R v Tardrew - [2021] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TARDREW
[2021] SADC 7
Ruling of his Honour Judge Stretton
3 February 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Police stopped the accused’s vehicle for a licence check. A search of that vehicle located methylamphetamine. An application was made to exclude the evidence from trial on the basis that the search was unlawful. Police gave evidence that the accused’s driving, her demeanour when spoken to and comments she initially made gave them a reasonable suspicion enabling a search of the vehicle pursuant to the Controlled Substances Act. The accused did not give evidence.
Held: The matters observed by police were sufficient to, and did, cause police to hold a reasonable suspicion pursuant to the Controlled Substances Act. Accordingly, the search was lawful and there is no basis for the exclusion of the evidence.
Controlled Substances Act 1984 (SA) s 52(9), referred to.
R v Nguyen (2013) 117 SASR 432; Bain v Police (2011) 112 SASR 10; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303; George v Rockett (1990) 170 CLR 104 at 115; R v Rogers [2011] SASC 40, applied.

R v TARDREW
[2021] SADC 7

The accused, Helen Tardrew, is charged with trafficking methamphetamine at Elizabeth South in the State of South Australia on 30 March 2019. It is alleged that at about 10.30am on that day, she was in possession of approximately 55.6 grams of substance containing methamphetamine. The matter came to the attention of the police as a result of a traffic stop and licence check carried out by police.
Ms Tardrew was arrested and charged. Her trial in this court is listed to commence on 24 February 2021.
The Application
Ms Tardrew has filed an application to exclude a search of her vehicle on the grounds that the search was unlawful. The search was purportedly conducted pursuant to the Controlled Substances Act (‘the Act’). Section 52(9) of the Act provides that where a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against that legislation is in any vehicle, the officer may search that vehicle.
Reasonable Suspicion
In R v Nguyen,[1] the Chief Justice made the observation that a suspicion is less certain than a belief as to the existence of a fact. He said that 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 fact or facts. On the other hand, suspicion that a fact exists, in a context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must however, 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. Further, that suspicion must be reasonable. The Chief Justice observed that it is not reasonable to be either overly incredulous at one extreme or naively gullible at the other. The requisite suspicion must exist immediately before the search occurs.
[1] (2013) 117 SASR 432.
As White J said in Bain v Police:[2]
… It is sufficient to note that some factual basis for the suspicion must be shown; that 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,[3] and accordingly that the facts which can give rise to a reasonable suspicion may be insufficient to give rise to an actual belief.[4] However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment.[5]
The suspicion in a given case may be based upon a police officer’s observations together with what the police officer has learnt from other sources. The requirement of reasonableness may require police officers to assess the reliability of any information provided to them.[6]
[2] (2011) 112 SASR 10 at [28]-[29].
[3] Ibid citing Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.
[4] George v Rockett (1990) 170 CLR 104 at 115.
[5] R v Rogers [2011] SASC 40 at [21]; (2011) 109 SASR 307 at 311-12.
[6] Ibid at [22]; 312.
Evidence
Constable Filosi was called to give evidence. On 30 March 2019, she was on mobile patrol in Elizabeth South with Officer Bakkelo. Constable Filosi was in the front passenger seat of the marked police vehicle. While travelling down Underdown Road, she saw a silver BMW parked. She regarded that as a little unusual for the area. A little later they came up to the intersection of Fairview Road and Phillip Highway and observed the BMW stationary at the lights in the right-hand turn lane. The lights turned green and the BMW turned right onto Phillip Highway with the police car following. Constable Filosi saw the BMW swerve to the left and right within its lane and saw the driver look as if they were reaching into the passenger seat foot well or somewhere on the passenger side seat. The vehicle indicated very briefly and made a sharp lane change into the left-hand lane.
These observations caused Constable Filosi to check the registration of the BMW on the police computer system. The check came back showing that it was registered to a company called Liquid Star. She recalled from previous dealings that the car belonged to Ms Tardrew. Constable Filosi said that they then decided to conduct a licence check in light of the driving behaviour. The vehicle was pulled over.
Constable Filosi approached the vehicle, recognised Ms Tardrew and asked for her licence. Constable Filosi gave evidence that as Ms Tardrew retrieved her licence and went to hand it over, she appeared nervous and shaky. She noted Ms Tardrew’s speech was fast and she looked like she had a dry mouth with white dried skin on each side of her lips. Constable Filosi gave evidence that Ms Tardrew’s presentation was quite different to the previous occasions when she had spoken to her.
Constable Filosi asked Ms Tardrew something to the effect of ‘where have you come from’ and Ms Tardrew replied that she had come from home. Constable Filosi said that did not make sense to her as the BMW had been parked on a street in Elizabeth a short time before and accordingly she had come from there, rather than from home. Constable Filosi noticed a package wrapped as a birthday present in the driver’s foot well between Ms Tardrew’s legs. She then went to conduct the licence check on the computer system in the police vehicle. Constable Filosi observed from Ms Tardrew’s licence that it was nowhere near Ms Tardrew’s birthday.
Constable Filosi gave evidence that she then formed a suspicion under the Controlled Substances Act. She gave the following evidence:[7]
[7]     T 38.8 – 40.9.
Q     So what’s occurred then.
ASo at that point in time just with everything that’s happened and looking at the licence date – her birthday date – everything just didn’t add up to me so it was then in my mind that I’ve formed the suspicion that an offence was being committed under the Controlled Substances Act and then I’ve then gone back to the car.
QWhat do you understand your authority under the Controlled Substances Act to carry out that search at that point in time.
ASo under the Controlled Substances Act I’m allowed to – well in relation to the car I’m allowed to stop and detain a car if I have reasonable grounds to suspect that either equipment or a substance that constitutes an offence under the act is within a vehicle I am allowed to stop the vehicle, detain the vehicle and search the vehicle and remove any items.
QDo you understand what the basis of that power is, what is required to allow you to carry out that search.
A     Yep, so I have to have like a reasonable cause to suspect, a suspicion.
Q     What do you say were your reasonable suspicions that morning.
ASo it began with the, when we turned on to Philip Highway just her erratic, the way the car went quickly from left to right a couple of times within the right-hand lane. It’s then quickly gone into the left-hand lane with a really short indication signal. We’ve then stopped the car. Upon speaking to her – she was very nervous when she got out her licence and her hand was shaking, her fast was quite speech – sorry, her speech was quite fast – she’s then also had what appeared to be a dry mouth with the whites on her mouth which indicated that she was nervous. She has also – her behaviour was different to other times when I’ve interacted with her. And unusual to normal persons you would stop in a regular traffic stop, just nervousness as well. Then when I’ve asked her where had she come from she said she had come from home which didn’t make sense as to where I had seen the car on Underdown Road. And it’s then because I’ve asked her if she had anything in the car she shouldn’t, which she had like shrugged and moved her hands upwards which indicated to me that she was impartial to what I had asked her, whether she didn’t know. Then I’ve seen the parcel which was in the footwell in between her legs and then when I’ve gone back go do the licence check and seen it wasn’t her birthday.
HIS HONOUR
Q     So it was in the driver’s footwell.
A     Yes.
Q     Was there anything about that that you were concerned about.
AIt was just a bit odd. It was just odd to me because it was like a little parcel wrapped in happy birthday wrapping paper, so I just thought it’s weird that it would be in the footwell and not in her bag or just anywhere else in the car.
MR CANNELL
Q     Did you then carry out a search.
A     yes, once I’ve done the licence check I’ve then come back to the car, I’ve asked her
HIS HONOUR
Q     Just before you go on, I just wanted to ask, you’ve listed these various factors.
A     Yep.
QAnd obviously you’ve got experience as a police officer from before, what is it about those factors that made you think it could be a drug issue.
AWell from the north, like in Elizabeth, northern suburbs, where drug is quite – drug crime is quite high in that area, based on my experience they were – a lot of the behaviours, the nervousness, that indicated to me that there was something under the Controlled Substances Act.
Q     You had seen those factors before when you had found drugs.
A     Yes.
Constable Filosi was then cross-examined. She agreed that on three previous occasions she had been a member of a patrol that had spoken to Ms Tardrew. She could not recall the exact times or dates. The first occasion was on patrol with her sergeant whereby the sergeant had spoken to Ms Tardrew. It would have occurred sometime between August 2018 and March 2019. She could not recall anything else about that event. Ms Tardrew was known to police on that occasion on the basis that a male had previously left her address and was later stopped and arrested for drug trafficking. Constable Filosi said that she was not the arresting officer on that occasion. She recalled that on the occasion Ms Tardrew was first pulled over, she had told police she had nothing in her car that she should not have and invited police to search the vehicle if they wanted to.[8]
[8] T47-52.
Constable Filosi said the second occasion that she recalled Ms Tardrew was stopped was when Constable Filosi was on patrol with two other more senior officers on Curtis Road, Smithfield Plains or Munno Para. On that occasion, one of the other officers decided to pull over the vehicle. Constable Filosi said that while she was present, she did not recall if she searched either the car or Ms Tardrew.[9]
[9] T52-57.
The third prior occasion she had contact with Ms Tardrew was when on patrol with another constable. Whilst she could recall being present, she could not recall much of those events beyond Ms Tardrew agreeing to police searching her vehicle.
Constable Filosi said that while she could not now recall it specifically, with reference to her 30 December 2019 statement she could say that on each of the three occasions police had previously stopped Ms Tardrew, Ms Tardrew had given permission for her vehicle to be searched.[10]
[10] T57-58.
Constable Filosi was asked about police practices whilst on patrol. Constable Filosi said that whilst on patrol they regularly conducted traffic stops to check licences. She said that she regularly asks people if they have anything in their vehicle that they should not have. She said that whether she would ask that question on any particular occasion depends on the circumstances.
Constable Filosi gave evidence that she had commenced her notes three and a half days after the events. She was asked why she did not question Ms Tardrew about her manner of driving. She responded that when she got Ms Tardrew’s licence, and then Ms Tardrew became nervous, she had not addressed it at that stage. It is reasonable to infer from Constable Filosi’s answers that her suspicions concerning Ms Tardrew’s behaviour and potential controlled substances subsumed any concerns as to erratic driving.
In further cross-examination, Constable Filosi was taken to her first statement, which recorded that when she conducted her vehicle checks on the police computer system and noted Ms Tardrew’s name and address, she had observed that it had been an address of interest to police in relation to drug trafficking. Constable Filosi explained that that was with reference to the person who had left Ms Tardrew’s address and was subsequently arrested for drug trafficking. Constable Filosi agreed that that had crossed her mind prior to stopping Ms Tardrew on this occasion for a licence check, but it had not been her reason for doing so.
In further cross-examination, Constable Filosi was referred to police vehicle GPS data and agreed that the police vehicle had done two loops of the adjacent streets between first sighting Ms Tardrew’s vehicle and coming up behind it at the lights, whereas her recollection was of only a single loop. She also agreed she had noted the police vehicle travelling in the opposite direction to its actual direction at the point where she made her first observation of Ms Tardrew’s parked vehicle. She agreed that she had not compiled her statement until 23 June. She said she would have compiled the statement on receipt of a request to do so.
Constable Filosi was cross-examined extensively by defence counsel. The court has regard to the full cross-examination without setting it out.
Brevet Sergeant Bakkelo was called to give evidence. Officer Bakkelo gave evidence that he was on mobile patrol with Constable Filosi on 30 March 2019. He also described observations of Ms Tardrew’s vehicle and the fact that they pulled the vehicle over to conduct a licence check.
Officer Bakkelo gave evidence that he was driving the police vehicle. He gave evidence that they followed the accused in her BMW as it executed its right-hand turn onto Phillip Highway. He described the vehicle then almost immediately swerving from right to left into the left-hand lane. He said at that point that both officers questioned why the vehicle would be driving like that. He said that, ‘through I guess experience in Elizabeth, you know, you come to pick up small things in driver behaviour, and that being one of them; that possibly avoiding having us behind the vehicle or seeing that there were police behind it and immediately moving into the left lane, not signalling for long enough to start with but just getting out of our line of sight in that left lane’.
Officer Bakkelo gave evidence that Constable Filosi conducted checks on the vehicle, telling him that it was registered to a business and that she had conducted a stop of that vehicle on a previous occasion. The outcome was that they were going to conduct a traffic stop with the vehicle to determine who the driver was because it was registered to a company rather than a person, and to discuss the manner of driving.
Officer Bakkelo gave evidence that he activated his police lights and pulled the BMW over. He observed Constable Filosi speak with Ms Tardrew and move away from the vehicle for the licence check. After that he moved around to the driver’s side of the vehicle and had what he described as a general conversation.
Officer Bakkelo’s body camera video was tendered. It indicates that he adopted a friendly attitude with Ms Tardrew, discussing amongst other things, her car and when she bought it. Officer Bakkelo told the court he was a car enthusiast.
Officer Bakkelo was cross-examined at length. The court has regard to everything put and answered without setting it out. Officer Bakkelo gave evidence that he and Constable Filosi were on general patrols, but also had a grade 3 or grade 4 tasking to collect medication. That tasking level merely requires completion within 24 hours.
Officer Bakkelo said that he was the officer in charge of Elizabeth Grove/Elizabeth South suburbs for policing that day and that both of those suburbs reflect a very high crime rate. He said given that they were travelling in that direction anyway, and that he knew of locations of interest to police within those suburbs at that time, and had been designated to patrol, they diverted through those streets in the course of their tasking.
He agreed he had also made a mistake about their initial direction of travel in his statement, at the point of their first observation of Ms Tardrew’s vehicle. He said he became aware of that error when he had been requested to make an addendum statement, reviewed his body worn camera video, gone over the events in his mind and realised his error. He agreed the GPS data, which he had been shown for the first time in court, accurately reflected the direction of travel. He agreed he had originally said they had been travelling north-east but in fact it had been south-west. It was put to Officer Bakkelo that Constable Filosi had made the same error, indicating north rather than south. Officer Bakkelo stated that he could not comment on that but that they had not assisted each other to give their initial statements. Officer Bakkelo was cross-examined extensively on the topic.
Officer Bakkelo was cross-examined about the movements he had observed of Ms Tardrew’s vehicle on Phillip Highway, repeating that his recollection was that immediately on completion of the right-hand turn, it abruptly moved to the left and she was ‘sort of pivoting over, you know, sort of within the lane, on the line, so obviously that drew my attention to it, just given the manner of driving’. He reiterated his concerns as to the manner of driving.
Officer Bakkelo was asked about his observations of Ms Tardrew when he spoke to her. He gave evidence that he often asks a person whether they have anything in the vehicle as a part of his assessment of that person and whether their response is suspicious. He said she did look around repeatedly while he was speaking to her, in his opinion, regularly looking at where the other officer was, possibly using her mirrors, and that behaviour appeared to him as a sign of nervousness. The body camera video was played and Officer Bakkelo pointed out where in the footage those repeated head movements occurred.
Constable Filosi was recalled for further cross-examination. Defence counsel played back the body camera footage and put that the small white flecks that Constable Filosi had said were present were not present on the subsequent video from Officer Bakkelo’s body camera. She responded that the flecks were small and the video quality would not be sufficient to show them. Mr Vadasz tendered video footage of Ms Tardrew when she was later being transferred to the police station in the rear of the police vehicle. That video is of slightly higher quality and does not reveal any flecks present at that time. It must be observed that further conversation and time had passed by at that stage.

GPS records indicating the time and direction of travel of the police vehicle were tendered.
The accused did not give evidence on the voir dire. She was under no obligation to do so, and no adverse inference whatsoever arises as a result of her doing so.
Submissions
Both counsel addressed the court at length. The court has had close regard to both counsel’s submissions without setting them out in detail.
The primary thrust of Mr Vadasz’s submission was that the police evidence was unreliable, evasive and in some respects downright unbelievable. He submitted it should be rejected by the court. He submitted that the police had manufactured observations to support what was an illegal search of Ms Tardrew’s vehicle. Mr Vadasz emphasised the fact that the police GPS data indicated that the officers’ police vehicle had looped around the adjacent streets twice between their first and subsequent observation of Ms Tardrew’s vehicle, whereas the officers had only recounted one such loop. He also emphasised the officers’ initially mistaken view as to their direction of travel at the point where they first observed Ms Tardrew’s vehicle. He put that objectively the police did not have a reasonable basis to suspect that there were drugs in the vehicle and accordingly, the search was illegal. Further, they had lied about it and that accordingly, the methamphetamine should be excluded from evidence.
Mr Cannell submitted that both officers were credible and reliable. He observed that Constable Filosi was a constable, quite junior in experience and accordingly, nervous on occasions in the witness box. He observed that she misunderstood a number of questions in the course of her evidence, but that her presentation was overall credible and reliable.
Mr Cannell observed that in relation to the three prior traffic stops, they had all been occasions when she was the junior officer and she had not necessarily made the decision to pull over or search. He submitted that the video footage showed the officers treating Ms Tardrew politely and courteously and that there is no hint of harassment or illegality in their approach to Ms Tardrew. He submitted that they were considerate of Ms Tardrew, for example, acceding to her request that she not be handcuffed until she was in the car so as to avoid embarrassment.
Mr Cannell concluded by submitting that the matters set out by Constable Filosi were sufficient for a reasonable suspicion and that consequently the search was legal and the evidence should be admitted. He submitted that in the alternative, if not objectively sufficient, the police actions were honest and reasonable in all other respects and any illegality consequently technical and a matter of degree. In those circumstances, he submitted that the courts discretion should be exercised to admit the material.
Analysis
In light of the issues, the court has closely scrutinised the evidence of the two police officers who gave evidence. There were variances in their evidence, including some variances in their observations of Ms Tardrew’s driving. For example, when the BMW driven by Ms Tardrew turned right into Phillip Highway, Constable Filosi gave evidence that the BMW moved left and right quickly within the lane before suddenly moving left, whereas Officer Bakkelo described it as a sudden movement to the left, albeit with some pivoting on the line. There were some other differences in observation. Overall however, their recollections were broadly consistent. The differences in evidence, particularly as to the manner of driving, are consistent with honest differences in memory after such a passage of time. They are inconsistent with any suggestion that the two officers have put their heads together to fabricate their observations.
It must also be considered that until drugs were located, this was a standard licence check by two patrol officers, like any other. Formal statements were not required until sometime later, and so the kind of small inconsistencies displayed are what might be expected in such circumstances.
Constable Filosi gave evidence in a straightforward and apparently credible way, frankly conceding when she did not recall matters or was unsure. Officer Bakkelo made limited notes at the time and was not required to recall events until some months later when requested to make a statement. He also gave evidence in a straightforward and credible way.
Neither officer could recall whether they had talked about events and their observations between the time of their occurrence and several months later when they gave their statements. They maintained that they did not assist each other to make their statements. Given their error as to their initial direction of travel was the same and neither recorded that they had looped around streets twice before their second observation of the accused, rather than once, it is possible that at some point after the events, but before they provided their formal statements, they did discuss in general terms where they drove and their initial observations of the other vehicle. Neither denied the possibility of that happening.
Those are primarily matters of background. Were such a discussion to have occurred on matters irrelevant to the issue of whether reasonable suspicion existed, it does not at the end of the day, give rise to concern as to the honesty and reliability of the officers’ evidence as to the matters giving rise to the claimed reasonable suspicion.
The court has considered the video evidence, particularly concerning Ms Tardrew’s appearance and behaviour.
Having carefully considered everything put and tendered for the purposes of the voir dire, and carefully assessing each and every one of counsel’s submissions, I accept the police evidence as to their observations of Ms Tardrew’s manner of driving. The court also accepts the police evidence as to Ms Tardrew’s conduct, demeanour and appearance when she was pulled over.
Accordingly, the court finds established that Constable Filosi observed the following matters:
·Ms Tardrew drove erratically within her lane and suddenly veered left after only a moment’s indication.
·When initially speaking to police, Ms Tardrew spoke very quickly and displayed to Constable Filosi nervousness in her manner of speech and body language. Ms Tardrew’s hands were shaking as she provided her licence to police.[11]
·Ms Tardrew initially displayed a dry mouth with white flecks at the corners.
·Ms Tardrew’s demeanour was substantially different to the three previous times Constable Filosi had interacted with her, in the ways previously described.
·Ms Tardrew indicated she had come from home when she had in fact been parked nearby on Underdown Road.
·When asked if she had anything in the car which she shouldn’t have, she reacted differently to the previous occasions when police had asked the same question. On those previous occasions she had happily offered police to search her car, whereas on this occasion she shrugged as if to indicate she did not know, and failed to say anything.
·The accused had a parcel wrapped in ‘Happy Birthday’ paper in an unlikely place i.e. the footwell of the driver’s side of the vehicle, when the licence check revealed it was not in fact her birthday.[12]
·Constable Filosi’s overall experience as to the demeanour and the behaviour of Ms Tardrew, as set out in her evidence between pages 38-40 of the transcript.
[11] Ms Tardrew calmed herself quickly when speaking to a second officer, Officer Bakkelo, but still looked away from that officer repeatedly while sitting in her vehicle, consistent with checking in her mirror for what the other officer was doing.
[12] The photos reveal a small colourfully wrapped present, which wrapping paper included the letter B.
The court has regard to the cited authorities. At the end of the day, the observations by Constable Filosi would not have been sufficient to ground a belief that drugs were in the car. None of the observed conduct necessarily connotes the presence of drugs. On the other hand, the sudden agitated driving could indicate the driver is effected by drugs and could indicate a possible attempt to quickly get out of the line of sight of police. Nervousness and shakiness might similarly reflect that a person is under the influence of drugs and concerned that police may discover drugs in the car. Further, that presentation was inconsistent with her demeanour on previous contact with police in similar circumstances, and there was quite a different reaction to the question of whether she had anything she shouldn’t have in the vehicle. All of that might suggest that Ms Tardrew was effected by drugs or that drugs were in the car on this occasion. All of this, together with the totality of the circumstances, together with an inaccurate statement as to where she had just come from and a package in an incongruous place, constitute reasonable grounds for an experienced police officer in that environment with that experience in the behaviour of people who have been in possession of drugs, to have the requisite reasonable suspicion under the Act.
Conclusion
The court finds that Constable Filosi reasonably suspected that evidence of an offence against the Act was in the vehicle. Accordingly, the search was legal and the evidence should be admitted.
If the court is wrong about that, and the matters set out do not in an objective sense amount to a reasonable basis to suspect, then the search was not legally justified and the discretion to exclude the evidence arises and must be considered.
The court has regard to the important considerations that must be balanced. The police officers’ conduct was honest, and if not reasonable, amounted to an honest error of judgement at the margins as to the objective reasonableness of their suspicion. The error was not deliberate, nor was there any intentional or reckless disregard of Ms Tardrew’s rights. Ms Tardrew was in all other respects treated politely and reasonably. The evidence seized is cogent evidence of a very serious offence.
Applying the relevant test, should the basis for Constable Filosi’s suspicion not be objectively adequate to have formed a reasonable suspicion, the evidence should nonetheless be admitted in the exercise of the court’s discretion.