R v RIERA - [2016] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RIERA
[2016] SADC 108
Reasons for Ruling of His Honour Judge Muscat
2 September 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
Defendant charged with trafficking in a controlled drug.
The drugs the subject of the charge were found following a search of the defendant during a search for firearms at his home - whether police suspected on reasonable grounds that those firearms were at his home, authorising a search under s 32(3) of the Firearms Act 1977 - whether, if so, police were able to conduct a search of the defendant pursuant to s 52(6) of the Controlled Substances Act 1984.
Defendant later strip searched at the City Watch House and further drugs located - whether search lawfully conducted under s 81 of the Summary Offences Act 1953.
Held: Police suspected on reasonable grounds that firearms were at the defendant's home authorising search under s 32(3) of the Firearms Act. Police reasonably suspected defendant to be in possession of drugs enabling search under s 52(6) of the Controlled Substances Act. Even if the search of the defendant's home was unlawful the proper exercise of the public policy discretion favours admission of the evidence. Search of defendant at the City Watch House not lawfully conducted under s 81 of the Summary Offences Act 1953 but evidence admitted in the exercise of the discretion.
Controlled Substances Act 1984 s 52(6); Firearms Act 1977 s 32(3), s 32(3)(a); Summary Offences Act 1953 s 68, s 81, referred to.
R v Rogers (2011) 109 SASR 307; R v Willingham (No 2) (2012) 282 LSJS 369; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2016] SASCFC 96; Ercegovic v Higgins (1987) 45 SASR 189; Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) 112 SASR 10; Azar v DPP (2014) 239 A Crim R 75; R v Romeo (1982) 30 SASR 243; Gibson v Ellis (1992) 59 SASR 420; R v Long & McDonnell (2002) 224 LSJS 193; Coco v R (1994) 179 CLR 427; Bennett v Police [2016] SASC 139; R v Applebee (1995) 79 A Crim R 554; R v Benchik (1994) 175 LSJS 306; Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1988) 192 CLR 159; R v Rockford (2015) 122 SASR 391; R v Pandelli (1999) 204 LSJS 111; R v Lobban (2000) 77 SASR 24, considered.

R v RIERA
[2016] SADC 108
Introduction

The defendant is charged with one count of trafficking in methylamphetamine and two counts of hindering a police officer in the exercise of his powers under the Controlled Substances Act 1984.[1]
[1] District Court Information dated 20 July 2015.
The drugs which are the subject of the count of trafficking were located on the defendant following two separate body searches, first at his home address and later at the City Watch House both on 6 March 2015.
The search of the defendant at his home address revealed that he was in possession of a plastic resealable bag containing some 9.72 grams of crystal powder, of which 7.11 grams was methylamphetamine.[2] A subsequent search of the defendant at the City Watch House produced two plastic resealable bags containing a total of 3.26 grams of crystal powder, of which 2.53 grams was methylamphetamine.[3] Other evidence implicating the defendant in the distribution of methylamphetamine was also located during the search conducted at the defendant’s home address following the discovery of the drugs on the defendant’s person.
[2] Certificate of Analysis.
[3] Ibid.
The defendant has applied to exclude evidence of the drugs located on him on the grounds that it was obtained as a result of an illegal search by the police.[4]
[4] See Application filed pursuant to Rule 49(1) (d) of the District Court Criminal Rules 2014.
The defendant’s application is based on the following contentions as refined during argument:
1. That the police officers who attended at his home address to conduct a search for firearms were trespassing as they did not suspect on reasonable grounds that there were firearms at the premises as required to authorise the search pursuant to s 32(3) of the Firearms Act 1977.
2. That the police officer who conducted the search of the defendant’s person at his home address was acting illegally as he was a trespasser or, if he was lawfully present to conduct a search for firearms under the Firearms Act, he acted beyond the scope of those powers by searching the defendant for drugs whether acting pursuant to s 52(6) of the Controlled Substances Act 1984 or s 68 of the Summary Offences Act 1953.
3. That the subsequent intimate search of the defendant conducted at the City Watch House was unlawful because the police officer conducting the search did not strictly comply with s 81 of the Summary Offences Act.
4. That in the face of the illegality on the part of the police officers who searched the defendant the court should not exercise its discretion to permit evidence of the finding of drugs to be led by the prosecution at trial.
I dismiss the defendant’s application to exclude the evidence obtained from the two searches and my reasons follow.
Background to search of the defendant’s home for firearms
The police officers involved in searching the defendant’s home address on 6 March 2015 for firearms were members of the Crime Gangs Task Force involved in investigating serious and organised crime involving members of outlaw motorcycle gangs.
Detective Mark Heading was the lead investigator in charge of organising the search of the defendant’s property, after suspecting that firearms were being stored there.
Detective Heading gave evidence that he received information from another member of the Crime Gangs Task Force who was managing informants that Peter Masters, a full member of the Rebels Outlaw Motorcycle Gang, was actively seeking retribution against members of the Mongols Outlaw Motorcycle Gang, specifically Mark Sandery and two other Mongols members, after Masters and an associate were lured to a residential address on 14 February 2014 and ambushed. There, Masters and his associate were assaulted by members of the Mongols using metal bars, resulting in Masters being admitted to the Royal Adelaide Hospital for treatment for his injuries which consisted of bruising and lacerations to his head and limbs. Detective Heading happened to be nearby the residential address where Masters was assaulted and personally conducted an investigation of that matter.[5]
[5] T13-14.
Detective Heading said on 2 March 2015 he received information from a police colleague that Masters was in possession of three AK47 rifles and a handgun which he planned to use in exacting revenge on the Mongols.[6] The context of his conversations with his colleague suggested that the information relating to the firearms was very recent.[7]
[6] T14; 29.
[7] T30.
Further information received included that Masters was supplying the defendant with methylamphetamine at the defendant’s home and that Masters stayed at the defendant’s home for ‘a couple of hours at a time when attending there’.[8] The information did not include the regularity with which Masters was visiting the defendant’s home.[9]
[8] T15.
[9] T39.
Detective Heading said that on 3 March 2015 he received further information from the same police officer that nominees of the Rebels were ‘actively driving around and keeping an eye out or protecting full Rebel members and actively seeking to locate the home addresses of members of the Mongols as a means of seeking retribution for the attack on Masters’.[10]
[10] T17.
Detective Heading said that later that same day he received more information from another police officer, who also had dealings with an informant, that Masters ‘had been seen in possession of AK47 assault rifles and that he had been staying at the Rebels clubrooms most nights’.[11]
[11] T17.
The information also included that other members of the Rebels were staying with Masters as a source of protection for him and that Masters believed Mark Sandery, a full member of the Mongols, to have been responsible for the attack on him and that he (Masters) was seeking retaliation against Sandery and other members of the Mongols involved in assaulting him.[12] The information received was that there was no known address where Masters was staying other than at the Rebels clubrooms where he was observed to be in possession of firearms.[13]
[12] T17-18.
[13] T18.
Detective Heading stated that upon reviewing police information relating to numerous previous searches of Masters’ home address[14] it would be ‘very, very unlikely he would retain any firearms at that address’.[15]
[14] Whilst Masters lived with his mother he kept very minimal personal belongings there: T15.
[15] T15; 34.
The search of the Rebels’ clubrooms for firearms
Based on the above information Detective Heading and other members of the Crime Gangs Task Force conducted a search of the Rebels’ clubrooms on the morning of 4 March 2015 in an attempt to locate firearms. The search was conducted under the authority of s 32(3)(a) of the Firearms Act 1977, which provides:
32—Power to inspect or seize firearms etc
(3) A police officer may enter and search any premises in which the police officer suspects on reasonable grounds—
(a) there is a firearm, firearm part, silencer, prohibited firearm accessory, mechanism, fitting, ammunition or licence liable to seizure under this section.
There was no challenge to Detective Heading’s evidence that on the information available to him he suspected, on reasonable grounds, that firearms were at the clubrooms, even though no firearms were located during the search.
The search of the defendant’s home for firearms
Detective Heading stated that despite the search of the clubrooms not producing any firearms there remained a real concern that the AK47 firearms were still in circulation and that they were being controlled by Masters.[16] He based this view on his interpretation of the police intelligence and his knowledge of Masters and outlaw motor cycle gangs which strongly suggested that the firearms would be in circulation somewhere, although precisely where he did not know.[17]
[16] T18.
[17] T40.
Detective Heading stated that following the unsuccessful search of the clubrooms, he reassessed the police intelligence he had received and determined to direct his attention towards close associates of Masters and who Masters might turn to for the purpose of hiding firearms in his attempt to avoid police detection.[18] Detective Heading accepted that storing firearms at an associate’s home was one of a number of methods of avoiding police detection.[19] He also accepted that there would be many associates who Masters could call upon to store firearms for him, although the information he had to work with was that Masters was spending much of his time at the clubrooms and attending the defendant’s home.[20]
[18] T16; 31.
[19] T31-32.
[20] T33.
Detective Heading stated that based on the information he had received on 2 March 2015 that Masters was attending the defendant’s home address, he formed a suspicion that Masters would be likely to use that address to hide the firearms.
Detective Heading stated that he formed this suspicion based on the information he had received together with his knowledge and experience as a police officer with the Crime Gangs Task Force, of the behaviour of members of outlaw motorcycle gangs using associates for the purpose of hiding weapons.[21]
[21] T12; 19.
The information Detective Heading received revealed there was a clear link between Masters and the defendant, through the supply of methylamphetamine, and that he was known to regularly attend at the defendant’s address.[22] For these reasons Detective Heading considered it likely that Masters could use the defendant’s house to hide the firearms. He explained that it was likely Masters would utilise the defendant’s home as a ‘safe house’ to secure the firearms[23] and as such it was the most logical place to search after the clubrooms.[24]
[22] T18-19.
[23] T19.
[24] T18.
The defendant contends that Detective Heading’s suspicions were not based on reasonable grounds and therefore he was not authorised to conduct a search of the defendant’s property.
Detective Heading made it clear in his evidence that his priority throughout the investigation was to locate the firearms and prevent Masters seeking retribution against the Mongols. Naturally, there was a risk to members of the public and more specifically to Mark Sandery and other Mongols, if Masters carried out his stated retribution.[25]
[25] T15; 20.
Information specific to the defendant obtained prior to searching his home
Prior to attending the defendant’s home address, Detective Heading said that he conducted a review of police intelligence held on the defendant as part of general police procedure.[26] That intelligence revealed, amongst other things, that the defendant was known to traffic in methylamphetamine and pills from his home address; that he concealed the drugs in his underpants; that he was also involved in exchanging methylamphetamine for stolen property; that a Troy Reynolds was living in a shed at the defendant’s property and that Reynolds was involved in the manufacture of methylamphetamine at the address.[27]
[26] Exhibit VDP1.The report was dated 23 January 2016.
[27] None of this information was relied upon by Detective Heading in informing himself of his suspicion that there were firearms at the defendant’s home: T36.
The search of the defendant for drugs at his home by Detective Heading
On 6 March 2015 Detective Heading conducted a briefing with other members of the Crime Gangs Task Force at the Netley Police Station prior to conducting a search of the defendant’s property. He said that he imparted the information he had received to those other police officers during the course of the briefing.
Following the briefing, a number of police officers, led by Detective Heading, attended at the defendant’s home address to conduct a search of the property for firearms under the authority of s 32(3)(a) of the Firearms Act.
Whilst Detective Heading was in possession of a general search warrant the search for firearms was being conducted under the Firearms Act with the powers of a general search warrant to be utilised only in the event that something incidental was located during the search.[28]
[28] T37.
The police were met at the front door by Brianna Vincent, who requested she be shown a warrant before permitting entry into the house. Detective Heading accepted that she was informed that no warrant was required as the police were acting under the authority of the Firearms Act to search the house for the presence of firearms.
Detective Heading’s initial role in entering the house was to identify any occupants and assess any risks to the police before searching the property.[29] Other police officers informed him that there were some occupants attempting to leave the property through the rear yard.[30]
[29] T23.
[30] T24.
Detective Heading walked through the house and into the back yard where he observed the defendant and two other men standing near the back door.[31] He said that the men appeared as though they were involved in a meeting.[32]
[31] T23.
[32] T24.
Detective Heading said that the men appeared to be looking around ‘possibly trying to move objects about as if trying to secrete things about the yard’.[33]
[33] T24.
Detective Heading directed the defendant to remove his hands from his pockets. Detective Heading said that he did so in order to ensure his safety and that of the other police officers engaged in the search.[34] As he put it: ‘It is a fairly standard practice to control the situation and ensure the safety of everyone present’.[35] The defendant accepts that Detective Heading was entitled to request the defendant to remove his hands from his pockets.[36]
[34] T25.
[35] T25. See also T42-43.
[36] T89. See Police v Moukachar (2010) 107 SASR 450; Bain v Police (2011) 112 SASR 10.
Detective Heading said the defendant appeared nervous when he directed him to remove his hands from his pockets.
Detective Heading said that when he directed the defendant to remove his hands from his pockets the defendant appeared to be pushing an item further into his right pocket.[37]
[37] T25.
Detective Heading said that he formed a suspicion that the defendant may have been engaged in a drug transaction involving the other men he was with. He said in forming that suspicion he relied upon the following:
·The intelligence that the defendant was dealing in drugs from his home.
·The observations of the activities of the three men in the rear yard.
·That the defendant appeared to be pushing an item deeper into his pocket.
Detective Heading said he then directed the defendant to remove all of the items from his pockets.
The defendant removed from his pockets a plastic resealable bag, a wallet containing a large sum of cash, a cigarette lighter and mobile telephone.
Detective Heading then requested the defendant to accompany him to the front of the premises so that he could there conduct a search of his person pursuant to s 52(6) of the Controlled Substances Act, which 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.
The defendant conceded that Detective Heading held a reasonable suspicion that he may be in possession of an illicit substance.[38]
[38] T89; 122.
The defendant asked Detective Heading if he had a warrant and he responded by telling the defendant that he did not require one as the police were searching the property under the authority of the Firearms Act.[39] Detective Heading stated that he was searching the defendant, without a warrant, under s 52(6) of the Controlled Substances Act and based on what was located would then make a determination whether to execute his general search warrant to search the property.[40]
[39] T43; 46.
[40] T43.
The defendant was directed to stand with his hands on the bonnet or roof of a car parked in the driveway following which time Detective Heading began to ‘pat down’ the defendant and search his clothing as best as he could.[41]
[41] T26-27.
Whilst searching the defendant Detective Heading said that he felt a foreign object which appeared to be secreted in the defendant’s underwear or in the front of his trousers.[42] Detective Heading requested the defendant remove the object from his underwear, at which point the defendant placed his hands into the front of his underwear and appeared to be pulling something apart.[43]
[42] T26.
[43] T27.
Fearing that the defendant was attempting to destroy evidence, Detective Heading forcibly restrained the defendant on the ground.[44] Whilst doing so, the defendant removed one of his hands from his underwear which held a clear plastic bag.[45] The defendant used his other hand to tear at the bag resulting in a cloud of white powder emanating from the bag and the remnants falling to the ground nearby.[46]
[44] T27.
[45] T27.
[46] T27.
Suspecting that the defendant was in possession of a trafficable amount of a controlled drug likely to be methylamphetamine, Detective Heading placed the defendant under arrest. Thereafter, Detective Gourd took custody of the defendant, enabling Detective Heading to continue his search of the defendant’s property.[47]
[47] Detective Heading utilised his general search warrant to do so: T45-46.

Detective Heading said that on the ground near to where he had first observed the defendant and the two other men standing was a set of digital scales and inside a bag which was also located in close proximity to where the men were standing were five empty plastic resealable bags. The defendant’s wallet contained $1750 in $50 notes, another $140 in $20 notes, two $100 Coles Myers gift cards and two $500 Coles Myers gift cards.
The continued custody of the defendant by Detective Gourd
Detective Gourd said that he approached the defendant as the defendant was being restrained by Detective Heading. Detective Gourd said that he observed the spilt drugs on the ground nearby as well as a plastic bag with more white powder inside.[48] Detective Heading informed Detective Gourd of what had just unfolded. Detective Gourd then walked the defendant to the police vehicle.
[48] T48.
The defendant had been handcuffed to the rear of his body by Detective Heading. Detective Gourd said that he observed the defendant attempting to place his hands inside the back of his shorts near his underwear in the region of his buttocks.[49] He directed the defendant to remove his hands and indeed said that he removed the defendant’s hands from his shorts.[50] The defendant told him that he was simply trying to hold his shorts up.[51]
[49] T49.
[50] T49.
[51] T50.
The defendant was then placed into the rear of the police vehicle to be conveyed to the City Watch House for charging. Detective Gourd said he did not consider conducting a further search of the defendant at that time as he had already been searched by other police officers. However, his suspicions began to rise when he observed the defendant fidgeting with his shorts as previously described and further, when the defendant was ‘squirming’ in the back seat of the police vehicle, he appeared to be attempting to adjust something within his shorts but could not do so because he was handcuffed.[52]
[52] T49-50.
The defendant was afforded his arrest rights inside the police vehicle which conversation was recorded by Constable Randells who was operating a hand held video recorder at the time.
Once at the City Watch House, Detective Gourd handcuffed the defendant to the front of his body as he was complaining about the tightness of the handcuffs on his wrists. The defendant was taken into an observation room, described as a ‘padded room’.
The search of the defendant for drugs at the City Watch House by Detective Gourd
Because of the defendant’s behaviour in the police vehicle, Detective Gourd said he believed the defendant may have had further drugs on him secreted either within his shorts or in his underwear. The defendant has not challenged that Detective Gourd reasonably suspected that he was in possession of controlled drugs such as to justify a search of his person.[53]
[53] T70; 73; 122
As a result of his suspicions Detective Gourd requested the defendant to lower his shorts, which he did with the assistance of Constable Randells. Inside the defendant’s right thigh was a small plastic bag which appeared to contain a small amount of white powder.[54]
[54] The Certificate of Analysis reveals this bag contained 0.07 grams of a substance containing methylamphetamine.
Detective Gourd said that the defendant appeared to be holding himself in a ‘strange position by clinching his legs together’.[55] As a result of this, Detective Gourd formed the suspicion that the defendant was attempting to prevent something from falling out of his underwear and so he requested the defendant to remove his underwear.[56] With the assistance of Constable Randells, the defendant lowered his underwear but still kept his legs together.[57] Detective Gourd directed the defendant to ‘bend over, to squat basically’ in order to see if the defendant was concealing anything.[58]
[55] T51.
[56] T51.
[57] T51.
[58] T51.
The defendant turned away from him to do so but continued to hold his legs together.[59] Detective Gourd then directed the defendant to fully squat down and to spread his legs apart at which point a plastic bag containing white powder fell from his buttocks. The bag appeared to have been secreted between the cheeks of the defendant’s buttocks.[60]
[59] T51.
[60] The Certificate of Analysis reveals that this bag contained 3.26 grams of power of which 2.21 grams was methylamphetamine.
When the bag fell to the floor the defendant immediately grabbed hold of it with his right hand.[61] Both Detective Gourd and Constable Randells had to wrestle with the defendant in order to get him to release his hold on the bag.[62]
[61] T51.
[62] T51.
Detective Gourd asserted that he was acting pursuant to s 81 of the Summary Offences Act 1953, to conduct an intimate search of the defendant in the City Watch House, which relevantly provides:
81—Power to search, examine and take particulars of persons
(1) A person who is taken into lawful custody may be searched in accordance with this section and anything found as a result of the search may be removed.
(2) The following provisions apply to a search under this section:
(a)     the search may only be carried out by a police officer or a medical practitioner or registered nurse acting at the request of a police officer, but an intrusive search may only be carried out by such a medical practitioner or registered nurse;
(b)     the person carrying out the search may use such force as is reasonably necessary for the purpose and may be assisted by a police officer or other person;
(c)     where a medical practitioner or registered nurse is to carry out an intrusive search, the detainee must be allowed a reasonable opportunity to arrange for the attendance, at the detainee's expense, of a medical practitioner or registered nurse of his or her choice to witness the search.
(3) The following further provisions apply to an intimate search:
(a)     [not applicable]
(b)     [not applicable]
(c)     [not applicable]
(d)     except where it is not reasonably practicable to do so, an intimate search must be carried out by a person of the same sex as the detainee (unless the detainee requests otherwise);
(e)     except where it is not reasonably practicable to do so, an audio visual record of an intimate search must be made (but that part of an intimate search that consists of an intimate intrusive search will not be recorded if the detainee objects);
(f)      if, apart from the question of whether or not the detainee objects to the recording, it is otherwise reasonably practicable to make an audio visual record of an intimate search, the police officer supervising the search must, before the search is carried out—
(i) give the detainee a written statement in a form approved by the Minister outlining—
(A) the value of making an audio visual record of the search; and
(B) that the detainee may object to the search being so recorded; and
(C) where relevant, that if the detainee objects to an intimate intrusive search being recorded, the intimate intrusive search will not be recorded; and
(ii) read the statement to the detainee (with the assistance of an interpreter if one is to be present during the search);
(g)     if an audio visual record of an intimate search, or that part of an intimate search that consists of an intimate intrusive search, is not to be made, the police officer must ensure—
(i) that a written record of the search is made at the time of or as soon as practicable after the search, documenting all items found on the detainee and everything said and done by all persons present; and
(ii) that, as soon as practicable after the search, the record is read aloud to the detainee and an audio visual record of the reading is made; and
(iii) that, when the audio visual recording begins (but before the reading begins) the detainee is invited to interrupt the reading at any time to point out errors or omissions in the record; and
(iv) that, if the detainee in fact interrupts the reading to point out an error or omission, the detainee is then allowed a reasonable opportunity to do so; and
(v) that, at the end of the reading, but while the audio visual recording continues, the detainee is again invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and
(vi) that, if the police officer agrees that there is an error or omission in the record, the officer amends the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer nevertheless makes a note of the error or omission asserted by the detainee in an addendum to the record.
(3a) In deciding whether it is reasonably practicable to make an audio visual record under this section, the following matters must be considered:
(a)      the availability of recording equipment within the period for which it would be lawful to detain the detainee;
(b)     mechanical failure of recording equipment;
(c)     any objections made to the recording by the detainee;
(d)     any other relevant matter.
(3b) If an audio visual record is made under this section, the police officer must, as soon as is reasonably practicable, give the detainee a written statement of his or her right—
(a)     to have the audio visual record played over to the detainee or his or her legal adviser (or both); and
(b)     to obtain a copy of the audio visual record.
(3c) Arrangements must be made, at the request of a detainee, for the playing of an audio visual record at a reasonable time and place to be nominated by the police officer.
(3d) A detainee must be provided, on request and on payment of the fee fixed by regulation, with a copy of an audio visual record made under this section.
(3e)A person (other than the detainee) must not play, or cause to be played, an audio visual record made under this section except—
(a)     for purposes related to the investigation of an offence or alleged misconduct to which the person reasonably believes the recording may be relevant; or
(b)     for the purposes of, or purposes related to, legal proceedings, or proposed legal proceedings, to which the recording is relevant.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3f) An audio visual record made under this section or a written record of an intimate search must be destroyed—
(a)     if the Commissioner of Police is satisfied that it is not likely to be required for any of the purposes referred to in subsection (3e); or
(b)     if a court or tribunal so orders.
(3g) [not applicable]
(4) [not applicable]
(4a) [not applicable]
(4b)[not applicable]
(4c) [not applicable]
(4d)[not applicable]
(4e) [not applicable]
(4g) A procedure under this section—
(a)     must be carried out humanely and with care—
(i) to avoid, as far as reasonably practicable, offending genuinely held cultural values or religious beliefs; and
(ii) to avoid inflicting unnecessary physical harm, humiliation or embarrassment; and
(b) must not be carried out in the presence or view of more persons than are necessary for properly carrying out the procedure and satisfying any relevant statutory requirements.
(5) The powers given by this section are in addition to, and do not derogate from, any other powers of police officers.
(5a) No civil or criminal liability is incurred by a person who carries out, or assists in carrying out, a procedure under this section for an act or omission if—
(a)     the person genuinely believes that the procedure is authorised under this section; and
(b)     the act or omission is reasonable in the circumstances.
(6)     In this section—
intimate search means a search of the body that involves exposure of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts, and includes an intimate intrusive search.
In introducing the above amendments to the Summary Offences Act the Attorney-General stated that the underlying objective of the requirement to video record strip searches is to provide protection for both the police and the detainee being searched. It is in the interests of both parties, and the criminal justice system generally, that complaints of alleged misconduct be resolved in a timely and conclusive manner. The requirement to video record strip searches operates as a safeguard against impropriety or allegations of impropriety by providing an independent record of the search which allows for the independent review and conclusive determination of complaints.[63]
[63] Legislative Council second reading, 18 November 1999.
Detective Gourd accepted that he did not strictly comply with the terms of the section. He stated:
I believe mostly I did. In saying that, normally you would advise the person that you intended to do a video recording of it, but given the necessity and the urgency and the preceding behaviour at the scene, I believed that evidence would be destroyed so I didn’t do that.[64]
[64] T52.
Detective Gourd went on to say that he has not commonly conducted intimate searches of suspects or arrested persons during his 17 years as a police officer.[65]
[65] T53-54.
While the intimate search was not videotaped as required by s 81, Detective Gourd said that he made notes of the search and read those notes over to the defendant during a subsequent interview.[66]
[66] T52-53, as required under s 81(3)(g) of the Summary Offences Act.
Although he was aware of his power to search the defendant under s 52(6) of the Controlled Substances Act, Detective Gourd stated that because the defendant was in police custody, he considered the most appropriate power to conduct the search was under s 81 of the Summary Offences Act.[67]
[67] T53.
Detective Gourd denied that he failed to comply with the requirements of s 81 of the Summary Offences Act because he was simply unaware of his obligation to do so.[68] He claimed that it was not reasonably practicable to have video recorded the intimate search because of the defendant’s behaviour and further he considered it ‘operationally unsafe’ to have requested Constable Randells to videotape the intimate search.[69] He repeated under cross-examination that he did not comply with the requirements under s 81 because of ‘the urgency of prevention of destruction of the evidence’.[70]
[68] T57.
[69] T59.
[70] T54.
Even accepting that the defendant had earlier successfully ripped open a bag containing drugs whilst being searched by Detective Heading, I find Detective Gourd’s claim about the need for urgency in searching the defendant difficult to accept given that the defendant was not only restrained with handcuffs preventing him from accessing the drugs but he was in custody in a police station. I do not accept the view that it was not reasonably practicable to have held off the intimate search so as to properly inform the defendant of his rights under s 81(3)(f) and to have obtained a video recorder if the defendant did not object to the recording of the intimate search. Indeed, only shortly after the search was conducted, the defendant was interviewed using a hand-held video camera which Constable Randells had retrieved from the police vehicle.
Detective Gourd, in an unsuccessful attempt to justify why the intimate search was not video recorded, claimed he believed the room in which the search was being conducted was being constantly recorded.[71] Later enquiries made by him, no doubt after his non-compliance with the section was brought to his attention, showed that the recording had not been activated at the time the defendant was in the room being searched.[72] Nevertheless, despite his belief at the time the room was being recorded, he still did not inform the defendant of the matters required under s 81(3)(f), including that the defendant could object to the recording of the intimate search.[73]
[71] T58-59.
[72] T58.
[73] T59.
It is plain that Detective Gourd did not comply with the requirements of s 81 of the Summary Offences Act in conducting the intimate search of the defendant whilst the defendant was in police custody at the City Watch House. The defendant contends that the non-compliance should result in the exclusion of the evidence of the search.
Did Detective Heading hold the requisite suspicion to search the defendant’s home for firearms?
The defendant contends that Detective Heading simply did not have a reasonable suspicion that firearms would be found at the defendant’s home and in those circumstances, he was trespassing and as a result his search of the defendant was unlawful.
The meaning of the expression ‘reasonable suspicion’ was closely analysed by Duggan J in R v Rogers (2011) 109 SASR 307 where he stated at [18]-[22]:
In George v Rockett, the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.
The Court went on to draw a distinction between suspicion and belief:
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
Their Honours also referred to a definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence’.
The distinction between suspicion and belief was explored further by Justice McHugh in Ruddock v Taylor. His Honour referred to the statement of Angas Parsons J in Homes v Thorpe:
According to the plain meaning of the words there is therefore a clear distinction between things that are ‘suspected’ of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is ‘suspicion’ which falls short of belief, ‘belief’ which approaches to conviction, and knowledge which excludes doubt.
McHugh J also quoted from a judgment of the Full Court of the Supreme Court of South Australia in Henderson v Surfield where their Honours said:
Suspicion lives in the consciousness of uncertainty.
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. As Justice Jacobs observed in Manley v Tucs:
Not only does ‘suspicion’ carry less conviction then ‘belief’, but to say that a suspicion is ‘reasonable’ does not necessarily imply that it is well founded, or that the grounds for the suspicion must be factually correct.
The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that every matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require a police officer to assess the reliability of the informer or the hearsay information which has been communicated.
In R v Willingham (No 2) (2012) 282 LSJS 369 the Court of Criminal Appeal stated at [10]:
The questions to be asked in 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 has become known to the police officer.

In R v Nguyen (2013) 117 SASR 432 the Court of Criminal Appeal in discussing the meaning of ‘reasonable suspicion’ stated at [21]-[22]:
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 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 a suspicion. Mere curiosity, speculation or ‘idle wondering’ about the existence of the fact is not the same as a suspicion that exists.
Importantly, s 52(6) and (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 possess 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 musts 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 the 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 or be it rational connection. 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.
Recently in R v Nguyen [2016] SASCFC 96, the Court of Criminal Appeal has also had cause to consider the meaning of ‘reasonable suspicion’ in determining whether the trial judge’s ruling relating to searches of the defendant and his vehicle were lawfully conducted under the Controlled Substances Act.
Although a ‘reasonable suspicion’ and a ‘suspicion based on reasonable grounds’ are different concepts, I have had regard to the above statements in determining the question of whether Detective Heading suspected on reasonable grounds that there were firearms at the defendant’s home so as to authorise the search.
The defendant has argued that the information which Detective Heading relied upon was insufficient to found a reasonable suspicion to search his home for firearms as there was nothing to distinguish searching his home from any number of other addresses which Masters could have used to conceal firearms.
The defendant relied upon Ercegovic v Higgins (1987) 45 SASR 189 in support of his contention that Detective Heading’s suspicions were not based on reasonable grounds. There police officers attended a pickers’ quarters where the defendant was staying whilst working in the Riverland and located two firearms which the defendant admitted belonged to him. He was unable to produce any registration papers at that time but did produce his firearms licence. The police did not seize the firearms at the time but later conducted some enquiries in relation to the firearms. They returned to the pickers’ quarters six weeks later to search for the firearms and came upon the defendant driving his car into the quarters. They informed the defendant that their checks revealed the firearms were unregistered (although there was an issue whether the firearms were in fact unregistered) before informing him that they intended to search his vehicle under the Firearms Act. Both firearms which the police had previously observed at the quarters were located in the car and seized.
On appeal Johnston J held that the police did not have reasonable grounds to suspect that firearms were inside the defendant’s vehicle as opposed to the pickers’ quarters where they were previously sighted or the defendant’s home address in Norwood or another property where he was known to stay. Johnston J found that the police officer had reasonable grounds to search the quarters (having seen the firearms there before and the defendant driving into the quarters) but did not have reasonable suspicion to search the defendant’s vehicle. Furthermore, the evidence given by the police officer suggested that he misunderstood the scope of his powers under the Firearms Act and believed that he had a general power to search, beginning with the car.
I do not take Johnston J to hold that a police officer could never have a reasonable suspicion or a suspicion based on reasonable grounds to search more than one property. I see no logical reason why that would be so and it will always depend on what information and knowledge the police officer has to support his suspicion.
In my assessment the information available to Detective Heading relating to Masters being in possession of firearms to use in retribution against members of the Mongols, the failure to locate any firearms at the Rebels’ clubrooms, the knowledge gained from his police experience[74] that members of motor cycle gangs will use associates to hide items for them, and Masters’ specific association with the defendant all gave rise to a suspicion based on reasonable grounds that Masters may have decided to hide firearms at the defendant’s home and that firearms would be found there.
[74] Azar v DPP (2014) 239 A Crim R 75 at [38]; R v Nguyen [2016] SASCFC 96 per Doyle J at [41].
Whilst Detective Heading conceded that Masters could have called upon any number of his associates to hide firearms for him, his information revealed that Masters was staying at the clubrooms. He determined not to search Masters’ mother’s home as he had minimal belongings there and so naturally, as he put it, the next most logical place to search for the firearms was the defendant’s home, where Masters was seen to frequent, sometimes staying for hours at a time. Nor do I consider it an issue that Detective Heading did not search another address at Woodville West where Masters was arrested on warrants on 14 January 2015, which when later searched on 30 January 2015 produced an AK47 rifle leading to the arrest of the occupant of that address for possessing that firearm.[75]
[75] T16-17, 41-42.
The defendant has submitted that it was an ‘absolute leap of faith’ on the part of Detective Heading to reason that since the firearms were not located at the clubrooms they must have been moved to an associate’s home by Masters.[76] I do not accept this nor do I consider Detective Heading’s reasons to be ‘mere curiosity, idle wondering or speculation’ as the defendant argued. Furthermore, and contrary to the defendant’s submission on this point, I do not consider that Detective Heading has gone on a ‘wild goose chase’ looking for firearms.[77]
[76] T65.
[77] T93.
The evidence given by Detective Heading reveals a ‘working hypothesis’ reasonably based upon the information he had and his knowledge and experience, in determining where next to search, after the initial search of the clubrooms did not produce any firearms. He did not search the addresses of all known associates of Masters but limited his search to properties Masters was known to frequent, namely the clubrooms and the defendant’s home as the police intelligence revealed. His failure to search the defendant’s mother’s home does not detract from his suspicions that firearms were to be found at the defendant’s home.
The circumstances of this case can readily be distinguished from those in Ercegovic v Higgins. Here the information directly connected Masters’ association to the defendant’s home, at a time very close to the police intelligence concerning his possession of the firearms being sought by the police. Moreover there was no suggestion that Detective Heading misunderstood the nature and scope of his powers of search under the Firearms Act.
For the above reasons I am satisfied that Detective Heading suspected, on reasonable grounds, that firearms were at the defendant’s home authorising a search for firearms pursuant to s 32(3) of the Firearms Act.
Does the fact that police were conducting a lawful search of the defendant’s property for firearms pursuant to the Firearms Act prohibit the police from searching the defendant for drugs pursuant to the Controlled Substances Act if they reasonably suspect the defendant to be in possession of drugs?
The defendant has further argued that the authority for the police to search his home under the Firearms Act is strictly limited to a search for firearms only. He contends that any search conducted for any other purpose is not authorised and if the police exceed their authority they are acting beyond their power to be there. He contended that in those circumstances the police were trespassing and as such their search of him for drugs was unlawful. The defendant relied upon Coco v R (1994) 179 CLR 427 and R v Applebee (1995) 79 A Crim R 554 as supporting his propositions. These principles are not in issue. The police cannot enter onto someone’s property absent a lawful authority to do so, such as under a warrant authorising entry and once on the property cannot exceed the bounds of their authority to be there.[78]
[78] See also the discussion of these principles by Doyle J in Bennett v Police [2016] SASC 139.
However it is equally well settled that where, during the course of a lawful search, the police discover evidence of the commission of a crime not connected to their original search such evidence is nevertheless admissible.
In R v Benchik (1994) 175 LSJS 306 the Court of Criminal Appeal dealt with an argument that the trial judge had erred in not excluding evidence of drugs obtained by an illegal search on the part of police.
The police had received a call from the appellant’s brother who told them that the appellant was drunk, that his wife had left him and that he had a firearm, and intended to kill his wife. Acting on this information the police went to the appellant’s home and there arrested him under the Public Intoxication Act which the trial judge determined was unlawful.
The appellant was taken to a police station and his property was removed from him, which included a set of keys to his home. The police subsequently contacted the appellant’s wife who confirmed that he had a firearm in their home. A police check revealed that the firearm the defendant possessed was unregistered.
The police searched the appellant’s home under the authority of s 32 of the Firearms Act in an attempt to locate the firearm. They used the keys they had taken from the defendant upon his arrest to gain entry. In the course of the search for the firearm the police discovered 41 cannabis seedlings, 141 money bags of cannabis and numerous empty press-sealed money bags, some of which were located in a concealed room in the house.
In rejecting the appellant’s argument that the search was unlawful King CJ found that the police search of the appellant’s home was lawful and authorised by their reasonable suspicion which enlivened their powers of search under s 32 of the Firearms Act. There was no suggestion that the finding of the cannabis and other incriminating evidence as being incidental to the search for the firearm was illegal.
An item adventitiously found in the course of a lawful search is admissible. This was confirmed in R v Applebee (1995) 79 A Crim R 554 where Higgins J stated at 556-557:
It is well settled that if, in the course of a lawful search, evidence of another offence is discovered, that evidence may be seized, notwithstanding the lack of a warrant to enter and seize the item or items considered to provide such evidence: see Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299. However, whilst at common law a constable may take into possession evidence of an offence, he or she may not commit a trespass to do so: see Coco (1994) 179 CLR 427. The occasion of the due execution of a valid warrant is not a trespass unless the occasion is misused: see Challenge Plastics Pty Ltd v Collector of Customs (Vic) (1993) 42 FLR 397.
The defendant accepts these propositions[79] but contends that Detective Heading did not fortuitously find drugs in his home while lawfully searching for firearms. He drew a distinction between the chance finding of drugs in view during an open search, such as occurred in R v Benchik, with the deliberate search of the defendant after suspecting, even on reasonable grounds, that he was in possession of drugs. He has argued that in such circumstances a police officer may not rely upon the power contained in s 52(6) of the Controlled Substances Act to conduct a search of a person.
[79] T86.
In my view this is a distinction without a difference. An adventitious finding of drugs during a lawful search for a firearm conducted under the Firearms Act is no different to adventitiously seeing a person acting in a certain way during a lawful search so as to create a reasonable suspicion that the person is in possession of drugs. Police officers would be derelict in their duties if they did not conduct a search under s 52(6) of the Controlled Substances Act when they reasonably suspect a person to be in possession of drugs. The defendant’s argument seeking to constrain the legitimate use of powers of search under s 52(6) of the Controlled Substance Act would result in a perverse outcome if accepted. I simply cannot accept the proposition that police officers, exercising one power, may not exercise a second power, if the circumstances for the lawful exercise of the second power come into existence.
In the circumstances I do not need to consider the prosecution submission that Detective Heading could have used his powers under s 68(1)(b) of the Summary Offences Act to search the defendant. The coexisting powers of search are not in dispute.[80] I accept that the defendant’s argument, if correct, would have applied equally to a search conducted under either authority.
[80] See R v Romeo (1982) 30 SASR 243; Gibson v Ellis (1992) 59 SASR 420; R v Long & McDonnell (2002) 224 LSJS 193; (2002) 137 A Crim R 263.
The Bunning v Cross discretion
The court has a discretion to exclude evidence based on public policy considerations which arise where that evidence has been obtained unfairly or illegally. In Bunning v Cross (1978) 141 CLR 54 Stephen and Aickin JJ stated at 77-78:
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active ‘regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be ‘a less evil that some criminals should escape than that the Government should play an ignoble part’ – per Holmes J. in Olmstead v United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
Their Honours then went on to list a number of considerations relevant to the exercise of the public policy discretion. These were neatly summarised by Kirby J in R v Swaffield (1988) 192 CLR 159 at 212-213 as follows:
In Bunning v Cross, Stephen and Aickin JJ outlined some of the relevant considerations. One of them was the nature of the offence charges. Also commonly mentioned has been the probative value of the evidence, and its importance in the proceedings. The remaining considerations which Stephen and Aickin JJ listed were:
(i)Whether the conduct was deliberate, or resulted from a mistake;
(ii)Whether the nature of the conduct affected the cogency of the evidence so obtained;
(iii)The ease with which those responsible might have complied with the law in procuring the evidence in question; and
(iv)The legislative intention (if any) in relation to the law that is said to have been infringed.
To the foregoing, Mason CJ, Deane and Dawson JJ in Ridgeway added an additional consideration:
(v)‘whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.’
The defendant contends that the court should exercise its discretion to exclude the evidence relying on Stanley J in R v Rockford (2015) 122 SASR 391 at [39] and [41] where he stated:
[The trial judge] failed to have regard to what Deane J describes in Pollard as the principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of the investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of police is not 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.
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.
In R v Pandelli (1999) 204 LSJS 111 the Court of Criminal Appeal considered the trial judge’s ruling not to exclude evidence of a search based on the unlawful detention of the defendant. Bleby J found that the defendant was not in lawful custody at the time he was searched but exercised the discretion not to exclude the evidence, stating at 118:
It cannot be said that the nature of the illegality affected the cogency of the evidence of the prosecution in any way. There was no suggestion of cutting corners by the police in order to make their task easier. The offence charged was serious, and one must be wary of being too reluctant to exclude evidence obtained illegally simply because it bears significant probative value. However, it cannot be said that the public interest in the proper administration of the criminal law would be prejudiced by the admission of the evidence in this case. It was evidence about which there could be no dispute. In the absence of any countervailing considerations, the public interest in the need to bring to conviction those who commit an offence where the offence could not otherwise be proved justifies the admission of the evidence.
In all those circumstances it seems to me inevitable that the proper exercise of the discretion would not result in exclusion of the evidence of the search, even if the detention was unlawful.

In considering the exercise of the public policy discretion whether or not to exclude evidence in the face of the unlawful arrest of the appellant in R v Benchik, King CJ stated at 308-309:
The whole exercise was totally unrelated to the finding of cannabis. In those circumstances, even accepting that the apprehension of the appellant and the use of the keys was not legally warranted, I can find little in the way of public policy consideration, which would incline the court to exclude evidence of finding of cannabis.
There was nothing in the police conduct which called for the censure of the court. Even if the original apprehension of the appellant was deliberately unlawful, it was obviously an act that was carried out for the purpose of protecting the appellant’s wife against what the police apprehended was a danger to her. It should not be viewed as a grave infringement of the appellant’s rights carried out for some ulterior purpose.
There is no suggestion that the police made use of their powers under the Public Intoxication Act or the Firearms Act, to gain access to the house for the purpose of investigating possible cannabis offences. The officers who went into the house knew nothing of the appellant’s involvement in cannabis.
The exercise in which the learned trial judge was required to engage, was a balancing of the public interest in deterring police officers from engaging in illegal conduct on the one hand, against the public interest ensuring that criminal conduct is detected and punished. In this case, the criminal conduct which was detected was totally unrelated to the illegality, and the illegality was not being used by the police as a means of gaining evidence of the cannabis offences. In those circumstances, I am unable to discern any consideration of public policy which would lead a court to exclude evidence of the commission of a criminal offence which was quite unrelated to the illegalities of which complaint was made.
I think that the situation as it presented itself to the police has to be considered. There may have been an illegality in the apprehension of the appellant. I think it is unlikely that it was a deliberate illegality but even it if was, I think that the situation does not greatly change.
They were in the position of being faced with the presence of a firearm in the house, and of having in their custody a man who was drunk, and who had threatened to use that firearm to kill his wife. It was clear that the duration of his detention would not be long. The provisions of the Public Intoxication Act would ensure that. There was therefore a real danger that when he was discharged, he might use the firearm in the way in which he had threatened to use it in his telephone conversation with his brother. Not only, therefore, was there lawful justification for the police to enter the premises to locate the firearm, but there was a degree of urgency about their doing so.
If I am wrong in my assessment as to whether Detective Heading had reasonable grounds to suspect that firearms were to be found at the defendant’s property then I would have declined to exercise my discretion to exclude the evidence obtained during the search of the defendant, based on the following:
·It could not be said that any unlawfulness on the part of Detective Heading to search the defendant’s property was deliberate. Rather it was an exercise of Detective Heading’s judgment based on information which he considered, in a genuine attempt to locate firearms and prevent the commission of violent offending and the obvious concomitant danger to members of the public and specifically members of the Mongols. Indeed, the defendant accepted this to be the case.[81]
·Detective Heading’s assessment of the circumstances and information he considered in forming his suspicion could not be regarded as wholly unreasonable.[82]
·The evidence obtained as a result of the search of the defendant was cogent evidence of the commission of a serious offence and its quality was not affected by Detective Heading’s conduct. Once again the defendant accepted this to be the case.[83]
·This is not a situation where Detective Heading had an erroneous view of the scope of his powers of search[84] such that they represented a systemic misunderstanding by police officers, which, if tolerated, would lead to widespread and arbitrary infringements on civil liberties.[85] It is not in question that Detective Heading deliberately flouted the law or his powers.[86]
·Furthermore, the circumstances of this case do not give rise to the need to censure the excesses of police powers in order to better secure compliance with the exercise of those powers or to give the appearance of curial approval of sanctioning abuse of police powers.[87]
Exercise of the Bunning v Cross discretion to admit evidence of the search of the defendant by Detective Gourd at the City Watch House
[81] T63.
[82] Bain v Police (2011) 112 SASR 10 per White J at [31].
[83] T63.
[84] Cf Ercegovic v Higgins op cit.
[85] Cf R v Nguyen (2013) 117 SASR 432.
[86] T63.
[87] See R v Rockford (2015) 122 SASR 391 per Stanley J at [41]-[47].
Whilst Detective Gourd did not fully comply with the requirements of s 81 of the Summary Offences Act in conducting the search of the defendant at the City Watch House, I am not prepared to exercise the court’s discretion to exclude the evidence of the search.
It is obvious that Detective Gourd could easily have conducted the search in compliance with the section if he had chosen to do so. This is a factor that points against admission of the evidence.[88]
[88] Bunning v Cross op cit at 79.
However, the defendant did not give any evidence as to what he would have decided to do if Detective Gourd had complied with the section. The search would still have taken place, albeit it would have been recorded. The defendant has not suggested any impropriety on the part of either Detective Gourd or Constable Randells in conducting the strip search, which is the primary purpose behind the legislation.
The defendant has not suggested that the reliability or cogency of the evidence has been tainted or affected by the failure to video record the search or to have afforded him his rights as required by the section.
The infringement of the defendant’s rights were not so grave as to require the court’s censure so as to secure better compliance with the section, particularly in light of the purpose behind the legislation.
In all of the circumstances it is in the public interest not to exclude evidence of the commission of a criminal offence.
Exercise of the Court’s general discretion to exclude the evidence
Whilst the defendant did not specifically rely upon this as a ground for exclusion of the evidence, it is difficult to see what prejudice or unfairness arises from Detective Gourd’s failure to video record the strip search such as would give rise to an exercise of the general discretion to have excluded the evidence.[89]
[89] R v Lobban (2000) 77 SASR 24.