R v Robinson

[2016] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v ROBINSON

[2016] SADC 46

Ruling of His Honour Judge Chivell

26 April 2016

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED

The accused has applied under Rule 49 of the District Court Rules for an order that the prosecution not be permitted to lead evidence relating to the search of a vehicle on the basis that the search was unlawful.

Application dismissed.

Controlled Substances Act 1984 (SA) s 52(9), referred to.
R v Nguyen [2015] SASCFC 7; R v Nguyen (2013) 117 SASR 432; R v Chapman [2001] SASC 113, considered.

R v ROBINSON
[2016] SADC 46

1. On 28 March 2014, Mr Robinson was driving a vehicle north on the Augusta Highway at Merriton, near Crystal Brook.  Senior Constable First Grade Garden was driving his marked police vehicle in the opposite direction.

2. Officer Garden noticed that the vehicle Mr Robinson was driving had a cracked windscreen, so he performed a U-turn and indicated to Mr Robinson to pull over.  Mr Robinson did so, and alighted from the vehicle.

3. After some conversation with Mr Robinson, Officer Garden decided to search the vehicle.  He did so, and found 57.52 grams of a substance, containing 77% pure methylamphetamine, in a plastic bottle.

4. This is the conduct which the prosecution says constitutes count 1 on the information.

5. Mr Robinson says that the evidence of the fruits of the search should be excluded because the search was unlawful. He says that it was unlawful because it was not authorised by s 52(9) of the Controlled Substances Act.  That section requires that an officer have a ‘reasonable suspicion’ that there was something in the vehicle that would ‘afford evidence of an offence against this Act’. 

6. Officer Garden insists that he did have a reasonable suspicion about that.

7. Officer Garden said that he had no suspicion in relation to controlled drug offences when he first stopped Mr Robinson’s vehicle.  However, he said his suspicion became aroused because:

   ·Mr Robinson immediately alighted from the vehicle.  Officer Garden said that this was very unusual.  He was immediately put ‘on guard’ – he said that in his experience, there was a risk that either the driver was angry or had something to hide;

   ·Mr Robinson appeared ‘nervous’.  Officer Garden was unable to articulate any further details about this – he relied only on his long experience as an operational police officer;

   ·Officer Garden suspected that Mr Robinson was a drug user from his appearance.  He referred to his gaunt and pallid appearance and his general demeanour.

8. Officer Garden said that he conversed with Mr Robinson about the broken windscreen.  Mr Robinson said that he had driven to Adelaide to get it fixed.  He was unsuccessful, so he was driving it back to Port Augusta.  Officer Garden regarded this explanation as odd – Mr Robinson could easily have had the window fixed in Port Augusta or Port Pirie.

9. Officer Garden made it clear that at this point, he did not have sufficient grounds to form a reasonable suspicion which would have authorised a search of the vehicle.

10. On the basis of the information he had already obtained, Officer Garden decided to conduct a background check.  He used the computer terminal in the police vehicle and this produced the following information:

    ·    that Mr Robinson was a ‘drug user-dependant’;

    ·    on 23 March 2014 – that is, only five days earlier – at Port Augusta, Mr Robinson had been stopped by the police while driving.  A ‘drug wipe’ was immediately positive to methylamphetamine.  This was later confirmed by a further test at Port Augusta Police Station.

    Mr Robinson told the police that he consumes methylamphetamine and that he had taken one or two ‘points’ on Saturday morning – that is, the previous day. 

11. Officer Garden said that this suggested to him that there was a substantial likelihood that Mr Robinson was in possession of methylamphetamine or prescribed equipment in relation to methylamphetamine.  He said that in his experience, people who are habitual users of methylamphetamine are likely to either have the substance in their possession or have prescribed equipment for the use of methylamphetamine in their possession, because it is a highly addictive substance.

12. I accept Officer Garden’s evidence about this.  In particular, I accept that he did not form what he regarded as a reasonable suspicion until he received the evidence via the police computer system.

13. It is Mr Robinson’s contention that Officer Garden’s search of his vehicle and the subsequent seizure of the methylamphetamine was unlawful.

14. Section 52(9) of the Controlled Substances Act authorises a police officer who ‘reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle ...’ to ‘detain and search the vehicle’, and ‘seize and remove from the vehicle ... anything that the officer reasonably suspects would afford evidence of an offence against this Act’.

15. The Court of Criminal Appeal recently considered this section in R v Nguyen.[1]  The Court applied a previous decision of the Court in R v Nguyen.[2]  The following principles arise from a review of these cases:

    [1] [2015] SASCFC 7

    [2] (2013) 117 SASR 432

    ·a suspicion is less certain than a belief;

    ·a suspicion is a working hypothesis for which there is some supporting material;

    ·mere curiosity, speculation or ‘idle wondering’ is not enough;

    ·the suspicion must be objectively reasonable;

    ·the reasonableness of the suspicion must be assessed in the context of the purpose of the powers granted to police officers, and the civil liberties which are abrogated by their exercise;

    ·a positive belief in the existence of the relevant facts is not required.

16. It is clear in this case that Officer Garden addressed his mind to the relevant criteria in the Act.  He articulated the grounds for his suspicion to the Court and stated that he regarded his suspicion as reasonable.  The suspicion was based upon information that was specific to Mr Robinson from his activities on the day and from the police records.  This is to be contrasted with Nguyen (2013) and Nguyen (2015), where the asserted suspicions were based merely upon the fact that drugs had been found previously at a particular premises or had been found previously in a particular car.  In neither case was the information specific to the person who had been subjected to the search.

17. Ms Burgess, counsel for Mr Robinson, attacked each of the grounds articulated by Officer Garden.  There is no dispute by Garden that his earlier suspicions – that is, Mr Robinson getting quickly out of the car, his apparent nervousness, the oddity of his explanation for not getting the windscreen fixed – either considered alone or in combination, were insufficient, but when taken together with information taken from the background check on a computer system, he did regard them as sufficient to constitute a reasonable suspicion. 

18. I agree. I find that the information in Officer Garden’s possession was sufficient to justify an objectively reasonable suspicion that there were controlled drugs in the vehicle being driven by Mr Robinson at the time which justified him conducting the search pursuant to s 52(9) of the Controlled Substances Act.

19. I reject Ms Burgess’ characterisation of Officer Garden’s actions as the creation of an opportunity to ‘turn over’ Mr Robinson’s vehicle – that is, that the stopping of Mr Robinson’s vehicle was a pretext upon which to do so.

20. Officer Garden’s powers to stop and inspect the vehicle for defects pursuant to s 40Q of the Road Traffic Act, based upon his detection of the cracked windscreen, had not been exhausted.  This is to be contrasted with the situation in R v Chapman.[3]  Had Officer Garden not developed a suspicion about controlled drugs, he was authorised to continue to examine the vehicle for further defects. He was under no duty to allow Mr Robinson to continue on his way.  He was not unlawfully detaining Mr Robinson, as was held to be the case in Chapman.

    [3] [2001] SASC 113

21. Based on my conclusions, there are therefore no grounds upon which to exclude the evidence of the fruits of the search of the vehicle being driven by Mr Robinson on 28 March 2014.

22. The application is refused.