R v SUTTON - [2016] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SUTTON
[2016] SADC 74
Reasons for Ruling of Her Honour Judge Davey
6 July 2016
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
Application for the exclusion of evidence of a police search of a vehicle which resulted in the finding of drugs and cash. Accused submits that the search was unlawful - police searched accused's vehicle pursuant to s 68 of the Summary Offences Act 1953.
Held: The search was unlawful and not admitted in the exercise of the discretion.
Summary Offences Act 1953 s 68, referred to.
Bunning v Cross (1978) 141 CLR 54; R v Rockford [2015] SASCFC 51; R v Nguyen (2013) 117 SASR 432, considered.

R v SUTTON
[2016] SADC 74

The defendant seeks an order excluding evidence of a police search. According to the prosecution case the police located a small quantity of cannabis, 167 ecstasy tablets and a total of $15,600 cash in a car driven by the defendant. It is submitted that the search was unlawful.
At about 9.45 pm on 6 March 2015 an unmarked police car observed movements of a grey Mazda utility driven by the defendant at Seaford Rise. The defendant’s vehicle moved and parked in two areas and ultimately the car was searched by the police. Illicit drugs and cash were located.
Three police officers (Watt, Wallis and Scott) were on duty in an unmarked police car. Detective Brevet Sergeant Watt claimed that he had a reasonable suspicion about the grey Mazda and its movements such that he had authority to search the vehicle pursuant to s 68 of the Summary Offences Act 1953 (SOA) which provides:
68—Power to search suspected vehicles, vessels, and persons
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a)     a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)     there are stolen goods; or
(ii)    there is an object, possession of which constitutes an offence; or
(iii)     there is evidence of the commission of an indictable offence;
(b)     a person who is reasonably suspected of having, on or about his or her person—
(i)     stolen goods; or
(ii)    an object, possession of which constitutes an offence; or
(iii)     evidence of the commission of an indictable offence.
(2)     In this section—
stolen goods includes goods obtained by the commission of an offence.
The requirement of reasonable suspicion applies to the stopping of the vehicle and the search for stolen goods or objects the possession of which constitutes an offence or evidence of an indictable offence.
The principal issue is whether the suspicion was reasonable in all of the circumstances. There does not appear to be a dispute that the police suspected that a search of the grey Mazda would reveal evidence of an offence.
In R v Nguyen[1] the Court said at [21]:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
[1] (2013) 117 SASR 432 at [21] and [22]. That case concerned s 52 of the Controlled Substances Act 1984 however that provision is of the same relevant interpretation as s 68 SOA.
The Court then discussed the requirement that the suspicion be reasonable. It said at [22]:
Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
The three officers (Watt, Wallis and Scott) gave evidence and their sworn declarations were tendered. All three claimed that they had a reasonable suspicion about the vehicle. A map of the area where the grey Mazda was observed was also tendered (P1).
There were no substantial issues of dispute between the evidence of the three police officers. Each described seeing the grey Mazda stationary on Driftwood Crescent, Seaford Rise. There appeared to be a sole occupant in the driver’s seat. There were no vehicle lights on. A short time later the car was observed to have moved, apparently performed a U-turn and was next seen parked in Seafarer Court. The engine was off. These events occurred in a matter of minutes.
Senior Constable Wallis approached the car and asked for the driver’s licence which the defendant commenced looking for. The defendant then said that he did not have it with him.
According to all three police officers the defendant appeared nervous, sweating and his hands were shaking. The police then searched the grey Mazda and in due course located various illicit drugs and cash.
After those items were found, the defendant was arrested and a hand held video camera was used to record that process and the defendant being ‘given his rights’. There is no evidence as to the time when the video camera was used. Nor is the time noted between the alleged observation of the defendant’s nervous and sweaty demeanour and the video recording. The video recording was not produced nor played for the court. The events of initial observation of the defendant, search and arrest must have been within a short time; minutes at the most, and the video recording may have been of assistance. The evidence was not produced.
The material from the declarations and oral evidence of the three police officers which gave rise to their reasonable suspicion such as to justify a search pursuant to s 68 SOA are:
·The area (the extent of which was undefined) where the grey Mazda was observed was believed to contain a number of houses (unspecified number) where drug trafficking was believed to be taking place. There was no evidence as to which houses were believed to engage in drug trafficking.
·That the grey Mazda was parked with lights off and then after the unmarked police car passed it, executed a U-turn and moved to another nearby street and parked; again with lights off.
·The defendant was the sole occupant of the car and the police observed the defendant to be nervous, with shaking hands and sweating.
In my view the reasonableness of the suspicion by the police was insufficient. There are many law abiding members of the community who, for various reasons, could drive and park a vehicle in the area of Seaford Rise, who might move their car and become nervous and/or anxious in the presence of the police. The information available to the police was not capable of giving rise to a reasonable suspicion that the car contained drugs or equipment associated with illicit drug use. The police did not know the identity of the driver and there was no known connection with any of the premises which were said to be involved with drug dealing. There was no police intelligence referable to the car or the defendant.
In my view the evidence is not admissible pursuant to s 68 of the SOA.The search was unlawful. Nonetheless I have a discretion to admit the evidence; the circumstances are such that the Bunning v Cross[2] discretion is enlivened. In this regard I note the seriousness of the offending and that the police officers did not deliberately contravene the law. However, there are other matters which are of significance to the exercise of the discretion:
... ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.[3]
[2] (1978) 141 CLR 54.
[3] R v Rockford [2015] SASCFC 51 at [39].
I also note the following remarks:
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.[4]
[4] R v Nguyen (2013) 117 SASR 432 at [41].
I decline to exercise the discretion to admit the evidence that resulted from the unlawful search of the defendant.