R v Rogers
[2011] SASC 40
•23 March 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v ROGERS
[2011] SASC 40
Reasons for Ruling of The Honourable Justice Duggan
23 March 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application for the exclusion of evidence of search of a vehicle which resulted in the finding of drugs – whether there was a reasonable basis for the police officer’s suspicion that the accused was in possession of goods that constituted an offence – whether the reasonable suspicion was founded upon inaccurate and incorrect information.
Held: Application to exclude evidence of the search of the vehicle refused – the police officer had formed a reasonable suspicion that a search of the accused’s vehicle would reveal the presence of a substance or equipment relevant to the commission of an offence under s 52(9) of the Controlled Substances Act 1984 (SA) – the suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported – the fact that one of the matters reported to the police officer was inaccurate did not detract from the reasonableness of the suspicion – information obtained from an apparently reliable source.
Controlled Substances Act 1984 (SA) s 52, s 52(9); Summary Offences Act 1953 (SA) s 68, s 68(1), s 68(1)(a)(ii), referred to.
Manley v Tucs (1985) 40 SASR 1, discussed.
George v Rockett (1990) 170 CLR 104; Hussien v Chong Fook Kam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Ruddock v Taylor (2005) 222 CLR 612; Homes v Thorpe [1925] SASR 286; Henderson v Surfield and Carter [1927] SASR 192; Gibson v Ellis (1992) 59 SASR 420; R v Frantzis (1996) 66 SASR 558; Wilson and Morrison v R [1994] SASC 4554, considered.
R v ROGERS
[2011] SASC 40Criminal: Reasons for ruling on admissibility of evidence
DUGGAN J: The accused is charged with trafficking in a commercial quantity of cocaine on 27 August 2009 at Yunta.
According to the prosecution case, police officers searched the accused’s vehicle on the date of the alleged offence and uncovered a block of compressed powder weighing 998.3 grams and containing cocaine weighing 730.6 grams.
An application has been made on behalf of the accused for the exclusion of the evidence relating to the search of the vehicle on the grounds that the search was illegal.
At the time of the alleged offence, Brevet Sergeant Allen was the officer‑in‑charge of the Mannahill Police Station. At about 2.00pm on 27 August 2009 he was patrolling alone in a police vehicle along the Barrier Highway. He was travelling from Broken Hill to Mannahill when he received information over the police radio that a blue Ford Falcon sedan was travelling along the Barrier Highway at an excessive speed. According to the report, the Falcon sedan was travelling in the same direction as Brevet Sergeant Allen but was some distance behind his vehicle.
Brevet Sergeant Allen turned his vehicle back in the direction of Broken Hill and intercepted the Falcon sedan approximately 5 km east of Olary in South Australia. The mobile radar unit attached to the police vehicle indicated that the Falcon was travelling at a speed of 115 kmph at the time it was intercepted. The accused was driving the vehicle and there were no passengers.
The police officer walked over to the Falcon and had a conversation with the accused. He said in evidence that the accused appeared erratic. He was sweating and appeared very nervous. The police officer said in evidence that the accused’s nervous agitation was “totally out of the ordinary when compared with the usual behaviour of persons whose vehicles are stopped”.
Brevet Sergeant Allen formed the opinion that the accused was affected by drugs, alcohol or that he may have had some psychological problem. A breath analysis took place and the witness said this excluded alcohol as a cause.
Brevet Sergeant Allen drew two important inferences from the accused’s behaviour. He believed the behaviour may have been due to drugs and that the acute nervousness suggested the accused had something to hide. He said in evidence that he has considerable experience in assessing whether persons are affected by drugs.
When the police officer went back to his vehicle at the time of this stop, he was given information about the accused over the police radio. The conversations were recorded. It is apparent that the police officer from the Port Augusta Police Station to whom he spoke was consulting police records at the time of the discussion over the radio.
The Port Augusta officer said, “have warnings OMCG (outlaw motorcycle gang) … appears to be linked to the Gypsy Jokers”.
The following conversation then took place over the radio (the “Mannahill” is a reference to Brevet Sergeant Allen):
APort Augusta to Mannahill appears to be linked to the Gypsy Jokers.
I/SWhat’s his history, anything to do with drugs.
A(Port Augusta) Base to Mannahill, in 95 he err, possession of a controlled substance.
After a short conversation with the accused, Brevet Sergeant Allen returned to his vehicle and spoke again to the officer at Port Augusta:
This blokes very, very nervous and sweating like a pig about something, um, I’ve got suspicions he could be a, a drug mule, I’m by myself, what I proposed to do is go, he’s just told me he’s going straight to Adelaide down the Barrier Highway. I might rustle up someone from north err, from Peterborough, two man crew could intercept and have a good look at him.
He then spoke over the radio to an officer at Peterborough:
I’ve got a suspicious car with a full member of the Gypsy Jokers in it. He’s very, very nervous about something, he’s heading straight to Adelaide, err I’d like to do a car vehicle search but I’m by myself with no help, err need some back up or a two man crew to help me.
A conversation with Sergeant Bryce Anderson, the officer-in-charge at the Peterborough Police Station, followed:
Bryce, I’ve just stopped a car I’m west of Olary it’s a member of the Gypsy Jokers, he’s an older fella though but he’s very, very nervous and sweating about something when he probably shouldn’t be. He’s going directly to Adelaide on the Barrier Highway that’s what I’ve ascertained off him, I’m just wondering whether you could start making your way north and I’m still behind him heading towards Mannahill and we’ll stop and do a vehicle search.
He spoke again to the Port Augusta officer:
I’ve liaised with the Peterborough Vixen, Sergeant Anderson, he’s making his way north, um, I’m following this car about a kilometre behind him we are gunna intercept it a bit further down the line and do a vehicle search um, I just don’t want to do it by myself, I think I’ve got suspicions in relation to err possible drugs because he’s very, very nervous and all too friendly etc, and his antecedents so I’ll be tied up with that to I catch up with Bryce.
He added:
I’ve got a reasonable suspicion with this chap, he’s sweating like it’s a million degrees, he’s raving his head off there’s something up, he’s very nervous about something so I’m going to go with what I, with my suspicion and just wait for Sergeant Anderson to meet me.
The accused told Brevet Sergeant Allen that he was driving to Adelaide and the police officer permitted him to continue on his journey, but followed at a distance. Eventually, in accordance with the arrangements put in place by Brevet Sergeant Allen, the accused’s vehicle was stopped approximately 15 km southwest of Yunta by Sergeant Anderson. The police officers then searched the accused’s vehicle and seized the parcel of cocaine.
Brevet Sergeant Allen gave evidence that the search which he undertook was made pursuant to s 52(9) of the Controlled Substances Act 1984 (SA) (“the Act”) which provides as follows:
(9)Where an authorised officer who is a member of the police force 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.
It is not in dispute that Brevet Sergeant Allen suspected that a search of the vehicle would reveal evidence of an offence against the Act. The principal issue raised on behalf of the accused is whether this suspicion was reasonable in all the circumstances.
In George v Rockett,[1] the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam:[2]
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:[3]
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 the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:[4]
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”.
[1] (1990) 170 CLR 104 at 115.
[2] [1970] AC 942 at 948.
[3] (1990) 170 CLR 104 at 115.
[4] (1966) 115 CLR 266 at 303.
The distinction between suspicion and belief was explored further by McHugh J in Ruddock v Taylor.[5] His Honour referred to the statement of Angas Parsons J in Homes v Thorpe:[6]
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.
[5] (2005) 222 CLR 612 at [75].
[6] [1925] SASR 286 at 291.
McHugh J also quoted from the judgment of the Full Court of the Supreme Court of South Australia in Henderson v Surfield and Carter[7] where their Honours said:[8]
Suspicion lives in the consciousness of uncertainty.
[7] [1927] SASR 192.
[8] [1927] SASR 192 at 196.
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 Jacobs J observed in Manley v Tucs:[9]
Not only does “suspicion” carry less conviction than “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.
[9] (1985) 40 SASR 1 at 9.
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 the police officer to assess the reliability of the informer or the hearsay information which has been communicated.
The radio communications previously referred to are important in revealing the state of mind of Brevet Sergeant Allen at the time when he first stopped the accused’s vehicle. It is clear that he was highly suspicious of the accused and that he was of the view that the explanation for the accused’s actions could have resulted from drug taking.
Brevet Sergeant Allen said in evidence that the information which he was given about a possible connection with a motorcycle gang and prior involvement with the police in relation to drugs were factors which he took into account, but that they were not the central to the considerations which led to his suspicion. He explained that he had experience with investigations into motorcycle gangs and he was aware that some were involved in drug dealing.
A suspicion may be based upon a number of considerations, some of which are more significant than others. In my view, the information which the witness received in relation to the accused’s possible involvement with a motorcycle gang was not an irrelevant factor for the witness to take into account. Obviously, it would be insufficient, by itself, to ground a relevant suspicion.
As to the previous drug matter, it was revealed during the hearing of this application that the accused had been charged with possessing cannabis, but that the charge had been withdrawn. The information which was relayed over the police radio was open to the interpretation that the accused had committed a drug offence. In my view, it was reasonable for the police officer to assume that the information was coming from a reliable source while a check of police records was being made. I am of the opinion that he acted reasonably in giving the information some weight in forming his opinion.
As I have said, however, the major factors in forming the suspicion arose out of the accused’s behaviour and demeanour. In my view, these matters were sufficient in themselves to give rise to a reasonable suspicion within the meaning of s 52(9) of the Act. The accused’s appearance was consistent with the effects of a drug and the extremely nervous appearance of the accused suggested to the police officer that the accused had something to hide.
It is true that some other factors mentioned by Brevet Sergeant Allen carried no real weight. He referred to the fact that he did not see any luggage in the vehicle, but he did not search the boot at the first stop. Furthermore, he may have attached some significance to an explanation which the accused gave concerning some damage to his car which was of no real relevance to the reasonable suspicion required by s 52(9). However, it would seem that these were minor matters when compared with the other considerations to which I have referred.
Sergeant Anderson gave evidence. He said that when he stopped the Falcon he spoke to the accused. He said the accused was agitated. He said he was speaking rapidly and making rapid movements. The accused was perspiring, although it was not a hot day. Sergeant Anderson thought the accused was acting suspiciously.
Sergeant Anderson said in evidence that he thought the search was being conducted pursuant to s 68 of the Summary Offences Act 1953 (SA) (“the Summary Offences Act”). Section 68 authorises a member of the police force to stop and search a vehicle in which there is reasonable cause to suspect that there is, inter alia, an object, possession of which constitutes an offence.[10]
[10] Summary Offences Act 1953 (SA) s 68(1)(a)(ii).
The relationship between s 52 of the Act and s 68(1) of the Summary Offences Act was discussed in Gibson v Ellis[11] and R v Frantzis.[12] In my view, nothing turns on Sergeant Anderson’s understanding of which provision was relevant to the search. If the search is found to be valid under s 52(9) of the Act then, in my view, it would be valid also under s 68 of the Summary Offences Act.
[11] (1992) 59 SASR 420.
[12] (1996) 66 SASR 558.
The search was conducted at the request of Brevet Sergeant Allen. Sergeant Anderson was asked to assist. In these circumstances I think it appropriate to consider the issue of the validity of the search by reference to s 52(9) of the Act.
For the above reasons I am of the view that Brevet Sergeant Allen formed a reasonable suspicion that a search of the accused’s vehicle would reveal the presence of a substance or equipment relevant to the commission of an offence under the Act. I add that, even if I had found that the matters upon which the police officer relied in forming his suspicion did not provide grounds for a reasonable suspicion, I would not have exercised my discretion to exclude the evidence of the search. Whatever view is taken of the evidence, the police officer did not act upon trite information and his actions were not of a wilful or malicious nature.
Furthermore, the evidence found is of considerable probative value in relation to a serious charge.[13]
[13] Cf Wilson and Morrison v R [1994] SASC 4554 per King CJ at [20].
These further considerations will not always justify a refusal to exclude the evidence, but, as I have said, in the circumstances of the present case I would have exercised my discretion to refuse the application even if my findings on the issue of reasonableness had been different.
The application to exclude the evidence of the search of the vehicle is refused.
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