R v Richards - [2019] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS
[2019] SADC 124
Reasons for Ruling of Her Honour Judge McIntyre
28 August 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The Applicant, Nathan Richards, has been charged on Information with the offence of Trafficking in a Controlled Drug on 9 March 2018 at Port Augusta. The charge arises out of a search of a backpack located next to the Applicant who was a passenger in a taxi. The Applicant has applied under Rule 49 of the District Criminal Court Rules for orders that the evidence of the search be excluded from evidence in his trial on the basis that the search and seizure was unlawful. It is said that the evidence should be excluded for unfairness to the applicant and/or on public policy grounds.
Held:
1. That the decision to stop the taxi was not lawful.
2. That, in all of the circumstances, the prosecution not be permitted to lead evidence of the results of the search conducted on 9 March 2018.
District Court Rules R49; Road Traffic Act 1961 s40H(1)(a), s47E(2); Controlled Substances Act 1984 s52(1), s52(6), s52(9); Summary Offences Act 1953 s68(1)(a), referred to.
Police v Moukachar (2010) 107 SASR 450; R v Dam & Nguyen (2015) 123 SASR 511; R v Kola (2002) 83 SASR 477 ; Armstrong v R (1989) 53 SASR 25; R v Nguyen (2013) 117 SASR 422 ; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391 ; R v Nguyen (2013) 117 SASR 432; R v Golja [2017] SASCFC 61; R v Nguyen [2015] SASCFC 7 , applied.

R v RICHARDS
[2019] SADC 124

The Applicant, Nathan Richards, has been charged on Information with the offence of Trafficking in a Controlled Drug on 9 March 2018 at Port Augusta. The charge arises out of a search of a backpack located next to the Applicant who was a passenger in a taxi. The Applicant has applied under Rule 49 of the District Criminal Court Rules for orders that the evidence of the search be excluded from evidence in his trial on the basis that the search and seizure was unlawful. It is said that the evidence should be excluded for unfairness to the applicant and/or on public policy grounds.
For the reasons that follow I grant the application and I will order that the prosecution not be permitted to lead evidence of the results of the search conducted on 9 March 2018.
Background
Three police officers gave evidence on the voir dire: Constable Bagshaw, Constable Fawcett and Sergeant Hall. In addition a number of exhibits were tendered by consent.
Around 2.00am on 9 March 2018, Constables Fawcett and Bagshaw were on mobile uniform patrol in Port Augusta. They were stationary in their patrol car at a service station on the corner of Burgoyne Street and Victoria Parade on the west side of the Joy Baluch Bridge. They were observing traffic when they saw a taxi driving along Victoria Parade towards the bridge in a roughly easterly direction towards the centre of Port Augusta. I infer from their evidence that they did not see where the taxi came from other than that it was coming generally from the west on Victoria Parade. Constable Bagshaw saw that the taxi contained one male passenger who she thought was the applicant. She had had previous dealings with the applicant. She knew that he had recently been charged with the offence of trafficking in a controlled substance and that he was on bail for that offence. Constable Bagshaw instructed Constable Fawcett, the driver, to follow the taxi. Constable Bagshaw intended that they would stop the taxi when it was safe to do so. Having driven across the bridge they stopped the taxi outside 17 Victoria Parade by activating their lights.
Whilst they were following the applicant’s taxi, Constable Bagshaw conveyed information about her observations on a police “chat” radio channel. The chat channel was a means by which police officers on duty in Port Augusta could communicate with each other during their shift. In particular Constable Bagshaw stated her view that the applicant may be a passenger in the taxi saying that she was “not 100% that it was him” but that she thought “it looked very similar”.[1]It seems clear from the radio communication that Constable Bagshaw had determined to stop the taxi at least by the time she and Constable Fawcett were on the bridge.
[1] Exhibit P4
Sergeant Hall heard the radio transmissions from Constable Bagshaw. He said that he was nearby on Carlton Parade and that he would make his way towards Constables Bagshaw and Fawcett. He gave some instructions over the radio; in particular saying ‘if it is him when you pull it, get him away from the taxi driver and see where he’s come from’.[2]
[2] Exhibit P4.
When the vehicle was stopped, Constable Fawcett went to the driver’s side window and spoke to the driver, Nevette Jones, asking for her driver’s licence and conducting an alcotest. Ms Jones was cooperative with police and there were no issues with either her licence or the alcotest. Constable Bagshaw and Sergeant Hall spoke to the applicant. They noted that he had a backpack between his legs in the passenger foot well. They asked him a number of questions. Sergeant Hall gave evidence about this as follows:[3]
[3] TX p57, line 6 - 22
Q.And using your notes can you tell her Honour what was said in that conversation.
A.Okay, I said 'Whose backpack is this?' He said 'Not my bag, I don't know who it belongs to.' I said 'Why is it in the taxi between your legs?' He said 'I don't know, it isn't mine.' I said 'So, whose bag is it?' The taxi driver said 'It's not my bag.'
Q.While you're having this exchange with Mr Richards did you notice anything about his behaviour or demeanour.
A.Yes.
Q.What did you notice.
A.He didn't really want to engage in any eye contact.
Q.Where was he looking.
A.Straight ahead pretty well.
Q.Did you notice anything else about his physical behaviour or his mannerisms.
A.I think he appeared a little bit startled, nervous.
The taxi driver told the police that the applicant had carried the backpack into the taxi with him when she picked him up. Sergeant Hall said that the applicant said that he had been in the Augusta Courtyard Hotel where he had been visiting a person named Sarah Averis. Constable Bagshaw said that he told them he had been visiting Sarah Averis and Sam Whiting. Police knew Ms Averis to be Mr Whiting’s girlfriend. Mr Whiting was a person of interest to the police in relation to drug trafficking.
Constable Bagshaw and Sergeant Hall then searched the backpack and the accused under the Controlled Substances Act 1984 (“CSA”). As a result of the search a number of items were located in the backpack; specifically:
·A flick knife;
·Digital scales;
·Plastic resealable bags;
·A glass pipe;
·A Samsung mobile phone;
·A toiletries bag containing $4,650.00 in $50 notes and two small plastic containers containing a total of 2.93g of methylamphetamine. These are the drugs that are the subject of the charge. Also in the bag was a large plastic tub containing 21.1g of dimethyl sulphone mixed with methylamphetamine which constituted less than 0.1g of that substance.
Following this the applicant was arrested and conveyed to the Port Augusta Police station where he participated in a recorded interview.[4]
[4] Exhibit P4
Issues
Three issues arise in this matter:
1Was the decision to stop the taxi lawful?
2Was the information known to Constable Bagshaw and Sergeant Hall at the time of the search sufficient to form a reasonable suspicion that there would be a substance or equipment that would afford evidence of an offence against the Controlled Substances Act 1984?
3If the search was unlawful how should I exercise my discretion?
The decision to stop the taxi
Constable Bagshaw said, in her evidence-in-chief, that it was her intention to stop the taxi to conduct mobile driver testing of the taxi driver and to confirm who the passenger was. Constable Bagshaw agreed in cross-examination that she wanted to stop the taxi because she thought the applicant was the passenger and that there was no suspicion attached to the driver or the taxi itself; the taxi was not driving in any unusual way and the taxi driver was not committing any offence.[5] Likewise the applicant was not, apparently, in breach of his bail conditions. There was no current intelligence that he was suspected of committing any offence. She then gave evidence as follows:[6]
[5] TX p22
[6] TX p26, line [9 – 30]
Q.So, the aim really of stopping the taxi was so that you could question Richards as to where he'd been that night or where he had just come from.
A.Yes.
Q.And the subject of this surveillance was not Nevette Jones, the taxi driver.
A.No.
Q.And having her pull over and be subjected to a breath test was really a ruse so that you or your partner could speak to Nathan Richards, if it was him.
A.It was a way to speak to the passenger.
Q.It was a way to speak to the passenger, you had no interest in Ms Jones.
A.We were also making sure that she was complying with the conditions of driving a taxi.
Q.And you weren't following all taxis that night, were you.
A.Not on that particular occasion.
Q.In fact it was what appeared to be Mr Richards in the passenger seat that aroused your curiosity as a policewoman.
A.Yes.
Stopping and alcotesting the taxi driver gave Constable Bagshaw the opportunity to see whether the passenger was in fact the applicant. If it was, the traffic stop also gave her the opportunity to speak to the applicant in order to ask him some questions. Constable Bagshaw’s position is summarised in the following passage of cross-examination:[7]
[7] TX p31, line 28 – line 35 p32
Q.Do you often stop taxis with a view to questioning passengers in the taxi.
A.Yes.
Q.So you use your police powers to stop the vehicle.
A.Yes.
Q.But part of your purpose is to question occupants of the taxi not being the driver.
A.It all depends on the circumstances.
Q.Effectively, you're using your police powers to stop vehicles, not to breath test the driver or speak to the driver, but check out who the passengers are.
A.Depending on the circumstances of where that taxi has come from.
Q.You could have kept your distance and followed the taxi and seen where the taxi driver dropped the passenger off, couldn't you.
A.Yes.
Q.You would have been unlucky if the taxi was heading off to Port Pirie or Adelaide, wouldn't you.
A.Yes.
Q.It's likely from your experience at that time of night that the taxi was going to drop the passenger off in the residential area around Port Augusta.
A.Yes.
Q.You could then have spoken to the passenger that got out without disturbing the taxi driver.
A.It is a possibility.
Q.Effectively on this night, you were using your police powers to stop a taxi really for the purpose of seeing whether the passenger was Richards, weren't you.
A.Some of the - some of it.
Q.Most of it really, wasn't it.
A.No, it was also to ensure that Nevette was complying with her taxi conditions.
Q.Can I suggest if you saw Nevette Jones or any taxi driving a gentle speed towards the bridge with no passenger, then you wouldn't necessarily have decided to follow that taxi and breath test the driver.
A.Yes.
Q.Do you agree with me.
A.Yes.
Q.It was really because you thought Richards was the passenger, that's what aroused your interest.
A.Yes.
Q.And that's the real reason you stopped the taxi.
A.Some of the part.
Constable Bagshaw then listened to the recording of the chat line communications. She was then asked.[8]
Q.Really what you were being asked to do, I suggest, by Sergeant Hall, or it may have been your own decision, was to stop the taxi for no reason other than it looked like it was carrying a person of interest or a known drug offender.
A.Yes.
Q.You stopped and breathalysed an innocent taxi driver that night, really, to effect that purpose; to see whether it was Richards.
A.Yes.
[8] TX p35, line 37 – line 8 p36
Constable Fawcett said that, in her mind, the reason for pulling over the taxi was to conduct a licence check and an alcotest on the taxi driver. She did not however give any evidence that there was anything about the taxi that attracted their attention beyond Constable Bagshaw saying that the passenger looked similar to the applicant. It was Constable Bagshaw that directed Constable Fawcett to follow the taxi. Constable Fawcett also understood from the radio communications that Sergeant Hall was interested in the taxi because the applicant was a person of interest to him. Constable Fawcett had never had any prior interactions with the applicant. They had not received any intelligence or information that night that the applicant might be involved in any crime. I infer from her evidence that she would not have followed and stopped the taxi had it not been for the instructions she received from Constable Bagshaw and Sergeant Hall.
Constable Fawcett said that it was common police procedure to stop taxis and sometimes question passengers. She then gave evidence as follows:[9]
[9] TX p44, line 28 – line 18 p45
Q.So you might stop vehicles or even taxis if there was a possibility that the occupant had a warrant or was wanted for some reason by police.
A.Yes.
Q.Even if that person was a passenger in the taxi.
A.Yes, we just ask their name and then conduct checks.
Q.But to do that you would need a reason to stop the vehicle itself, wouldn't you; you could exercise your powers to stop the vehicle.
A.Yes.
Q.But you might do that if you wanted to speak to an occupant of the vehicle or a passenger.
A.Yes.
Q.What would you do, carry out some check on the driver in those circumstances.
A.Yes, that's what I did on this night, stopped and spoke to the driver.
Q.And on those occasions - I'm not talking about this night - but on those occasions then the other officer might have a look to see whether any of the passengers were wanted by police or had warrants.
A.Yes, that's correct.
Q.So you would effectively be involved in pulling over vehicles to conduct a check on the driver but also to conduct checks on passengers.
A.Yes.
Q.Even though they weren't suspected of committing any offences at the time.
A.That's right.
Sergeant Hall gave evidence of listening to the police radio chat line and hearing Constable Bagshaw say that she thought that the applicant was in a taxi. Sergeant Hall said that the applicant was a person of interest from a SAPOL point of view in relation to the selling and supplying of drugs within the township of Port Augusta. He gave instructions to Constables Bagshaw and Fawcett to follow the taxi and to pull it over. The aim of pulling the taxi over was, he said, to see whether the passenger was the applicant. Sergeant Hall’s evidence on this topic is encapsulated in the following passage of cross-examination:[10]
[10] TX p68, line 33 – line 5 p70
Q.This was not a routine traffic stop to check on the bonafides of a female taxi driver.
A.No.
Q.You instructed them to stop the taxi, so that you specifically could speak to Richards.
A.So that I could?
Q.Yes.
A.It was to confirm whether it was him.
Q.Did you understand that Constable Bagshaw knew Richards.
A.She'd had prior dealings, bearing in mind it's dark at night time, it's not easy to see or confirm identity of someone in a vehicle.
Q.Fair enough but once she'd confirmed that it was Richards, you were going to become involved.
A.Yeah, I was there to support.
Q.And to question Richards.
A.Yep, to do my job. Yeah.
Sergeant Hall was frank that his interest was not in the taxi or the taxi driver rather it was in the information that the applicant could be a passenger in the taxi.
Police power to stop a vehicle
A police officer may exercise all of his or her powers as may be appropriate in any given situation. If this was a lawful traffic stop, it was proper for Constable Bagshaw and Sergeant Hall to ask questions of passengers such as the applicant. Police officers like any other members of the community are entitled to ask questions. They do not need any statutory basis to do so as long as they do not suggest to the person being questioned that they have any obligation to answer the questions. The fact that a person is not obliged to answer questions does not make them unlawful.[11] Likewise, if a traffic stop is lawful and the police detect another offence unrelated to the stop such as a prescribed firearm unsecured in the vehicle, it is proper for police to act upon this incidental observation. A key issue in this case is therefore the lawfulness of the decision to stop the taxi.
[11] Police v Moukachar (2010) 107 SASR 450 and R v Dam & Nguyen (2015) 123 SASR 511
The police have a number of statutory powers to stop vehicles. Section 40H (1)(a) of the Road Traffic Act 1961 (“RTA”) provides a police officer with the power to direct a driver to stop their vehicle for the purpose of, or in connection with exercising other powers under a road law. It states, inter alia, that:
(1) An authorised officer may, for the purpose of or in connection with exercising other powers under a road law, direct –
(a) the driver of a vehicle to stop the vehicle;
Section 47E (2) of the RTA provides a police officer with the power to direct a driver to stop their vehicle for the purpose of requiring them to submit to an alcotest or a breath analysis. It states:
(1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person –
(a)     is driving, or has driven, a motor vehicle; or
(b)     is attempting, or has attempted, to put a motor vehicle in motion; or
(c)     is acting, or has acted, as a qualified supervising driver for the holder of a             permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2) A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
Section 52(9) of the CSA provides a police officer with the power to stop a vehicle where it is reasonably suspected that that vehicle could contain evidence in relation to the commission of an offence against the CSA. This section also provides a police officer with the power to detain, search and seize and remove any evidence of this kind. It states:
(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.

There is a similar power to stop a vehicle under section 52(1) of the CSA.
Section 68(1)(a) of the Summary Offences Act 1953 (“SOA”) provides a police officer with the power to stop, search and detain a vehicle where the officer reasonably suspects that the vehicle contains stolen goods or evidence related to the commission of an offence. It states:
(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;
Was the traffic stop lawful?
The statutory powers to stop a vehicle set out above represent “an intrusion into the common law rights of people to go about their lawful business undisturbed” and are to be read narrowly.[12] It is therefore necessary, in considering the issue of whether the decision to stop the taxi was lawful, to carefully consider the basis upon which it was stopped.[13] The comments of Chief Justice King relating to the stop and search of a motor vehicle in Armstrong v R[14], a decision of the S.A. Court of Criminal Appeal, are relevant:
There must have been some reason for stopping this particular car. It is not to the point that in the event items were seen in the car which subsequently lead to a charge. There is nothing to suggest that the police had any reason to suspect this when the car was stopped. I do not wish to make any criticism of the police. There may have been some reason for stopping the car which was not disclosed in the evidence. The basis upon which the car was stopped is important. If it was stopped for no better reason than the racial characteristics of the occupants of the car, or, the absence of an air of affluence about them or about the car, the action of the police would have to be characterised as high handed and arbitrary. Harassment on such grounds could not be tolerated.[15]
[12] R v Kola (2002) 83 SASR 477 at [39]
[13] R v Kola, op. cit. at [40]
[14] (1989) 53 SASR 25
[15] TX 28
It is clear from the evidence that the police in this matter were not exercising their powers under the SOA or the CSA in order to stop the taxi. At the time police stopped the taxi, there was no basis for a reasonable suspicion of the presence of any substance or equipment that would afford evidence of an offence under the CSA or of stolen goods or evidence related to the commission of an offence to base a search under the SOA. None of the police officers contended that there was.
Sergeant Hall did not nominate any legislative basis for stopping the taxi and it is far from clear on his evidence what power he believed police were exercising. He appeared to understand that confirming the identity of the passenger was a sufficient basis to stop the taxi. Plainly this is not correct. Constables Bagshaw and Fawcett did not articulate a statutory power for stopping the taxi; however their evidence indicates that, if there was a statutory basis, it was under the RTA for the purpose of conducting a licence check and an alcotest on the driver.
The S.A. Court of Criminal Appeal, in R v Kola,[16] dealt with a challenge to a police search under the CSA following the accused’s vehicle being stopped at a random breath testing station (BTS). The police officer who conducted the search did so on the basis that he detected a smell of cannabis as he was about to administer an alcotest. It was common ground that the only basis for stopping the accused’s vehicle was the exercise of a power under s.47E(2a) of the RTA to require a driver to stop at a BTS. The evidence also disclosed that the BTS was established as part of a wider police operation, “Operation Interest”, set up to target a wide range of vehicle related offences in particular traffic “corridors” being used by offenders. There was a challenge to the validity of the BTS. Chief Justice Doyle, with whom the other members of the Court agreed, said: [17]
………it is not sufficient simply to inquire whether alcotests were in fact conducted at a BTS, if there is any challenge to the lawfulness of the establishment of a BTS. It is possible that the presence of an extraneous purpose will invalidate the establishment of the BTS.
[16] (2002) 83 SASR 477
[17] Paras [38] – [40]
A number of examples were given of such extraneous purposes. Of particular relevance is the following example:[18]
Again, one might postulate a BTS established by a police officer to enable other police officers to check cars for a prison escapee, the BTS being established as nothing more than an excuse or device to enable the police to stop cars so that they can check the drivers and passengers. Even though locating the escapee is a proper function of the member of the police force, one again tends to think that the BTS would not be lawfully established if the evidence showed that that was the purpose with which it was established, and if the conducting of alcotests was merely a means to that end. In each instance one would think that the mere fact that alcotests were actually conducted would not make the establishment of the BTS lawful. Again, and perhaps more obviously than in the case of the last example, if the conduct of alcotests at a BTS was a mere pretext or device, the alcotest being conducted only if the police officer could find no other basis to detain a motorist who had been stopped.
[18] Para [37]
Chief Justice Doyle conceded that the line was not easily drawn before concluding that:
For those reasons I am of the opinion that the BTS was validly established. It was established to enable alcotests to be conducted. It did not cease to be validly or lawfully established because Senior Sergeant Maher also intended that the BTS operate in a manner that would facilitate achieving the objects of ‘Operation Interest’. I emphasise that the establishment of the BTS was not a mere pretext upon which to stop vehicles for purposes other than conducting alcotests.[19]
[19] Para [43]
Turning to the evidence in this case, it is plain that there was nothing about the taxi, the taxi driver or the manner of her driving which attracted police attention. The evidence of all of the police officers in this case, and particularly the evidence of Sergeant Hall, makes it clear that the only reason this taxi was stopped and the taxi driver was subjected to a licence check and an alcotest was because it was thought that her passenger might be the applicant. Stopping the taxi was for the purpose of confirming that the passenger was the applicant. The applicant was on bail for a drug offence but there was no current intelligence or reason to suspect the applicant of any other offending. If the passenger was the applicant, the stop also afforded the police the opportunity to question him about his activities that evening. It is further clear from the evidence that the police contemplated the possibility that such questions would give rise to the opportunity to conduct a search under the CSA. In these circumstances it is my view that the decision to stop the taxi to conduct an alcotest and licence check on the driver was “a mere pretext” to enable the police officers to identify and, possibly, question the passenger. The police do have powers to question the applicant as I have indicated. What they were not permitted to do, in my view, was to stop the taxi on that pretext in order to ask those questions. Whilst detection of drug offences is plainly a proper function of the police, the use of road traffic laws as a means to achieve that end is not.
The prosecution contended that the accused could not hide from police by simply being in a taxi. Leaving aside the likelihood that the applicant would have exited the taxi at some stage, this submission suggests that if there is not sufficient basis to stop a vehicle under the CSA or SOA then the Court should take a wide view of the statutory power to stop a vehicle under the RTA. I decline to do so bearing in mind the authorities referred to above. If Parliament had intended to provide the police with such extensive powers to stop vehicles under this Act then it would have done so.
In all of the circumstances, I do not consider that the decision to stop the taxi was a lawful exercise of ss40H (1)(a) and/or 47E (2) of the RTA.
Was there a reasonable suspicion for the purposes of the CSA?
I now turn to the search that followed the traffic stop. A police officer has the authority to search any person whom the officer reasonably suspects has in his possession any substance or equipment in contravention of the CSA.[20] This is a question of fact to be decided on the balance of probabilities. The Court of Criminal Appeal discussed the concept of reasonable suspicion in R v Nguyen:[21]
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 s.52(9) of the Controlled Substances Act 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 Controlled Substances Act 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 of much of its utility, to demand material which supports the positive belief in the existence of the relevant facts (citations omitted)
[20] Controlled Substances Act 1984 s52(6)
[21] (2013) 117 SASR 432 at 437
The relevant suspicion was formed by Constable Bagshaw although it is clear that Sergeant Hall agreed with her decision to search the applicant under s52(6).[22] Constable Bagshaw identified a number of factors forming the basis for her suspicion that the accused had in his possession a substance or equipment that would afford evidence of an offence against the Controlled Substances Act:
·The applicant’s behaviour and appearance. He did not make eye contact rather he stared straight through the front window of the taxi, further, he appeared to become fidgety the longer she was speaking to him.
·She was aware that he was on bail for previous drug offences and that those charges were related to drug dealing from a hotel within Port Augusta.
·The applicant said that he had come from the Augusta Courtyard Motel.
·He said he was in hotel room with Sam Whiting and Sarah Averis. Sam Whiting often came to police attention for drug related offending.
·The time; 2:00 am on a Friday morning.
·The applicant’s denial of ownership of a backpack situated at his feet in the front passenger foot well combined with the fact that the taxi driver stated that the applicant had entered the taxi with the backpack.
[22] TX p60
It is my view that, on balance, these factors in combination did provide a reasonable basis for Constable Bagshaw to suspect that the applicant was in possession of illicit drugs or evidence of an offence under the CSA sufficient to authorise the search of the applicant and the backpack.
Exercise of the discretion
Given my findings about the unlawfulness of the traffic stop and the reasonableness of the suspicion I must now consider my discretion to exclude the evidence obtained from the search in line with the principles articulated by the High Court in R v Ireland[23] and Bunning v Cross[24] and the Court of Criminal Appeal in this State in cases such as R v Rockford[25]; R v Nguyen[26] and R v Golja.[27]
[23] (1970) 126 CLR 321
[24] (1978) 141 CLR 54
[25] (2015) 122 SASR 391
[26] (2013) 117 SASR 432
[27] [2017] SASCFC 61
The discretion involves a difficult balancing act. In R v Ireland, Barwick CJ said:[28]
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.
[28] At p335
In Bunning v Cross, Stephen and Aickin JJ, said that[29]
What Ireland involves is no simple question of ensuring fairness to an applicant 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 applicant. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the applicant being only one factor which, if present, will lay its part in the whole process of consideration.
[29] At p74
The discretion has been the subject of consideration by the Court of Criminal Appeal in this State on numerous occasions. In R v Nguyen,[30] the police officer’s view of the scope of powers conferred by s52(6) and 52(9) of the CSA greatly exceeded their true limits. The Court commented that this view was “calculated to lead to widespread and arbitrary infringements on civil liberties” and that “power designed to facilitate investigations can readily be misused as instruments of harassment”. The Court stated that:[31]
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends.
The Court went on to exclude the evidence:[32]
“….because it is necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the CSA.
[30] See note 26
[31] Para [41]
[32] Para [42]
In R v. Rockford, Stanley J said[33]:
In my view, while the considerations favouring the admission of the impugned evidence are strong, the considerations favouring the exclusion of that evidence are stronger.
The right of a citizen to be protected from unlawful search and entry is an important civil right in our society. As this court said in R v Nguyen, it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. From the moment of their entry onto the property the police were engaged in a search. Recourse to euphemisms by the police does not alter that fact. The erroneous views of Detectives Hanssen and Moore of the scope of their powers of entry represent a view which, if tolerated by the courts, is calculated to lead to wide-spread and arbitrary infringements on civil liberties. It is those limitations on police powers of search and entry which constitute a fundamental safeguard of those civil liberties (citations omitted)
[33] At p401
In R. v Golja, Stanley J repeated his observations in Rockford and said[34]:
The discretion is enlivened by unlawful or improper police conduct. Once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations. Those considerations focus on competing aspects of the public interest. While the court must be careful to protect the citizen from the abuse of police powers, the court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of the search power or the result of some systematic misunderstanding by police about the limits of that power.
[34] At para [35]
His Honour stated that had he been required to exercise the discretion afresh, he would not have excluded the evidence in that case because there was no “conscious impropriety” by the police, nor was it an instance of widespread misunderstanding by the police of the conditions governing the exercise of the search power as in Rockford. He went on to say that[35]
In addition to those factors, this case involved serious offending involving trafficking in methylamphetamine and the unlawful possession of approximately $23,000. There is a strong public interest in the detection and prosecution of such offending. Further, the offending in this case would have been in the category of unlawfully procured evidence relating to offending which had already occurred, rather than the category discussed in Ridgeway of offending which would never have occurred but for the unlawful conduct of the police. The factors favouring the exclusion of such evidence is not as strong in the former category as in the latter category.
The administration of justice would not have been demeaned in this case by the admission of the evidence procured by the search if the search had been unlawful.
[35] Paras [37] – [38]
In the present case, the evidence obtained is highly cogent evidence of the commission of a serious drug offence by the applicant. There was a significant quantity of methylamphetamine and cash located. Nothing the police did affects the cogency of that evidence. The police understood what was required to form a “reasonable suspicion” for the purposes of the CSA. As I have found, leaving aside the legality of the traffic stop, the police had a proper basis to search the applicant and the backpack.
The problem however rests with the traffic stop. Two of the police officers thought that this was justified under the RTA; the other identified no statutory basis for the stop. Taking their evidence to its logical conclusion these police officers appear to hold the belief that, having once arrested a person for drug activity, they are entitled to pull over any vehicle in which that person might be a passenger with a view to confirming that it was indeed that person, checking what that person had been doing and possibly obtaining grounds upon which to search the person or the vehicle.
The prosecution say that the conduct of the police was proper and that the bigger picture is about police trying to intercept and stop drug trafficking. This submission appears to represent a contention that the end justifies the means. This is not, as the authorities show, the state of the law in South Australia. Whilst drug offending is undoubtedly a serious concern within our community, detection of such offending cannot come at the expense of undermining a citizen’s rights to go about their lawful business. The prosecution contended that the infringement of the applicant’s civil liberties was limited. I disagree. Further, this submission overlooks the taxi driver who was, on any view of the situation, completely blameless. The prosecution contends that there is no evidence of any complaint by the taxi driver nor is there any evidence of an infringement of her civil liberties. I reject this argument. There are many reasons why the taxi driver may not have complained but the interference with her civil liberties is a matter of common sense. Her vehicle was stopped, she was alcotested and had to produce a driver’s licence for no other reason than that her passenger was suspected to be a person who had previously been arrested for drug trafficking.

I accept that the unlawfulness by police did not involve conscious impropriety indeed it was motivated by an understandable desire to detect illicit drug activities. Commendable though this motivation is, the actions of the police involved a “fundamental misconception”[36] of their power to stop vehicles. They did not turn their mind to whether it was appropriate to stop the taxi in these circumstances as opposed to some other action such as maintaining surveillance on the taxi or speaking to the applicant when he got out of the taxi. It is clear from the evidence of all three police officers that none of them see any problem with stopping the taxi in these circumstances. It seems further that this is a practice they had engaged in on a significant number of prior occasions. It does not appear that they saw their conduct as unusual or exceptional. No evidence was called to show that their mistaken understanding of the breadth of their powers was a “peculiar or isolated one”. It involved a significant incursion into the civil liberties of the applicant and the innocent taxi driver. The conduct could properly be characterised as “high handed and arbitrary”. If the courts condone such conduct it would be calculated to lead to “widespread and arbitrary infringements on civil liberties”.[37] Law abiding taxi drivers, or indeed any driver, should not be at risk of having their vehicle stopped by police simply because they are conveying a person thought to be someone previously arrested for drug trafficking offences. Such a risk would inevitably lower the police in the estimation of the public. Whilst there is undoubtedly a public interest in the detection of drug offending this must be balanced against the public interest in the protection of fundamental liberties. In all of the circumstances, I consider it appropriate to exercise the discretion to exclude the evidence obtained in the search. I uphold the applicant’s application under Rule 49.
[36] R v Nguyen [2015] SASCFC 7 at para [37]
[37] R v Rockford at p401