R v Salotti - [2019] SADC 171

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SALOTTI
[2019] SADC 171
Reasons for Ruling of His Honour Judge Tilmouth
22 November 2019
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application to exclude evidence on the basis of a 'pretext' Road Traffic Act stop, dismissed as unproven.
No basis is substantiated to suggest an illegal search on private property was undertaken.
Controlled Substances Act 1984 (SA) ss 32(3) and 52(9); District Court Criminal Rules 2014 (SA) rr 49(1)(h) and 51(2); Road Traffic Act 1961 (SA) s 40V(2)(a); R v Dam and Nguyen (2015) 123 SASR 511; R v Prinse (1998) 196 LSJS 267; R v Arthur [2018] SADC 116; Ridgeway v The Queen (1995) 184 CLR 19; Bunning v Cross (1978) 141 CLR 54, referred to.
R v Phong Hoang Nguyen (2013) 117 SASR 432; Question of Law Reserved (No.3 of 1998) (1998) 71 SASR 223; Halliday v Nevill (1984) 155 CLR 1; R v Rockford (2015) 122 SASR 391, applied.
Coleman v Zanker (1991) 58 SASR 7; R v Chapman (2001) 79 SASR 342; R v Nguyen (2015) 248 A Crim R 398, distinguished.

R v SALOTTI
[2019] SADC 171
Contents
An application for the exclusion of evidence
Brief overview of the events
The application for exclusion
The power of search
Reasonable suspicion affording evidence of a drug offence
A sufficient basis to search?
Unlawful private property intrusion
The discretion to exclude
Orders
An application for the exclusion of evidence

The defendant Katherine Salotti brings the within pre-trial motion to exclude evidence of the seizure of drugs located near a motor vehicle in which she was a passenger.
This seizure led to a joint charge with the driver of the vehicle for that on 18 December 2017 at Craigmore they trafficked in the controlled drug methylamphetamine contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The co-accused pleaded guilty and presently awaits sentence. This motion is grounded on the contention that the search of the vehicle and the surrounds was illegal and that the detention of both her and the driver on private property adjacent to the area in which the vehicle was parked, was conducted unlawfully on that property.
Brief overview of the events
At just after midnight on Monday 18 December 2017, Brevet Sergeant Marsh of Elizabeth police was on mobile patrol duties in the company of Probationary Constable Lloyd, tasked with the duty of making a ‘bail check’ at 33 Kakuna Crescent Craigmore, a northern suburb of Adelaide. He told the court a ‘bail check’ arises when a person is on bail for an offence, the conditions of which involve a ‘curfew’, so that police on night shift are regularly assigned to ‘do a bail curfew check’ in respect of bailed persons, to confirm they are resident at the bailed address during curfew times.[1] His intention was to knock on the door of 33 Kakuna Crescent for this purpose, although he was unable to tell the court what offence the subject bail agreement related to.[2]
[1] T23.24-.33.
[2] T23.34-24.2.
Whilst approaching this address travelling west, the police noticed a silver Mitsubishi sedan facing east parked directly in front of that address. A male was in the driver’s seat and a woman in the front passenger seat. Marsh drove past the vehicle which was parked ‘outside of an address of interest and that that vehicle took off as we pulled up to do something completely different at that address …’[3]
[3] T26.8-.11.
The Mitsubishi then proceeded east along Kakuna Crescent, at which point Marsh executed a three-point turn with the intention of stopping it for the purpose of checking licence and registration details. In doing so he activated warning lights on his vehicle, a marked police car. The Mitsubishi duly responded by pulling over outside 47 Kakuna Crescent.
Marsh approached the driver’s side window of the vehicle as Lloyd approached the passenger side, both on foot. He engaged in a short exchange with the male driver during which he sought personal particulars and in order to conduct a licence check of the vehicle. For his part, Lloyd simply kept watch over Ms Salotti who was in the front passenger seat of the vehicle at this time.
As Marsh conversed with the driver he deposed to observing:[4]
… a small clear plastic container that was sitting in the dash, sort of illuminated by the lights of the dash, the auxiliary lights on the dash. That's had the residue or droplets from a liquid substance inside. I also noticed a plastic re-sealable bag that contained four blue pills.
Looking further into the vehicle, he saw a plastic container holding an unused plastic resealable bag in the centre console.
[4] T9.2-.8.
He then told Lloyd he intended to search the vehicle. Lloyd then directed Ms Salotti ‘to exit the motor vehicle’ whilst at the same time the driver was directed towards the front yard of 47 Kakuna Crescent, as well.[5] With the use of a police issue torch, Lloyd then checked the area of the front yard in the vicinity for any obstacles, but found ‘nothing of note’.[6] Lloyd described this exercise as scanning the front yard and lawn besides the bushes, ‘the lawn and the concrete’ areas as shown in photograph 50 of Exhibit VDP2.[7] Lloyd then walked Ms Salotti to the police vehicle where he conducted checks as to her identity. Nothing of interest was located, either on her person or anything untoward in the checks that he then made. He next returned Ms Salotti to the area of the driveway where he kept both her and the driver under observation.
[5]    T95.9-.12.
[6]    T95.7-.18.
[7]    T104.5-.17, 108.4-.10.
At the point that Marsh produced a number of items taken from the Mitsubishi, Lloyd again inspected the ground in the vicinity, about a metre or so in front of a letterbox seen in the photographs exhibited to the court, only to see a black pouch immediately next to or about 15cm from Ms Salotti, which he picked up and inspected the contents immediately before arresting Salotti.[8] In more or less the same area, he found the white mobile phone returned to the driver by Marsh, which the driver admitted to Lloyd was his. It transpires that the black pouch contained $3,148 in cash and 8.51 g of crystalline substance containing methylamphetamine.
[8] T95.25-.32, T97.12-.24.
Marsh’s search of the silver Mitsubishi produced an electronic scale from under the front passenger seat and another inside a dash compartment, a glass pipe inside bubble wrap within the glove box and another inside a sunglasses case in the front passenger foot well, two glass pipes under the handbrake and driver’s door compartment respectively, three Suboxone strips in a cigarette package next to the handbrake, a prescribed light globe behind the driver’s seat and a gold Huawei smart phone attached to a charger located in the centre console.
Ms Salotti admitted to police in a later interview that the mobile phone on the charger in the centre console was hers. It is alleged to contain text messages consistent with dealing in drugs. Following the search of the Mitsubishi, the driver was placed under arrest for trafficking in a controlled drug, both were handcuffed and given their arrest rights. No complaint is made as to those aspects of the case.
The application for exclusion
Notices were at first filed appreciably outside the seven calendar days before the first directions hearing required by rr 49(1)(h) and 51(2) of the District Court Criminal Rules 2014 (SA), seeking exclusion of the evidence obtained from the above search on the grounds that there was no power to require the vehicle to stop as it was on this occasion. At first, defence counsel was adamant ‘that the stop of the car was unlawful, that there was no power to do that’.[9] Once directed to the decision of the Court of Criminal Appeal in R v Dam and Nguyen[10] in which it was held that s 40V(2)(a) of the Road Traffic Act 1961 (SA) entitles police to both direct persons to provide his or her personal details and to stop any vehicle in doing so, the focus of the application then became that Marsh made up his mind on first seeing the Mitsubishi to conduct a search of the vehicle, without holding the requisite suspicion entitling him to do so. A secondary basis for exclusion was that the seizure of the black pouch constituted an ‘unlawful trespass … on private property’.[11]
[9] T11.23-.26, 24 September 2019.
[10] (2015) 123 SASR 511, [28], [30]-[31].
[11] Application for Directions, 16.9.19, [1.5].
Marsh determined to conduct the licence and registration checks because the vehicle was on a residential street outside ‘an address of interest to police, undesirables coming and leaving the address and regular drug activity’, in combination with the ‘vehicle leaving that address at the time’, which he considered ‘made logical sense to stop that vehicle to ascertain the driver and the registration, make sure everything was correct’.[12]
[12] T8.15-.26.
The power of search
Marsh was not the holder of a general search warrant. He did not profess to exercise the power of search on any other basis other than ‘forming my suspicion to search the vehicle’ under ‘a Controlled Substances Act search on a suspicion’.[13] He acknowledged that at the time of turning the police vehicle around, he had already formed the intention to stop it for the purposes of registration and licence checks. His evidence was that he considered he ‘had a lawful authority to stop the vehicle for the purpose of checking the registration and licence’, even though unable to nominate specifically where that authority came from.[14]
[13] T10.11, T20.21-.24.
[14] T7.36-8.6.
The power vested in police to search vehicles in the case of illegal drugs investigations derives from s 52(9) of the Controlled Substances Act 1984 (SA), which provides:
(9)If an authorised officer who is a police officer 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.
The primary point taken by defence counsel was that no suspicion falling within s 52(9) was formed. It was submitted that the evidence demonstrates Marsh formed the pre-emptory intention to search the vehicle for drugs, using the ‘pretext’ of a Road Traffic Act stop to do an ‘unlawful turnover or bona fide-ing of the driver or passenger either to enable an opportunity to search or pursuant to a foreclosed decision to search’.[15] Clearly such powers are not to be used for such purposes or ‘capriciously or for an identifiable purpose not connected at all with legitimate policing of the law’: R v Prinse.[16]
[15] T113.24-.30.
[16] (1998) 196 LSJS 267, 272.
Lloyd was not asked and accordingly did not give evidence with respect to this issue, obviously because he was taking his cue from his superior officer. In any case, it was Marsh alone who purported to form the necessary suspicion justifying the search of the vehicle. Giving evidence via AVL from Leeds in the United Kingdom, Lloyd’s evidence was directed mostly to what occurred during his interchange with Ms Salotti, as to exactly where she and the driver were in the vicinity of the vehicle and the front yard of 47 Kakuna Crescent, and of course as to finding the black pouch and the white mobile phone.
Reasonable suspicion affording evidence of a drug offence
As seen above, in requiring the vehicle to pull over, Marsh did not purport to exercise the power to stop the vehicle pursuant to s 52(9) of the Controlled Substances Act. He was justified in doing so under s 40V of the Road Traffic Act. Soon after, he purported to exercise the power under s 52(9)(b) and (c) of the Controlled Substances Act to search and detain the vehicle and then to seize the items referred to above. The situation developed in the following way.
As he was making the identification and licence enquiries of the driver, he noticed inside the cabin a small clear plastic container containing ‘residue or droplets from a liquid substance inside’ sitting on the dash, illuminated by dash or auxiliary lights.[17] The in situ placement of the container and the circumstances of illumination are clearly seen in photographs 6 and 7 of Exhibit VDP2, taken by Marsh very soon after.[18] At the same time he ‘also noticed a plastic re-sealable bag that contained four blue pills’.[19] These were in a drinks or cup holder just to the left of the gearstick.[20]
[17] T9.2-.7.
[18] T63.5-.9.
[19] T9.7-.8.
[20] T10.24-.26 and see photograph 5 of Exhibit VDP2.
On seeing these, Marsh immediately ‘suspected it would be erection pills’ because of his experience in policing.[21] The container aroused his ‘concern’ because from his experience in the police force over the previous 12 years including ‘several stints with a drug unit; that type of container was a form of packaging ‘commonly used to contain liquid fantasy’.[22] He added that ‘(I)nitially, forming my suspicion to search the vehicle, it was the plastic re-sealable bag that contained four erection pills’.[23]
[21] T8.7-.8, T9.8-.9.
[22] T9.38-10.8.
[23] T10.9-.13.
Marsh said ‘the two is what assisted me in actually formulated my suspicion but the other ones earlier mentioned just added further to … the suspicion that was gained from me seeing the plastic screwable container and the pills there’.[24] He added that weight was added by:[25]
… the fact that that vehicle was parked outside of an address of interest and that that vehicle took off as we pulled up to do something completely different at that address …
He explained under cross-examination:[26]
… in my experience with searching people's houses and cars, erection pills seem to be a common one for people to have in conjunction with other controlled drugs or illicit drugs.
[24] T25.38-26.6.
[25] T26.6-.11.
[26] T39.31-.36.
He explained his understanding of the power of search under the Controlled Substances Act in this way:[27]
Q.What do you understand is required of you as a police officer before you can search a vehicle pursuant to that section.
A.You've got to develop a suspicion and that's got to be based on facts and that is facts that are identified at that time; not history, not facts of that vehicle being involved in stuff or persons or antecedents, it has to be relevant facts to the time of the actual incident.
He denied forming the premature intention to search the vehicle.
[27] T59.6-.13.
This evidence was criticised by defence counsel as providing an insufficient basis to sustain a lawful search and as unreliable in a number of respects. The first point was in sum, that seeing the Mitsubishi adjacent to a property known to be associated with drugs, was too inviting or enticing to forego the opportunity of search. Although Marsh’s observations made at such early hours of the morning in the context of his state of knowledge about the address, might have provided a proper basis to stop and search under the Controlled Substances Act, he did not profess to invoke it. It is perhaps a matter of conjecture whether the circumstances were sufficient to ground a reasonable suspicion that drugs were, or were about to be, purchased from the premises at 33 Kakuna Crescent, particularly given the time of night.
The fact of the matter is that he needed no pretext to do what he did. If that was his purpose, he might be expected to have attempted to justify his position by claiming to have a sufficient frame of mind entitling him to search under the Controlled Substances Act. This consideration strongly suggests he told the truth as to his reasons for proceeding as he did, and in denying the employment of extraneous powers to effect what would amount to an unauthorised and hence unlawful Controlled Substances Act search and seizure. This aspect of the defence case is therefore rejected as unsubstantiated on the balance of probabilities.
The next defence criticism levied at the evidence of Marsh was that he made no note of finding the plastic tub and he did not seize it, even though it was ‘so crucial’ in forming the suspicion to search.[28] His explanation for this state of affairs was this:[29]
[28] T60.13-.16.
[29] T60.13-.36.
Q.So let me be clear, you did not consider that plastic tub, being the same plastic tub that was so crucial to formulating your suspicion to search the vehicle, worthy of seizing.
A.No, I didn't.
Q.Despite the fact that you now say that it was a tub that looked like the tubs that people who deal fantasy use.
A.That's why I photographed the tub in situ.
Q.But you didn't think it was worth seizing.
A.No, the tub didn't have anything that I was going to have analysed in it, I photographed it to display obviously what I am seeing at that time but, no, I have not seized it.
Q.But you've seized lots of other things that you weren't going to have analysed.
A.Drug paraphernalia, yes.
Q.That's drug paraphernalia, that little tub, isn't it.
A.On its own it's a container but definitely I identified to be used to package drugs, yes. It's not an unlawful item to have like an ice pipe is, I can't lawfully leave an ice pipe in a car or a Suboxone strip.
Q.You say that because it's as much any old container as a drug container that it wasn't worth seizing.
A.I didn't seize it.
He further explained the reason for the absence of a note was that as it was in the position ‘exactly where I photographed it’; he did not need to make a note of it.[30]
[30] T62.36-63.3. (T65.14-.17).
These criticisms can be readily disposed of. It is perhaps a matter of some surprise that he did not make an express note as to the finding of the container which generated the relevant suspicion, but of course after removing the occupants from the vehicle and locating the container considered to contain methylamphetamine, he immediately took the photographs.[31] Had he made a note about the container but not taken a photograph, he might be more severely criticised. The explanation for the absence of a note is that he had better evidence by way of photographs of the container itself in situ, where it was first seen, showing exactly the degree of illumination which caught his eye from the outside. There is in these circumstances no reason to become suspicious of the failure to duplicitously record in note form what he already had in photographic form. Moreover, it is clear that once having found the methylamphetamine, this became his central focus and it was for that understandable reason he did not seize the tub.
[31] T63.5-.9.
Next, it was complained that Marsh was in conflict with the evidence of Lloyd, in that he professed not to have used a torch when speaking with the driver, whereas Lloyd said he did. The probabilities are that he did not because of the high degree of illumination from the dash lights. Although the evidence was that Lloyd himself used a torch for the purposes of walking to the vehicle as a safety measure and for searching the area adjacent to the vehicle outside number 47, his understanding was that Marsh used his, even though there was no reason for it. There was in truth no direct conflict in the evidence because Marsh did not purport to have a memory one way or the other about this topic. This difference is of no consequence in any event as the question at issue is not the means of search, but rather the intention for pulling over the vehicle in the first place. Furthermore, the initial observations made by Marsh were ‘of sensory perception … [which]…did not constitute a trespass or a search’.[32]
[32] Question of Law Reserved (No.3 of 1998) (1998) 71 SASR 223, 224, 226.

Mr Panousakis for Ms Salotti insisted the use of a torch ‘constitutes in and of itself an illegal search of the vehicle’ by reference to the judgment of Olsson J in Coleman v Zanker.[33] This contention misapprehends what his Honour held in that case. Stated in brief, police without entertaining any suspicion of the commission of any offence, required Mr Zanker to ‘vacate’ his vehicle and then commenced to search it. Upon finding a knife they began questioning him without caution about it. Olsson J observed as a question of fact ‘the first active step in the ongoing process of an unlawful search … was the shining of … [a] … torch into the interior of the vehicle …’,[34] however this observation does not elevate into a proposition of law to the effect that the use of a torch inevitably amounts to a search.
[33] (1991) 58 SASR 7.
[34] Ibid 15.
Another conflict in the evidence of the two officers seized upon by defence counsel was that each gave evidence of picking up the wallet from the driveway containing the money and the drugs, to the point that counsel submitted the evidence should not be accepted. Since Lloyd said he handed it to Marsh as his superior officer, very little of consequence turns on that rather minor contradiction. Apart from the general observation that Marsh gave evidence in a consistent manner having the ring of truth about it, his evidence can be accepted about this in addition to the above reasons.
A sufficient basis to search?
The next question then is whether Marsh entertained a sufficient suspicion for searching the vehicle as he did. It is authoritatively established that s 52(9) of the Controlled Substances Act requires more than a mere suspicion, but rather a suspicion that there is evidence of a drugs-related offence in a vehicle: R v Phong Hoang Nguyen.[35] Such a suspicion is however a lesser state of affairs than a belief, that is ‘a working hypothesis for which there is some supporting material’ amounting to something more than ‘[M]ere curiosity, speculation or “idle wondering” about the existence of the fact …’.[36]
[35] (2013) 117 SASR 432, [22].
[36] Ibid [21].
It can be seen from the evidence referred to or quoted above, that it was a combination of factors that led Marsh to form the suspicion he did. To summarise, initially the container holding droplets of liquid residue triggered a mere ‘concern’ because it was of a type of packaging commonly used to hold liquid fantasy, but it was in conjunction with the plastic re-sealable bag containing the four erection pills that crystallised into suspicion, owing to his past experience that it was common to see such pills in conjunction with illicit drugs. This was in the context of a vehicle parked outside of an address of interest due to regular drug activity, the Mitsubishi immediately ‘taking off’ the moment they drove by, and the unusual hour of night. This was sufficient to underpin the formation of reasonable suspicion to sustain the detention and search of the silver Mitsubishi sedan.
Relying heavily on R v Chapman,[37] defence counsel urged the court to characterise the circumstances as amounting to nothing more than ‘turning over’ the vehicle. Chapman involved a different situation in that the police exercised the power to stop a vehicle under what was then s 42(1)(b) of the Road Traffic Act 1953 for the purpose of ‘ascertaining the name and place of residence … of … [the] … driver’ as a ruse to turn over the vehicle and its occupants. Williams J specifically found ‘the powers of the Road Traffic Act s 42 had been exhausted’ at the time the vehicle was searched.[38] That is not the situation present here as Marsh made his observations whilst still in the course of duly exercising his Road Traffic Act powers, which were unspent at that time. Still further, his Honour concluded ‘the police acted in accordance with a practice under which police stopped a vehicle with a view to creating an opportunity to conduct a search’,[39] which is not the case here either. The position was much the same in R v Arthur[40] in which a judge of this court concluded that Road Traffic Act powers were deployed as ‘no more than a pretext … to effect a search’, when the police officers involved openly admitted having ‘no basis to suspect that a search … would yield evidence of offences’, under the Controlled Substances Act.[41] Nor was there any ‘fundamental misconception about the state of mind’ Marsh was required to form as there was in R v Nguyen.[42]
[37] (2001) 79 SASR 342.
[38] Ibid [16].
[39] Ibid [27].
[40] [2018] SADC 116.
[41] Ibid [26].
[42] (2015) 248 A Crim R 398, [37].
Unlawful private property intrusion
As the evidence unfolded this issue narrowed somewhat inasmuch as defence counsel conceded Sergeant Marsh's search of the co-accused was not conducted on private property at the front of 47 Kakuna Crescent.[43] On the other hand the submission was pursued and whilst at times difficult to follow, might be condensed into something akin to the following.[44] Whilst accepting an implied licence to go on the lawn to effect a search lawfully exercising a statutory power of search of a person, Lloyd went much further than necessary by going up the driveway with his torch, past the letterbox on private property well outside the scope of any implied licence, thus performing an illegal search without a warrant, with a ‘seriously flawed understanding of the nature of the implied licence given to police to go onto private property without a warrant’.[45] These actions therefore infringe the proprietary rights of law-abiding citizens and this high-handed attitude ‘independently taints the finding of the black pouch’.[46]
[43] T145.11-.25.
[44] T145.12-151.3.
[45] T149.1-.3.
[46] T147.34-.37.
Although not articulated in so many words, it is quite apparent that Lloyd did nothing more and nothing less than search for items that might have been thrown from the car or disposed of by either occupant. One anticipates this was normal police procedure in the expectation that people in this situation might attempt to be rid of incriminating possessions, an expectation no doubt based on policing experience. This is precisely what transpired on this occasion.
The High Court affirmed in Halliday v Nevill[47] the proposition that a licence to enter property will, as a matter of law, be implied unless there is something capable of founding a conclusion that any implied or tacit licence was negated or was revoked. Specifically with respect to police entering onto private property, the majority held:[48]
The question which arises is whether, in those circumstances, the proper inference as a matter of law is that a member of the police force had an implied or tacit licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the immediate vicinity of that driveway. The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that that question be answered in the affirmative.
…
All that that conclusion involves is that, in the absence of any indication to the contrary, the implied or tacit licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it.
[47] (1984) 155 CLR 1,7.
[48] Ibid 8.
Nothing said in Halliday v Nevill renders anything done by Lloyd unlawful or unfair. In all respects, all he did as a member of the police force was going ‘upon the driveway in the ordinary course of his duty’ of reasonably searching for items of evidence that might be disposed of. Nothing of consequence therefore comes of this point.
The discretion to exclude
Given the above conclusions, the exercise of the discretion to exclude on the grounds of illegality or unfairness does not arise. Because the topic was canvassed by both counsel, it is nevertheless desirable to say something about it. The evidence is cogent and the charged offence is serious, but as far as search and seizure cases are concerned, the quantity involved is not that great.
The discretion to exclude on the grounds of illegality, impropriety or unfairness permits the criminal courts to exclude evidence on ‘high public policy’ grounds, so as to discourage unlawful conduct on the part of law enforcement officers whose duty it is to enforce it and to preserve the integrity of the administration of criminal justice: Ridgeway v The Queen,[49] Bunning v Cross.[50] The most important consideration is ordinarily ‘the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers …’: Ridgeway v The Queen.[51]
[49] (1995) 184 CLR 19, 31-32.
[50] (1978) 141 CLR 54, 74-75.
[51] (1995) 184 CLR 19, 38, and to a similar effect refer Brennan J at 51.
Had Marsh engineered the circumstances as a ruse to turn over the silver Mitsubishi as was alleged here, exclusion was inevitable in pursuance of ‘high public policy’ which favours exclusion because of ‘the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice’: R v Rockford.[52] If that was his practice it would become necessary ‘to censure the excess of power … in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search …’: R v Phong Hoang Nguyen.[53]
[52] (2015) 122 SASR 391, [39].
[53] R v Phong Hoang Nguyen (2013) 117 SASR 432, [42].
Orders
As things stand however, the application to exclude the evidence of the search of the silver Mitsubishi just after midnight on Monday 18 December 2017 is for the above reasons, refused. Ms Salotti is remanded for a second directions hearing at 10am on Friday 15 May 2020.