R v SLEE - [2021] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SLEE
[2021] SADC 82
Ruling of his Honour Judge Stretton
8 July 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
At 4.00am outside a building site where it appeared there had earlier been and was continuing to be unusual activity for that time of night, police observed an occupied vehicle stationary for a period of time with the engine running and the brake lights on. A registration check indicated the accused may be the driver, and that the accused was both not permitted to drive, had been apprehended when not permitted to drive two weeks before, and had recently been issued a drug diversion notice. A further check revealed the accused was sought by police in relation to a number of outstanding matters. From previous contact the police officer in question knew the accused was ‘a career criminal’. Police stopped the vehicle to see who was driving and for a licence check and observed the accused was the driver and sole occupant. In the course of the licence check, police looked into the vehicle without entering or searching it. Police then noticed the vehicle had a cracked windscreen and bald tyres, so undertook a defect check of the vehicle. In the course of that check, police observed a set of electronic scales akin to those commonly used to measure small quantities of illicit drugs.
An application was made to exclude the evidence from trial on the basis that looking into the vehicle itself constituted a search, the defect test was a pretence, that the police never held the required reasonable suspicion required per the Controlled Substances Act, and that hence the subsequent search was unlawful. The accused did not give evidence.
Held:
Looking into a parked vehicle on a public road through a window is an entirely lawful act, whether conducted by police or a member of public. It also falls within the remit that section 5 of the Police Act grants to every police officer. Hence no supplementary statutory or common law power to search is required to perform such an act, as the act is lawful for any member of the community to perform. Properly understood, Coleman v Zanker (1991) 58 SASR 7 does not hold to the contrary.
The matters observed by police were sufficient to, and did, cause police to hold a reasonable suspicion pursuant to the Controlled Substances Act. They did not utilise their RTA powers as a pretence or for an ulterior purpose. Accordingly, the search was lawful and there is no basis for the exclusion of the evidence.
Controlled Substances Act 1984 (SA) s 52(9); Road Traffic Act 1961 (SA) s 145; Police Act 1998 (SA) s 5, referred to.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54, applied.
Coleman v Zanker (1991) 58 SASR 7, distinguished.
R v Nguyen (2013) SASCFC 91; Bae v The Queen; Koo v The Queen [2020] SASCFC 7, discussed.
R v Golja [2017] SASCFC 61; R v Dam & Nguyen [2015] SASCFC 131; R v Nguyen [2016] SASCFC 96, considered.

R v SLEE
[2021] SADC 82

At around 4.00am on 31 October 2019, police searched a vehicle occupied by the accused and allegedly located illicit drugs. As a result, the accused has been charged on Information with trafficking those drugs and has been committed for trial.
This is an application by the accused to exclude the search of the accused’s car and the consequent discovery of the drugs from evidence at trial, on the basis that the evidence was unlawfully obtained.
The accused argues that the officers lacked the requisite suspicion to search required by s 52(9) of the Controlled Substance Act 1984 and that the officers used s 145 of the Road Traffic Act 1961 (SA) as a pretence to initially search within the accused’s vehicle for the ulterior purpose of locating material to support that suspicion.
The Legislative Provisions
The prosecution rely on s 52(9) of the Controlled Substances Act, 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 a 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.
In the cases of R v Nguyen[1] and Bae v The Queen; Koo v The Queen,[2] the Supreme Court explained what will amount to a reasonable suspicion. A suspicion falls short of a belief but cannot be mere speculation, curiosity or idle wondering about the existence of a fact. There must be information before the officer which rationally arouses a suspicion and that would also do so in the mind of a person thinking reasonably about the issue.
[1] (2013) SASCFC 91.
[2] [2020] SASCFC 7.
The Evidence
The officer who allegedly formed the suspicion and conducted the search was Senior Constable Lambert.[3] Senior Constable Lambert gave evidence that at the time of the events he had been a police officer for five years. He said that at the time of those events he had spent a number of years in a CIB tactical environment targeting drug offending, drug trafficking and trying to interrupt the drug trade. He had also conducted a number of drug investigations, which altogether gave him more than the usual constable’s experience in recognising matters associated with the illicit drug trade.[4]
[3] Both officers are referred to in this document as holding the rank they held at the time of the hearing.
[4] T20, T22.
Senior Constable Lambert gave evidence that he was on mobile patrol with his partner, Senior Constable Keenan in a marked police vehicle. Their duties were to patrol, respond to 000 calls and requests for police assistance, detect and deter crime and undertake crime prevention. Senior Constable Lambert gave evidence that he and his partner commenced their shift at 11.00pm the night before. At around midnight they drove past a construction site at Robert Avenue, Broadview and saw lights on and people in attendance, which struck them as unusual. They stopped and spoke to people on that site. Those people identified themselves as painters and were appropriately attired for that role. Whilst the officers were still suspicious, the people did appear to be painters and said they were leaving soon; so the officers decided to leave it at that, but call back later to check the premises.
Senior Constable Lambert gave evidence that later in the shift, around 4.00am, they went back to check the construction site. When they approached they saw that notwithstanding the passage of time, there appeared to still be activity there. A vehicle was stationary out the front, but with its engine running and brake lights activated.
The officers decided to covertly obtain the registration of the vehicle and conduct some checks on it. Senior Constable Lambert said that they parked a little distance away and Senior Constable Keenan got out of the police vehicle and approached the vehicle in question from behind a fence, where he noted the registration number of the vehicle before returning to the police vehicle for the checks to be conducted.
At that time, all the police officers knew was that the vehicle was occupied, with the engine running and the brake lights on, but stationary, at around 4.00am, out the front of the construction site. Senior Constable Lambert explained that conducting a registration check is commonplace in that situation, initially to try and find out who is driving the vehicle and if they have a licence to drive.
Police have two computer systems they can access from their vehicle; firstly, a licence and registration system whereby they can check whether the vehicle is registered, who it is registered to and whether the current owner is presently licenced to drive. Police also have what is known as the ‘Shield’ system, which is an overarching police system containing intelligence, police information and a range of operational matters.
Upon entering the vehicle’s registration number, Senior Constable Lambert said the licence and registration system indicated the vehicle had two potential drivers. One was the registered owner and the other was the accused. Next to the accused’s name were two warnings; firstly, that he was disqualified from driving, and the second was a drug warning indicating that he had been diverted from court for a simple drug possession offence. The system also reported that the accused was wanted to be spoken to by police for several matters and that he had been stopped driving the vehicle two weeks prior to the evening in question, and that the accused had been driving the vehicle whilst not authorised to drive on that occasion.
Senior Constable Lambert gave evidence that these were standard checks that police would commonly conduct when they came across a vehicle in this kind of situation. As the officers were concluding their checks, the vehicle moved away from the curb and the officers made a decision to stop the vehicle, pursuant to their power to stop vehicles and check the driver of any vehicle.
Senior Constable Lambert said that accordingly they pulled the vehicle over and observed that the accused was the driver. There were no other occupants. Senior Constable Lambert’s partner, Senior Constable Keenan, approached the driver’s side window and started talking to the accused.
Senior Constable Lambert said that in that circumstance he would generally have a quick look around, circle around the outside of the car, and look through the windows into the car to see if there are any other people in the vehicle or hiding in the vehicle, or whether there is anything that police needed to be aware of that is going to put them at risk. Senior Constable Lambert explained that people may be evading police, hide in vehicles, jump out, become violent and the like. Accordingly, police will ordinarily have a visual look into the car. He described such a process as a ‘safety check’, or ‘safety search’.
Senior Constable Lambert said that while he was doing that, he noticed that the vehicle had a cracked windshield and that the tyre tread on the vehicle did not appear to be sufficient. He said that these matters potentially affect the vehicle’s roadworthiness and he said that when observed, police are accordingly required to act on them. The power to inspect and test for defects was pursuant to s 145 of the Road Traffic Act.
Senior Constable Lambert said that at some stage around this time, Senior Constable Keenan asked the accused to get out of the car to have a further discussion. At this stage, having noticed the cracked windshield and faulty tyres, Senior Constable Lambert decided to further check the vehicle for deficiencies. He indicated that his practice was to do things like check that the seats are properly secured, that the pedals have rubber on them, that the steering wheel is intact, that there is no open or loose wiring, and the like.
Senior Constable Lambert indicated that where necessary, he would issue the owner a written defect notice. Senior Constable Lambert undertook such a check in this instance. In the course of doing so, he checked that the seatbelts were properly working. To do so he opened each of the car doors and pulled each seatbelt to ascertain it was working properly. When he opened the left passenger side front door to test the front passenger seatbelt, he noticed small electronic scales on the front passenger seat.
Senior Constable Lambert indicated that from his experience of drug investigations, they were the kind of small electronic scales commonly used to weigh out drugs. Senior Constable Lambert said that locating those scales together with the time of night being 4.00am, that the accused had been drug diverted previously, together with his existing suspicions as to the vehicle and its location, all together caused him to be suspicious that there might be drugs in the vehicle in contravention of the Controlled Substances Act.
Body worn camera video footage was then tendered which recorded Senior Constable Lambert’s movements and activity in the course of the events that he had outlined.
The video footage shows Senior Constable Lambert continuing to check the vehicle including its remaining seatbelts, and subsequently writing up a defect notice. When asked to explain his suspicion in more detail, Senior Constable Lambert gave evidence that after he initially saw the accused, he had recognised the accused from a previous investigation in 2019 and that had also added to his suspicion. He said that that factor, together with the time of night, the situation at the building site with activity, the drugs warnings and the scales all combined to cause his suspicion.
Senior Constable Lambert was cross-examined in some detail.
When Senior Constable Lambert was cross-examined about his knowledge of the accused from previous dealings, he was asked what he knew about the accused himself from his previous interactions with him. Senior Constable Lambert was initially reticent to answer, responding to defence counsel ‘are you sure you want me to answer that?’. When the court indicated to Senior Constable Lambert that as it was a voir dire with no jury and he had been asked by defence counsel he was fully at liberty to answer. Accordingly, Senior Constable Lambert detailed his knowledge of the accused indicating, ‘he is a career criminal, he had a long history of committing criminal offences’.
In further cross-examination, Senior Constable Lambert was taken to an affidavit he had completed on 29 January 2020 in which he deposed that he observed red straws on the front seat, and that such straws are commonly used in the consumption of illicit drugs. Senior Constable Lambert responded that he did indeed locate red straws. When asked why those straws were not photographed or seized, Senior Constable Lambert explained that because he had arrested the accused and time limits for processing him and taking him before the officer in charge of a police station were running, he left the scene with the accused and the task of deciding which items to seize was delegated to other officers.[5] For the same reason, he did not take any photographs. He indicated that he mistakenly thought that his body worn video, running virtually throughout, would provide adequate detail.
[5] T48-49.
In further cross-examination, Senior Constable Lambert was taken to another paragraph in his 29 January 2020 statement, which deposed that the area where the accused was located was in close proximity to an address frequented by drug users. Senior Constable Lambert responded that whilst that was correct, that did not contribute to the formation of his suspicion but it was one of the reasons they had been patrolling in that area on that night.
Defence counsel put to Senior Constable Lambert that he didn’t have any genuine intention to search or examine the vehicle pursuant to the Road Traffic Act and that he was, in effect, targeting the accused as he was a suspected drug offender. Senior Constable Lambert agreed that he did suspect the accused to be a drug user or offender, in light of the checks that had come up on the police computer and his knowledge of the accused from previously, however, he said he knew that that was not a sufficient basis for a search in the eyes of a reasonable person. He said he had let drug traffickers go on previous occasions, even days after they had been released from prison, when he came upon them, without a search because he knew that he did not have an objectively reasonable suspicion.[6]
[6] T57.
Senior Constable Lambert said that the accused was quite amicable and cooperative at all times. He indicated that prior to locating the items in the vehicle, he thought that the matter would likely be a simple possession matter resulting in a phone call drug diversion and no charges. He conceded that because of that he approached the matter a little more informally that he might otherwise have done. He said it wasn’t until he located the drugs themselves that he realised that it may be a trafficking matter.[7]
[7] T60.
It was put to Senior Constable Lambert that his reason for completing a further affidavit shortly prior to trial, setting out in more detail the basis for the search was because he knew he had no power to conduct the so called ‘safety search’ by way of his initial observations into the car, and that he was always going to search the vehicle, come what may. Senior Constable Lambert denied that suggestion, saying that he completed the affidavit concerning his basis to perform the search as he saw that those factors had only been briefly summarised in his initial affidavit.
Senior Constable Keenan was called to give evidence. Senior Constable Keenan also described the events of the evening in question. He gave evidence of speaking to people at premises in Broadview or Clearview sometime after midnight, indeed noting their names in his notebook. He gave evidence that he thought he and Senior Constable Lambert returned to that location approximately two hours later, noting a vehicle parked outside. He said they did what they would normally do, that is conduct registration and Shield system checks. He explained that whilst on patrol in late night and early morning situations you notice and look into suspicious matters. He said that there were a number of ‘new builds’ in that suburb, and often items such as copper piping, new water heaters and the like would be stolen from those building sites. For that reason, a vehicle parked out the front of a new build was potentially suspicious and so they would run vehicle checks on their systems.
Senior Constable Keenan recalled that both the possible drivers of that vehicle had disqualification notices, one of those people being the accused in this matter. He indicated running such checks was a common practise and they, as officers, would have done it hundreds of times. Senior Constable Keenan’s recollection is that after they did those checks, they moved back around the corner to stay out of sight. He gave evidence that they eventually stopped the vehicle and Senior Constable Keenan initially spoke with the driver, obtained his licence number and then returned to the police vehicle to check on the licence number the accused had given him, as the accused did not have a physical licence with him. He said that when he did that, a number of flags came up on the system that indicated the accused needed to be spoken to about offences that had not yet been dealt with.
Senior Constable Keenan accordingly returned to the accused’s vehicle and asked him if he would like to exit the vehicle to speak with him and the accused complied. Senior Constable Keenan’s body worn camera footage was also tendered.
Senior Constable Keenan was able to ascertain that the accused had been disqualified from driving but that the disqualification may have concluded. That meant that the accused still needed to go back to the Motor Registration Department to obtain a valid licence, but the accused had not done that. Senior Constable Keenan said that as a result of that conversation he would ordinarily just caution, interview and report the person and not arrest them.
Senior Constable Keenan was cross-examined over the events leading up to the decision to pull over and speak to the accused, and had only a general recollection of those events given the passage of time and absence of notes.

In the course of cross-examination, Senior Constable Keenan acknowledged that he had been off work for health reasons for some eight months and that the day of him giving evidence was his first day back at work.
No witnesses were called by the defence on the voir dire.
Submissions
The court has had close regard to all of counsel’s submissions both written and oral, but does not set them out in detail.
Defence counsel submitted that the police search of the accused’s vehicle whereby drugs were located was illegal. Counsel submitted that what occurred was essentially an ‘ends justify the means’ search of his client’s car on the morning in question. He submitted that the traffic stop and the subsequent defect check purportedly pursuant to s 145 of the Road Traffic Act was simply an alternative and unjustified means of police officers gaining entry to the accused’s car in order to search its contents. Counsel submitted that the court should not accept the police evidence that Senior Constable Lambert held any genuine or reasonable suspicion.
Defence counsel indicated that at the heart of their submission was the fact that the police admitted, and it was reflected in the body worn camera footage, that as Senior Constable Keenan went to speak with the accused through the driver’s side car window, Senior Constable Lambert almost immediately began walking around the accused’s vehicle and shining his torch through the windows into the car, through to the front passenger seats, rear seats and rear window of the vehicle. Defence counsel submitted that whilst the police described this as a ‘safety search’ or ‘safety check’, that such actions constituted a purported search for which police needed a legal justification. Defence counsel submitted that at that stage, everyone agrees there were insufficient grounds for a reasonable suspicion allowing anyone to conduct a search pursuant to s 52(9) of the Controlled Substances Act.
Defence Counsel submitted that Senior Constable Lambert compounded the illegality by opening the doors of the vehicle and commencing a physical search of it for drugs, under what was simply the pretence of conducting a defect check pursuant to s 145 of the Road Traffic Act.
The prosecution submitted that at all times the police acted lawfully and pursuant to their powers. The police were fully entitled to pull over the vehicle and conduct a licence check, particularly in light of the suspicious circumstances, time of the evening and all the other matters that they were aware of at that time. Having done that, the police were entitled to ask the driver questions and indeed, make observations including looking through the windows of his vehicle. The prosecution submitted that when Senior Constable Lambert noticed the cracked windscreen and inadequate tyres, he was then perfectly entitled to check the remainder of the vehicle for obvious defects which the body worn camera footage shows he did. Such actions were genuine as evidenced by the fact that a formal defect notice was ultimately issued.
Analysis
The court has carefully scrutinised the evidence of both police officers and had close regard to all of defence counsel’s submissions concerning it.
At the outset, it is appropriate to address defence counsel’s submission that the actions of Senior Constable Lambert while Senior Constable Keenan spoke to the accused at the driver’s door constituted a search which required the authority of the Controlled Substances Act or some other specific statutory search power. Those actions were constituted by Senior Constable Lambert walking around the outside of the accused’s vehicle looking through the windows of the vehicle to see whether anyone else was in the vehicle, hiding in the vehicle or whether he could see anything that may constitute a danger to police. The submission was that these actions constituted a search for which, accordingly, the police needed to have legal authority.
This submission is misconceived. A fundamental precept must be that a search is only illegal if it is actually illegal, in other words if it breaches the law or infringes another’s legal rights in some way. For example, if police search premises on private property without a specific legal right to do so, they commit trespass. For example, if police search a person without a specific legal right to do so, they commit an assault. The consequent illegality then gives rise to the discretion of the court to exclude such evidence in accordance with long recognised principles.[8] The fundamental basis however, is that the actions of police must actually be illegal, i.e. they must breach some law or a person’s legal rights.
[8] R v Ireland (1970) 126 CLR 321, Bunning v Cross (1978) 141 CLR 54.
Where, however, what police do is on no-one’s analysis an illegal act, it is axiomatic that there is no illegality. Standing on a public footpath or road and looking through the window of a parked car is not illegal. Anyone has the right to do that. For example, members of the public have a right to do that; the act is not in breach of either the criminal law nor is it a civil trespass, hence it is legal, and not illegal. To use an even simpler example to illustrate the point, if a police officer sees a person littering, it is not illegal for the police officer to ask the person to pick the item up, notwithstanding that there is no articulated statutory or common law power for a police officer to ask a person not to litter. Anyone can ask another person not to litter, as it breaches no law or common law right to do so. Consequently, it’s not illegal for a police officer to do so.
So long as Police are acting within the general remit of the Police Act 1998, unless there is a specific statutory, common law or administrative prohibition, their actions will be legal and in accordance with their duty. Accordingly, such acts cannot be any basis for the exclusion at trial of evidence consequently found, on the basis of ‘illegality’. Section 5 of the Police Act provides:
5—Purpose of police
The purpose of SA Police is to reassure and protect the community in relation to crime and disorder by the provision of services to—
(a)     uphold the law; and
(b)     preserve the peace; and
(c)     prevent crime; and
(d)     assist the public in emergency situations; and
(e)     co-ordinate and manage responses to emergencies; and
(f)     regulate road use and prevent vehicle collisions.
So long as Police actions are within this general remit and do not infringe specific statutory, common law or administrative prohibitions, they will simply not give rise to an illegality. Even were police actions not directed to this wide remit, it is doubtful whether otherwise lawful actions would constitute illegality in the sense required to ground a discretion to exclude. For example, if a police officer is on a lunch break, walking down a street and not purporting to be policing at all, in other words not purporting to act within the remit of section 5, it is still not illegal for the police officer to look through the window of a car adjacent to where he is walking, because looking through car windows is not illegal.[9]
[9] Counsel referred to the judgment of Olsson J in Coleman v Zanker (1991) 58 SASR 7, wherein Olsson J held that a series of actions which included shining a torch into a vehicle in the totality of the factual matrix of that case, including a finding that the police officer concerned did not actually hold her claimed reasonable suspicion, constituted an unlawful search. That authority is not authority for the proposition that shining a torch into a car is unlawful.
For all these reasons, Senior Constable Lambert’s actions in walking around the car and looking through its windows using his torch were simply not illegal. He was entitled to do so for any reason within his general remit as a police officer, whether to conduct the ‘safety check’ he said he was doing, or indeed for any other reason connected to the wide remit of policing articulated in section 5 of the Police Act.
I turn to consider whether the specific search of the accused’s vehicle was lawful.
Both officers gave evidence in a straightforward way. They were moderate in their presentation and appeared careful not to overstate matters adverse to the accused. Whilst neither made detailed notes of their interaction with the accused, they both wore activated video cameras which captured virtually the entirety of their conduct over the time period in question, so there is less objective need for contemporaneous notes of the event given the entire event was recorded on video.
There was some inconsistency between the officers’ evidence. For example, Senior Constable Lambert said that they first attended the building site at around midnight and then returned after 4.00am, whereas Senior Constable Keenan said that his recollection was there was possibly only two hours between these attendances. There were one or two other such inconsistencies. These were primarily in relation to uncontroversial matters where no video was taken, and about which no notes were made. Further, the court has regard to the fact that Senior Constable Keenan had been off work due to ill health for eight and a half months prior to the very day he gave evidence.
The court has had close regard to the matters put to Senior Constable Lambert from his statements. His answers to those questions were rational and at the end of the day, credible.
The inconsistencies between the officers clearly demonstrated they had not put their heads together or colluded in any way in relation to giving evidence. At the end of the day, Senior Constable Lambert’s evidence as to the events of the morning in question was credible and reliable.
For the purposes of the current application, the court finds it established that Senior Constable Lambert did honestly suspect that the search of the vehicle would afford evidence of an offence against the Controlled Substances Act. The court similarly accepts his evidence that no other police power was deliberately wrongfully invoked or used as a subterfuge to, in effect, conduct a ‘come what may’ search for drugs.
The remaining issue is whether that suspicion was held on reasonable grounds. The court finds that at the time the search commenced, Senior Constable Lambert was aware of the following matters:
1.The accused was located in a car stationary for a period of time with the engine running and the brake lights on at around 4.00am outside a building site. It is hard to immediately imagine any obvious or legitimate reason for that to be occurring.
2.The accused was not licenced to drive, and had been apprehended two weeks prior for the same conduct.
3.The accused was a career criminal who police wanted to speak to about several outstanding matters.
4.Police systems flagged that he had recently been drug diverted for illicit drug use.
5.Small electronic scales commonly associated with and used by those in the illicit drug business were observed on the passenger seat of the accused’s vehicle. The accused was the only occupant of that vehicle.
The court has regard to the cited authorities.[10] In combination, the matters of which Senior Constable Lambert was aware provide an entirely reasonable basis to form the suspicion that he held.
[10] R v Nguyen (2013) SASCFC 19, Bae v The Queen; Koo v The Queen [2020] SASCFC 7, R v Golja [2017] SASCFC 61, R v Dam & Nguyen [2015] SASCFC 131, R v Nguyen [2016] SASCFC 96.
Conclusion
Senior Constable Lambert reasonably suspected that a search of the vehicle driven by the accused would afford evidence of an offence. He did not utilise s 145 of the Road Traffic Act for an ulterior purpose. Accordingly, the search was lawful.