R v Rousvanis - [2019] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROUSVANIS
[2019] SADC 9
Reasons for Ruling of His Honour Judge Cuthbertson
6 February 2019
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
Accused charged with trafficking in a controlled drug and unlawful possession of a large sum of cash – police engaged in pursuit of vehicle which was later located abandoned in a hotel carpark – police received information of accused acting suspiciously in the vicinity – whether reasonable grounds existed to justify searching a bag in the possession of the accused pursuant to s 68 of the Summary Offences Act 1953 – whether arrest of the accused was lawful – whether discreditable conduct regarding the accused’s driving conduct should be permitted at trial.
Held:
1) the search and the arrest were both lawful. If either or both were unlawful, the discretion would be applied to admit the evidence of the fruits of the search
2) discreditable conduct in the nature of the accused’s driving behaviour admissible to show knowledge of the drugs.
Summary Offences Act 1953 (SA) ss68(1), 74A, 75; Evidence Act 1929 (SA) s 34P, referred to.
Wilson and Morrison v R [1994] SASC s4554.1; R v Rockford [2015] SASCFC 51; Bunning v Cross (1978) 141 CLR 54, considered.

R v ROUSVANIS
[2019] SADC 9
Introduction

This is an application by Miltiadis Rousvanis (the applicant) pursuant to Rule 49(1) of the District Court Criminal Rules 2014 for the following orders:
1. That the evidence of observations of the manner of driving of the applicant not be admitted at trial; and
2. That the arrest of the accused be deemed unlawful, and any evidence subsequently obtained be held inadmissible in the trial.
On Australia Day 2017, at approximately 6.30pm in Mannum, Senior Constable Shapley engaged in the pursuit of a silver Pajero motor vehicle towing a jet ski. He later located the abandoned car in the carpark of the Pretoria Hotel.
Senior Constable Doecke joined in to assist, having received information of the pursuit over police radio. The applicant was located nearby and was spoken to by Senior Constable Doecke. It was put to him that he had tried to open car doors. When asked his full name he replied truthfully that it was ‘Miltiadis Rousvanis’. Senior Constable Shapley was not present and did not hear this conversation but he arrived at the scene shortly afterwards.
Senior Constable Doecke told the applicant that he intended to search his bag. Initially the applicant said it was not his bag and that the officers were not permitted to search it.
The applicant struggled and resisted the officers’ attempts to take possession of the bag. He was told by Senior Constable Doecke he could be arrested for Hinder Police and eventually he was taken to the ground and handcuffed by both Doecke and Shapley.
Police then searched a bag in his possession and located two containers with methylamphetamine, weighing a total of 88.77gms being 45.9 g pure, and $50,080 cash which was inside a mobile phone box in the bag. Additionally, police located three mobile phones, digital scales, empty deal bags and prescription medication in the bag.
The applicant declined to give an explanation to police when interviewed.
Senior Constable Doecke told the Court the applicant was arrested for Hindering Police in obstructing their attempts to search the bag. Senior Constable Shapley, who assisted in the struggle with the applicant and the handcuffing of him, had not heard Senior Constable Doecke earlier ask for and be given the applicant’s name. He thought the applicant was being arrested for Failure to Give Particulars, as when he asked the applicant for particulars, he was given none.
Senior Constable Doecke explained in his evidence that it was a very dynamic situation and the officers did not have time to discuss matters between themselves.
The applicant is presented before this court on an Information dated 27 October 2017 charging him with Trafficking in a Controlled Drug, namely the amphetamines, and Unlawful Possession in respect of the $50,080 cash, both of which were located in the bag the applicant was holding.
A statement of Anthony Shapley, Senior Constable, which I accept in the absence of any contrary evidence establishes that the vehicle and trailer approached an intersection (from the East on Adelaide Road) where Constable Shapley was stopped. The vehicle was straddling the white dividing line and appeared to be travelling at a higher speed than 50kph which was the normal speed for the area.
The police officer activated emergency lighting, pulled in behind the Pajero and attempted to stop it as it travelled west on Adelaide Road. The vehicle did not stop. The siren was activated as the police vehicle followed it. The vehicle completed a U-turn and as it drove past the driver waved or gestured towards the police officer.
The police officer followed by doing a U-turn but did not pursue the vehicle due to the fact that it was towing a jet ski on a trailer and there were a large number of people in the area, it being a public holiday and Mannum being a busy holiday destination. The police officer lost sight of the vehicle but as he approached the Pretoria Hotel on Randell Street pedestrians pointed to the car-park of the Hotel.
Senior Constable Shapley saw the silver Pajero and jet ski parked in the carpark. Information was received by police radio that Senior Constable Doecke had located a male person walking away south along Randell Street away from the Pretoria Hotel.
An available inference from the driving behaviour of the applicant is that he knew that he was in possession of illicit drugs and wished to avoid being searched and having the drugs detected.
Shapley attended the location in front of the Mannum Community Club where Doecke was talking to the applicant who, unbeknown to Shapley, had provided his correct name. Doecke informed the applicant that he intended to search his bag and a brief struggle arose over the bag. The applicant briefly resisted arrest.
He was sat up against the side northern wall of the Mannum Community Club and Shapley left to retrieve his police car from the car-park of the Pretoria Hotel.
The prosecution basis for the search was that there was a reasonable suspicion that the bag might contain stolen items. In the mind of Senior Constable Doecke he was making the arrest for Hindering Police in preventing such a search. In the mind of Senior Constable Shapley, the basis for the arrest was a belief that there had been a failure to provide particulars when requested.
Section 74A of the Summary Offences Act 1953 relevantly provides as follows:
74A—Power to require statement of name and other personal details

(1) Where a police officer has reasonable cause to suspect—
(a) that a person has committed, is committing, or is about to commit, an offence; or
(b) that a person may be able to assist in the investigation of an offence or a suspected offence,
the officer may require that person to state all or any of the person's personal details.
(2) Where a police officer has reasonable cause to suspect that a personal detail as stated in response to a requirement under subsection (1) is false, the officer may require the person making the statement to produce evidence of the correctness of the personal detail as stated.
(3) A person who—
(a) refuses or fails, without reasonable excuse, to comply with a requirement under subsection (1) or (2); or
(b) in response to a requirement under subsection (1) or (2)—
(i) states a personal detail that is false; or
(ii) produces false evidence of a personal detail,
is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
Section 68(1) of the Summary Offences Act 1953 reads as follows:
68—Power to search suspected vehicles, vessels, and persons
(1) A police officer may do any or all of the following things, namely, stop, search and detain—
(a) a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i) there are stolen goods; or
(ii) there is an object, possession of which constitutes an offence; or
(iii) there is evidence of the commission of an indictable offence;
(b) a person who is reasonably suspected of having, on or about his or her person—
(i) stolen goods; or
(ii) an object, possession of which constitutes an offence; or
(iii) evidence of the commission of an indictable offence.
(2) In this section—
stolen goods includes goods obtained by the commission of an offence.
Section 68(1)(b)(i) gave Senior Constable Doecke the right to examine the bag of the applicant as he had reasonable grounds for suspecting it may have contained stolen goods. He had a right to arrest for the offence of Hinder Police to enable him to conduct the search without hindrance.
Section 75 of the Summary Offences Act 1953 gave Senior Constable Doecke the right to arrest the applicant for hindering police. As for Senior Constable Shapley, he was mistaken in his belief that the applicant here failed to provide particulars, but a failure to provide particulars under s74A would have been a legitimate cause for arrest.
The arrest was not illegal as Doecke was making a legitimate arrest for Hindering Police. The fact that Shapley assisted under the mistaken belief that the arrest was for Failure to Give Particulars under s74A did not make the arrest unlawful.
In the event that I am wrong and that the search and detention was illegal because the officers involved in the arrest were not ad idem as to the basis for it, consistent with reasoning of King CJ in the decision of Wilson and Morrison v R[1], I would not exercise my discretion, to exclude the evidence of the fruits of the search because:
1.   The police officers did not know that they were acting unlawfully. If there was an illegality, it was of a technical and not of a wilful or malicious nature. (CF R v Rockford)[2]
2. Whether the arrest was illegal the police clearly had a right to detain under s 68 of the Summary Offences Act so that no loss of liberty was occasioned by the applicant that might have been avoided. Nor can it be said that the officers’ actions constituted an arbitrary and unlawful intrusion into the liberty of the subject of the sort referred to in Bunning v Cross.[3]
3.   The amount of cash and drugs located suggest that this, on the face of it, was a serious case of drug offending.
[1]    [1994] SASC S4554.1
[2] [2015] SASCFC 51
[3] (1978) 141 CLR 54
Should the evidence of the driving conduct of the applicant be permitted in evidence?
In my view, there is little prejudicial value in the evidence that the vehicle straddled the white line and exceeded the speed limit and did a U-turn in circumstances which were perhaps illegal.
The more important allegation is that the driver of the vehicle failed to stop and attempted to evade police. These are allegations of discreditable conduct within the meaning of S34P of the Evidence Act1929. In my view they are, however, highly relevant to the charges.
Assuming that the conduct of the applicant was directed to evading police, it is some evidence that he had something to hide, namely the drugs which were allegedly found in his possession.
I am satisfied pursuant to s34P(2) of the Evidence Act 1929 that the probative value of the evidence admitted for the use described substantially outweighs any prejudicial effect that evidence may have on the applicant. (S34P(2)(a)).
The jury will be given a direction that the conduct of the applicant in avoiding the police could only be evidence of guilty conduct in relation to the charges in Count 1 and Count 2 if the jury can exclude the possibility that the driver’s conduct is explicable by the illegal driving behaviour and that he drives to avoid detection for it. Given that a direction would be given that the bad driving per se should not be used against the applicant in the determintion of guilt or innocence, then the evidence which is the subject of debate is highly probative and of low prejudicial value.
This is because it could only be used against the applicant if the jury reject the “innocent” explanation that the conduct was attributable to the driving behaviour and not the possession of any incriminating material. The driving behaviour is not such as to be likely to generate overwhelming prejudice against the applicant incapable of rectification by appropriate directions.
The applications are rejected and the evidence will be admitted.