R v Simunsen
[2020] SADC 156
•30 October 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SIMUNSEN
[2020] SADC 156
Ruling of His Honour Judge Durrant
30 October 2020
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Accused charged with trafficking in a controlled drug - Police stopped vehicle in order to ascertain identity of driver - subsequent search of accused and the vehicle for drugs - whether reasonable grounds to justify searching the accused and the vehicle - applications to exclude fruits of search as Police did not hold requisite level of suspicion - whether Police obliged to comply with s 79A of Summary Offences Act 1953 - whether provision of PIN for mobile phone by the accused to Police was voluntary - whether Police obligation under s 74D of the Summary Offences Act 1953, enlivened - whether proposed Police witness suitably experienced and knowledgeable to assist jury in the consideration of the illicit trade in diverted prescription drugs.
Held:
1. The search of the accused and the vehicle were lawful. If unlawful, the discretion should be exercised to admit the fruits of the search notwithstanding.
2. Police were not obliged to comply with s 79A of the Summary Offences Act 1953, at the time asserted by the accused.
3. The provision to Police of the PIN for the accused mobile phone was voluntary and the obligation under s 74D of the Summary Offences Act did not arise at that time.
4. The proposed Police Officer witness was suitably experienced and knowledgeable to give evidence to the jury to assist its consideration of the illicit trade in diverted prescription drugs.
5. The applications to exclude evidence are dismissed.
Summary Offences Act 1953 (SA) ss 74D, 79A, referred to.
R v SIMUNSEN
[2020] SADC 156Introduction
The applicant and accused Mr Simunsen, is presented on Information[1] charged with two counts of drug trafficking as follows:
First Count
On 8 May 2019 at Salisbury Downs, trafficked in a controlled drug, namely buprenorphine (1.68g), knowing or being reckless as top the fact the substance was a controlled drug (section 32(3) of the Controlled Substances Act 1984).
Second Count
On 8 May 2019 at Salisbury Downs, possessed a controlled drug, namely heroin (0.10g), knowing or being reckless as top the fact the substance was a controlled drug (section 33L(1) of the Controlled Substances Act 1984).
[1] Dated 29 May 2020.
Mr Simunsen has filed three applications[2] seeking orders that:
· evidence obtained from the search of his person and his vehicle be excluded on the basis Police did not hold the requisite level of suspicion;[3]
· evidence obtained from his mobile phone be excluded as Police did not comply with s 79A of the Summary Offences Act 1953;
· his provision of his mobile phone PIN to Police was involuntary;
· Police did not comply with s 74D of the Summary Offences Act 1953; and
· the proposed evidence of DS Nguyen concerning his knowledge of the controlled substance buprenorphine - as Suboxone - be excluded.
[2]Dated 15 February 2020, 28 May 2020, 10 June 2020 respectively; District Court Criminal Rules 2014 R 49.
[3]Exhibit VD3.
During the voir dire,[4] I ruled that the applications, in so far as they related to and concerned the experience and knowledge of Detective Sergeant Nguyen in respect of the controlled substance buprenorphine, be dismissed. On 22 October 2020, I ruled that the balance of the applications also be dismissed. My written reasons in relation to those rulings follow.
[4]Heard over five days 29 May 2020, 6 October 2020, 9 October 2020, 12 October 2020 and 13 October 2020.
Evidence on the Voir Dire
On the voir dire, the prosecution called evidence from Detective Brevet Sergeant Tiller, Constable Davies, Senior Constable Coulthard and Ms Mitchell, a Senior Security Officer, I S & T with SAPOL. The prosecution brief was tendered in full.
The credit of both officers Tiller and Davies was challenged by the defence. Their evidence, in respect of the events of 8 May 2019, was generally consistent, albeit with some differences. Radio communication logs and IT system audit records (as limited as they were) corroborated, in so far as they could, the chronology they gave.
Ms Mitchell, who was an honest and helpful witness with lengthy experience working in the information technology area at South Australia Police had undertaken a number of audits of the use of the SAPOL IT system in respect of Mr Simunsen on 8 May 2019. Amongst other things, those audits had been directed to whether Davies had interrogated SAPOL databases that morning and a “drug marker” in respect of Mr Simunsen had been returned. The audit produced on the voir dire did not confirm that Davies had undertaken a check of the applicant’s licence - when he said he had - at approximately 9.13am on 8 May 2019.[5] Ms Mitchell explained the significant limitations of the audit results of the SAPOL systems.[6] She said that the absence of a recorded licence check in the audits did not confirm either way whether Davies had or had not undertaken such a search.[7] I accept her evidence in its entirety.
[5] T311-323.
[6] T323-330.
[7] T330.
Both Tiller and Davies presented as intelligent and honest witnesses. Tiller is a very experienced detective. Both officers demonstrated a sufficient knowledge of their search powers and both satisfied me that they had a genuine desire to exercise their powers in a lawful and professional manner on the occasion in question. I consider, for the purpose of the voir dire, that both were credible and reliable and I accept their evidence.
Established Facts
The facts I have found to have been established, on the balance of probabilities and for the purpose of the applications, are set out below.
In April 2019, Police received a report of drug use, specifically heroin, at the Salisbury Cemetery.[8] Following surveillance of a male and female drug user at the cemetery, Police suspected that 8 Dalby Court, Salisbury was the source of the drugs that they were taking.[9]
[8] T10.9-T 11.9.
[9] T13.8-T 14.38.
A decision was made by Police to investigate that address.[10] On 8 May 2019, around 10 officers were assembled at 8:15am to be briefed about the carrying out of covert observations at 8 Dalby Court which were intended to take place that day. The purpose of the operation was to see whether Police suspicions about the address as the source of the heroin used at the cemetery were correct.[11]
[10] T 14.1.
[11] T 14.23-26.
At the briefing, officers Tiller and Davies attended. Detective Brevet Sergeant Richards - the officer in charge - told them that the aim of the operation was, if possible, to locate illicit drugs on a person leaving the residence and to subsequently search the residence.[12] Coulthard was to position himself in an unmarked Police vehicle to undertake covert observations of the address and advise over radio if any persons or vehicles attended the address.[13] Other police were to be stationed nearby.
[12] T 120.4.
[13] T 100.
At the briefing, Richards provided the following specific information and intelligence:[14]
· that the address was occupied by a Daniel Ruddick and Bianca Pulic;
· a description of vehicles that Ruddick and Pulic may be using;
· that Pulic had three children and no criminal history;
· that Ruddick had previous dealings with Police;
· that Police intelligence obtained on 9 March 2019 indicated Ruddick was dealing in drugs; and
· Ruddick had warnings on police systems for violence and mental health issues and that he may be armed.[15]
[14] T 14-15; T118.29.
[15] T119.10.
SAPOL IT audit reports tendered through Ms Mitchell showed that Davies had undertaken a search of the SAPOL database known as SHIELD that morning with respect to Ruddick, Pulic and 8 Dalby Court.[16]
[16] Affidavit of Sergeant Kelly Johnson sworn 2 October 2020 [6]-[7], KSJ2; T119.22.
There had been no mention of Mr Simunsen at the briefing or at all.
Police in unmarked cars were positioned around 8 Dalby Court by 9:00am that morning.[17] At 9:10am Tiller – located some streets away in an unmarked vehicle – was notified by Coulthard – located within sight of 8 Dalby Court – that a vehicle was attending the address.[18] Coulthard provided to Tiller the registration number of that vehicle and told his colleague that the single occupant of the vehicle had entered Dalby Court and less than a minute later had emerged again.[19]
[17] Exhibits VDP 1 and 2.
[18] T 17.26-29.
[19] T 17.32-38.
Tiller and his junior colleague Davies followed the vehicle to conduct some checks.[20] They stopped the vehicle, just after school drop off time, some distance away at a very busy location of the intersection of Kings Road and Salisbury Highway. It was a pretty “precarious” place to pull the vehicle over as traffic was merging from a double lane to a single lane.[21]
[20] T 18.11-12.
[21] T 19.3-15.
A registration check on the car had already been run. It had returned an owner who was not Mr Simunsen; the vehicle was registered to another male aged about 67 years old. Coulthard advised over radio that he had observed the driver to be 30 to 40 years of age.
Tiller spoke to Mr Simunsen when he stopped the vehicle and asked him for his licence and details. Davies remained in the car parked behind. Tiller then gave the licence and information obtained from Mr Simunsen to Davies “to conduct some checks”.[22] “For safety reasons” Tiller asked Mr Simunsen to come to the back of the car as there “was lots of traffic around [and] just for his and my safety”.[23] Mr Simunsen complied. During the ensuing conversation Tiller found Mr Simunsen to be a bit nervous – “which was not unusual, when we stop people they can be a bit nervous” - and a bit jumpy and a bit all over the place with what he was saying. Tiller “realised Mr Simunsen wasn’t very chatty and didn’t want to engage … [so] … went back over to Davies and asked him if he had found Mr Simunsen in [SAPOL] records”.[24]
[22] T 19.3-15.
[23] T 20.6-12.
[24] T 21.1-5.
Davies had conducted a check on the applicant’s licence on the ‘Mobile Computing Application, a computer that we have in the car’.[25] He could not recall what specific SAPOL database he had used to undertake that search.[26]
[25] T 131.28.
[26] T 132.
Davies confirmed to Tiller that Mr Simunsen had a driver’s licence and drug warnings or a drug marker had been recorded.[27] A drug marker is an entry made by SAPOL on its systems “where somebody has been involved with the police previously and found to be in either possession or trafficking in the use of controlled drugs”.[28]
[27] T 132.34.
[28] T 21.16.
Tiller then determined to search Mr Simunsen and the car for drugs.[29] His suspicion for that search was based on:
· everything that he had heard throughout the investigation of Dalby Court;
· what the lead officer in the investigation of Dalby Court had told him;
· the short attendance by Mr Simunsen at Dalby Court;
· the previous encounter of Mr Simunsen with Police;
· his assessment that Mr Simunsen had been evasive about where he said he had been; and
· that Dalby Court was not Mr Simunsen’s usual place of residence.[30]
[29] T 21.7-11.
[30] T 21.34-T 22.16.
Tiller searched the accused’s bum bag. It contained “lots of small torches”.[31] He opened the battery compartment for a number of the batteries and in about the third or fourth, he found a wrapper of heroin. Tiller communicated his find to the lead detective for the Dalby Court operation.[32]
[31] T 26.21-23.
[32] T 27.2-4.
Tiller said that he did not intend to arrest Mr Simunsen at that time as he considered the small amount of heroin found meant that drug diversion may have been warranted.[33]
[33] T 27.11-16.
Tiller continued his search. He asked Mr Simunsen for access to his mobile phone. Tiller was motivated to make that request, consistent with the purpose of the operation that day, as he “was mindful that we didn’t really know who at Dalby Court was actually trafficking the heroin”.[34] Officer Tiller said he wanted to “check the phone to see who at 8 Dalby Court potentially was trafficking the drugs”.[35]
[34] T 27.34-36.
[35] T 27.34-T 28.1.
The searching police officer recalled the conversation about access to the phone, thus:[36]
To the best of my memory I asked Mr Simunsen – I had the phone, and realised that it needed either a passcode or a facial ID, I can’t recall, but it needed some sort of passcode to be put into it. I asked Mr Simunsen for the passcode, and he asked me did he have to give me the passcode, and I informed him of course no he didn’t, and he said well are you going to seize the phone or something like that, are you going to take the phone, are you going to seize it, something along those lines. And I informed him again, something along the lines of, it would depend what it was, what the phone contained, what information the phone contained. I could see he was struggling with the thought of giving us the passcode, you know, I could see him thinking “do I want to give the officer the passcode or not”, I could see he was struggling internally with that and then there was a moment when it kind of, his shoulder shrugged and went oh alright then kind of the scenario, and he gave us the passcode.
[36] T27.
No other drugs, apart from the heroin, had been located at the time the PIN was provided.[37]
[37] T28.6-22.
Davies looked through the open phone and found no link to Dalby Court. He halted his consideration of the phone.
Davies then commenced a search of the car while Tiller continued to search Mr Simunsen. Tiller located a batch of Suboxone strips in Mr Simunsen’s wallet. More Suboxone strips were found in the vehicle. An exchange with Mr Simunsen took place about whether Mr Simunsen was lawfully entitled to the Suboxone because he had a prescription. Mr Simunsen said that he was lawfully allowed to possess them as he was on a program. That was consistent with the prescription agreement located in the car.[38] At some point during the search both vehicles were moved down Kings Road to an Aldi carpark. Mr Simunsen moved his car while the officers moved theirs while retaining the property found on Mr Simunsen and in the car; including his phone, wallet and the prescription agreement they had located.
[38] T30.
A more thorough search of the car resumed at the safer location in the Aldi carpark. More Suboxone was found. A call was made by one of the officers to a detective to request him to contact Mr Simunsen’s prescribing pharmacist to see whether Mr Simunsen had been allowed to hold the number of Suboxone strips found. Detective Russell, shortly thereafter, told Tiller that Mr Simunsen attended the relevant pharmacy as part of a programme allowing him to ingest a Suboxone strip at the pharmacy and then one strip as “takeout” the following day.[39]
[39] VDP9, 176-178, 181; Affidavit of Lina Tran, Pharmacist, dated 3 July 2019.
Armed with that further information, Tiller resolved to arrest Mr Simunsen for trafficking in Suboxone. That arrest was recorded on video and Mr Simunsen was provided with his arrest rights. An interview was carried out on video in the back of the Police car.[40]
[40] T147-148; VDP9, 210; T32-33; VDP5; VDP6.
Submissions of the Applicant - Mr Simunsen
As a starting point, Mr Simunsen submits that the evidence of Tiller and Davies had been inconsistent internally and inconsistent with the objective evidence. He submitted their evidence had been and is vague as to important details and at points had been contradictory. He said the reliability of those witnesses therefore ought to be considered as questionable and their evidence should be rejected. He pointed, in support of that conclusion, to:
· that the additional evidence from Tiller that Mr Simunsen had been physically shaking had only come to light in cross examination, notwithstanding the extensive examination in chief in relation to the behaviour and appearance of Mr Simunsen at the point at which he was pulled over;[41]
· the cross examination of Tiller as to Mr Simunsen’s ability to depart from the side of the road;[42]
· the evidence of Tiller that Mr Simunsen, after initially being reluctant to speak to Police, had lied about having drugs and yet said nothing during a recorded interview; and,
· the evidence of Tiller that Mr Simunsen had been so overcome with a sense of comfort in the presence of the Police that he had provided his PIN for his phone - notwithstanding he had been told that he need not do so.[43]
[41] T79.26-79.33.
[42] T84.11-86.14.
[43] T86.21-88.8.
Mr Simunsen submitted that it followed that “a reasonable suspicion” had not existed at the time of commencement of the search for a number of reasons:
· the quality of the information held with respect to the house at 8 Dalby Court had been from an earlier time, 17 April 2019 and had been limited to information linking the house to drug taking at the cemetery along with some older information from March 2019;
· neither Tiller or Davies had any direct view of the activities at 8 Dalby Court and therefore the information that they had with respect to Mr Simunsen’s attendance at the address had been limited to information being provided by Police who had seen him attend;
· a short stop, at a house, in circumstances where the officers could not establish that Mr Simunsen had any contact with anyone at the house was not evidence of an attendance at the house at all;
· that Mr Simunsen appeared nervous, fidgety and uncomfortable at being pulled over had been based on observations over a very short period of time and could be explained by its temporal connection to Mr Simunsen handing his licence to Tiller - an act which involved some movement on his part;
· that Mr Simunsen had been evasive and vague in his answers was nothing more than a way of expressing that Mr Simunsen had not answered questions that had been put to him by Tiller;
· that the location at which Mr Simunsen had been pulled over had been precarious and explained any unusual behaviour; and,
· that Davies had his memory concerning the return of “drug marker” search refreshed from a series of recorded radio communications and that left open the possibility that no relevant search had been undertaken before 9:27am.
Mr Simunsen submitted that, in any event, he had been apprehended from a very early point in his interactions with Davies and Tiller. He said therefore he ought to have been given either a caution or ought to have been read his arrest rights. That was because the behaviour of the Police amounted to his de facto or constructive arrest.
From the point at which the heroin was located, it was submitted, Mr Simunsen had not been free to leave. Very early in the search Police obtained his personal possessions including his wallet, phone and shortly thereafter his prescription medication and prescription and although no formal words of arrest had been used there had clearly been no option for Mr Simunsen to leave the custody of the Police. That state of apprehension, contended Mr Simunsen, required the Police to act fairly in discharging their duties and to deliver Mr Simunsen his rights pursuant to s 79A of the Summary Offences Act 1953.
In the event that the circumstances had not warranted his s 79A rights to be given, it was submitted, what had been clear was that the Police had considered Mr Simunsen had committed a criminal offence against the Controlled Substances Act 1984, at the point at which the heroin was found. Therefore, it was submitted, Police had been obliged to give a caution well before the time at which the PIN for the phone had been requested and given. That failure, submitted the applicant, called into question the voluntariness of the provision of the PIN to Tiller.
The two searches of the phone and the two searches of the car, it was submitted, had both been founded on the initial unlawful search. For that reason, the fruits of the searches undertaken should be excluded as having been tainted by the illegality of the initial search: excluding the heroin; the Suboxone; and, the text messages.
The proposed evidence of Nguyen, it was submitted, showed significant limitations in his knowledge of Suboxone and his expertise to suggest an interpretation of the text messages found on Mr Simunsen’s phone. There was not, it was submitted, either a sufficiently organised body of material to form a basis of any qualification to give evidence about Suboxone or generally about buprenorphine. Alternatively, if there is such a sufficiently organised body of material, Nyugen, it was submitted, was not sufficiently qualified and experienced to give such evidence.
Submissions of the DPP
The prosecution premised its submissions on Tiller and Davies both being credible and reliable witnesses who presented as genuine and honest.
The DPP submitted that the requisite suspicion to search Mr Simunsen and his vehicle had been established at the material time; when Tiller told Mr Simunsen he was going to search his person and his vehicle.[44] This had not been a borderline case, submitted the DPP, as there had been ample suspicions held by Police which had been objectively reasonable and specific to Mr Simunsen. In any event, it was submitted, if Police did not hold the requisite level of suspicion, the evidence weighed against an exclusion in the exercise of the Bunning v Cross discretion.[45]
[44] T21.32 Tiller.
[45] [1978] HCA 22; (1978) 141 CLR 54.
As to the provision of the PIN, the DPP submitted that it had been provided during a conversation with Tiller at a point in time after the heroin had been located in a torch inside the applicant’s bum-bag and before any Suboxone strips had been located. The applicant had not been, at that point in time, it was submitted, under arrest but he had needed to remain for a lawful search of his person and his vehicle.[46] The DPP submitted that the Police held a discretion as to whether to arrest Mr Simunsen[47] and in this case Police had not intended to arrest Mr Simunsen for possession of heroin - a summary offence dealt with routinely by way of “drug diversion”. There had been, accordingly, no requirement for Police to provide Mr Simunsen with his arrest rights at that time.
[46] Police v Poicus [2018] SASC 38.
[47] Section 75 Summary Offences Act 1953.
Specifically, the DPP said that Mr Simunsen had provided his PIN voluntarily. The Director submitted that as the purpose of a caution is to negate involuntariness on the part of the statement maker; the evidence supported the contention that the PIN had been provided after Tiller had reiterated to Mr Simunsen that he had been under no such obligation. Further, it was submitted, there had been no inducement to provide the PIN; simply the provision of accurate information by Police to the applicant that whether he got his phone back depended on what was located on the phone.
When the PIN had been provided to Tiller, it was submitted, Police had not suspected Mr Simunsen of an indictable offence and therefore the requirement to record the conversation under s 74D of the Summary Offences Act 1953, had not arisen.
Consideration
I refer to my earlier findings in respect of the credibility and reliability of Tiller and Davies.
Police were entitled to stop the car on Kings Road to identify the driver.[48] The subsequent search of Mr Simunsen and the vehicle he had been driving was professed by Tiller and Davies to have been carried out pursuant to the Controlled Substances Act 1984.[49] They were entitled to search if they held the requisite level of suspicion at the relevant time under the Act.
[48] Road Traffic Act 1961, s40H; T 18-19, T 57-58; R v Neal [2017] SASCFC 44, per Kourakis CJ, [25] and R v Dam & Nguyen [2015] SASCFC 131 per Vanstone J.
[49] Controlled Substances Act 1984, S 52.
I consider the critical time to assess such suspicion in this case was when Tiller had been informed by Davies that Mr Simunsen had a “drug marker”. That was when Tiller said he decided to search and shortly thereafter commenced his search. The combination of factors going to whether there had been a reasonable suspicion at that time were several. Tiller had:[50]
[50] T21-22.
· information that persons had been using heroin and leaving needles in the cemetery nearby to 8 Dalby Court;[51]
[51] T10-11.
· information obtained as a participant in a covert police operation on 17 April 2019, including:[52]
[52] T10-13.
i.that Police had observed a female walk from the cemetery to 8 Dalby Court and enter the house, leaving minutes later in the direction of the cemetery;
ii.that Police stopped and spoke to the female and a male and the female said she had tried to buy heroin that morning but was unable to because her friend did not have any heroin to sell;
iii.that Tiller suspected that person had attended at 8 Dalby Court for the purpose of buying heroin;
· intelligence that Ruddick was involved in trafficking illicit drugs;
· the observations of Coulthard of the quick in and out attendance of Simunsen at 8 Dalby Court[53] being indicative of a person purchasing drugs;[54]
· known the early time of day for that visit by Mr Simunsen being indicative of heroin use and dealing.[55]
· the intelligence that Ruddick was potentially present at 8 Dalby Court as his vehicle was at the house.[56]
· been aware that Mr Simunsen lived at another address than 8 Dalby Court;[57]
· been notified Mr Simunsen had a drug marker;[58]
· observed Mr Simunsen to be evasive and vague in telling him where he had just been and where he was intending to go;[59] and,
· considered Mr Simunsen to be furtive, jumpy, a bit nervous and “a bit all over the place” with what he was saying.[60]
[53] T17-18.
[54] T22-25.
[55] T12.
[56] T15.
[57] T21-22.
[58] T21-22.
[59] T20-22, 78-80.
[60] T20-22, 78-80.
Whether a reasonable suspicion in fact exists is less certain than a belief in the existence of that fact.[61] Belief is less than knowledge.[62] In assessing the reasonableness of the suspicion held by Tiller, I have had regard to his specialised knowledge and experience acquired during his lengthy career investigating drug offending and trafficking both in South Australia and in the United Kingdom.[63]
[61] R v Nguyen (2013) 117 SASR 432.
[62] R v Nguyen (2013) 117 SASR 432, R v Rogers (2011) 109 SASR 307 at [21], Manley v Tucs (1984) 40 SASR 1 at 9 per Jacobs J referred to in R v Rogers (2011) 109 SASR 307 at [21].
[63] R v Nguyen [2016] SASCFC 96 [41] per Doyle J (with whom Vanstone and Bampton JJ agreed).
In this case, I consider that there had been a rational connection between the factors I have listed and the suspicion held by Tiller.[64] The evidence established that Tiller had ample information to suspect that trafficking had been occurring from 8 Dalby Court as a consequence of: the intelligence relayed by DBS Richards; from his own involvement in the operations to date; from the information he had about who resided at Dalby Court; from the intelligence relayed to him about Ruddick and his drug dealing; from the observation of the quick visit early morning by Mr Simunsen to a suspected heroin house which was relayed to him by Coulthard; and, the vagueness of Mr Simunsen’s explanation of where he had been and where he was going. I do consider the suspicion of Tiller, based on those matters, to have been reasonable and well founded.
[64] R v Nguyen (2013) 117 SASR 432.
In my assessment, I did also consider the evidence given by the officers as to the demeanour of Mr Simunsen; albeit I concluded it was of limited value. The behaviour of Mr Simunsen around Police was one of several factors to which the officers had regard.[65] A number of innocent explanations as to any observed jumpiness existed; Police had never met him; the interaction was short and the car was parked in a precarious spot.
[65] R v Rogers (2011) 109 SASR 307 at [26].
In the event I have erred and the search in this case had been unlawful, I have turned my mind to, in such a circumstance, how I would have exercised my Bunning v Cross[66] discretion. In doing so, I note that Mr Simunsen would have borne the onus in respect of the exercise of that discretion.
[66] (1978) 141 CLR 54: R v Golja [2017] SASCFC [61] at [33] per Stanley J.
I have weighed, in respect of the counterfactual basis of unlawfulness of the search, the public need to bring offenders to justice against the public interest in maintaining the protection of the individual from unlawful and unfair conduct by those whose duty it is to uphold the law. I have also weighed the public policy consideration that it is in the interests of the community to bring to justice those people who commit serious crimes.[67]
[67] R v Ireland (1970) 126 CLR 321 [28] (Barwick CJ, with whom McTiernan, Windeyer, Owen and Walsh JJ agreed).
In the event I had been required to exercise my Bunning v Cross discretion, I would have exercised it against the exclusion of the evidence. The conduct of Tiller and Davies was not deliberately unlawful. They both understood their search powers and turned their mind to the legal requirements to found a search. They both genuinely believed the suspicions they held were sufficient. There had been no bad faith, recklessness or deliberate disregard for the law on their part. Nor was their decision ill-considered. They had as their purpose - clear from the operational briefing that morning - the prevention of, or interruption of ongoing trafficking in heroin. They did not undertake the search of Mr Simunsen with any other ulterior or alien purpose and there had been no calculated disregard by either officer of their lawful search powers.
The nature of the conduct of the Police in the search of Mr Simunsen has not affected the cogency of the evidence obtained; neither the heroin or Suboxone located, nor the messages located on the mobile phone have in any way suffered detriment to their cogency or integrity.
Further, I have compared the seriousness of the offences in this case and any potential unlawful conduct by Police.[68] In that respect there existed a number of possible facts on which Police could have based a reasonable suspicion of trafficking. I do not consider that, in the event I had to decline to exclude the evidence of the search in this case, that I would have been seen as condoning or encouraging any widespread misconduct of police. Further, this is not a case where there appears to have been a widespread lack of understanding by the Police of their powers to search.
[68] R v Ireland (1970) 126 CLR 321.
Lastly, the nature of the offence charged here is trafficking in a controlled drug. That is a major indictable offence with a maximum penalty of $50,000 or imprisonment for 10 years, or both.[69] The possession of heroin and trafficking in Suboxone is a perpetuation of the immeasurable harm drugs cause in our community. There is a clear public interest in bringing to justice an offender charged with such offences.
[69] Controlled Substances Act 1984, 32(3); R v Addabbo (1982) 33 SASR 84 at 88.
Further, I do not consider that Mr Simunsen was under de facto arrest at the time he provided his PIN to Tiller. I agree with the submissions of the DPP that, at that point in time, Mr Simunsen needed to remain with the Police for the purpose of completion of a lawful search of his person and a lawful search of his vehicle. Police were entitled to do what was necessary to exercise that power and if Mr Simunsen had left, the search would not have been possible.[70]
[70] R v Poicus [2018] SASC 38 [41].
Whether a person is under de facto arrest is a matter of fact and degree. As the DPP submitted, an interference with liberty in the form of detention may fall short of either arrest or false imprisonment.[71]
[71] R v Poicus [2018] SASC 38; State of New South Wales v Le [2017] NSWCA 290 at [5]-[7];
I do not consider that Mr Simunsen had been apprehended when he was stopped for the purpose of a roadside provision of his licence and details.[72] Further, as already mentioned, the evidence of Tiller and Davies was that they did not intend to arrest Mr Simunsen for possession of the small quantity of heroin found in the search.[73] The discretion of Police in the exercise of their power of arrest had not been exercised. When Tiller asked for the PIN, he had not yet located any Suboxone. Further, he had no evidence indicative of trafficking by Mr Simunsen.
[72] R v Armistead [2019] SASCFC 85.
[73] T139 Davies, T27 Tiller.
The evidence of Tiller was that Mr Simunsen made a considered and voluntary decision to give him his PIN. I find that Mr Simunsen voluntarily and without constraint acceded to Tiller’s request for his PIN. He thought about it and may have done it for many reasons; maybe out of respect for the authority of Tiller or in fear that a refusal would be construed as an indication of guilt or some other similar motive. I do not consider that the liberty of Mr Simunsen had been under restraint simply because he might be arrested at a later time.[74]
[74] R v Lavery (No 2) (1978) 19 SASR 515 per King CJ [516]-[517];R v Webb & Hay (1992) 59 SASR 563 per King CJ [571].
The evidence established that Mr Simunsen did not ask to and nor had he been told he could not leave. The evidence does not support the submission that Mr Simunsen had been under de facto arrest. There was no evidence on the voir dire that Mr Simunsen believed he was not free to leave.
In coming to that conclusion, I have considered the submission of Mr Simunsen that because Tiller and Davies had been in possession of his wallet, phone and prescription medication, he was not free to leave. In that respect, I consider that evidence has the same status as the lack of evidence as to whether Mr Simunsen had asked to leave or had been told he could not leave. There was no evidence he asked for his items or that he had been told he could not have them. There was no evidence on the voir dire that Mr Simunsen believed he could not have them.
In any event, Police were still looking at those items as part of a lawful search and the wallet had provided evidence of drugs – the heroin – and the possession of the prescription medicine was being investigated by facilitating a call to the prescribing pharmacist.
Finally, in respect of apprehension, at that time Mr Simunsen could not have been lawfully arrested for an indictable offence - trafficking in Suboxone – because the Suboxone had not yet been located.
In respect of the voluntariness of Mr Simunsen giving up his PIN, the defence says that had been a statement against his self-interest. As such statements should be given voluntarily, I have therefore considered whether any failure to caution - before Mr Simunsen had made that statement - meant that it would be unfair to allow the evidence obtained into evidence against Mr Simunsen. In doing so I have taken all relevant circumstances into account[75] and I have considered that if a caution had been given it would have tended to negate any suggestion of involuntariness on the part of or unfairness to Mr Simunsen.
[75] R v Dolan (1992) 58 SASR 501 at 504-506 per King J.
The prosecution must prove voluntariness on the balance of probabilities.[76] The DPP described the question to be considered in respect of voluntariness as to whether the statement was made in the exercise of a free choice to speak or whether Mr Simunsen’s will was overborne and an examination of the circumstances operating at the relevant time is required.[77] I agree with that formulation.
[76] R v Wendo (1963) 109 CLR 559 at 572-573.
[77] Collins v R (1980) 31 ALR 257 at 307.
I have concluded that the conversation between Mr Simunsen and Tiller had been such that, even in the absence of a formal caution, the PIN had been provided voluntarily. The statement made by Mr Simunsen had been made in the exercise of a free choice to speak. Mr Simunsen’s will had not been overborne.
Tiller told Mr Simunsen that he was under no obligation to provide the PIN to Police.[78] Mr Simunsen asked whether his phone would be seized. Tiller said, with candour, that would depend on what was on the phone.[79] Tiller described some agonising on the part of Mr Simunsen in his consideration of the request for the PIN. Mr Simunsen appeared to be weighing up his options and then provided the PIN.[80] Mr Simunsen’s conduct in that respect demonstrated that his understanding had been that he did not have to hand over his PIN. He had asked whether the phone would be seized, he thought about it and then decided to give the PIN.
[78] T27, 66, 68, 69 Tiller.
[79] T27 Tiller.
[80] T27 Tiller.
The capacity of Mr Simunsen to choose had not been removed. He had not been under substantial psychological pressure.[81] Tiller had wanted access to the phone to ascertain information about activity at 8 Dalby Court as that had been the purpose of the operation commenced that morning.[82] I do not consider Mr Simunsen had been treated unfairly. Tiller said he would return the phone if nothing was found.[83]
[81] R v Dolan (1992) 58 SASR 501 at 504-506.
[82] R v Dam & Nguyen (2015) SACSFC at [26] and R v Moukachar (2010) 107 SASR 450 [453]; cf R v Kageregere [2011] SASC 154 [67].
[83] Michaelis v Police (1999) SASC 102 at [24]-[31].
I also do not consider that s 74D of the Summary Offences Act 1953, as contended by Mr Simunsen, had application in this case. Tiller did not suspect or have reasonable grounds to suspect Mr Simunsen of an indictable offence until such time as the feedback from the prescribing pharmacist had been relayed. Tiller had been given the PIN before that occurred. At that point in time only the heroin had been found; in a diversion quantity. I am reinforced in my conclusion to that effect by the actions of Tiller, after he had been relayed the information from the pharmacist. He arrested Mr Simunsen immediately and provided him with his rights.
In respect of the evidence of Nguyen, his evidence is proposed by the prosecution to relate to his observations, experience and knowledge of dealing with buprenorphine to the jury. The prosecution said he has been a Police Officer for over 25 years with experience and knowledge in respect of the method for sale, dealing in and marketing of the allegedly trafficked drugs.[84]
[84] Anderson v R 60 SASR 90 [103] per King CJ.
The defence says that his evidence should not be allowed because his experience and knowledge is insufficient.
Evidence of the nature proposed is regularly admitted in this Court to assist the jury as the trier of fact. The principles in relation to admission of such evidence are well understood and I will not repeat them here. The evidence of the type proposed relates to verified or coded speech, street names of drugs, pricing principles and indicative pricing, usual quantities or measures of sale and the method and nature of communications between dealers and between dealers and customers.
I consider Nguyen to be suitably experienced and knowledgeable to assist the jury in respect of buprenorphine.[85] He has over 25 years’ experience as a drug investigator. His involvement has been in all aspects of the illicit trade in drugs including, as here, directed prescription drugs and the black market that exists. He has obtained his knowledge in that respect from direct sources, his observations of evidence gathered by law enforcement, telephone intercepts, training courses, conferences and seminars. His experience and knowledge is local, national and international. It is sufficiently specific to buprenorphine to satisfy me he can give evidence of the nature proposed in this case.
[85] R v Cluse (2014) SASFC 97 [2]-[6]; R v Barber (1988) 34 A Crim R 141; Anderson v R (1992) 60 SASR 90.
The applications are dismissed.
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