyen (2013) 117 SASR 442; R v Bainbridge [1999] NZCA 180; R v Rondo [2011] NSWCCA 540; R v Eggen and Eggen-Zeytoun [2016] SADC 26; R v Arthur [2018] SADC 116; McDermott v The King (1948) 76 CLR 501; R v Lobban (2001) 80 SASR 500; Pavic v The Queen (1998) 192 CLR 159; Robinett v Police (2000) 78 SASR 85; R v Webb and Hay (1992) 59 SASR 563; R v Dam and Nguyen (2015) 123 SASR 511; Police v Grozer [2006] SASC 353; R v Ireland (1970) 126 CLR 321; R v Kong (2013) 115 SASR 425; Gibson v Ellis (1992) 59 SASR 420; R v Fazio (1997) 69 SASR 54; Middlin-Hannah v The Queen [2020] SASCFC 112; R v Lobban (2000) 77 SASR 24; Police v Dunstall (2015) 256 CLR 403; R v Rondo (2001) 126 A Crim R 562; Van der Meer v The Queen (1988) 62 ALJR 656; Police v Moukachar ADD; R v Willingham (No 2) [2012] SASCFC 104; R v Nguyen [2016] SASCFC 96; Bunning v Cross [1978] HCA 22, 141 CLR 54; R v Swaffield [1998] HCA1, (1998) 192 CLR 159; Ridgeway v The Queen [1995] HCA 66, 184 CLR 19, considered.
R v RICHARDS
[2023] SADC 4Introduction
Robbie John Richards has pleaded not guilty to trafficking the drug fantasy in Seacombe Gardens.[1]
[1] Information dated 22 November 2022; Controlled Substances Act 1984 (SA) s 32(3); Fantasy is the common or street name for 1,4‑Butanediol, a controlled substance.
The prosecution intends to lead evidence of that fantasy and drug equipment found in a backpack in an Uber vehicle, evidence of other fantasy found earlier on the defendant and messages on his phone.
The defendant contends the personal search was unlawful as police did not hold the requisite suspicion to enliven their power.[2] Alternatively, he says that suspicion was not objectively reasonable.[3]
[2] Controlled Substances Act 1984 (SA) s 52(6).
[3] Ibid.
Further, says the defendant, evidence of fantasy and equipment in the backpack and messages on the phone were found solely due to the unlawful search and are irrevocably tainted. Alternatively, he says he was tricked to reveal his PIN.
Consequently, the defendant says, that evidence should be excluded as police misunderstood or abused their power and to admit it would give curial approval to unfair, improper and dishonest conduct.
The defendant also says he had been apprehended and was under de facto arrest, without being given his arrest rights, when he made certain comments and they should also be excluded.[4]
[4] Summary Offences Act 1953 (SA) s 79A(1)(a)-(b).
The Evidence
Constable Brophy,[5] former Constable Girardi,[6] Senior Constable Ralph,[7] Senior Constable Chapman,[8] and Uber driver Shoaib Ahmad,[9] gave oral evidence. Exhibits were tendered, including body worn footage.[10] Facts were agreed.[11]
[5] T14.4-57.13; T169.20-170.14.
[6] T68.4-103.24.
[7] T104.4-123.20.
[8] T135.3-162.31.
[9] T171.4-177.16.
[10] VDP1 Affidavit of Nathan Brophy dated 23 June 2021; VDP2 Affidavit of Martin Short dated 21 April 2022; VDP3 Affidavit of Martin Short dated 4 May 2022; VDP4 Disc containing body worn footage (‘BWF’) of Brophy; VDP5 Photographs taken by Brophy of item in backpack; VDP6 BWF of Ralph ; VDD7 Bundle of emails, including between Brophy and Chapman; VDD8 Bundle of emails, including between Brophy and Girardi; VDD9 Bundle of text messages between Brophy and Girardi; VDD10 Affidavit of Laura Girardi sworn 11 August 2021; VDD11 Copy of expiation notice issued to Mr Richards by Girardi dated 21 November 2020; VDP12 BWF of Girardi.
[11] VDP13 Statement of Agreed Facts dated 18 October 2022.
I accept the evidence of Mr Ahmad and Brophy, except where inconsistent or elaborated by body worn footage. The defence says Chapman and Girardi lied about how the defendant revealed his PIN.
Established facts
I find the following established facts.
From 22 March 2020, until 24 May 2022, South Australia was subject to declaration of major emergency.[12] That empowered the State Co-ordinator to direct COVID-19 restrictions and controls. On 19 November 2020, he directed all persons to stay at home, except for reasons enumerated.[13]
[12] Emergency Management Act 2004 (SA) s 23(1); South Australian Public Health Act 2011 (SA) s 90C.
[13] Emergency Management Act 2004 (SA) s 25; Emergency Management (Stay at Home) (COVID-19) Direction 2020.
On 21 November 2020, the defendant engaged an Uber to take him to a residential property, an ATM,[14] and an address in Seacombe Gardens.[15] At about 4:29am, Brophy and Girardi observed the Uber stop at the Seacombe Gardens address. Brophy wanted to know whether the driver and passenger were in breach of the stay-at-home direction.[16] Brophy and Girardi parked their car in front of the address, facing in the wrong direction, and across from the Uber.
[14] T17; T172-173.
[15] T172.
[16] T34.
The defendant exited the Uber to the door of the address. Brophy called from the police car and asked why he was out during lockdown. The defendant replied he was dropping medication to a friend Chrissy, and ‘she’ had ‘forgot it at his house’.[17] Brophy walked to the defendant standing at the screen door of the address. The defendant held something in his right hand and his mobile phone in his left.[18] As Brophy came in the line of sight of the door, it was slammed shut.[19]
[17] T19; VDP4.
[18] T19.28-20.9.
[19] T20.12-17; VDP4 at 00:45.
The defendant shifted from leg to leg. Brophy asked to see the medication.[20] The defendant did not clearly respond. Brophy repeated his request and further asked what was in the defendant’s pocket. The defendant shrugged, said ‘Ventolin’[21] and showed a puffer. Brophy said, ‘you said you have got medication for her’ and ‘empty out your pockets for me, come over the car alright’.[22]
[20] Ibid.
[21] T20.
[22] VDP12 at 00:12.
Brophy and the defendant walked to the car. Brophy asked what was in the defendant’s pocket. The defendant placed his mobile and puffer on the boot. Girardi asked the defendant what was in his pocket. Brophy searched the left pocket and found a container of liquid he suspected to be 1,4‑Butanediol (fantasy).
At 4:31am, Girardi asked the defendant questions to establish his identity. At 4:32am, she warned him she and Brophy had activated their body worn camera and anything said may be given in evidence.[23] The defendant was told to sit on the kerb. The defendant said, in respect of the Uber, ‘he can go’.
[23] VDP4 at 3:23; VDP12 at 1:49
At 4:38am, Brophy approached Mr Ahmad, who was sitting in the driver’s seat of the Uber. Brophy asked if he could look in the car.[24] Mr Ahmad consented. Brophy asked whether the defendant had left anything in the car. Mr Ahmad referred to a backpack in the rear. Brophy removed the backpack to the boot of the police car. Ralph and Chapman had arrived at the scene. Girardi and Brophy searched the backpack.[25] They found an ice pipe, a small amount of meth, syringes and a reddish fluid they suspected to be fantasy.
[24] VDP4 at 10:00.
[25] VDP4 at 10:00.
At 4:39am, Girardi said to the defendant, ‘I am going to ask you some further questions…you’re not obliged to answer them but anything…you do say is being recorded…and may be given in evidence, do you understand?’[26]
[26] VDP12 at 6:36.
Ralph asked the defendant for his phone PIN. The defendant declined.
At 4:59am, Brophy said to the defendant, ‘I’m just going to give you the caution alright? Okay. I just need you to listen to what I’m saying…I’m going to give you a caution now okay? I’m now going to ask you some further questions, anything that you say may be given in evidence, do you understand?’[27]
[27] VDP4 at 20:38.
The defendant asked Girardi if he could use his mobile to call his mother. Girardi handed him his phone and the defendant unlocked it. Chapman was standing above and behind the defendant and noted his PIN. Girardi took the phone back before the defendant had obtained his mother’s number or made a call. She gave the phone to Ralph who found messages indicative of drug trafficking.
At 5:04am, the defendant was arrested and put in a police vehicle and given his arrest rights.[28]
[28] Summary Offences Act 1953 (SA) s 79A.
Relevant Legislation
Section 52 of Controlled Substances Act 1984 (SA), relevantly provides:
52—Power to search, seize etc
(6) An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
…..
(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.
Section 79A of the Summary Offences Act 1953 (SA), provides:
79A—Rights on arrest
(1)Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)—
(a) the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b) where the person is apprehended on suspicion of having committed an offence—
(i)the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and
(ii)if English is not the person's native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
(iii)the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
(1a)Where a minor has been apprehended on suspicion of having committed an offence and—
(a) the minor does not nominate a solicitor, relative or friend to be present during an interrogation or investigation relating to the suspected offence; or
(b) the solicitor, relative or friend nominated by the minor is unavailable or unwilling to attend the interrogation or investigation,
then, subject to subsection (1b), the minor must not be subjected to an interrogation or investigation until the police officer in charge of the investigation of the suspected offence has secured the presence of—
(c) a person, or a person of a class, nominated by the Chief Executive within the meaning of the Youth Justice Administration Act 2016 to represent the interests of children subject to criminal investigation; or
(d) where no such person is available, some other person (not being a minor, a police officer or an employee of the Police Department) who, in the opinion of the police officer, is a suitable person to represent the interests of the minor.
(1b)An interrogation or investigation may proceed despite subsection (1a) if—
(a) the suspected offence is not an offence punishable by imprisonment for two years or more; and
(b) it is not reasonably practicable to secure the presence of a suitable representative of the child's interests as contemplated by that subsection.
(2)The police officer who is in charge of the investigation of a suspected offence in relation to which a person has been apprehended may decline to permit—
(a) the person in custody to make a telephone call to a particular person (being a relative or friend); or
(b) a particular person (being a relative or friend of the person who has been taken into custody) to be present at an interrogation or investigation,
if the officer has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence.
(3)A police officer must, as soon as is reasonably practicable after the apprehension of a person—
(a) inform that person of his or her rights under subsection (1); and
(b) warn the person that anything that he or she may say may be taken down and used in evidence.
Submissions of Defendant
The search commenced, says the defendant, when Brophy said ‘empty out your pockets…[and] come over the car alright’.[29] At that time, the defendant submits, Brophy: had been on patrol in a ‘crime area’; had observed the car; had decided to follow it ‘just to see what, where they were going, what’s going because there was COVID lockdown’; had observed the defendant by torch at the door; had spoken with him about medicine; had seen the defendant produce Ventolin in response; had seen the door slam and, had seen something in the defendant’s pocket.
[29] VDP12; Aide Memoire, [35].
That information was, submits the defendant, insufficient to constitute the ‘actual suspicion’ required.[30] Alternatively, it was not objectively reasonable.[31]
[30] R v Nguyen (2013) 117 SASR 432, [17]; Controlled Substances Act 1984 (SA) s 52(6).
[31] R v Nguyen supra, [22].
Brophy, says the defendant, relied on, ‘some answers that [he] gave’;[32] him ‘moving around quite a lot on the spot, knocking on the front door…seem[ing] a little bit, I suppose cagey’;[33] and the statement he was ‘dropping some medication off to a friend who lived at the address…I believe Chrissy’.[34]
[32] T18.22-23.
[33] T19.22-25.
[34] T19.13-17.
Brophy, submits the defendant, made his decision very quickly,[35] not knowing a female Chrissy did not live there, after the production of the Ventolin[36] and knowing being out in lockdown had consequence.[37]
[35] T36.37.
[36] T37.26- 28.
[37] T38.15.
Taken at its highest and in combination, submits the defendant, that could only induce curiosity, speculation or idle wondering. Accordingly, the search was unlawful, and evidence obtained should be excluded as police were mistaken as to their powers.[38] That favoured exclusion, balancing the significant infringement on liberty and the quantity and value of the drugs found on his person, because:
·Brophy said the test was whether he suspected the item in the pocket ‘may’ have been drugs and that he ‘could search any person that [he] reasonably suspect [sic] had any equipment or substance that may accord evidence against the Act’;[39]
·Girardi was wrong to believe only a female officer could search a female under the Controlled Substances Act 1984 (SA), that she could use the Controlled Substance Act’ to seize the phone, that police might not need to caution prior to arrest,[40] and she ‘… just conducted traffic stop[s] if we’ve got a suspicion of a vehicle…well, we wanted to know who was inside to start with’; and that as the address had been in ‘…an area…we pay quite a lot of attention to’ that was ‘another suspicion that led to…pulling the car over’;[41]
·Ralph had mistakenly thought s 68 of the Summary Offences Act 1953 (SA) allowed him to seize and access the phone;[42] and
·Chapman could not advert to any specific power.[43]
[38] R v Nguyen (2013) 117 SASR 442, [27]-[35], [36]-[47].
[39] Brophy said ‘…I could search any person that I’d reasonably suspect had any equipment or substance that may accord evidence against the Act’, T21.30-32.
[40] T101.16.
[41] T84.36-38.; Exhibit VDD9 [2]; T102.16.
[42] Controlled Substances Act 1984 s 68(1)(b); It is plain, submitted the defendant, that an officer must have a reasonable suspicion that the person has such evidence on their phone, not ‘that it may contain information in relation to trafficking of controlled substance, to assist the investigation’ or ‘that there may be evidence in the phone, as we had drugs there and the supporting evidence may be in the phone’.
[43] T144; Agreed Facts [3].
Consequently, submits the defendant, the backpack and mobile evidence should be excluded as those searches relied solely on the drugs found in an unlawful search.[44] It was evidence irrevocably tainted.[45]
[44] Controlled Substances Act 1984 (SA) s 52(9).
[45] R v Bainbridge [1999] NZCA 180; R v Rondo [2011] NSWCCA 540; R v Eggen & Eggen-Zeytoun [2016] SADC 26; R v Arthur [2018] SADC 116.
In any event, submits the defendant, what underpinned the Uber search was insufficient as Brophy had no information the car had been involved in dealing,[46] Mr Ahmad had not told him anything about the location he picked up the defendant,[47] he had no information from Mr Ahmad to cause suspicion regarding the car or backpack,[48] and he did not know if the fantasy was divertible.[49]
[46] T54.18-32.
[47] T42.1.
[48] T42.5.
[49] T42.17.
Alternatively, the defendant submits, Chapman and Girardi ‘egregiously and deliberately tricked [him] into revealing his PIN code knowing full well he had lawfully refused to provide [it]’[50] and their actions were a subterfuge to obtain the PIN. He believed, says the defendant, he had been given his phone to disclose his mother’s number and Chapman and Girardi ‘surreptitiously’ created that ‘ruse solely to create an opportunity to obtain the passcode’.[51] That subterfuge was ‘revealed’, submits the defendant, when Girardi told Chapman ‘…he kept on being like he needed to ring his mum, I was like okay here’s ya phone, put ya pass code in… and then I just took it from him straight away…’.[52]
[50] Written Submissions of the Defendant, 18 October 2011, [61].
[51] Ibid, [13], [16]
[52] T100.69-17.
That conduct, submits the defendant, was unfair, improper and it would be grossly unfair if the evidence was allowed.[53] Further, disclosure of the PIN was involuntary; it was the only way he could contact his mother and he had no choice.
[53] McDermott v The King (1948) 76 CLR 501, [511]- [512]; R v Lobban (2001) 80 SASR 500; See also R v Ngo DCCRM-2019-1509 T201- 202 (14 December 2020); Pavic v The Queen (1998) 192 CLR 159, [196]; Robinett v Police (2000) 78 SASR 85, [96].
Further, the defendant says police induced him and would have induced a reasonable person in his position to suppose he was not free to leave.[54] At 4:37am he was told to sit on the kerb, he stayed seated until arrested at 5:04am,[55] and police did not say he was under arrest nor free to leave.
[54] R v Webb and Hay (1992) 59 SASR 563 at 571 (King CJ).
[55] Brophy body worn video Exhibit VDP4.
Neither Brophy nor Girardi, submits the defendant, were sure an arrest would eventuate as the amount found may have been divertible. The delay between initial search and arrest was attributable to continuing investigation and he should have been given his rights. The cautions given, submits the defendant, were unsatisfactory as he was not told he could refrain from answering questions. On that basis, any comments made prior to arrest should be excluded as the conduct of police was unlawful and unfair.
Submissions of Prosecution
Brophy wanted to know, submits the prosecution, whether the driver and defendant had breached Covid guidelines.[56] Police were entitled to speak to the defendant and ask questions.[57] Subsequently, submits the prosecution, Brophy utilised the Controlled Substances Act 1984 (SA) to search the defendant.[58]
[56] T34.
[57] R v Dam and Nguyen (2015) 123 SASR 511.
[58] Section 52(6); T 21-22.
As this offence relates to fantasy in the backpack, it is incongruous, submits the prosecution, for the defence to say the drugs in the pocket were found unlawfully, when the defendant had pleaded guilty to their possession.[59]
[59] AMC-21-7171, Information dated 26 July 2021, Magistrate Sutcliffe (30 September 2021).
In any event, submits the prosecution, the available information at the time of the search established reasonable suspicion.[60] Brophy knew a nervous and ‘cagey’ defendant was out during lockdown at 4:30am, had proffered the excuse of attending to ‘drop off medicine’ to a friend named Chrissy and that the occupant had slammed the front door without asking for or taking that medicine.[61]
[60] T18-9.
[61] T19; 21.
Further, submits the prosecution, the defendant changed his story when Brophy asked to see the ‘medicine’. He said he had Ventolin and produced a puffer. That initial assertion he had ‘medicine’ was important, submitted the prosecution, when considering the reasonableness of the suspicion. Brophy suspected the ‘medicine’ was in the left pocket and when asked to produce it, the defendant had not done so. Brophy suspected the item to be an illicit substance and the aversion of the defendant to removing it from his pocket led him to suspect the defendant was in possession of a controlled substance.[62] That connection, submits the prosecution, was logical, rational and objectively reasonable.
[62] T19-21.
Alternatively, submits the prosecution, Brophy held the requisite suspicion pursuant to the Summary Offences Act 1953.[63] He suspected the defendant was in possession of an object constituting an offence. Provided a power exists, submits the prosecution, a search is valid despite the officer not adverting to that power.[64]
[63] Section 68(1)(b).
[64] Police v Grozev [2006] SASC 353, [63].
Even if the search of the defendant was unlawful and the genesis for the search of the backpack, submits the prosecution, the search of the Uber had been lawful because Mr Ahmad gave permission.[65] There was no trespass to the person and police did not have to exercise coercive power.
[65] T24.
If the searches were unlawful, submits the prosecution, the public policy considerations must be weighed against the interests of the community to bring to justice people who commit serious crime.[66] The searches were conducted under the honest belief they were justified and there was no deliberate attempt to undermine or circumvent the law. Further, the prosecution says, the evidence was not vitiated by police and is strongly probative as discreditable conduct evidence.[67]
[66] R v Ireland (1970) 126 CLR 321, [28] (Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed).
[67] R v Kong (2013) 115 SASR 425, [90]; Evidence Act 1928 (SA) s 34P.
Further, submits the prosecution, cogency was not affected in any way; the quantity located in the backpack was five times the trafficable quantity[68] and the presumption of intention to sell applies.[69]
[68] Controlled Substances (Controlled Drugs, Precursors, and Plants) Regulations 2014, Sch 1.
[69] Controlled Substances Act1984 (SA) s 32(5).
As for the messages, the prosecution submits, the search was not unlawful, and evidence obtained is untainted. Alternatively, the seizure and access to the phone militates against exclusion; it had been held by the defendant when he was searched, Girardi had returned it and Ralph had searched it.
Section 68 of the Summary Offences Act1953, the prosecution submits, is concurrent with s 52 of the Controlled Substances Act 1984,[70] and the seizure and search by Ralph were lawful.[71] In this case, the prosecution submits, Girardi had the requisite suspicion under s 68. She had seen the search of the defendant and the backpack.[72] She made the rational and reasonable connection the phone would afford evidence of an indictable offence, seized it and it is irrelevant she thought she was authorised under another power.
[70] Gibson v Ellis (1992) 59 SASR 420; R v Fazio (1997) 69 SASR 54.
[71] Middlin-Hannah v The Queen [2020] SASCFC 112, [38] (Livesey J).
[72] T73-74; T 84-86 (XXN).
The prosecution accepted seizure of the phone occurred after it was unlocked and says that was not improper as the defendant had been cautioned, was aware police were interested and had declined his PIN. It was important, submits the prosecution, that Girardi made no representation she would not seize the phone. Further, despite knowing of police interest the defendant had unlocked it whilst sitting below Girardi. That reflected poor judgment on his part and opportune policing by Girardi.
Alternatively, if unlawful, the prosecution says the conduct of Girardi was not a deliberate attempt to undermine the law. It was justified as she was not required to look the other way.
By the time Ralph had searched the phone, submits the prosecution, he suspected fantasy had been found, the defendant was trafficking, and his phone would afford evidence and that suspicion was objectively reasonable. Further, Ralph believed he could search the phone and that afforded cogent evidence the defendant had been in the business of trafficking fantasy at a time proximate to his search and arrest.
Further, the prosecution submits, the defendant will suffer no forensic unfairness and the discretion has no role to play.[73] The defendant can give about the messages.[74] In any event, Chapman had noted the PIN and[75] her observation does not amount to improper conduct. It is also possible, says the prosecution, that Police could gain access to the phone without the PIN.[76]
[73] R v Lobban (2000) 77 SASR 24, [82],[89] (Martin J, Doyle CJ and Bleby J agreeing).
[74] Police v Dunstall (2015) 256 CLR 403, [66] - [67].
[75] T140; T146.
[76] Middlin-Hannah v The Queen (supra); Affidavit of Martin Short 21 April 2022 (Exhibit VDP2) and affidavit 4 May 2022 (Exhibit VDP3).
As for the defendant’s comments to police, the prosecution submits, by requiring the defendant to sit on the kerb police had merely restricted his liberty as necessary to carry out a search. That did not amount to apprehension as the search yielded further information to heighten suspicions relevant to the backpack. In that respect, when the defendant said the Uber could leave, the suspicion was further heightened.[77]
[77] R v Rondo (2001) 126 A Crim R 562.
The defendant, says the prosecution, was cautioned three times before arrest.[78] First, following the personal search by Girardi when at 4:32am, she warned the defendant her and Brophy’s cameras were on and anything he said may be given in evidence.[79] That search yielded the liquid suspected to be fantasy. No caution was required then, submits the prosecution, as the accusatory stage had not commenced.
[78] Van der Meer v The Queen (1988) 62 ALJR 656 at 660 (Mason CJ); s 79A of the Summary Offences Act provides persons that are apprehended by police with certain rights and provides that a police officer must, as soon as is reasonably practicable after the apprehension of a person, inform them of their rights under subsection (1) and warn the person that anything that he or she may say may be taken down and used in evidence.
[79] Exhibit VDP12.
It is further arguable, says the prosecution, the investigatory stage was still in progress thereafter and in any event, Girardi administered a second caution at 4:39am, between the personal search and the backpack search. She informed the defendant that she was going to ask questions, he was not obliged to answer them, and anything said was being recorded and may be given in evidence.[80] Brophy administered a caution at 5:00am, following the search of the backpack[81] and he said he would ask further questions, and anything said may be evidence. Given those cautions, submits the prosecution, the defendant was aware of his right not to answer any questions and there was no evidence to undermine that inference.
[80] Exhibit VDP12.
[81] Exhibit VDP4.
If it is found the defendant was under de facto arrest following the initial search of his person and should have been issued his rights, the prosecution says the evidence obtained after arrest should not be excluded under the public policy discretion. The cautions given, it says, were attempts to ensure performance of police duties and there was no deliberate attempt to deprive the defendant of his rights and any delay between the initial search and arrest is attributable to police attending to their duties thoroughly.
Consideration
These events occurred during an emergency and while a stay-at-home direction was operative. The defendant was a passenger in a vehicle on the road at about 4:00am. Brophy wanted to know why the defendant was out during lockdown,[82] and was entitled to ask him questions.[83]
[82] T34; Emergency Management Act 2004, s 23(1); Emergency Management (Stay at Home) (COVID-19) Direction 2020, Part 3; Public Health Act 2011, s 90C.
[83] R v Dam and Nguyen [2015] SASFC 131; (2015) 123 SASR 511, Vanstone J repeated her findings from the earlier decision of Police (SA) v Moukachar [2010] SASFC 199; (2010) 107 SASR 450.
The interest of Brophy thereafter broadened to include whether he held a reasonable suspicion under the Controlled Substances Act 1984, that the defendant had possession of drugs.[84] The starting point for evaluation of his suspicion is R v Nguyen:[85]
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]
[84] S.52(6).
[85] (2013) 117 SASR 432, [21]-[22].
I have put myself in the position of Brophy and asked if his suspicion was reasonably held.[86] I have considered the information known to him and have been neither overly incredulous nor naively gullible.
[86] R v Willingham (No 2) [2012] SASCFC 104, [10].
Before he decided to search, Brophy knew the defendant was out at about 4:30am during lockdown. He knew the defendant said he was there to ‘drop off medicine’ to a friend Chrissy who had left it at his house. He knew the defendant was nervous and cagey.[87] He knew the occupant of the unit had slammed the door without asking for or taking the medicine. He knew there was an item in the left pocket. He knew the defendant had not clearly responded to his first request. He knew he had repeated that request and asked also what was is in the defendant’s pocket. He knew the defendant had shrugged and said ‘Ventolin’.[88]
[87] T19; T21.
[88] T20.
I am satisfied Brophy suspected the item in the pocket to be illicit drugs or equipment.[89] The defence criticise Brophy for saying the item ‘may’ have been drugs, rather than that the defendant had drugs.[90] That criticism is misplaced because Brophy correctly understood his power to search.
[89] VDP12
[90] Brophy said ‘…I could search any person that I’d reasonably suspect had any equipment or substance that may accord evidence against the Act’, T21.30-32.
Brophy said he ‘could search any person that I’d reasonably suspect had any equipment or substances that may accord evidence against the Act’.[91] In respect of the backpack in the car, he said he ‘suspected that there was evidence that goes against the Act, that was afforded against the Act, other drugs or equipment in the backpack’.[92] He said the test was whether ‘a police officer reasonably suspects that a person has on his or her person any equipment or substance’.[93]
[91] TT21.30-32.
[92] TT42.23-25.
[93] TT57.10-13.
Irrespective, a slip as contended by the defence would be unlikely to be of great practical significance.[94] That is because ‘a suspicion, by its very nature, connotes something less than established facts, it necessarily requires consideration of what might or might not be the fact’.[95]
[94] R v Nguyen [2016] SASCFC 96, [56]-[60].
[95] Ibid [59].
The defendant says his nervousness was borne of concern he was out during lockdown and that Ventolin is medicine and he provided an explanation to Brophy.
The nervousness, caginess and hesitation of the defendant allows multiple hypotheses. For example, breach of the stay-at-home direction or possession of drugs. The suspicion under s 52(6) need not be the only explanation. The information known must rationally produce the suspicion in the mind of the officer and be capable of engendering such in the mind of a person thinking reasonably about that information. A suspicion requires something less than established facts. Forming a suspicion requires consideration of alternative or competing scenarios as to what might or might not be fact.
While Ventolin is a common medicine and the defendant was responsive to that extent, evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated, and having assessed the information known in combination. To suggest mention of Ventolin should have assuaged the suspicion of Brophy overlooks the equivocation in response to a straightforward question about a topic the defendant had raised, and that the person had slammed the door without taking the medicine.
Putting myself in Brophy’s shoes, I am satisfied his suspicion was reasonably held and objectively reasonable.[96] I find the hesitation and reluctance to answer questions about the medicine, the slamming of the door without exchange of the ‘medicine’, the caginess of the defendant and that it was 4:00am during a lockdown, rationally produced the requisite suspicion in the officer’s mind and would engender a suspicion in the mind of a person thinking reasonably about that information. I find the search of the defendant lawful.
[96] R v Willingham (No 2) [2012] SASCFC 104, [10].
In addition, assuming the search had been unlawful, I have weighed public interest in protection of the individual from unlawful and unfair treatment against the interest of the community to bring to justice people who commit serious crimes.[97]
[97] R v Ireland (1970) 126 CLR 321,[28] (Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed).
In R v Ireland,[98] Barwick CJ (McTiernan, Windeyer, Owen and Walsh JJ agreeing) said:
[98] Ibid.
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.
In Bunning v Cross,[99] 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.
In R v Swaffield,[100] Kirby J identified considerations relevant to the exercise of the discretion:
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 R v Ridgeway[101] added:
(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.
[99] [1978] HCA 22; (1978) 141 CLR 54.
[100] [1998] HCA 1; (1998) 182 CLR 159.
[101] (1995) 184 CLR 19.
The submission an unlawful search was a significant infringement balanced against the quantity and value of the drugs found is diminished because the defendant pleaded guilty to a serious offence in respect of those drugs and did not challenge the search in doing so. Rather, he challenges it here where the prosecution seeks to use those drugs as evidence of discreditable conduct in respect of the greater quantity found in the backpack. The evidence of the fantasy on his person has strong probative value to show the defendant was in the business of dealing and more likely to have intended to sell the fantasy in the backpack.
I would find Brophy both conducted the search of the defendant under the honest belief it was justified and that there was no deliberate attempt by him to undermine or circumvent the law. I would also find the cogency of that evidence is not vitiated by his conduct; it is probative of serious offending.[102]
[102] R v Kong (2013) 115 SASR 425, [90].
It follows, given my finding that the search of the defendant was lawful, the subsequent searches of the car, the backpack and the phone were not reliant solely or at all on an unlawful search. On that basis, I reject the submission the fantasy and indicia in the backpack and the messages in the phone were found solely due to an unlawful search and that such evidence is irrevocably tainted.
In respect of the searches of the car and backpack, I find they were lawful. First, because Mr Ahmed consented to the search of the Uber. Second, in so far as s 52(9) of the Controlled Substances Act 1984, was required, the information available to Brophy was enhanced by the result of the search of the defendant and that the defendant was anxious the Uber be on its way.
By the time the phone was searched, police had information from the backpack search going to the suspicion that evidence of drug trafficking was on the phone.
The alternative submission was that Chapman and Girardi ‘egregiously and deliberately tricked [the defendant] into revealing his PIN code knowing full well he had, lawfully, refused to provide [it]’.[103] The defendant says there was a subterfuge ‘solely to create an opportunity to obtain the passcode’.[104]
[103] Written Submissions of the Defendant, 18 October 2011, [61].
[104] Ibid, [13], [16].
Girardi was evasive about the circumstances of opening the phone. She was a poor and flippant witness. She displayed a poor grasp of police powers. For example, she had to ask the more experienced Ralph whether the phone could be searched and by deactivation of her body worn camera to confer with others demonstrated uncertainty about what she knew and could do properly.[105] She did however intend to seize the mobile once unlocked and before any call was made.
[105] T100.69-17.
Chapman was not a satisfactory witness either. She did not mention writing the PIN on her hand before giving oral evidence and had a poor grasp of police powers to search.
The defendant says the evidence establishes Chapman and Girardi tricked the defendant. He says his disclosure of the PIN was involuntarily as it was the only way he could contact his mother and had no choice. Assessing the evidence, I am not satisfied there was a common ruse or subterfuge between Girardi and Chapman. It was Girardi’s conduct that fits that description and that she did not say she would not seize the phone confirms rather than denies the ruse to get the defendant to open the phone.
Where a person is apprehended by a police officer he or she is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts.[106] The defendant says that practically he had no choice but to unlock his phone. If he had been apprehended, practically he had no choice but to unlock it to enjoy that right.
[106] Summary Offences Act 1953, s 79A.
Turning to whether the defendant had been apprehended, the defence urge me to find he was apprehended from the time he was told to sit on the kerb. By that time, police had found drugs they considered may be diversionary and Brophy wanted to speak to Ralph about that. I am satisfied at that time police were still attending to their duties and gathering information.
In the search of the person and the backpack, likely evidence of drug trafficking had been found. After the defendant had refused to give his PIN, information gathering at the scene had come to an end.
By that time, the defendant had been told to sit on the kerb after a search of his person. He had watched while his backpack had been searched and police had discussed whether what they had found was drugs. The Uber had been sent on its way. Another patrol had arrived. He sat close to a police car and four police officers nearby and overseeing him. He had been asked questions and given warnings. He had been asked to open his phone and had declined. By that time the defendant believed he was not free to go and a reasonable person in his position would have formed that same view. I find he had been apprehended.
The prosecution said that by opening his phone the defendant allowed for opportune policing, knowing police were interested in it. The prosecution says police were not required to look the other way or turn a blind eye when the defendant accessed his phone.
That submission is not compelling in this case. Girardi had no intention to allow a call. She resolved to use the request to make a call consistent with the statutory right of the defendant in the event he had been apprehended, to get access to the phone. Her conduct was intentionally misleading, deceptive and consistent with her poor understanding of her powers, her attitude in turning off her camera when it suited and her flippant and evasive manner. The conduct of Girardi was unlawful, unfair and improper.
While the messages have evidential value and their cogency is not impacted, the conduct of Girardi should not be given curial approval. I will exercise my discretion to exclude the messages on the phone.
Turning to whether the defendant should have been given his arrest rights, I have found the defendant had been apprehended after the request for his PIN. At that point, police had entered the accusatory stage; available information gathering was complete. The delay in giving the arrest rights thereafter cannot, in those circumstances, be attributed to police attending to their duties thoroughly.
Section 79A of the Summary Offences Act, obliges, as soon as is reasonably practicable after the apprehension of a person, police inform that person of his or her rights and warn the person anything they may say may be taken down and used in evidence; including the right to make a phone call to a relative. I find that after the defendant had declined to give his PIN that represented a reasonably practicable time to inform him of his arrest rights.
The prosecution says, if the defendant was apprehended and should have earlier been given his arrest rights, the discretion to exclude comments made after should not be exercised because the warnings demonstrate attempts to ensure performance of police duties appropriately and no deliberate attempt to deprive the defendant of his rights. I do not accept that submission. It was unfair not to give the arrest rights when reasonably practicable and police were not performing their duties appropriately. Particularly, the actions of Girardi were deliberate and deprived the defendant of his right to phone a relative.
I will exercise my discretion to exclude comments made by the defendant to police from when the defendant declined to give his PIN until the time of his arrest.
Orders
I order on the application of the defendant dated 15 February 2022:
1.Evidence of the messages found on the phone of the defendant by police on 21 November 2020, be excluded from evidence at trial.
2.Evidence of any comments or answers to police by the defendant on 21 November 2020, from the time he declined to give his PIN until his arrest, be excluded from evidence at trial.
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