R v STONE - [2015] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v STONE
[2015] SADC 27
Ruling of His Honour Judge Millsteed
5 March 2015
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - GENERALLY
Accused charged with trafficking in a controlled drug - drug the subject of the charge found by police in the course of searching the accused's motor vehicle - whether the search was lawful pursuant to either s 52(9) of the Controlled Substances Act 1984 (CSA) or s 68(1) of the Summary Offences Act 1953 (SOA) - whether the police reasonably suspected that the vehicle contained evidence of an offence against the CSA or evidence of another type of offence - held that search was lawful under s 68(1) of the SOA but not under s 52(9) of CSA - even if the search was unlawful evidence of the search should be admitted in exercise of judicial discretion.
Summary Offences Act 1953 s 68; Controlled Substances Act 1984 s 52(9); Motor Vehicles Act 1959 s 74; Road Traffic Act s 40H, referred to.
R v Rogers (2011) 109 SASR 307; Gibson v Ellis (1992) 59 SASR 420; Bain v Police (2011) 112 SASR 10; Bunning v Cross (1978) 141 CLR 54; R v Nguyen [2013] SAFC 91; The Queen v Romeo (1982) 30 SASR 243, considered.

R v STONE
[2015] SADC 27
Introduction

The accused is to stand trial on a charge of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) Controlled Substances Act 1984 (CSA). The drugs which are the subject of the charge were found by police in the course of searching a motor vehicle the accused had been driving. The accused applied for exclusion of the evidence relating to the search on the ground that the search was illegal. The searching police officer, Senior Constable Timothy Patton, and his partner, Constable Benjamin Duykers, gave evidence on a voir dire hearing. Their statements were also tendered on the hearing. Following submissions from the prosecutor and defence counsel, I reserved my ruling, which I now deliver.
Factual background
At about 9pm on 6 November 2012, Patton and Duykers were driving along Brodie Road, Morphett Vale in a police cage car. Duykers was driving. They observed a red Toyota Celica, which was being driven by the accused, travelling in the opposite direction and noted the registration number of the motor vehicle. The police then conducted a registration compliance check using the police car’s computer and ascertained that the registered owner of the Toyota had an expired driver’s licence. Unbeknownst to the police officers at the time, the accused had a current driver’s licence and had borrowed the Toyota from its owner.
Duykers turned the police car around and followed the Toyota onto Lonsdale Road where he activated the police car’s lights to indicate for the driver of the Toyota to pull over. The accused complied and parked on the verge. Duykers parked the police car a short distance behind the Toyota. As soon as the police car pulled up, the accused began to get out of the Toyota. Patton alighted from the police car and directed the accused to get back inside the Toyota because the road was busy and he was concerned for the accused’s safety. The accused complied with Patton’s direction.
There is a minor conflict in the evidence given by the police officers in relation to the accused’s movements immediately after they pulled up behind him. As I have said, Patton alighted from the police car and directed the accused to get back into the Toyota. Patton could not recall whether the accused was “in the process of getting out of the Toyota” or was “fully out” of the vehicle when he gave that direction.[1] Duykers recalled that the accused had commenced walking “at pace” towards the police car.[2]
[1] T 12, 31-32.
[2] T 41, 42.
Both police officers regarded the accused’s conduct as unusual. Patton testified that he was suspicious of the accused’s behaviour in immediately getting out of the Toyota because in his experience “drivers don’t normally jump out of their cars when stopped by police”[3] especially on busy roads.[4] Patton suspected that the accused was “trying to prevent [him] from going anywhere near the car” because he was hiding something.[5] Duykers gave similar evidence.[6]
[3]    T 13.
[4]    T 20.
[5]    T 14.
[6]    T 41-42.
After the accused got back into the Toyota, Patton approached the driver’s side door and spoke to him through the open window. He asked the accused to provide his name and driver’s licence. The accused co-operated and explained that he was not the registered owner of the Toyota. Patton handed the driver’s licence to Duykers so that he could check its validity.
Duykers returned to the police car and accessed the police computer. His enquiries confirmed that the accused’s driver’s licence was valid and that he was not the registered owner of the Toyota. Duykers then used the computer to access the Police Incident Management System (PIMS) which brought up a “drug user/dependent warning” in relation to the accused.[7] Duykers then scrolled through the accused’s “event history” recorded under the warning. He testified that he could not recall the details of the recorded information other than to say that it revealed that the accused was “a drug user and had prior dealings with the police and that drugs [had been] found on him”.[8]
[7] Duykers T 51.
[8] T 42, 51.
Duykers and Patton testified that information recorded in PIMS concerning a person’s event history includes reference to any criminal convictions and drug expiation and diversion notices. No evidence was put before me as to the precise information recorded in PIMS in relation to the accused. However, it was an agreed fact that the accused’s criminal record included the following drug related convictions:
·21 January 1992 (Christies Beach Magistrates Court) - possessing cannabis;
·29 November 1994 (Christies Beach Magistrates Court) - possessing cannabis and equipment to administer cannabis;
·16 June 1995 (Tweed Heads Local Court) – possessing cannabis and equipment to administer cannabis; and,
·18 September 2009 (Christies Beach Magistrates Court) – cultivating less than the prescribed number of cannabis plants and possessing prescribed equipment; and
·22 February 2011 (Christies Beach Magistrates Court) – driving a motor vehicle, on 6 March 2010, with drug type unknown in fluid or blood.
It is reasonable to infer that the information Duykers accessed on PIMS included the accused’s criminal history, as set out above. It should also be observed that as at 6 November 2012, the most recent offence of any type of which the accused had been convicted was the last mentioned offence.
Patton testified that because the accused’s conduct in immediately getting out of the Toyota had aroused his suspicions, he asked the accused, while Duykers was conducting the driver’s licence check, whether there was anything inside the Toyota that should not be there. The accused became agitated and accused Patton of “police harassment” claiming that he had been recently stopped and searched by police on several occasions. Patton considered the accused’s conduct to be “irrational”[9] and suspected that the accused was trying to discourage him from pursuing that enquiry.[10]
[9] T 3, 14, 15.
[10] T 27.
At about that time, Duykers left the police car and re-joined Patton. Patton testified that he was informed by Duykers that the accused had numerous “drug user” warnings.[11] Duykers, however, could not recall what information, if any, he conveyed to Patton.[12]
[11] T 14.
[12] T 42.
Patton then decided that he would search the Toyota under s 52(9) of the CSA because he suspected that the motor vehicle contained evidence of an offence under that legislation.[13] Patton testified that his suspicion was founded on the accused’s behaviour in immediately getting out of the Toyota when the police car pulled up, the accused’s agitated response when asked if there was anything inside the motor vehicle, and the information that the accused had “drug user warnings”.
[13] T 36.
Patton informed the accused of his intention to search the Toyota and asked him to switch off the engine. Patton said that the accused refused and asked: “Why can’t you let me go?” He then began to cry and said that his girlfriend was pregnant and that he just wanted to go to his mate’s place for a beer.[14] In cross-examination Patton agreed that it was possible that the accused told him that he was upset because he had just found out from his girlfriend that she was pregnant.[15] However, Patton considered the accused’s refusal to turn off the engine, together with his emotional reaction and the volunteering of information about his girlfriend’s pregnancy, to be unusual.[16] As I understood Patton’s evidence, these factors heightened his existing suspicion.[17]
[14] T 14, 15-16.
[15] T 25-26.
[16] T 15, 16, 22, 24-25, 28.
[17] T 27.
Following the accused’s refusal to turn off the engine, Duykers went around to the passenger’s side of the Toyota and opened the passenger’s door. He directed the accused to turn off the engine and get out. The accused eventually complied.
Upon the accused getting out of the Toyota, Patton observed a waist bag in the driver’s foot-well. He searched the bag and located within it a plastic case which contained a spatula, a set of scales, a straw, and eight empty plastic resealable bags. The plastic case also contained three small plastic tubs and a small plastic resealable bag each of which contained crystalline powder. Subsequent forensic analysis established that the powder contained a total of 2.66g of methylamphetamine. Traces of methylamphetamine were located on the scales.
While Patton was searching the Toyota, Duykers searched the accused and found on him two mobile phones containing text messages allegedly consistent with the accused’s involvement in selling methylamphetamine. Duykers said that he exercised his powers under s 68 of the Summary Offences Act 1953 (SOA) to search the accused because he suspected that he was in possession of an object which constituted an offence.[18]
[18] T 43 see also Statement of Witness of Benjamin Duykers dated 24 November 2014, p3.
The grounds that Duykers gave for his suspicion were similar to those expressed by Patton. However, Duykers did not believe that he could rely upon s 52(9) of the CSA because the possibility of non-drug related offending could not be excluded. He gave the following evidence on that topic:[19]
[19] T 52.
Q.You purported to exercise your powers under s.68 of the Summary Offences Act. What did you believe might be in the car or what did you suspect might be in the car?
A.I suspected there could be a firearm in the car, there could be drugs in the car, stolen property. All those things are commonly associated with drug-related offending. So the fact that I’d done a check and he had a drug user warning that made me think that yes there could be drugs but also thought there could be other things in there as well.
…
Just because at that time my suspicions were based on Mr Stone’s behaviour, so just because he was anxious and emotional and things like that didn’t necessarily mean that there was drugs, so definitely suspicious about something but I didn’t know what it was – drugs, kept an open mind I guess that it could have been something else.
Q.So you couldn’t exclude the possibility of non - drug related offending.
A.That’s right.
Q.And for that reason you relied upon s.68.
A.Yes, that’s right.
Then later in cross-examination:[20]
Q.You didn’t have any suspicion about stolen goods.
A.No, not specific suspicions. What I was saying was I couldn’t eliminate there may have been stolen goods or something other than drugs in there. So nothing to say yes, stolen goods were in there, but his behaviour led to suspicion that there could be something in there, whether it be drugs, whether it be a firearm.
Q.What sort of goods did you have a suspicion about?
A:Firearms, bearing in mind I’d just done that check showing there were drug user warnings, and firearms are commonly associated with drug-related offending, so it’s in my mind as well, could be a gun in there.
Q:There’s nothing in my client’s history that was suggesting the use of guns, is there.
A:No.
[20] T 53-54.
Following the searches the accused was arrested for hindering police and trafficking in a controlled drug. He was conveyed to the Christies Beach Police Station where he was charged.
Search powers
Before turning to the accused’s argument it is necessary to set out the relevant legislation.
Section 52(9) of the CSA states:
(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 officer reasonably suspects would afford evidence of an offence under this Act.
(my underlining)
Section 68(1) of the SOA provides:
(1)A police officer may do any or all of the following things, namely, stop, search and detain –
(a)a vehicle or vessel in or upon which there is reasonable cause to suspect that –
(i)there are stolen goods; or
(ii)there is an object, possession of which constitutes an offence; or
(iii)there is evidence of the commission of an indictable offence;
(b)a person who is reasonably suspected of having, on or about his or her person –
(i)stolen goods; or
(ii)an object, possession of which constitutes an offence; or
(iii)evidence of the commission of an indictable offence.
(my underlining)
Where a police officer searches a vehicle because he or she reasonably suspects that the vehicle contains an item that would afford evidence against the CSA, the search is justified under either s 52(9) of the CSA or s 68 of the SOA.[21] Section 68 of the SOA, however, has a broader application in that it authorises searches where the police officer reasonably suspects that the vehicle contains evidence of an “offence” regardless of whether it is an offence under the CSA or not.
[21] Gibson v Ellis (1992) 59 SASR 420, R v Fazio (1997) 69 SASR 54.
The meaning of the expression “reasonable suspicion” in the context of s 52(9) was canvassed by Duggan J in R v Rogers.[22] His Honour said:[23]
[22] (2011) 109 SASR 307.
[23] (2011) 109 SASR 307 at [18]-[22] pp 311-312.
In George v Rockett, (1990) 170 CLR 104 at 115 the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam [1970] AC 942 at 948:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”
The Court went on to draw a distinction between suspicion and belief (George v Rockett (1990) 170 CLR 104 at 115):
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
Their Honours also referred to the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 LCR 266 at 303:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”.
The distinction between suspicion and belief was explored further by McHugh J in Ruddock v Taylor (2005) 222 CLR 612 at [75]. His Honour referred to the statement of Angas Parsons J in Homes v Thorpe [1925] SASR 286 at 291:
According to the plain meaning of the words there is therefore a clear distinction between things that are “suspected” of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is “suspicion” which falls short of belief, “belief” which approaches to conviction, and knowledge which excludes doubt.
McHugh J also quoted from the judgment of the Full Court of the Supreme Court of South Australia in Henderson v Surfield and Carter [1927] SASR 192 where their Honours said [at 196]:
Suspicion lives in the consciousness of uncertainty.
It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer. As Jacobs J observed in Manley v Tucs (1984) 40 SASR 1 at 9:
Not only does “suspicion” carry less conviction than “belief”, but to say that a suspicion is “reasonable” does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that every matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require the police officer to assess the reliability of the informer or the hearsay information which has been communicated.
The general approach to be taken where the issue raised is whether a police officer’s suspicion was reasonable was addressed by the Court of Criminal Appeal in R v Willingham (No.2).[24]The Court (Gray, Sulan and Stanley JJ) said:[25]
The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
[24] [2012] SASFC 104.
[25] [2012] SASFC 104 AT [10].
Accused’s submissions
Mr Redford, counsel for the accused, acknowledged that the police were entitled to stop the Toyota and ask the accused questions concerning his identity and to conduct enquiries regarding the validity of his driver’s licence. He submitted, however, that the police were not authorised to conduct further enquiries concerning the accused’s criminal history or to search the Toyota because Patton’s suspicion that it contained evidence of an offence under the CSA was not reasonable in the circumstances. Mr Redford did not expressly challenge the legality of Duykers’ search of the accused, presumably because exclusion of Patton’s search of the Toyota would leave the accused with no case to answer. On the other hand if Patton’s search was lawful, it would follow that Duykers’ search was lawful because their suspicions were essentially the same.
Consideration
Matters not in dispute

Mr Redford properly conceded that the police officers were justified in stopping the Toyota because they reasonably suspected that the driver was committing the offence of driving a motor vehicle without a licence, contrary to s 74 of the Motor Vehicles Act 1959 (MVA). Section 40H of the Road Traffic Act 1961 (RTA) authorises a police officer to direct a driver to stop a vehicle for the purpose of exercising other powers under a road law, including breaches of the MVA.
Patton was further entitled to question the accused as to his identity, require production of his driver’s licence and to check its validity. The SOA authorises a police officer to ask a person questions for the purpose of obtaining information which may lead to the identification of the person driving a vehicle at a particular time (s 74AB) and to require a person reasonably suspected of having committed an offence to state all or any of that person’s personal details and to produce evidence of the correctness of those personal details (s 74A), including production of a driver’s licence.[26] Furthermore, the police have an implied power to impose such restrictions on the liberty of a person as are necessary to exercise their statutory powers.[27] This would extend to impairing a person’s freedom of movement while checking the validity of a driver’s licence produced pursuant to a direction from police.
[26] Similar powers are contained in s 40V of the MOA.
[27] Gibson v Ellis (1992) 59 SASR 420 at 424 (King CJ).
It is also clear that the questioning of the accused by Patton, which occurred while Duykers was conducting the licence check, was lawful. The police officer did not require statutory authority to ask questions about the possible presence of incriminating material in the vehicle. As Vanstone J observed in Police v Moukachar:[28]
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of ss 74A, 74AB of the [Summary Offences Act] and s 96(1) of the Motor Vehicles Act is to provide sanctions, in the circumstances prescribed, against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any of those sections in order to ask the designated questions, or any other questions. However, there is no obligation to answer such questions unless one of those sections, or some other statutory provision, obliges the individual to answer.
[28] (2010) 107 SASR 10 at [13]; see also Bain v Police (2011) 112 SASR 10 at [17].
I turn to the contentious issues.
Were the police entitled to conduct PIMS enquiries?
Mr Redford argued that once Duykers had confirmed that the accused’s driver’s licence was valid that he should have desisted from making further enquiries. Put another way it was not permissible for the accused to be detained so that Duykers could interrogate PIMS about the accused’s police history. Though not expressly argued by Mr Redford, I assume that the substance of his complaint is that in the course of this period of alleged unlawful detention the police acquired information about the accused which contributed to Patton’s decision to search the Toyota and therefore tainted the search.
The police were entitled to investigate their intelligence holdings provided the investigation did not unlawfully curb the accused’s freedom of movement. Accordingly, there would have been no unlawful restraint of the accused if the PIMS interrogation was incidental to the police investigation of the validity of the accused’s driver’s licence. However, in cross-examination, Duykers explained that he did not access PIMS for that reason but for the purpose of determining if there were any existing arrest warrants in relation to the accused. Duykers said that he routinely made such enquiries when conducting driver’s licence checks.[29]
[29] T 50.
In my view, it would not have been lawful for the police to have detained the accused merely for the purpose of conducting a routine warrant check. However, I do not think that the evidence shows that the accused was being detained merely for that purpose or that he was being detained at all. The enquiries conducted on PIMS occurred while Patton was speaking to the accused. As discussed above, the accused was free to speak to Patton though he was under no obligation to do so. There is no evidence that Duykers’ PIMS enquiries extended beyond the conversation in which the accused voluntarily participated. Indeed, the first time the accused expressed a desire to leave was after Duykers re-joined Patton and the accused was directed to get out of the vehicle. The onus of proof lay on the accused to establish, on the balance of probabilities, those facts justifying an exercise of discretion in his favour. That onus was not discharged.
Even if the accused had been detained unlawfully while the PIMS enquiries were being made, I would not have excluded evidence of the search in the exercise of my discretion having regard to the competing public policy considerations discussed in Bunning v Cross.[30] The alleged unlawful detention was brief and had no impact on the reliability or cogency of the evidence obtained in the course of the search. Furthermore, Duykers obviously believed that it was proper to conduct a “routine” warrant check. There is no evidence of intentional illegality or impropriety. In addition, the gravity of the charged offence far outweighs the minor and technical nature of the illegality.
[30] (1978) 141 CLR 54 at 78-80 (Stephen and Aickin JJ).
I turn to the more substantial issue.
Was the search of the Toyota lawful?
Patton justified his decision to search the vehicle because he suspected that it contained evidence of an offence under the CSA.[31] Mr Redford did not dispute that Patton genuinely suspected the possible presence of incriminating evidence in the Toyota but contended that his suspicion was unreasonable.
[31] T 36.
Patton’s suspicion was founded on the following factors: first, he suspected that the accused was “trying to prevent [him] from going anywhere near the car” because in his experience drivers do not normally jump out of their cars when stopped by police; second, the accused responded in an agitated manner when asked if there was anything in the Toyota that should not have been there, which suggested to Patton that the accused was trying to discourage him from pursuing that line of investigation; and, third, Patton was informed by Duykers that the accused had “drug user” warnings. The accused’s subsequent conduct in crying and refusing to switch off the engine when directed to get out of the car bolstered the police officer’s suspicions.
Even allowing for the fact that the accused had stopped on the side of a busy road, his behaviour in immediately alighting from the Toyota or walking towards the police car (as Duykers testified) did not, in my view, afford reasonable cause to suspect the presence of any form of evidence of an offence inside the vehicle. When motorists are stopped by police they are free to wait in, or get out of, their vehicles. A decision to alight from a vehicle, without more, hardly provides a reasonable basis for suspecting that the driver is hiding incriminating evidence.
However, I take a different view of the accused’s subsequent conduct. He did not deny the presence of incriminating material when asked by Patton whether there was anything inside the Toyota that should not be there, rather he avoided answering the question and became aggressive and complained of police harassment. If he had been recently subjected to unfair treatment by police as he suggested to Patton, then that might serve to explain his agitated response. But Patton was not bound to accept the accused’s assertion of recent police harassment. It was reasonable for Patton to suspect, as he did, that the accused was trying to distract him from pursuing his enquiry because the vehicle contained incriminating material.
Patton’s suspicion was legitimately bolstered by the accused’s emotional reaction to his announcement that he intended to search the vehicle. In cross-examination Patton agreed that it was possible that the accused told him that he was upset and crying because he had just found out from his girlfriend that she was pregnant. But once again, the police officer was not bound to accept that statement as truthful. It was open to him to suspect that the real reason for the accused’s upset was the presence of incriminating material that would be found if the police proceeded to search the vehicle.
I do not consider the information that Patton received from Duykers about the accused’s criminal background to be significant. Patton could not recall what he was told by Duykers other than that the accused had drug user warnings. He could not recall receiving any information as to when the warnings were issued and the reasons for the warnings. For all Patton knew the warnings may have been issued in relation to drug warnings issued years earlier. If he was informed of the accused’s criminal background he would have known that the accused’s most recent drug related conviction concerned a drug driving offence committed over two and a half years earlier and that his earlier convictions, for cannabis related offences, were very stale. There was no drug offending proximate to the search that could support a reasonable suspicion that there was evidence of an offence proscribed by the CSA would be found in the vehicle.[32]
[32] See R v Nguyen [2013] SAFC 91 at [23]-[26].
It follows from what I have said that I am satisfied that Patton reasonably suspected that there was evidence inside the vehicle of evidence of an offence. However, the material did not support a reasonable suspicion that the evidence pertained to an offence under the CSA. Accordingly, Patton’s search of the vehicle was not authorised by s 52(9) of the CSA. However, Patton’s misplaced reliance on that power did not render the search illegal for the search was justified under s 68(1) of the SOA, which was the provision upon which Duykers relied in respect of his search of the accused.[33]
[33] Compare The Queen v Romeo (1982) 30 SASR 243 at 272-275.
Even if I had formed the view that the search of the motor vehicle was unlawful I would not have excluded the fruits of the search. Unlawful searches should not, of course, be lightly dismissed. As Spender J said in Pressler v Holzgerber:[34]
Where the legislature has defined the circumstances in which a person’s liberties might be infringed or their rights curtailed, it should not readily be concluded that conduct outside the defined authorisation is to be tolerated or excused. Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of citizens.
[34] (1989) 44 A Crim R 261 at p.272.
In the present case, however, an assessment of the considerations in Bunning v Cross points away from exclusion. It could not be said that any unlawfulness was deliberate: instead an exercise of judgment was involved, and Patton’s assessment could not be regarded as wholly unreasonable.[35] Furthermore, evidence of the accused’s possession of the items found in the vehicle provides cogent evidence of the commission of a serious drug offence. The alleged unlawfulness of the search does not affect the reliability or cogency of that evidence.
[35] See Bain v Police (2011) 112 SASR 10 at 31 (White J).
I have also considered the unfairness discretion. The evidence of the search of the vehicle is incriminating but no relevant unfairness to the accused will be caused by its admission into evidence.
For these reasons the application for exclusion of the evidence of the motor vehicle is rejected. It follows that the search of the accused will also be admitted into evidence.