R v Roros - [2017] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v ROROS
[2017] SADC 33
Reasons for Decision of His Honour Judge Slattery
6 April 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE
Application by the defendant under Rule 49(1)(h) for the exclusion of evidence of a search by the police of the defendant’s motor vehicle and subsequently of the defendant because of illegality allegedly associated with the search of the motor vehicle.
Held.
Application granted.
Controlled Substances Act 1984 s 32(3), s 52(6); Police Offences Act 1953 s 75(1); Summary Offences Act 1953 s 79A; District Court (Criminal) Rules R 49 (1)(h), referred to.
R v Conley (1982) 30 SASR 226; R v Leecroft (1987) 46 SASR 250; R v S and J (1983) 32 SASR 174; R v Webb and Hay (1992) 168 LSJS 256; R v Heyward and Minter [2010] SASCFC 38; Pollard v R (1992) 176 CLR 177; R v Therens [1985] 1 SCR 613; R v Lightfoot (1993) 174 LSJS 330, discussed.
McDermott v R (1948) 76 CLR 501; R v Dolan (1992) 58 SASR 501; The Queen v King (1978) 19 SASR 118; R v Lavery (1978) 19 SASR 515; R v Ireland (1970) 126 CLR 321; Reg v Evans (1962) SASR 303, considered.

R v ROROS
[2017] SADC 33
JUDGE SLATTERY

Michael Dimitrios Roros was committed for trial on the following charges:
1. On 23 September 2015 traffic (type unknown) in a controlled drug – basic section 32(3) Controlled Substances Act, 1984.
2. On 23 September 2015 traffic (type unknown) in a controlled drug – basic section 32(3) Controlled Substances Act, 1984.
Upon arraignment, Roros pleaded not guilty to the charges.
Background: a summary and contentions
The charges and the substance of this application arise out of events allegedly occurring between 12:15am and 12:45am on 23 September 2015 at Woodside. At that time, Roros was seen walking in the vicinity of a home at Onkaparinga Valley Road, Woodside which was of interest to the police because it was suspected that drugs were being dealt at and from that home. Roros was not seen in or on the property by Police.
Roros was then in company with a Sophie Stretton. At the approach of a police car they were seen to turn left into Jacaranda Drive which runs east from Onkaparinga Valley Road. The police car followed and while still in the car, a police officer asked them what they were up to and where had they been. Roros and Stretton were then stopped and questioned by the police. Roros did not initially respond to any questions from the police. Answers to these questions were provided by Stretton. The police then put further questions to Roros although he had previously not answered the same questions put to him. In the course of questioning he was asked for identification. When the identification of both Roros and Stretton were checked, it was found that Stretton was the subject of a warrant for arrest and Roros was on parole for drug offences. A body search of Roros was made by a police officer.
Subsequent to eliciting the information from the records, the police officer again insisted that Roros answer questions about where he had been on the evening, what he was doing and how he was to get home to Christies Downs. At the time Roros lied to the police about the means by which he arrived at the area and how he and Stretton would return to Christies Beach.
The issue in this application is the behaviour of the police officers towards Roros on that evening, their insistence that Roros provide information to them, the body searches of Roros, the manner in which the police spoke to Roros and whether on an objective view, Roros would have felt obliged to respond to the police even though he did not wish to at the time (but he eventually did).
Roros and Stretton had travelled from Christies Beach to the Woodside area in a silver Toyota Corolla hire car. That vehicle was parked on Jacaranda Drive. It was in the vicinity of the conversations taking place between the police officers and Roros but Roros misled the police by informing them that he did not know where that vehicle was parked.
Upon obtaining access to that vehicle by seizing the key and operating it, the police searched the vehicle allegedly pursuant to their powers under the Controlled Substances Act. During that search, about 20 grams of methylamphetamine were found in the vehicle and subsequently Roros was arrested, transported to the Mount Barker Police Station and charged.
When he was further searched at the Mount Barker Police Station police used an electronic wand and found secreted in his underwear electronic scales and 10 grams of methylamphetamine.
The application
In this application, the contentions of Roros are that the evidence of the interview with Roros should be excluded because of six separate incidents of unlawful or improper conduct of the police. They are described in the application as follows:-
a.   The defendant was unlawfully detained by police;
b.   The defendant’s person was unlawfully searched by police;
c.   The police had committed trespass to goods prior to the search of the motor vehicle, namely the possession and use of the car key by police;
d.   The police speaking to the defendant was the first step in a search for which there was no lawful power; or the search commenced upon police exiting their vehicle;
e.   The continued questions of the defendant after an indication of unwillingness to answer questions was unlawful or improper;
f.   The matter of questioning the defendant is improper.
It is said that these instances arise and are largely to be considered by an analysis of:-
1.   The content of the conversations held between the police and Roros;
2.   What Roros may have perceived or understood his position to be at the time of those conversations;
3.   A search of Roros’ body on one or two occasions by the police after they alighted from the police car;
4.   The manner in which the police spoke to Roros after alighting from their vehicle;
5.   The manner in which the police required Roros to accompany them up Jacaranda Drive to another vehicle parked 100 m up that road and the return from that inspection; and
6.   Whether or not, for the purposes of the Controlled Substances Act, any police officer was in a position to form a reasonable suspicion sufficient for the purposes of that Act.
The facts
Onkaparinga Valley Road at Woodside runs in a general north-south direction. It is a broad arterial road. Jacaranda Drive, which runs in a general east-west direction, intersects at its western end with Onkaparinga Valley Road. It is a narrow domestic street that rises from west to east.
For some time prior to 23 September 2015 the then occupants of a house situate on Onkaparinga Valley Road had been of interest to the Mount Barker Police. There was a suspicion long held by the police that drug dealing was occurring at and from that house. At a police tasking given on or about 23 September 2015, police officers on patrol were asked to give that house their particular attention.
At a time between 12.20am and 12.25am on Wednesday 23 September 2015 an unmarked police motor vehicle was travelling in a northerly direction on Onkaparinga Valley Road. Present in the vehicle were Senior Constable Allan Matthews and Constable Michael Oakes. They were on mobile uniform patrol tasked from the Mount Barker Police Station.
When they neared the intersection of Onkaparinga Valley Road and Jacaranda Drive, the police officers saw two people, Roros and Stretton, walking in a southerly direction along the eastern side of Onkaparinga Valley Road, which was the same side of the road as the house of interest. As the police vehicle approached the intersection, Roros and Stretton made (what the police perceived to be) a sharp left turn into Jacaranda Drive. The suspicion of the police officers were aroused by their perception that they made the sharp turn into Jacaranda Drive. The presumption appears to be that they recognised the presence of a police vehicle and reacted by turning off Onkaparinga Valley Road onto Jacaranda Drive. As matters have transpired, this arousal of suspicion was in error.
In evidence is Exhibit VDP1. It is a Google map of the area and it has been marked by Senior Constable Matthews with the letters “A”, “B”, “C” and “D”. The evidence before the court is that when first seen, Roros and Stretton were about at point “B” on this map.
The evidence discloses that the police vehicle turned right into Jacaranda Drive and travelled briefly in an easterly direction before pulling up next to the two people who were walking. At point “D” on the Exhibit VDP1, the police vehicle was stopped. By that time, Senior Constable Matthews who was sitting in the front passenger seat of the vehicle had wound down his window and spoken to Roros and Stretton.
Also marked on Exhibit VDP1 is point “C”. This is the point at which the police, having stopped their vehicle, then alighted and spoke again to Roros and Stretton. Between the intersection of Onkaparinga Valley Road and Jacaranda Drive and west of point “D”, there was another parked car. It was a silver Toyota Corolla vehicle that had been hired by Roros. It was therefore positioned to the west of the police car. Point “C” is a point to the east of the police car on Jacaranda Drive at which point the police spoke to Roros and Stretton. Point “A” indicates the house of interest on Onkaparinga Valley Road.
Jacaranda Drive rises from Onkaparinga Valley Road as it travels east. It progresses into a hilly section of terrain as it follows its easterly direction. At a point approximately 100 m east of point “C” on Exhibit VDP1 there was another car parked on Jacaranda Drive. It was facing in a westerly direction down Jacaranda Drive towards Onkaparinga Valley Road.
The prosecution led evidence from Senior Constable Matthews and he was cross examined. The prosecution also led evidence from Sergeant KA Webb the police officer who, upon being informed of the position by Senior Constable Matthews, made a search of the hire vehicle and discovered secreted there about 20 grams of methylamphetamine. Sergeant Webb confirmed in cross examination[1] that without the information given to him from Senior Constable Matthews, he would not have had a basis to search that vehicle under the Controlled Substances Act.[2]
[1] T83.19-38.
[2] See also T84.1.
Insofar as it is relevant, I found that Senior Constable Matthews and Sergeant Webb generally gave their evidence in a forthright and credible manner. I considered that with a few exceptions, their evidence was not significantly challenged. However, I consider that the disposition of this matter largely revolves around a proper analysis of the evidence given by Senior Constable Matthews and upon his approach to his task on that evening.
It will be necessary first to consider that conduct and then the arguments arising on the application. It did not appear in contest between the parties that if I accepted the arguments of the accused then the basis for the prosecution to continue to allege the offences fails for lack of evidence. In the result, this application revolves around the evidence of Senior Constable Matthews, the objective facts that may be ascertained from the exhibits and, although to a lesser extent, the evidence given by the accused. The reasons why I use the expression “to a lesser extent” will become apparent from the discussion below.
The accused Roros gave evidence. I considered that generally, the evidence of Roros was given in an evasive, elliptical and unsatisfactory manner. His evidence given was given in a way that he thought best suited his approach. He freely admitted lying to the police officers on the morning of 23 September 2015. I gained a very distinct impression that he brought the same attitude to the evidence that he gave in court. Except where the evidence of Roros is corroborated by the objective record, for example Exhibit VDP2, the recording taken from the body camera of Senior Constable Matthews, I would not generally accept the evidence of Roros. However, in the end, the credibility or lack thereof of the evidence given by Roros is not determinative of the issues in this application.
The events on Jacaranda Drive
The police first stopped the police car on the northern side of Jacaranda Drive. The police car was stopped to the east of the silver Toyota Corolla parked on the same side of that road. This was the vehicle that had been hired by the accused separately or together with Stretton. Senior Constable Matthews was sitting in the passenger seat of the police car. He wound down the window. He spoke to Roros and Stretton. He asked them what they were up to and where they were going. Roros made no response. He kept walking. He did not make eye contact with Senior Constable Matthews and continued to look straight ahead. He knew that he did not have to speak to the police if that was his choice.
Stretton responded to the questions put to her by Senior Constable Matthews. She said that they (she and Roros) were walking home. By this time and at the time that they were first spoken to by police Stretton and Roros had walked past the vehicle that they had hired. It is not in contest that both Stretton and Roros lived at Christies Beach. At the time, they were both walking east up Jacaranda Drive at Woodside. It is self-evident that they were not walking home and this statement by Stretton was not truthful. Roros did not say anything at all. At the time this conversation occurred, the police car had stopped at point “D” on Exhibit VDP1.
Senior Constable Matthews then alighted from the police car. He wished to have a conversation with Roros. Roros had not looked at him or indicated any willingness to speak to him. Senior Constable Matthews continued to ask questions such as what were they doing there at that time of night. He then asked Roros to produce his identification and he noticed that Roros appeared nervous and fidgety. Roros reached into his pants and produced a phone, a wallet and a car key. He appears to have provided a drivers licence from his wallet which revealed an address at Christies Downs.
Senior Constable Matthews then asked the couple from where they had come. Stretton again made the only response. She said that they had been to a friend’s house around the corner. She said then and she repeated this assertion continually throughout conversations recorded by the police, that a friend of hers living around the corner had been having trouble with her boyfriend. On a number of occasions on the tape of these events, Exhibit VDP2, Stretton makes reference to the friend who has made applications for restraining orders against her former boyfriend.
Senior Constable Matthews then asked Stretton how they had travelled to Woodside. Roros replied. This was the first time that he had spoken. He said that the couple had been dropped off. That statement was untrue. Stretton and Roros had driven to the area in the hire vehicle (the Toyota Corolla) parked immediately behind the police car on Jacaranda Drive. At the time that Roros told the police that they had been dropped off, he had already walked past the hired vehicle and was standing between points “D” and “C” on Jacaranda Drive as shown on Exhibit VDP1. Roros was then aware that he was under no obligation to speak to the police or make any response to their questions. Any response to the police questioning was a matter for him.
Senior Constable Matthews then asked Roros if he had ever been spoken to by police before. Roros said he hadn’t. Checks were done on the police computers. It was identified that there was a warrant for the arrest of Stretton and that Roros was on parole relating to drug trafficking offences. The tape VDP2 discloses that Senior Constable Matthews grew obviously annoyed at the failure of Roros to tell the truth. Despite all of this, the police had no basis then to insist that Roros speak to them or submit to a body search. The worst he had done was to fail to truthfully answer their questions. That is not necessarily a basis of itself to form any reasonable suspicion under the Controlled Substances Act. The position for Stretton was different. There was an unexecuted warrant for her arrest. She would have to be dealt with by police and it was a choice for Roros what he would do about that situation. At one level it may be thought he would likely stay to give her assistance but there is no evidence on that topic and I put it to one side.
At a different level, I consider that the position of Stretton does not inform the issues in this application. The behaviour complained of occurred immediately following the police turning into Jacaranda Drive and then dealing with Roros. The resolution of the complaints surrounding those events is not influenced by what appeared to be the certain fate of Stretton.
Another consideration is that at the time, Roros had secreted on his person methylamphetamine and electronic scales. He was understandably nervous about speaking to police and it was implicit at least that he was keen to be out of the way of their enquiries as soon as he could.
The evidence from Senior Constable Matthews discloses that when he first asked the question of the couple, Roros continued to walk up Jacaranda Drive.[3] It was then that Senior Constable Matthews exited the police vehicle and continued to question Roros. This confirms the unwillingness of Roros to speak to police. Senior Constable Matthews was the person who wished to prolong the conversation. That was not the intention of Roros.
[3] T10.
Senior Constable Matthews said that he got out of the vehicle to speak further to the two people because they did not provide an answer to his initial questions. That was their right and so this refusal was not a basis to form any particular view. Senior Constable Matthews was not in a position where he could insist on responses or better responses from Roros and Stretton. He could go on asking questions that they were not required to answer. I consider that Senior Constable Matthews appeared to operate under the misconception that he could go on asking questions until he got answers that he thought were truthful. This approach was in error.
It is quite apparent that Senior Constable Matthews knew that the answers he did get were untrue. But they were asked in a context where he considered that he could insist upon answers until he got (what he thought was) the truth and to do so in as forceful a manner as he thought appropriate. I consider the intersection of these two errors of judgment to be the genesis of the difficulties in this matter. Once a police officer has formed a view and then proceeds to act on that view without also paying regard to the rights of the person being questioned a number of things may follow. The belief about untruths compounds; the overbearing effect of the police officer’s approach on the interviewee becomes more pronounced; and real doubts about the voluntary nature of response and the proper execution of procedure arise.
The police officer asked Roros his full name and for identification.[4] When Roros took out his wallet to produce identification, he took out a phone and a key which later was identified as the key to the Corolla motor vehicle. These appear to have been put on the bonnet of the police car by Roros. Inferentially at least he did that because he understood from everything that was happening that this is what he was required to do.
[4] T14.8.
When questioned about whether he had ever been in trouble with the police, Roros initially answered that he had not. He was then asked again and later admitted that he was on parole after the police had identified that they knew he was on parole.

Immediately following Roros’ admission that he was on parole, Senior Constable Matthews made a body search of Roros. He did so because he thought something did not seem right at that stage. He called it a safety search. There was no lawful basis to do so, irrespective of what it was called. It is irrelevant that Senior Constable Matthews thought he could or should make this search for his own safety. It is conceded by the prosecution that Senior Constable Matthews had no authority to then make a body search of Roros. It appears that Senior Constable Matthews was troubled by the fact that Roros was lying to him as he perceived the position. He also thought that Roros clearly was not walking home and he was therefore suspicious about what they were doing there. The relevant considerations for Senior Constable Matthews were that it was late at night, the couple had been seen walking from the area of the premises of the house of interest, they (to him) were acting suspiciously, they were lying to the police and in particular they were not going anywhere in the direction of what might be perceived to be their home.
Senior Constable Matthews said he undertook the body search to ensure that there were no weapons on Roros’ body however, that does not change the unlawfulness of the search. Having regard to the other circumstances I consider the effect of this search has another compounding effect. Any typical citizen being so searched would consider that there is a curtailment of personal liberties with the result that the person would or might ordinarily become more compliant as a result. Viewed objectively, this would be a fairly usual and standard reaction of anyone in that position. But at the time there was no basis for the body search and the evidence before me does not disclose any basis for the formation by anyone of a reasonable suspicion of a breach of the Controlled Substances Act was occurring. A reasonably alert police officer would likely have formed the view that untruths were being told by Roros, but to lie to police is not a basis, without more, for the police to do a body search. It is obvious that the more aggressive method adopted in this line of enquiry influenced what followed.
Eventually Senior Constable Matthews asked Roros where he had parked his car. Earlier, before that conversation, Stretton had suggested that she was the person who drove the car. That was not true and suggests that she knew what was in the car. Stretton also volunteered at the same time that she did not have a drivers licence. Roros eventually admitted to the police that he was the driver of the car. Police asked him where he had parked the car. He indicated that it was parked up the street and motioned in the opposite directions to where the Corolla vehicle was parked. The vehicle was actually parked to the west of point “D” on Exhibit VDP1. Roros and Stretton had walked past that vehicle before they were even spoken to by the police.
At that time, Senior Constable Matthews had said to him on a number of occasions: “cut the shit” when accompanied with other questions about what Roros was saying to the police. I have viewed again the video of this conversation. Senior Constable Matthews spoke to Roros in an aggressive and forceful way. It was after the identification, the production of the phone, wallet and car key and then the discovery that Roros was on parole for drug offences that Senior Constable Matthews could reasonably be understood by any objective observer to insist upon the cooperation of Roros. It is apparent that Senior Constable Matthews knew that he was not being told the truth and his annoyance about that then permeated his judgment during the events that followed. The expression “cut the shit” needs no explanation, but considered alone or together with other circumstances it will have an effect on the mind of any reasonable person that cooperation is obligatory. That is not the case and these events transpired in the background that the police had no sufficient reason then to form a suspicion sufficient, for example, to search the car driven by Roros.
When Roros said his car was parked up the street, he was misleading the police. He said in cross examination that he was very comfortable to mislead the police but on the tape, Exhibit VDP2, he says to the police on a number of occasions that he is very uncomfortable with the nature of the questioning going on and with what was happening.
Roros and Senior Constable Matthews walked about 100 m up the street. They looked at the vehicle parked on the southern side of the road facing in a westerly direction. Roros said it was not the vehicle that they drove. Roros was being deliberately untruthful to the police.
Senior Constable Matthews said he then told Roros to stop playing games. Even accepting that those words were used, this evidence does not accurately portray that Senior Constable Matthews was annoyed and was using a very forceful tone with Roros. I have formed the clear impression from the content of Exhibit VDP2 that both prior to walking to the car and after arriving at the car 100 m up the street, Senior Constable Matthews could be reasonably understood to be very forcefully demanding answers from Roros about the vehicle, what Roros and Stretton were doing and for the “truth”. This occurred in the background that Senior Constable Matthews was making very plain that he did not believe what he was being told by Roros.
After identifying that the car up Jacaranda Drive was not the vehicle he had arrived in, Roros was asked by Senior Constable Matthews where that vehicle was. Roros said he did not drive and they then walked back towards the police car. In that period, Exhibit VDP2 discloses that Senior Constable Matthews insisted that Roros go with him both to the car and back from the car. Roros appeared to be falling behind when they were walking back to the police car and Senior Constable Matthews insisted that Roros keep up. In very forceful language, Senior Constable Matthews asked Roros to tell him the truth and where the car was parked. These events occurred in the background that even then, the police did not have a sufficient basis to search the Corolla vehicle based upon the reasonable suspicion of the presence of prohibited substances or drug related activity. A reasonable question that might arise is what did Senior Constable Matthews then intend to do when the car was located, on what basis and pursuant to what power?
Probably as a result of his ongoing frustration at the obtuseness of Roros, Senior Constable Matthews then looked at the key on the bonnet of the motor vehicle. Senior Constable Matthews picked up the key and pressed open and it opened the silver Toyota Corolla behind the police car. Senior Constable Matthews did not, for example, suggest to Roros that he take the key and press the open button and see the result. Roros was not given the opportunity to accept or reject such a suggestion. Senior Constable Matthews proceeded without permission to take the property of Roros, operate it and find and open the vehicle driven by Roros. Finding and opening the Toyota vehicle did not elevate the relative importance or lack of importance of any information then possessed by Senior Constable Matthews relevant to the formation of any reasonable suspicion.
By that time, Senior Constable Matthews had radioed for assistance. He sought the assistance of Sergeant Webb who arrived, spoke to Senior Constable Matthews and then searched the vehicle. Initially 10 g of methylamphetamine was found in the vehicle. Eventually some 20 g of that substance was found in the vehicle. Roros was arrested. He was taken to the Mount Barker Police Station. An electronic wand was waved over him. That wand located an object in his crotch area. That was removed. It was within a plastic bag with a napkin in it. There was a set of electric scales and a plastic bag containing a further 10 g of methylamphetamine.
In cross examination, Senior Constable Matthews confirmed that both Roros and Stretton had exercised their right to ignore the police questions. Senior Constable Matthews knew that both of them did not want to talk to the police. He agreed that Roros did not want to acknowledge police and kept walking and he understood that at the time. Even so, he persisted in asking questions of Roros. It was in that context that on a number of occasions he said to Roros words to the effect: “cut the shit”. I consider that on the whole of the evidence it may be reasonably understood that the expression used by Senior Constable Matthews informs his attitude about everything said to him by Roros. By its aggressive demanding tone and use it creates in the mind of a reasonable listener that cooperation with the police was obligatory.
Senior Constable Matthews acknowledged that by saying those words, he was not exercising any police powers. He was just talking to them, I consider that is an understatement. This was in the context where he accepted that at least initially, Roros wanted to leave the area. He did not agree that in those circumstances, once he continued to question Roros, he was actually detaining him. In his own mind that position continued after Senior Constable Matthews got out of the vehicle. He confirmed that once out of the vehicle he understood that the accused wanted to keep moving and did not want to talk to him.[5] Senior Constable Matthews insisted on talking to Roros because of the location, the time of night and he wanted to find out what he was up to. He had no reason to search the body of the accused. He did not inform him of his rights before doing so. He certainly did not give him a caution before then. He said he only made the search because it is police methodology (to make a safety search). I have considerable doubt about that evidence. When enquiries have reached a particular level and a decision is made to charge an accused, the position will be different. This was not that situation.
[5] T41.9.
In cross examination, the proposition was put to Senior Constable Matthews that it was on two occasions that he asked the accused to empty his pockets. It is clear that at least on one occasion, when the accused was asked for identification, the police became aware that he pulled out of his pocket a wallet, a phone and a key. It appears that on this occasion the contents of his pockets were put on the bonnet of the police car. It also appears at least implicit that between the time the accused gave the form of identification to Senior Constable Matthews for his details to be checked and the result of that search was received, Roros picked up his possessions. It appears that the phone and key were not required for identification and the drivers licence was taken from the wallet. I also think it likely that the period of time that any of these things were on the bonnet was short and was determined by the short period of time taken to check details in the police computer. This time is likely to be so short that it is slightly artificial to speak of two events, rather it was likely to be continuous. I consider that little emphasis could be placed on fact that Senior Constable Matthews used the expression “again” when asking Roros to place his belongings on the bonnet of the police car. The important issue is that Roros was then searched.
The proposition put by Roros was that on the first occasion he was not required to present his wallet or the car key to the police. Then, after the check was done on the identification, and when the police had identified that he was on parole, he was then asked by Senior Constable Matthews to put his gear out on the police car “again”. Senior Constable Matthews denied that this was a second occasion upon which the accused had been asked to empty his pockets.
Much time was spent arguing whether there was one or two occasions. I consider that too much has been made of this issue but I think the version given by the accused on this matter is probably correct. I think that when Senior Constable Matthews used the expression “again” he was referring to the fact that he had already seen the phone, the wallet and the key at the time that the identification was produced. It may well have been put on the bonnet of the police car at the time the identification was produced to the police. I consider that the most likely scenario is that when Senior Constable Matthews used the expression “again”, he was referring to the fact Roros had already emptied his pocket when producing the identification. Senior Constable Matthews thought using the expression “again” was a poor choice of words. I think the more likely situation is that he used those words without much thought and probably accurately. As a result of what follows, very little turns on this issue.
The proposition was then put to Senior Constable Matthews that when mention was made of the drug house around the corner, the understanding would have been that a search was being undertaken under the Controlled Substances Act. Senior Constable Matthews denied that proposition. He could not identify any particular power that he had at the time he later picked up the phone of the accused when it became clear a message was coming through on the phone at that hour of the morning. He did that for the purposes of gathering information. He saw it because the phone was on the bonnet of the police car. Senior Constable Matthews also agreed he kept the key to the motor vehicle but could not point to any particular police power he was exercising when he picked up that key. He agreed that by him holding the key, it was not possible for Roros to get into his car and drive away. As a result Roros could not have control of that vehicle and he did not possess it to do with as he wished.
Despite him holding the key, Senior Constable Matthews said Roros was free to leave the area. I agree with the proposition of the accused that once the police officer was holding the key to the vehicle it was impossible for him to leave the area by car. He could not have really wandered off although he had earlier told police that they were walking home (to Christies Beach – and they were walking in a general easterly direction). Senior Constable Matthews also did not tell Roros he was free to go because he thought that he was still talking to him and could do so until such time as he got the answers that he wanted. Although he initially had the impression that Roros wanted to leave, Senior Constable Matthews was also aware that Roros had continued to answer questions put by the police.
Senior Constable Matthews thought that once all the questions had been asked, Roros could have left and that he had not detained the accused. He agreed no search of the accused was required to form a suspicion under the Controlled Substances Act, no threats had been made to the police by the accused and the police were aware that Roros wanted to leave the area.
Senior Constable Matthews was questioned closely about his use of expressions such as “cut the shit”. He maintained that the use of those expressions was concomitant with merely asking questions. He disagreed that the use of such an expression was not a direction to Roros to answer the questions truthfully and denied that this was a method of bullying the accused into answering the questions. Irrespective of the subjective views of the police officer I am unable to accept this evidence. I consider that upon a proper objective assessment of all of the evidence, the aggressive and threatening tone used by Senior Constable Matthews resulted in Roros answering questions that he otherwise did not want to answer. There was an element of compulsion arising on the part of Roros to answer further questions.
Senior Constable Matthews also agreed that at the time, he had no power to stop the accused. There was nothing done by the accused at the time which would raise any suspicion in the mind of a police officer that would justify a police officer from stopping the accused whilst walking along Jacaranda Drive. He accepted that Roros was entitled to keep walking when he was directed otherwise. He would not agree that the only reason he could have said that was because Roros then was not under his detention.
Senior Constable Matthews could not explain why, in light of the fact the accused was lying to him, he did not give a direction to him to simply go on his way. He thought this was because of the suspicions he had formed, the locality and nature of where he was and something was not right. This was as high as he could put his views: something was not right in light of everything that he knew. He could not identify what was not right and whether there was any connection between that feeling and the formation of any reasonable suspicion that Roros had in his possession any substance or equipment in contravention of the Controlled Substances Act.
Senior Constable Matthews always knew that it was not appropriate to continue asking a person questions after that person has indicated that he does not wish to answer them. He said that he continued to ask questions of the accused because he thought the accused was lying to him. Similarly, merely because he thought that Roros was lying to him will not, on its own, be sufficient to enable him to form a reasonable suspicion.
The accused Roros gave evidence. He said when he was first spoken to by the police, he wanted to leave but stayed because he thought Senior Constable Matthews was being very intimidating towards him and he thought if he did leave he would be arrested. He recalls the initial questions asked of him and then providing his identification. He provided the identification because he thought that was what he had to do. He said he was patted down after the identification had been given to the other officer. He had to put his mobile phone and car keys on the bonnet of the vehicle when he was being patted down. He did not get his keys, wallet and phone back. He believed that these items were seized at that point or they were certainly in the control of the police officers. He thought that he was detained from the time when he had given identification to police and been patted down. He recalls being patted down a second time and at that time his keys, wallet and phone were on the bonnet of the police car. On this occasion he thinks that he was told to put his hands on the bonnet of the police car.
Roros said that at no point did he think he was allowed to leave. He thought that if he did leave he would get arrested. He recalls being constantly and forcefully accused of lying to the police. He did not think he could refuse to allow the police to pat him down because he thought if he refused the police at any stage, he would be arrested. He did not think he was allowed to leave because of the situation they were in, the intimidating way the police were behaving and that he had no phone, wallet or car keys. He had no way of getting anywhere except by foot. By the manner in which he was asked questions, he thought he had to comply with the questions being put to him.
The accused attempted to satisfy me that the reason he walked up the street to the other vehicle was because: “…we thought or we said that there was a car up there at that time…” I understood by this answer that the accused was attempting to satisfy me that they went up the street as a result of something said by somebody else. I would not accept this answer as truthful. Later, the accused said they went up the street because the officer thought that could be their car. I also reject that answer as untruthful.
When they returned down Jacaranda Drive towards the west of the police car, Senior Constable Matthews picked up the key and unlocked the car. At that point, the accused understood that he was not allowed to leave and that was particularly because the phone, the wallet and the car key were still on the bonnet of the police car. He understood that they were withheld and he understood that he was not allowed to have them back.

In cross examination, the accused said that having methylamphetamine in his pants when he saw the police vehicle coming down Onkaparinga Valley Road did not make him nervous at all. I do not accept that answer as truthful. He was a convicted drug offender who was on parole. He had on his person 10 g of methylamphetamine and scales. Detection of these items on his person by a police officer would have had a significant effect on him.
Roros confirmed that at no stage did the police officers tell him that he was under arrest and he did not enquire of the police officers whether he was under arrest. He said when he was first searched, it was not until the police felt something in his pockets that he was asked to place it on the bonnet of the police car. Later, during the second search, he was placed against the car and his hands were put on the bonnet and he was patted down. The car keys were in his pocket. He said he was asked to put the car keys on the bonnet of the police car. This confirms my view that the car keys had been put back in his pocket after he first produced his identification. He denied only being patted down once. He said he was patted down twice, once before the body camera was activated and once afterwards; I accept the evidence of Roros on this issue.
Roros said he understood or believed he had been detained because at no point was he allowed to go. Although no one had identified that he had done anything wrong he still was not allowed to leave the situation. He agreed that he would not have left without Stretton.
In relation to the car up the hill, Roros denied in cross examination that he wanted to create some distance between the police officer and the car with the drugs inside it. Although he said he was intimidated by Senior Constable Matthews, he also said he: “felt like a walk with the police officer…”[6] He said he was still intimidated by the police officer even though he had lied to him. He suggested that he wanted to walk up to the other car because he had been forced to sit on the ground and he wanted to stretch his legs.[7] I reject this evidence. I think it is untrue. Roros said that for the purposes of stretching his legs, he was happy to take the police officer on a walk up the hill even though he was not intimidated by him. I reject this evidence as untruthful.
[6] T116.13.
[7] T117.10.
Roros said he understood that at no point would he be getting his belongings back. The proposition was put to him that he never asked for his property to be returned. He denied that proposition. He said he asked for all of his belongings back after the search even though he did not feel like he was allowed to leave the situation. He did not know whether he was in the custody of the police, all he knew was that if he tried to leave he thought that he would be arrested.
Having regard to the foregoing, I think there are a number of issues which intersect here and which must be resolved. They include the answers given by Roros to the police, what statements should have been made by the police to Roros on the night and what was the status of Roros at any particular time during the course of this events.
On the question of the status of the evidentiary value of the responses given by Roros to police, there are a number of requirements which may be summarised as follows:-
1.   Any answers given by an accused must be made voluntarily.[8] Roros did not want to speak to the police and Senior Constable Matthews understood that Roros did not want to speak to him but he persisted with his questioning. To that extent at least, I consider that any information given by Roros to the police was not given voluntarily.
2.   Any answers given by any suspected person who is under arrest or who is in custody would tend to lead to a conclusion that the accused person in custody would not in those circumstances be acting in the exercise of free choice in answering questions.[9]
3.   Even if an arrest has not actually been made, if a police officer has decided to make an arrest, it is necessary for that police officer to caution the suspect as if the suspected person was under arrest.[10] No caution was given to Roros.
4.   The circumstances where an arrest has not been made but a police officer intends to make an arrest is different and distinguishable from the circumstances where a police officer is merely gathering information or giving a suspect the opportunity of clearing himself. In such a situation, there is no need for a caution because no question of involuntariness or unfairness arises out of the omission of any caution.[11]
5.   In determining the stage at which a caution should be administered, the appropriate question is to ask whether the police have sufficient evidence to found a reasonable suspicion that the suspect has committed the offence which they are investigating and therefore sufficient evidence to justify the arrest. This is to be described as the investigation passing from an investigatory stage to an accusatory stage.[12]
6.   In determining the stage in which the caution should be administered, the court must take all relevant circumstances into account and one of those includes the omission to administer the caution.[13]
[8]    McDermott v R (1948) 76 CLR 501 at 511.
[9]    R v Dolan (1992) 58 SASR 501 at 505.
[10] Ibid at 505.
[11] Ibid.
[12] Ibid.
[13] Ibid at 505; R v Lavery (1978) 19 SASR 515 at 516; R v Leecroft (1987) 46 SASR 250 at 252.
In R v Conley,[14] King CJ considered the operation of the then s 75(1) of the Police Offences Act 1953. Section 78 of that Act set out the requirement for the delivery of any person apprehended to the nearest police station. A matter for consideration was the meaning of the expression “apprehended” for the purposes of s 75 and s 78(1) of the Act. King CJ held at 239 as follows:-
A person is apprehended… when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty (The Queen v King (1978) 19 SASR 118 per King J at pp. 128- 129), even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance.
If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.
[14] (1982) 30 SASR 226 at 238-239.
The decision of King CJ in Conley explains that an invitation or request to accompany a police officer (for example) to a police station does not amount to a deprivation of liberty despite whatever beliefs may have been in the mind of the person to whom the request is made. That will vary according to circumstances. This includes whether the person to whom the request is made would believe, objectively, that he had no genuine choice about whether to accompany the police officer. Those comments are relevant in the context of a person being invited to accompany a police officer to, for example a police station for further interview. The content of s 75 and s 78 of the Police Offences Act 1953 are now to be found in s 79A of the Summary Offences Act 1953. The question of that section was (relevantly to this situation), considered in the decision of White J in R v Leecroft.[15] The facts of that case were that an allegation of rape had been made against a 45 year old man by a girl aged 15 who had lived with him and called him “father”. The police had approached the man and invited him to come with them to the police station for a further discussion to which the man agreed. It was admitted at the voir dire hearing that the man was not in custody but it was then submitted that he had been apprehended for the purposes of s 79A of the Summary Offences Act.[16] In his discussion and particularly at p 253, White J compared s 79A of the Summary Offences Act with the content of s 75 and s 78 of the Police Offences Act. After referring to the discussion by King CJ on the question of the nature of apprehension and a person being in custody, his Honour referred to his own decision in R v S and J[17] where his Honour said as follows:-
There are two things which the police officers must do once the substantial ambiguity arises in the mind of a reasonable person: first, they must inform the suspect that he is not under arrest; and second, they must also inform him that he is free to refuse to accompany them, that is, that he is free to go. The negative requirement was fulfilled on several different occasions by repeating from time to time the formula “you are not under arrest”. However, at no stage was either youth told that he was free not to comply with any such requests, indeed free to go.
[15] (1987) 46 SASR 250.
[16] 79A—Rights on arrest
(1) Subject to this section, where a person is apprehended by a police officer (whether with or without a warrant)—
(a) the person is entitled to make, in the presence of a police officer, one telephone call to a nominated relative or friend to inform the relative or friend of his or her whereabouts; and
(b) where the person is apprehended on suspicion of having committed an offence—
(i) the person is entitled to have a solicitor, relative or friend (in the case of a minor the relative or friend must be an adult) present during any interrogation or investigation to which the person is subjected while in custody; and
(ii) if English is not the person's native language—the person is entitled, if he or she so requires, to be assisted at an interrogation by an interpreter; and
(iii) the person is, while in custody, entitled to refrain from answering any question (unless required to answer the question under this or any other Act or law).
(1a) Where a minor has been apprehended on suspicion of having committed an offence and—
(a) the minor does not nominate a solicitor, relative or friend to be present during an interrogation or investigation relating to the suspected offence; or
(b) the solicitor, relative or friend nominated by the minor is unavailable or unwilling to attend the interrogation or investigation,
then, subject to subsection (1b), the minor must not be subjected to an interrogation or investigation until the police officer in charge of the investigation of the suspected offence has secured the presence of—
(c) a person, or a person of a class, nominated by the Chief Executive within the meaning of the Youth Justice Administration Act 2016 to represent the interests of children subject to criminal investigation; or
(d) where no such person is available, some other person (not being a minor, a police officer or an employee of the Police Department) who, in the opinion of the police officer, is a suitable person to represent the interests of the minor.
(1b) An interrogation or investigation may proceed despite subsection (1a) if—
(a) the suspected offence is not an offence punishable by imprisonment for two years or more; and
(b) it is not reasonably practicable to secure the presence of a suitable representative of the child's interests as contemplated by that subsection.
(2) The police officer who is in charge of the investigation of a suspected offence in relation to which a person has been apprehended may decline to permit—
(a) the person in custody to make a telephone call to a particular person (being a relative or friend); or
(b) a particular person (being a relative or friend of the person who has been taken into custody) to be present at an interrogation or investigation,
if the officer has reasonable cause to suspect that communication between the person in custody and that particular person would result in an accomplice taking steps to avoid apprehension or would prompt the destruction or fabrication of evidence.
(3) A police officer must, as soon as is reasonably practicable after the apprehension of a person—
(a) inform that person of his or her rights under subsection (1); and
(b) warn the person that anything that he or she may say may be taken down and used in evidence.
[17] (1983) 32 SASR 174 at 189.
Then, at p 253, his Honour made the further comments on this topic as follows:-
The dividing line between being “apprehended” and “taken in custody” and “not being apprehended” and “not in custody” is well recognised even though the factual situations in particular cases may call for close examination and at times cause difficulty.
It is quite clear that s 79A of the Summary Offences Act 1953 and the other new surrounding sections are designed to regulate the rights of individuals and the rights and duties of members of the police force only in those circumstances where the individuals have been apprehended and taken into actual or defacto custody within the meaning of those cases. All other individuals spoken to by police are free to exercise their rights to remain and speak to the police or to walk away without reply, or to confer with their relatives, friends, or interpreters. If the individual’s freedom to leave or to act as he wishes is interfered with in any relevant way, he is in the defacto custody of the police and s 79A rights apply. If not, he is free and does not need to statutory protection. (My emphasis).
In R v Webb and Hay[18] King CJ said that a person being questioned by the police who claims that he is not free to leave the interview, has the onus to lead evidence to that effect. Such evidence has been given by Roros in this matter. My assessment of his evidence is that no matter what he might have thought from the time the police first questioned him, at least from the time that he had emptied his pockets and was spoken to in an aggressive way by Senior Constable Matthews, he reasonably would have thought that he was not free to leave the interview and that he was under a compulsion to answer the questions put to him by the police.
[18] (1992) 168 LSJS 256 at 261.
That position was made quite clear by Senior Constable Matthews addressing him aggressively and using phrases such as “cut the shit”. I consider that from the time that Roros emptied his pockets and left his belongings on the bonnet of the police car, his individual freedom to leave or act as he wished was interfered with in a relevant way. That was further confirmed by the body searches undertaken by the police at that time as well as the manner in which the police spoke to Roros and demanded answers to their questions, Senior Constable Matthews having formed the opinion that Roros was lying to him.
On this question of lies, reference should be made to the decision of the Court of Criminal Appeal in R v Heyward and Minter.[19] In the course of the decision of Doyle CJ in that matter, reference was made to the decision of the High Court in Pollard v R.[20] In Pollard there were two interviews of a suspected person who was later charged. At the first interview, no caution was provided. At the second interview, after a caution was provided, the content of the first interview was put back to the accused and the differences between the two interviews was relied upon in evidence admitted in the court. The High Court held that the latter parts of the first interview were highly prejudicial and damaging and could well have made a difference between conviction and acquittal.[21] The court said that they should have been excluded.
[19] [2010] SASCFC 38.
[20] (1992) 176 CLR 177.
[21] Per Deane J at p 100.
In Minter, the decision concerned the murder of Glynis Heyward in Mount Gambier in 2006. The principal offender was a man called Neil Heyward who was a defacto spouse of Glynis Heyward, the deceased victim. Neil Heyward murdered Glynis Heyward in a home at Pick Street in Mount Gambier. He later committed suicide. One question for consideration in the appeal was the involvement of Neil Heyward’s son, Matthew and the man called Minter who assisted Neil Heyward. All of them were involved in the luring of the deceased victim to the Pick Street home where she was assaulted, overcome and later murdered. Her body was dumped in Victoria.
At [54] and following, the Court of Criminal Appeal considered the objection to the admission of evidence of interviews conducted by the police on 9 August 2007 and 16 August 2007. The argument was that the trial judge should have excluded those interviews on the ground that their admission made the trial unfair or on the ground that the evidence was obtained improperly and should have been excluded on the ground of public policy.
Matthew Heyward had consistently lied to the police about his involvement in and what he knew of the matter and the involvement of Minter. He was interviewed on a number of occasions on 29 July 2007 and no caution was given. The police told him that the matter was still a missing person’s enquiry. The trial judge excluded evidence of those interviews on the grounds that Matthew Heyward had become a person of interest although not a suspect and that a caution should have been given particularly in relation to the second and third conversations which were formal records of interview. The trial judge admitted evidence of police interviews on 9 August 2007 and 16 August 2007. At that time, appropriate cautions and warnings were given which were described by the trial judge as “clear and extensive”. The trial judge viewed the films of the interviews and he was satisfied that Matthew Heyward participated in the interviews voluntarily.
At [58] Doyle CJ identified that the trial judge said that in the admitted interviews, Matthew Heyward had made no admissions. No confessional statements had been made in the excluded interviews. The prosecution was relying upon what Matthew Heyward said about his movements on 23 July 2006 as evidence of lies by him. Senior Counsel for Matthew Heyward submitted he was at a substantial disadvantage in the admitted interviews because of the information that the police now had about what he would say. It was then submitted that the police had obtained information improperly because of a failure to caution Heyward before embarking on the excluded interviews from which they obtained information. Counsel for Heyward relied upon Pollard and Doyle CJ characterised Pollard as a decision turning on the meaning of the statutory provision which sets out procedures to be followed by police before questioning a suspect. In Pollard, the court held that in the first interview, the police had questioned the suspect without complying with statutory procedures.
Doyle CJ held that in Heyward, the proper focus is upon the use of the information then held by the police to test the lies made by Matthew Heyward. The judgment of Doyle CJ, I consider, emphasises the need to always keep at the forefront what the police are actually doing and what is the purpose of their activities. In this case, the police knew that Roros was lying and that he was on parole. Having regard to the actual circumstances on that night, this may arguably have been sufficient but the police then took the further steps that I have described above.
Although none of these matters have been developed by Roros in his submissions, I consider that they are relevant to my considerations in this matter. This is because I accept that at least from the time that Roros was spoken to by Senior Constable Matthews after he had alighted from the police car and was body searched for the first time, he was under the clear understanding that he was not free to leave or act as he wished. I consider he was in the defacto custody of the police. That view is only confirmed when the video tape Exhibit VDP2 is viewed which discloses that notwithstanding whatever was said to Roros by Senior Constable Matthews, Roros would have understood and any objective observer would also have understood that it was compulsory for him to comply with the requests made to him by the police officers. It did not matter that Roros might have thought that if he did not comply he would have been arrested. The question for my consideration is what individual freedoms he then had and whether he still had the individual freedom to leave or to act as he wished.

The second question is whether, having regard to the circumstances, that individual freedom has been interfered with in any relevant way. For the reasons that I have already discussed, I am satisfied that the individual freedom of Roros was sufficiently interfered with that he was at the time in the defacto custody of the police and the obligation of the police was to read him his rights under s 79A of the Summary Offences Act. That was not done.
A person in the position of Roros may perceive that there is some psychological compulsion to stay and answer questions from the circumstances themselves or where that person reasonably apprehends the threat of some form of physical restraint upon that person. That situation also arises where that defendant reasonably believes there is no choice but to stay and answer police questions. The authorities are summarised by Le Dain J in R v Therens.[22] Also, in the same decision, McLachlin CJ and Charron J held:-[23]
[44] …in applying the test, the following factors could be taken into account:-
(a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general enquiries regarding a particular occurrence; or, singling out the individual for focused attention investigation.
(b) the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others and the duration of the encounter.
(c) the particular characteristics or circumstances of the individual were relevant including age; physical stature; minority status; level of sophistication.
[22] [1985] 1 SCR 613 at 644.
[23] At page 385 [44].
I consider that the particular characteristics or circumstances of Roros are informed more by the 20 g of methylamphetamine in the vehicle he was driving. A presumption arises, correctly in my view, that on that particular occasion Roros had been trafficking in methylamphetamine. I therefore give little weight to consideration (c) above.
I am satisfied that the way in which the police spoke to Roros from the commencement of the time the police exited the police car was such that it would have conveyed to a reasonable person that he had no genuine choice but to respond to the police and, in the instance of the motor vehicle, to accompany the police officer to the motor vehicle some 100 m or so up Jacaranda Drive. I am also satisfied that having seen and heard the evidence, that Roros would have understood that he had to remain in the place and accompany the police. He would reasonably have thought that he had to remain and assist the police with their questions.
It is a matter for judgment about how the conduct of the police is to be assessed and how the response of Roros is to be considered. The police knew that Roros wanted to leave after the initial questioning and it is also clear from the evidence that Senior Constable Matthews insisted that Roros stay with him, subject himself to the body search and then inform the police officer of where his vehicle was to be found. I consider that it could not be said that this occurred in a voluntary way. I think all of these events were occurring in circumstances where, objectively assessed, Roros understood he was not entitled to leave and he was necessarily obligated to answer the police questions.
The prosecution have correctly conceded that the body search of the accused by the police was unlawful. In those circumstances, from the time the police first commenced to speak to the accused, all that could be said is that there was a curiosity about why Roros and Stretton were walking in that place at that time of night. This curiosity was fuelled by the lies of Roros. I accept that, for example, obvious lies uttered to police, with other conduct would at least have raised suspicions about the reason why Roros and Stretton were in the vicinity. In circumstances that may be sufficient for the formation of a suspicion under s 52(6) of the Controlled Substances Act. I can see little profit in repeating oft quoted statements about the meaning of “reasonably suspect” which derive from the law of insolvency. This is because these are all questions of fact to be assessed objectively: what did the police know and what was the result. Reasonable minds may well differ on the result. Whatever the police knew, on the bases of the decision of the Court of Criminal Appeal which bind me, it was insufficient because it did not meet the test of s 52(6) of the Controlled Substances Act and information was obtained in the course of a procedure used by police that was impermissible.
I am unable to accept the submission of the prosecution that Senior Constable Matthews was merely engaged in the gathering of information. I think that properly understood, he was impermissibly questioning the accused and insisting that he do particular things allegedly preparatory to forming a suspicion in relation to a search of the vehicle driven by the accused. The police officer continually maintained his line of questioning of the accused, and I accept that in giving answers to the police, the accused lied. There is even less doubt that the police did not believe the answers given by the accused to the questions they were putting to him.
Then the police officer insisted that the accused stop lying and answer his questions in a truthful way. That was in the same context generally that the police officer understood that the accused did not wish to answer his questions. I consider that the continuation of the questioning in the way that it occurred, and in the circumstances where the police understood initially that the accused did not wish to answer questions was both persistent and done in a manner where the accused reasonably understood that he could not leave the area because, as he thought, he would have been arrested. This is apparent on an objective basis. It is not necessary for me to decide whether the continuation of the questioning of the unwilling Roros is proper in these circumstances. The authorities on this topic are well known.[24] Police officers should not continue to question persons after they have indicated that they do not wish to answer the questions. It is similarly inappropriate for police officers to continue to demand answers from a suspect where the police have insufficient information to suspect that person of a crime but only enough information to understand that the answers been given to them by the suspect are lies. That is, there needs to be something more than merely the process of continually putting questions to a suspect who did not want to answer questions and who was as a result not free to go. This process contravenes the proper approach to be taken by police officers in that situation as stated by King CJ in R v Lightfoot.[25] The police are not entitled to continue to cross examine a person and demand what they consider to be true answers. There is no rule against a person lying to police. Even if a person does lie to the police, without more this does not mean that the police can continue to question the person until the police achieve what they think is the truth.
[24] R v Ireland (1970) 126 CLR 321; Reg v Evans (1962) SASR 303.
[25] (1993) 174 LSJS 330 at 333.
If those lies are combined with some other matter, then it is possible that the reasonable suspicion for the Controlled Substances Act may be formed. On some occasions lies may be sufficient but ordinarily there would need to be some other factor operating with the lies that is necessary to give rise to the suspicion. All that can be said is that two people were walking along Jacaranda Drive at about 12.30am. It was a spring night and no doubt the air temperature may have been a little bracing. Unbeknown to the police, the couple knew that the police were present; they walked past their car and almost immediately were spoken to by police.
Even though Stretton was never likely to be free to leave due to the outstanding warrant for her arrest, that is not a consideration that is relevant when assessing the position of Roros. He was dealt with separately by Senior Constable Matthews and the record Exhibit VDP2 does not indicate much if any interchange between Senior Constable Matthews speaking with Roros and other police conversations with Stretton. The usual police procedure is that they are deliberately kept apart and that was the procedure followed in this case.
Senior Constable Matthews knew that Roros lied to him. Even so, the police officer had no basis to then reasonably suspect for s 52(6) Controlled Substances Act, and his method was to take such steps as he thought necessary or preparatory to reach that position. In so doing he acted in such a way that the s 79A Summary Offences Act rights of Roros applied. Also, the police were not then entitled to use that information as a basis to search the car driven by Roros.
There was no proper basis for the searches of the person Roros who reasonably apprehended that he could not leave the scene for a number of reasons including that the police have control of his car keys, his wallet and his phone. This position pertains even though Roros likely would also have not wanted to leave in the absence of Stretton who was subject to a warrant for arrest.
Senior Constable Matthews took possession and used the key then in the control of the police to open the vehicle of the accused without any other basis to do so. Based on the information given by Senior Constable Matthews the vehicle was then searched by Sergeant Webb who found 20 g of methylamphetamine. Up until the time of the opening of the vehicle and the search, there was no reasonable basis to suspect for the purposes of the Controlled Substances Act. There was only a collocation of events which may have led, with other evidence, to the formation of a suspicion. I am satisfied that the “other evidence” does not exist in this instance and the approach of the police was not available to be used for the reason I have expressed. I am unable to say on the evidence whether such other evidence may have been available if a different method or approach had been used.
The accused submitted that the use of the key by the police was a trespass to goods. It is not necessary that I resolve that matter.
I consider that in the particular circumstances of this matter, the discretion would not be exercised in favour of the prosecution because I am satisfied that the evidence obtained by the search of the car by Sergeant Webb has been obtained by unlawful or improper means.
In the result, I grant the application of the defendant under R 49 (1)(h) District Court (Criminal) Rules dated 10 February 2016. I make orders as follows:-
1. The evidence obtained as a result of the initial search of the defendant, the Toyota Corolla hire vehicle and the subsequent search of the defendant at the Mount Barker Police Station by Senior Constable Matthews, Constable Oakes and Sergeant Webb be excluded.
I so order.