R v TAYLOR - [2020] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TAYLOR
[2020] SADC 35
Ruling of Her Honour Judge Fuller
3 April 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with one count of Trafficking in a Controlled Drug, two counts of Money Laundering – the methylamphetamine and cash the subject of all counts was found by police in the course of searching the accused who was a passenger in a motor vehicle followed by police – whether police were acting lawfully when making requests of the driver of the motor vehicle – whether police officer who searched accused held requisite suspicion – held actions of police and subsequent search lawful.
District Court Criminal Rules 2014 (SA) r 49(1)(h); Controlled Substances Act 1984 (SA) ss 32 (3); 52; Criminal Law Consolidation Act 1935 (SA) s 138 (1); Road Traffic Act 1961 (SA) ss 40H; 40J; 40K; 40V; Motor Vehicles Act 1959 (SA) s 96; Summary Offences Act 1953 (SA) ss 68; 74AB, referred to.
George v Rockett (1990) 170 CLR 104; Hussien v Chong Fook Cam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v Nguyen (2013) 117 SASR 432; R v Neal (2017) 128 SASR 20; R v Dam & Nguyen [2015] SASCFC 131, considered.

R v TAYLOR
[2020] SADC 35

By application pursuant to Rule 49 (1) (h) of the District Court Criminal Rules 2014 the accused sought orders excluding evidence to be led at her trial. I refuse the application. The following are my reasons for so ruling.
The accused is charged with one count of trafficking in a controlled drug contrary to s 32 (3) of the Controlled Substances Act 1984 (SA) and two counts of money laundering contrary to s 138 (1) of the Criminal Law Consolidation Act 1935 (SA).
Rule 49 Application
The accused made application pursuant to Rule 49 (1)(h) for evidence to be excluded as follows:
1All evidence obtained as a result of the search of the accused’s person.
2All evidence obtained as a result of the search of the motor vehicle bearing SA registration S322BOD.
The grounds relied upon were, respectively:
1The accused was detained without lawful authority prior to any search.
2The vehicle was detained without lawful authority prior to any search.
Voir Dire
A voir dire hearing was held on 20 and 23 March 2020. At the commencement of the voir dire, counsel for the accused said that the application ‘revolves around a challenge to the search that was conducted of [the accused]’. Defence counsel accepted that if the search of the accused was lawful then it followed that the search of the vehicle was also lawful. However, defence counsel contended that if the search of the accused was declared to be unlawful, this should result in a finding that the subsequent search of the vehicle was also unlawful.
The prosecution called two witnesses on the voir dire, Senior Constable Mark Daniel Legutko and Senior Constable Ryan Stewart.
On the voir dire, there was no real challenge to the evidence of the two police officers. Rather, it was contended that the following findings should be made based on that evidence: firstly, although the vehicle in which the accused was a passenger could have been stopped pursuant to provisions in the Road Traffic Act 1961 (SA) (“RTA”), the police did not purport to stop the vehicle pursuant to those provisions and secondly, the officer who searched the accused did not entertain the requisite state of suspicion to justify the search.
The evidence led on the voir dire was as follows.
On 16 June 2018 Senior Constable (then Constable First Class) Legutko was on uniform mobile patrol with Senior Constable Stewart. Senior Constable Stewart was driving the marked police vehicle. They were performing general duty patrols in the Blakeview area, including the Blakeview Shopping Centre complex. As they were travelling southbound along Park Terrace, Legutko saw a vehicle travelling quickly along Queensborough Way, a street running parallel to Park Terrace. Police continued southbound and slowed at the junction of Adamson Street. As Senior Constable Legutko looked down Adamson Street he saw a white Holden Commodore turn left extremely quickly into Minto Street, without indicating. The police vehicle then turned right onto Adamson Street and then right onto Minto Street. The white Holden Commodore registration, S322BOD, was parked on a 45 degree angle near the driveway of 11 Minto Street. The nose of the vehicle was closer to the kerb than the rear. The rear passenger door opened and a male holding a pizza box looked in the direction of the police vehicle and then exited rapidly, went across the lawn, through an open roller door at 11 Minto Street and then immediately pulled the roller door down. At this stage the lights and sirens on the police vehicle had not been activated. Senior Constable Legutko said that the actions of this passenger raised a suspicion in his mind in relation to that male and the vehicle generally.
Senior Constable Legutko then conducted a registration check on the vehicle and discovered that it was a vehicle that had been hired from Adelaide Airport. This information created further suspicion in Senior Constable Legutko’s mind because, in his experience, hire vehicles were used by people to avoid identification and this vehicle was in a suburban backstreet late at night. He said that ninety-nine point nine percent of the time that he has investigated the driver or occupants of a hire vehicle, one or more of those persons was suspected of having committed an offence. He said there were numerous prior occasions when this had occurred. He also said that often the driver of a hire vehicle was driving without a licence, driving whilst disqualified or had breached his bail.
After the registration check was conducted, the police emergency lights were activated and the police vehicle pulled up alongside the white Holden Commodore. Senior Constable Legutko said that the purpose of activating the police lights was to conduct a traffic stop in order to identify the driver of the vehicle and to ensure that the driver had a valid licence. The reason for stopping alongside the subject vehicle was to enable a visual identification to be made of the driver, in the event that the vehicle drove away.
Once police were alongside the subject vehicle, Senior Constable Legutko wound down his window and saw an obese bald man seated in the driver’s seat and a female in the passenger seat who he identified in court as the accused. The driver was holding a pizza box. Senior Constable Legutko said ‘good evening, what are you guys up to?’ The driver looked at the accused and then looked back at Senior Constable Legutko and said ‘what are we doing babe, we just pulled up to deliver a pizza’. Senior Constable Legutko then said ‘delivery driver?’ and the driver replied ‘yeah we’re an uber driver and deliver pizzas’. Senior Constable Legutko then said ‘okay do you have your licence on you’ and the driver said no. Senior Constable Legutko then asked his name and was told ‘Roberto Votino’.
Senior Constable Legutko then input that name into the police computer system and received information that ‘Roberto Votino’ was an alias for Vince Votino. Senior Constable Legutko said that the use of a false name raised a suspicion that the driver may be wanted for an offence. Further interrogation of the police computer system revealed that Vince Votino’s licence had been cancelled and there were various warnings including ‘may be armed’, ‘OMCG associate’ and ‘may be violent’. The system also revealed that Votino was the subject of a firearms prohibition order.
Senior Constable Legutko then determined to utilise s 40J RTA and directed the driver to move the vehicle as no other vehicles could get past. He said something similar to ‘pull the vehicle up there please we will conduct some further checks’. He explained that he also gave this direction in order for further checks to be conducted on the identity of the driver, including a photo identification, further checks on licence status and checks to determine whether Votino was wanted for any other offences.
Following this direction, the white Holden Commodore started to move forward. Senior Constable Legutko then exited the police vehicle and started to walk towards the Commodore. He did so in order to assess the demeanour of the people in the vehicle and whether there was any indication that the vehicle may drive off. As he walked towards the vehicle, he saw the accused start to bend down from her seat towards the footwell. She appeared to be fidgeting around in the footwell. Having made these observations, Senior Constable Legutko became concerned that the accused may have been reaching for a weapon and he started to walk more quickly toward the vehicle. As he did so he looked through the rear passenger window and saw the accused was still bending down towards the footwell. She then sat back up and her hands were holding her stomach over her jacket. He could see a bulge in her jacket.
Once he had seen the bulge in her jacket, Senior Constable Legutko opened the front passenger door with the intention of searching the accused. He did so because he suspected that she had an object on her person that constituted an offence. He did not know if it was a weapon or drugs but he had a suspicion ‘that something was not right, and I was concerned about my operational safety as well, that there could possibly be a weapon’.[1] He said the basis for his suspicion was the manner of driving of the vehicle, its positioning on Minto Street, the way in which the male passenger exited, the fact that it was a hire vehicle, the time of night and location, the false name given by the driver and his observations of the accused and her behaviour in the vehicle and the bulge in her jacket. He said that he was exercising the power of search under s 68 of the Summary Offences Act 1953 (SA) (“SOA”).
[1] T 24, lines 35-38
After forming this suspicion, Senior Constable Legutko opened the door and asked the accused what her name was. He then directed her to get out of the vehicle. Upon exiting the vehicle, the accused was still holding her hands at the base of the bulge in her jacket. Senior Constable Legutko asked the accused what was under the jacket and to show him her hands. She did not do so and instead started to shake and cry and look towards Votino who was now outside the vehicle. When she did not respond he again asked her to show him her hands because he did not want her reaching inside the jacket and he thought the item might fall out if she lifted her hands up. He described the bulge as significant, approximately 10-15cm long and 5-10 cm wide.
When the accused still failed to respond to his requests, Senior Constable Legutko unzipped her jacket and found a large clear tub containing a white substance which he suspected to be methylamphetamine and a large brick shaped object which was an amount of money wrapped in glad wrap.
Senior Constable Legutko explained that he unzipped the accused’s jacket because she had not complied with his instructions, and he had no idea what was underneath her jacket and wanted to see what was hidden. Once he observed that it was not a weapon, he stopped searching her. He then cautioned her and activated his body worn video camera.
As a result of finding the tub in which he suspected there was methylamphetamine, Senior Constable Legutko utilised s 52 of the Controlled Substances Act 1984 (SA) to search the vehicle. The accused was then arrested.
Senior Constable Legukto’s partner, Senior Constable Stewart also gave evidence on the voir dire. He said he was driving the marked police vehicle. He said that the manner of driving of the white Holden Commodore was suspicious. He said that the failure to indicate when turning onto Minto Street was sufficient for him to have performed a traffic stop.
As a result, Senior Constable Stewart followed the subject vehicle and located it parked on an angle outside 11 Minto Street. Senior Constable Stewart drove the police vehicle into a position alongside the Holden Commodore in order to visually identify the driver as the computer checks had revealed that the vehicle was a hire vehicle. He said that in his experience hire vehicles were used by people who were not licensed and were likely to be in the area for criminal purposes.
After the checks revealed the driver had given an alias name and his licence had been cancelled, Senior Constable Stewart suggested to Senior Constable Legutko that the police vehicle move up to enable a vehicle behind it to pass. He expected Senior Constable Legutko to direct the driver to move his vehicle to facilitate that. Senior Constable Legutko then exited the vehicle to escort the subject vehicle forward a couple of metres. After parking the police vehicle Senior Constable Stewart got out intending to speak to the driver regarding the giving of a false name and driving without a licence. Pursuant to s 40K RTA, Senior Constable Stewart directed the driver to exit the vehicle. At that time, Senior Constable Stewart was aware that Senior Constable Legutko was directing the accused to exit the passenger seat of the vehicle.
Relevant legislative provisions
I set out the relevant statutory provisions as they existed in June 2018.
Section 96 of the Motor Vehicles Act 1959 (SA) (“MVA”) provided:
96—Duty to produce licence or permit
(1)The driver of a motor vehicle, if requested by a police officer to produce the driver's licence or learner's permit, must produce the licence or learner's permit either—
(a)     forthwith to the police officer who made the request; or
(b)     within 48 hours after the making of the request, at a police station conveniently located for the driver, specified by the police officer at the time of making the request.
Maximum penalty: $1 250.
(2) A document purporting to be signed by the Commissioner of Police and purporting to certify that a licence or learner's permit has not been produced as required by this section is, in the absence of proof to the contrary, proof of the matter purporting to be so certified.
(3) A person must not falsely represent to a police officer that the person is the person named in a licence or learner's permit.
Maximum penalty: $750.
(4)In this section—
driver includes—
(a)     a person sitting next to the holder of a learner's permit in a vehicle being driven by the holder of the permit;
(b)     a person being carried as a passenger on, or in a sidecar attached to, a motor bike being driven by the holder of a learner's permit;
police officer includes an authorised officer.
Section 74AB of the Summary Offences Act 1953 (“SOA”) provided:
74AB—Questions as to identity of drivers etc
(1)A police officer may ask a person questions for the purpose of obtaining information that may lead to the identification of the person who was driving, or was the owner of, a vehicle on a particular occasion or at a particular time.
(2) A person who—
(a)   refuses or fails, without reasonable excuse, to answer a question under subsection (1); or
(b)   in response to a question under subsection (1) gives an answer that is false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
(3) A police officer who has asked a person a question under this section is required to comply with a request to identify himself or herself, by—
(a) producing his or her police identification; or
(b)         stating orally or in writing his or her surname, rank and identification number.
S 40H Road Traffic Act 1961 (“RTA”) provided:
40H—Direction to stop vehicle to enable exercise of other powers
(1) An authorised officer may, for the purpose of or in connection with exercising other powers under a road law, direct—
(a)     the driver of a vehicle to stop the vehicle; or
(b)     the driver of a vehicle or any other person not to do one or more of the following:
(i) move the vehicle;
(ii) interfere with it or any equipment in or on it;
(iii)interfere with its load.
(2) A direction to stop a vehicle may require that it be stopped without delay, or that it be stopped at the nearest place for it to be safely stopped as indicated by the authorised officer.
(3) A direction to stop the vehicle, or not to move it, or not to interfere with it or any equipment in or on it or with its load, does not prevent an authorised officer from giving the driver or another person any later inconsistent directions under a road law or any other law.
(4) A direction ceases to be operative to the extent that an authorised officer—
(a)     gives the driver or other person a later inconsistent direction; or
(b)     indicates to the driver or other person that the direction is no longer operative.
(5) A person commits an offence if—
(a)     the person is subject to a direction under subsection (1); and
(b)     the person engages in conduct that results in a contravention of the direction.
Maximum penalty: $5 000.
(6) In this section
stop a vehicle means to stop the vehicle and keep it stationary.
Section 40J RTA provided:
40J—Direction to move vehicle if danger or obstruction
(1) This section applies if an authorised officer believes on reasonable grounds that a light vehicle on a road is—
(a) causing serious harm, or creating an imminent risk of serious harm, to public safety, the environment or road infrastructure; or
(b) causing or likely to cause an obstruction to traffic or any event lawfully authorised to be held on the road; or
(c) obstructing or hindering, or likely to obstruct or hinder, vehicles from entering or leaving land adjacent to the road.
(2) The officer may direct the driver or operator of the vehicle to do either or both of the following:
(a) to move it, or cause it to be moved, to the extent necessary to avoid the harm or obstruction;
(b) to do anything else reasonably required by the officer, or to cause anything else reasonably required by the officer to be done, to avoid the harm or obstruction.
(3) A person commits an offence if—
(a) the person is subject to a direction under subsection (2); and
(b) the person engages in conduct that results in a contravention of the direction.
Maximum penalty: $5 000.
(4) In proceedings for an offence in relation to the contravention of a direction under subsection (2)(a), it is a defence if the person charged establishes that—
(a) it was not possible to move the vehicle concerned because it was broken down; and
(b) the breakdown occurred for a physical reason beyond the driver's or operator's control; and
(c) the breakdown could not be readily rectified in a way that would enable the direction to be complied with within a reasonable time.
Section 40K RTA provided:
40K—Direction to leave vehicle
(1) This section applies if—
(a) the driver of a vehicle fails to comply with a direction given by an authorised officer under another provision of this Subdivision; or
(b) an authorised officer believes on reasonable grounds that the driver of a vehicle is not qualified, is not fit or is not authorised to drive the vehicle.
(2) The officer may do one or more of the following:
(a) direct the driver to vacate the driver's seat;
(b) direct the driver to leave the vehicle;
(c) direct the driver not to occupy the driver's seat until permitted to do so by an authorised officer;
(d) direct the driver not to enter the vehicle until permitted to do so by an authorised officer.
(3) The officer may direct any other person to do either or both of the following:
(a) to leave the vehicle;
(b) not to enter the vehicle until permitted to do so by an authorised officer.
(4) The officer, being a police officer, may do one or more of the following if the officer believes on reasonable grounds that the driver is not fit to drive the vehicle because of the consumption of alcohol or a drug:
(a) direct the driver to secure the vehicle and surrender to the officer all keys to the vehicle that are in the person's immediate possession or in the vehicle;
(b) immobilise the vehicle;
(c) direct the driver not to drive any other vehicle until permitted to do so by a police officer.
(5) A person commits an offence if—
(a) the person is subject to a direction under this section; and
(b) the person engages in conduct that results in a contravention of the direction.
Maximum penalty: $5 000.
(6) If a police officer takes possession of keys or (in order to immobilise the vehicle) components of a vehicle, the officer must—
(a) advise the driver that the keys or components may be recovered from a specified police station; and
(b) cause the keys or components to be taken to the police station.
(7) A police officer on duty at the police station to which the keys or components are taken under this section must deliver possession of the keys or components to any person who the officer is satisfied is lawfully entitled to them and who makes a request for them at the police station, provided that the officer has no reason to believe that the person will drive the vehicle but not be qualified or fit to do so.
(8) In this section—
keys means keys or electronic or other devices for starting or securing a vehicle.

Section 40V RTA provided:
40V—Direction to give name and other personal details
(1) In this section—
personal details, in relation to a person, means—
(a) the person's full name; and
(b) the person's date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person's business address.
(2) If an authorised officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a) is or may be a responsible person; or
(b) has committed or is committing or is about to commit an Australian road law offence; or
(c) may be able to assist in the investigation of an Australian road law offence or a suspected Australian road law offence; or
(d) is or may be the driver or other person in charge of a vehicle that has been or may have been involved in an accident,
the officer may direct the person to give the officer then and there any or all of the person's personal details.
(3) If an authorised officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.
(4) A person commits an offence if—
(a) the person is subject to a direction under subsection (2) or (3); and
(b) the person—
(i) engages in conduct that results in a contravention of the direction; or
(ii) gives any detail that is false or misleading in a material particular in purported response to the direction; or
(iii) produces any evidence that is false or misleading in a material particular in purported response to the direction.
Maximum penalty: $5 000.
(5) Subsection (4)(b)(iii) does not apply if the person has a reasonable excuse.
(6) In proceedings for an offence of contravening a direction under subsection (2) in relation to a failure to state a business address, it is a defence if the person charged establishes that—
(a) the person did not have a business address; or
(b) the person's business address was not connected (directly or indirectly) with road transport involving vehicles.
Section 68 SOA provided:
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.
Analysis
Strictly speaking, s 40H RTA was not utilised by either officer, as a traffic stop was not performed in this matter. This was because the subject vehicle was already stationary when the police vehicle pulled up alongside it. However, the evidence of both Senior Constable Legutko and Senior Constable Stewart was that the purpose of pulling up alongside the subject vehicle was to identify the driver in order to ensure that he held a valid driver’s licence.[2] After some preliminary questions Senior Constable Legutko asked the driver ‘Okay do you have your licence on you?’. I find that Senior Constable Legutko was authorised by s 96 MVA to ask the driver to produce his licence.
[2] T 15, lines 4-7
When the driver replied no, Senior Constable Legutko asked ‘what’s your name?’. Section 40V(2)(a) RTA authorises a police officer who suspects on reasonable grounds that a person may be a responsible person, as defined, to direct that person to provide his personal details. A person sitting in the driver’s seat of a vehicle parked at the roadside is plainly a responsible person.[3] Further, s 74AB SOA authorises a police officer to ask a person questions that may lead to the identification of the person who was driving the vehicle on a particular occasion or at a particular time. Accordingly, I find that Senior Constable Legutko was authorised to ask this question and that the driver was obliged to answer it.
[3] R v Dam & Nguyen [2015] SASCFC 131 at [27]
After this question had been asked, Senior Constable Stewart became aware that the path of a vehicle that was approaching from behind was obstructed by the positions of the subject vehicle and the police vehicle because there was a vehicle parked in the opposite lane. Senior Constable Stewart gave evidence that he then suggested to Senior Constable Legutko that the police vehicle move up less than 5 metres to allow the vehicle to pull in front. He expected that Senior Constable Legutko would direct the driver to move the subject vehicle forward a number of metres to facilitate that. Senior Constable Legutko specifically referred to s 40J RTA as the source of power for him to direct the driver to move the vehicle forward. I find that s 40J RTA authorised both officers to direct the vehicle to move forward.
It was during the course of the exercise of this power, that Senior Constable Legutko made observations of the accused in the passenger seat. It was contended by counsel for the accused that those observations were an insufficient basis for Senior Constable Legutko to have reasonable cause to suspect that the accused had an object on her person possession of which constituted an offence or was evidence of the commission of an indictable offence.
The concept of reasonable suspicion was discussed by the High Court in George v Rockett (1990) 170 CLR 104 at 115. It was said that suspicion and belief are different states of mind. The Court referred to the statement by Lord Devlin in Hussien v Chong Fook Cam [1970] AC 942 at 948 that suspicion ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”. The Court observed that facts capable of grounding a reasonable suspicion might be quite insufficient to reasonably ground a belief. The Court also quoted with approval the statement of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 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’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
In R v Nguyen (2013) 117 SASR 432 the Court of Criminal Appeal said:
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.[4]
[4] At [21]
The Court then discussed the requirement that the suspicion be reasonable:
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.[5]
[5] At [22]
Defence counsel contended that Senior Constable Legutko could not have entertained the requisite suspicion under s 68 SOA. This, it was said, was because Senior Constable Legutko did not observe the accused actually secrete any item under her jacket and further, the observation of a large item being concealed under the accused’s jacket was insufficient to form the requisite state of mind under s 68 SOA.
I disagree.
At the point in time when Senior Constable Legutko approached the vehicle, he was acting lawfully pursuant to s 40J RTA. His fortuitous observations of the accused in the passenger seat occurred whilst exercising a lawful power. It is important to note that it is not improper for a police officer to make a request of a person, in circumstances in which a duty to comply with the request will arise, and at the same time be alert to other proper policing objectives.[6]
[6] R v Neal (2017) 128 SASR 20 at [25]
Senior Constable Legutko was suspicious of the vehicle and its occupants, based upon his observations of its manner of driving and the manner in which one of the occupants departed. There was nothing unlawful about the manner in which the information underpinning his suspicions was gathered. I have already found that the earlier actions of the police officers were lawful, in so far as the questions directed at the driver of the vehicle were authorised pursuant to any and all of the following legislative provisions: s 74AB SOA, s 96 MVA and s 40V RTA.
Senior Constable Legutko gave clear and careful evidence that he suspected that the accused had an object on her person that constituted an offence. He did not know if it was a weapon or drugs but he had a suspicion ‘that something was not right, and I was concerned about my operational safety as well, that there could possibly be a weapon’.[7] He said the basis for his suspicion was as follows:
1The manner of driving of the vehicle;
2Its positioning on Minto Street parked across a driveway at a 45 degree angle;
3The rapid exit of the male rear passenger into 11 Minto Street via an open roller door after having sighted the police vehicle;
4The fact that it was a hire vehicle in that area at that time of night and his experience of offences associated with occupants of hire vehicles;
5The fact that the driver gave a false name;
6The observations of the accused reaching down into the footwell and moving her arms around;
7The presence of a sizeable bulge in the accused’s jacket when she sat back up in her seat;
8The observation of the accused holding her hands against her jacket cradling the item inside her jacket.
[7] T 24, lines 35-38
In my view, taken together, those facts were such as to amply justify Senior Constable Legutko’s suspicion that the accused had on her person or in her possession an object that constituted an offence. Although Senior Constable Legutko said he did not know whether the accused had a weapon or drugs he nevertheless had a suspicion that the accused ‘had an object which constituted an offence’.[8] In my view, that suspicion was a reasonable one.
[8] T 24, lines 32-33
Accordingly, I find that the search of the accused was lawful.
I further find that it was reasonable for Senior Constable Legutko to suspect that the tub located on the accused contained methylamphetamine or, at the least, a controlled drug. As a result, the power to search the vehicle pursuant to s 52 of the Controlled Substances Act 1984 (SA) was enlivened.
Accordingly, I find that the search of the vehicle in which the accused had been a passenger was also lawful.