R v Than - [2024] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THAN
[2024] SADC 31
Reasons for Ruling of her Honour Judge Schammer
28 March 2024
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
The accused, Tri Khang Than (Than) is charged with the one count of trafficking in a large commercial quantity of a controlled drug pursuant to s 32(1) of the Controlled Substances Act 1984 (‘the Act’).
On 20 May 2020, police operatives were conducting covert surveillance of a property at 225 Torrens Road, West Croydon (the property), being a property linked to a suspected drug dealer. The surveillance was being undertaken in accordance with a Tactical Operations Order (TAC order), which listed, as a secondary or contingency plan, a plan to conduct a ‘controlled traffic stop’ on a vehicle which had attended at the property to ascertain if a drug deal had taken place.
At approximately 4:49pm that day, surveillance operatives observed a black Toyota Camry sedan SA Reg: S188ADS (the vehicle) parked in the driveway of the property.
Officer Hazel (Hazel) and Officer Glasson (Glasson) were parked in a ‘stop car’ in a suburban street near the property. They received advice from surveillance operatives that the vehicle was at the property. Hazel conducted checks on the vehicle and ascertained that its registered owner was a female. He conducted checks on an address connected to that female, which identified the accused. He then conducted checks on the accused, which revealed a warning flag for drugs and a history of drug-related searches. Hazel and Glasson determined to stop the vehicle in accordance with the contingency plan as outlined in the TAC order.
Officer Metschke (Metschke) and Officer Widdrington (Widdrington) were in another police vehicle nearby. Glasson contacted Metschke and Widdrington via police radio. He informed them that the vehicle was at the property and that ‘they’ wanted to stop the vehicle. Shortly thereafter, Glasson and Hazel became caught up in traffic and asked Metschke and Widdrington if they were able to get to the vehicle. The results of the checks conducted by Hazel were not communicated to Metschke and Widdrington at this time.
Shortly prior to 5:13pm, the vehicle was stopped in Rickaby Street, West Croydon by Metschke and Widdrington. The accused was driving the vehicle. After obtaining the accused’s personal particulars, identification and having a brief conversation with him, Metschke informed the accused that police intended to search him and the vehicle under s 52 of the Act.
It is alleged that Than told Metschke, on more than one occasion, that he did not consent to either search and flexed his arms in order to render the police task more difficult. Metschke then arrested Than for hindering a search under s 52D(3) of the Act and handcuffs were applied to him (the arrest).
Thereafter, Widdrington spoke to Gabel via the police radio to conduct checks on Than. Gabel informed Widdrington that Than had warnings for drugs, that he may be armed and that he had been arrested on 14 February of the previous year.
After the arrest, but prior to providing Than with his arrest rights, Metschke and/or Widdrington had a conversation with Than whereby he allegedly denied having been arrested on any prior occasion.
Shortly thereafter, Hazel and Glasson arrived at Rickaby Street. They received a verbal briefing from Metschke and Widdrington as to the circumstances of the arrest.
Thereafter, Hazel and Glasson searched the vehicle, relying on the power provided for under s 52(9) of the Act.
During the search, a backpack was found in the rear passenger footwell of the vehicle behind the passenger seat. In the backpack were four bundles, including one wrapped in a paper towel. It is alleged those four bundles contained substances weighing 166 g, containing methylamphetamine.
Several hours later, the backpack was further examined by Widdrington and allegedly found to also contain another much larger bundle, also containing methylamphetamine. It is alleged that in total, the backpack contained 1.041 kg of methylamphetamine.
Than filed an application pursuant to r 49(1)(h) of the District Court Rules 2014 seeking to exclude the evidence of the search of the vehicle on the basis that the search was unlawful in that:
1. The vehicle was unlawfully stopped under s 52(9) of the Act, rather than under the Road Traffic Act 1959 (RTA), as claimed by Metschke.
2.      The arrest was unlawful, either because there was no basis in law for it and/or it was undertaken for a collateral purpose, namely, to facilitate an unlawful search.
3. Than was improperly questioned prior to being given his arrest rights pursuant to s 79A of the Summary Offences Act 1953.
4. It was always intended for the vehicle to be stopped and searched as part of the investigation, which had another alleged offender as its focus, and/or that any search was commenced by Metschke and/or Widdrington, (not Hazel and/or Glasson), at a time when neither officer had sufficient material to form any reasonable suspicion within the meaning of s 52(9) of the Act.
In addition, it was submitted that Metschke and Widdrington had together determined to falsify the sequence of events in their notes, and in their initial statements, to give the impression that Widdrington had conducted certain checks on Than, prior to the arrest, to artificially bolster the foundation for any claimed reasonable suspicion held by them, or anyone, to conduct the search in accordance with s 52(9).
It was further submitted that this conduct, and other improper conduct including the sharing of notes and other material by the various officers involved, was condoned and encouraged by the Serious and Organised Crime Branch (SOCB), such that the Court should exercise its discretion to exclude the evidence.
Held:
1. The vehicle was stopped in accordance with the contingency plan and therefore under s 52(9)(a) of the Act, rather than under the RTA.
2. At the time the vehicle was stopped, none of the relevant officers had a reasonable suspicion that there was any substance or equipment that would afford evidence of an offence against the Act in the vehicle.
3.      The search commenced at the time the vehicle was stopped.
4.      The search was unlawful.
5.      The notes and initial statements made by both Metschke and Widdrington contained the same error as to sequence insofar as they read as if the checks conducted by Widdrington with respect to the accused occurred prior to his arrest for hindering the search. They also contained the same error as to the time the vehicle was said to have stopped and did not include the time of the arrest.
6.      Having regard to all of the evidence, the Court finds that the similarity in terms of the errors and omissions in the notes made by Metschke and Widdrington is the product of them deliberately crafting their notes to falsely give the impression that events had occurred in a certain order, in an attempt to legitimise the search. The same errors and omissions then carried over into each officer’s initial statement, and only came to light after defence counsel insisted on the production of records including those relating to Police Radio Communications on the relevant date and results of enquiries conducted on Shield by the officers on the relevant date.
7.      Notwithstanding the seriousness of the offending, and that the evidence falls short of establishing that this conduct was condoned or known to those in higher positions of authority within the SOCB, the evidence of the search is excluded in the exercise of the discretion.
Controlled Substances Act 1984 (SA) ss 32(1), 52, 52(6), 52(9), 52(9)(a), 52(9)(b), 52D, 52D(3), 52D(3)(a); Road Traffic Act 1961 (SA) ss 40H, 40H(1)(a), 40V, 40V(3); Summary Offences Act 1953 (SA) s 79A; Controlled Substances Act 1984 (SA) ; Motor Vehicles Act 1959 (SA) ss 96, 96(1), referred to.
R v Rogers (2011) 109 SASR 307; R v Willingham (No.2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; McLachlan v Opie (1957) SASR 53; R v Marafioti (2014) 118 SASR 511; R v AS and Raynor (No 1) [2023] SADC 60; R v Dam & Nguyen; Case Stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131; Schatto v The King [2022] SASCA 129; Zenuni v The King [2022] SASCA 106; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Golja [2017] SASCFC 61; Ghamrawi v The Queen [2019] SASCFC 108; R v Rockford [2015] SASCFC 51, considered.

R v THAN
[2024] SADC 31
[Criminal]
Introduction/Relevant Background

The accused, Tri Khang Than (Than) is charged with the one count of trafficking in a large commercial quantity of a controlled drug pursuant to s 32(1) of the Controlled Substances Act 1984 (‘the Act’).
On 15 May 2020, a briefing was conducted, attended by various police officers, relating to an investigation with respect to Quy Van Nghiem (Nghiem), (the Nghiem investigation). Nghiem was suspected of being involved in the cultivation of a large cannabis crop found at Virginia and in other drug trafficking activities.
During that briefing, those present were made privy to a Tactical Operations Order (the TAC Order) prepared by Officer Hazel with respect to the Nghiem investigation.[1]
[1] The TAC order was not in evidence but was the subject of much oral evidence.
The TAC Order outlined both a primary and secondary (or contingency) plan with respect to the Nghiem investigation. The goal of each plan was to generate reasonable suspicion under s 52(9) of the Act to search a property linked to Nghiem at 225 Torrens Road, West Croydon (the property).
The primary plan was to conduct observations of the property to detect Nghiem leaving the property and dealing in drugs away from the property. If Nghiem did not leave the property, but other vehicles or persons attended the property, the secondary plan was to conduct a ‘controlled traffic stop’ of one of those vehicles to ascertain if a drug deal had taken place.
On 20 May 2020, police operatives were conducting covert surveillance of the property as part of the Nghiem investigation. Other police officers were parked in ‘stop cars’ in the surrounding streets, waiting to receive advice from surveillance operatives.
At approximately 4:49pm that day, surveillance operatives observed a black Toyota Camry sedan SA Reg: S188ADS (the vehicle) parked in the driveway of the property.
Officer Hazel (Hazel) and Officer Glasson (Glasson) were parked in a ‘stop car’ in a suburban street near the property, on the northern side of Torrens Road. They received advice from surveillance operatives that the vehicle was at the property. Hazel conducted checks on the vehicle and ascertained that its registered owner was a female. He conducted checks on an address connected to that female, which identified the accused. He then conducted checks on the accused, which revealed a warning flag for drugs and a history of drug related searches. Hazel and Glasson determined to stop the vehicle in accordance with the contingency plan as outlined in the TAC Order.
Officer Metschke (Metschke) and Officer Widdrington (Widdrington) were in another police vehicle on the southern side of Torrens Road, in Brown Lane, adjacent Carnarvon Reserve.
Glasson contacted Metschke and Widdrington via police radio. He informed them that the vehicle was at the property and that ‘they’ wanted to stop the vehicle. Shortly thereafter, Glasson advised that he and Hazel were caught up in traffic and asked Metschke and Widdrington if they were able to get to the vehicle.
Shortly prior to 5:13pm, the vehicle was stopped the vehicle in Rickaby Street, West Croydon by Metschke and Widdrington. The accused was driving the vehicle. Metschke informed the accused that police intended to search him and the vehicle under s 52 of the Act.
It is alleged that Than told Metschke, on more than one occasion, that he did not consent to either search. Metschke then arrested Than for hindering a search under s 52D(3) of the Act and handcuffs were applied to him (the arrest). Thereafter, Widdrington spoke to Officer Gabel (Gabel) via the police radio to conduct further checks on Than.
Prior to providing Than with his arrest rights, Metschke and/or Widdrington had a conversation with Than whereby he allegedly denied having been arrested on any prior occasion.
Shortly thereafter, Hazel and Glasson arrived at Rickaby Street. They received a verbal briefing from Metschke and Widdrington as to the circumstances of the arrest.
Thereafter, Hazel and Glasson searched the vehicle, relying on the power provided for under s 52(9) of the Act.
During the search, a backpack was found in the rear passenger footwell of the vehicle behind the front passenger seat. In the backpack were four bundles, including one wrapped in a paper towel. It is alleged those four bundles contained substances weighing 166 g, containing methylamphetamine.
Several hours later, the backpack was further examined by Widdrington and allegedly found to also contain another much larger bundle, also containing methylamphetamine. It is alleged that in total, the backpack contained 1.041 kg of methylamphetamine.
Application
Than filed an application pursuant to r 49(1)(h) of the District Court Rules 2014 seeking to exclude the evidence of the search of the vehicle on the basis that the search was unlawful.
The onus rests on Than to establish on the balance of probabilities the reason or reasons for exclusion of this evidence.
There are four bases upon which it is submitted that the evidence of the search should be excluded, namely that:
1.The vehicle was unlawfully stopped under s 52(9) of the Act, rather than under the Road Traffic Act, as claimed by Metschke.
2.The arrest was unlawful, either because there was no basis in law for it and/or it was undertaken for a collateral purpose, namely, to facilitate an unlawful search.
3.Than was improperly questioned prior to being given his arrest rights pursuant to s 79A Summary Offences Act 1953 (SOA).
4.The search was unlawful as either it was always intended for the vehicle to be stopped and searched as part of the Nghiem investigation and/or that any search was commenced by Metschke and/or Widdrington, (not Hazel and/or Glasson), at a time when neither officer had sufficient material to form any reasonable suspicion within the meaning of s 52(9) of the Act.
In addition, it was submitted that Metschke and Widdrington had together determined to falsify the sequence of events in their notes, and in their initial statements, to give the impression that Widdrington had conducted certain checks on Than, prior to the arrest, to artificially bolster the foundation for any claimed reasonable suspicion held by them, or anyone, to conduct the search in accordance with s 52(9).
It was further submitted that this conduct, and other improper conduct including the sharing of notes and other material by the various officers involved, was condoned and encouraged by the Serious and Organised Crime Branch (SOCB), such that the Court should exercise its discretion to exclude the evidence.
Voir Dire
The application was heard on a voir dire which was listed for one to two days but ultimately proceeded over 14 separate days, between 2 March 2023 and 25 September 2023.
During the voir dire, the court heard evidence from Metschke, Widdrington, Hazel and Glasson.
Numerous exhibits were received, including:
·A disc (and corresponding transcript) of GRN Radio Communications P220 on 20 May 2020 between 4:55pm and 5:42pm (the Police Radio Communications).[2]
·NICE Inform incident distribution document which lists the time of each of the transmissions in the Police Radio Communications.[3]
·Facts of Charge for the offence under s 52D(3)(a) of the Act.[4] The narrative for the Facts of Charge was completed by Hazel, relying in part upon information provided to him by Metschke and/or Widdrington.
·Email from Glasson to Metschke, Widdrington, Hazel and Gabel dated 29 November 2022.[5] The email contained a copy of a statement prepared by S/C McGreevy identifying the checks conducted by police on Shield on 20 May 2020 relevant to the vehicle and to Than. That statement was not in evidence. I will refer to that material as ‘the Shield Audit’.
·Email from Gabel to Glasson, Metschke and Widdrington dated 24 February 2023 containing a copy of the transcript of the Police Radio Communications.
[2]     Exhibit VDP1 and MFI VDP2.
[3]     Exhibit VDP3.
[4]     Exhibit VDD7.
[5]     Exhibit VDD6.
The following documents were received and admitted de bene esse:
·Notebook entries made by Metschke.[6]
·Affidavits of Metschke affirmed on 15 June 2020 and 28 February 2023.[7]
·Notebook entries made by Widdrington.[8]
[6]     Exhibit VDD9.
[7]     Exhibits VDD14 and VDD15.
[8]     Exhibit VDD19.
These documents were sought to be tendered as to the fact these documents were created, not as to the truth of their contents. I am satisfied the documents are relevant and admissible for this purpose having regard to the specific issues in dispute.
In addition to hearing oral submissions from the parties, the Court has also received and considered a Summary of Argument of the Prosecution dated 11 August 2023 and the various authorities contained in Lists of Authorities provided by both the prosecution and the accused.
Search Power
It was the prosecution case that the vehicle was lawfully searched by Hazel and Glasson pursuant to Section 52(9) of the Act, which provides:
(9)If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this is in any vehicle, vessel or aircraft, the officer may –
(a)     require the driver of the vehicle, master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)     detain and search the vehicle, vessel or aircraft; and
(c)     seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
There are numerous decisions which discuss the concept of what may be a reasonable suspicion for these purposes, as compared to a simple suspicion, or indeed a belief.
In R v Rogers,[9] in discussing s 52(9) of the Act, Justice Duggan said:
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.
[9] (2011) 109 SASR 307, 311-312.
In R v Willingham (No.2)[10] (per Gray, Sulan and Stanley JJ) it was said that the test to be applied by a Judge when determining whether a police officer’s suspicion was reasonable was as follows:
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.
[10] [2012] SASCFC 104, 10.

In R v Nguyen[11] the Court 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.
[11] (2013) 117 SASR 432, 21.
And further, at [22]:
Importantly, s 52(6) and s 52(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 (R v Davidson (1991) 54 SASR 580, 584). 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.
In R v Nguyen,[12] the Court reiterated these principles regarding what constituted a reasonable suspicion.
[12] [2015] SASCFC 7.
If the search of the vehicle was unlawful, that does not render the evidence as to the fruits of the search inadmissible, however I have a discretion to exclude such evidence.
I will return to s 52(9) and its particular application to the facts of this matter, later in my Reasons.
Issues to be Determined
In considering the application, the Court is required to make findings of fact on numerous issues in dispute, some of which are inter-related, namely:
1.Was the vehicle stopped under the RTA or the Act?
2.When did the search of the vehicle commence?
3.Who made the decision to search the vehicle and what information formed the basis for that decision?
4.Was that information sufficient to provide the basis for any ‘reasonable suspicion’ to search the vehicle pursuant to s 52(9) of the Act?
5.Was the arrest lawful?
6.Should evidence of conversations between Metschke and/or Widdrington and the accused after the arrest, but prior to the accused being given his arrest rights, be excluded from the evidence?
7.Are any inaccuracies in the notes and initial statements prepared by Metschke and Widdrington the product of any improper conduct on their part or simply the result of unfortunate human error?
8.Has any improper and/or unlawful conduct on the part of any of the officers involved been condoned and/or encouraged by members of the SOCB?
The Evidence
Officer Metschke
Preliminary Observations
Metschke provided two statements dated 15 June 2020 and 28 February 2023, both of which were in evidence. In addition, a copy of Metschke’s notebook entries, relevant to both the briefing on 15 May 2020 and what occurred on 20 May 2020, were in evidence.
Metschke was extensively cross-examined as to the contents of his statements and notebook entries and specifically as to various alleged inconsistencies in the evidence he gave, when compared to what was in his notes and his first statement, as to the time the vehicle was first stopped by him, the time of the arrest and the sequence of events which occurred on 20 May 2020.
Metschke gave evidence that when he wrote the entries in his notebook as to what had occurred on 20 May 2020, those entries accorded with his recollection of the events of that day. However, he said that when he made his first statement on 15 June 2020, he became confused as to the sequence of events which had occurred on the roadside on 20 May 2020.[13]
[13] T 93.12-18.
Metschke gave evidence that his notes were prepared throughout the shift on 20 May 2020. He then gave the following evidence:[14]
Q.So were they, for example, when we see an entry at 1733, was that entry made at that time.
A.Yes.
Q.And so where we see a time entry, that corresponds with the time of the event and also the time that you made the note; is that correct.
A.Yes.
[14] T 92.36-93.4.
He acknowledged that when completing his notes, he consulted with other police officers about what had occurred. However, he denied that he had done the same when compiling his first statement and said that the statement was a product entirely of his recollection and of his notes of that evening. He denied having sought the assistance of Widdrington to prepare his first statement.[15]
Notebook Entries
[15] T 93.5-28.
It is important to reproduce certain portions of Metschke’s notebook entries to understand the evidence given by him, particularly in cross-examination and to understand the broader context of the argument as developed by defence as to why the evidence of the search should be excluded. Extracts from pages 65, 66 and 67 of that notebook are reproduced below:
Page 65

20/05/20

2DOTFV61 Gabel

2DOTF616 Widdrington

1725

Rickaby Street

West Croydon

S188ADS
Toyota Camry Black

D/L CJ3…

Than Tri Khang

‘John’
23/7/93 (26)

444 Grand Junction Road

Mansfield Park

0416…

1733

Video fault with first camera

Video activated (new camera – working)

Rights
Caution
Does not want to answer questions

Allegations given

1737

Video deactivated

1741

Advised of right to apply for bail

1742

Video reactivated

Advised drug is suspected methamphetamine

Bail right

1743

Video deactivated

1755

CWH

Page 66

Hinder Police / Trafficking

Refusing / preventing search

On the grounds that he “does not consent”

Twice explained s 52 CSA authority and that his consent was not required. Arrested + handcuffed.

Searched and placed in fleet. M/V searched and approx. 4 ounces meth located. Search of M/V by Glasson/Hazel/Widdrington.

1817

Phone placed in flight mode.

Black iphone locked

1825

DNA sample taken

1858

Charged CWH

4 x $100

1 x $50

2 x $20

$490

1901

Cash seized

1942

444 Grand Junction Rd

Mansfield Park

GSW search

Page 67

2055

Search complete

2130

19 Borrakola Street

Pooraka
GSW search (Gabel) …

2230

Base
Data entry of exhibits

PPMS receipt 20/A39996

0109

Drug exhibits with Glasson/Widdrington to MESU

Remaining exhibits to evidence locker 3

Cash to safe evidence locker

CSA suspicions for search

·     Intel from briefing on 15/5/20 by Hazel regarding 225 Torrens Rd West Croydon and Quy Nghiem

·     The brief attendance of Than

·     Than using a vehicle not registered to him

·     Police checks – drug user warning

-     Prior search of H/A located cannabis

-     Prior search of phone showed photos of cannabis crops – suspected ecstasy

·     Stated that he had just been to visit his mother this was known to be false. Challenged and no response

·     D/L photo looked quite different in appearance to Than. Checks done to verify identity. Checks showed he had been previously arrested by Than denied ever being arrested. Concerns held re identity due to this lie.

The notes prepared by Officer Metschke with respect to the briefing on 15 May 2020 are reproduced hereunder.

15/05/20

2DOTF611 Glasson

1550

Briefing Hazel

Nghiem, Quy

225 Torrens Road West Croydon 19 Borakoola Street Pooraka

Re 294 Penfield Rd

Virginia

6,965 plants

45 kgs

2 x fp on heat seal bags of cannabis

2009 grey Liberty

S887ABT

MDMA, Cocaine, Heroin

Evidence – The Briefing on 15 May

Metschke gave evidence that he attended the briefing delivered by Hazel on 15 May 2020 with respect to the Nghiem investigation.
He recorded only brief notes in his notebook with respect to that briefing as other information was included in the TAC Order prepared by Hazel.
Metschke gave evidence that he was provided with a copy of the TAC Order at that briefing but had not kept a copy of it.[16]
[16] T 173.37-175.7.
Metschke was asked to what he could recall in terms of the activity he engaged in, associated with the mission set out in that TAC Order. Specifically, he was asked whether or not he was assigned a role in one of the stop cars. He said:[17]
I don’t remember being assigned a particular role. I remember I was supposed to be assisting Detective Glasson and Senior Constable Hazel.
[17] T 177.5-7.
He then agreed that his role was being in a stop car associated with observations of the property. He agreed that the role of the stop car was to stop vehicles.[18]
[18] T 177.8-22.
Metschke confirmed that the focus of the briefing was an investigation into Nghiem, whose fingerprints had been located on a heat-sealed bag discovered at an address in Virginia where there were also some 7,000 cannabis plants located. He understood that Nghiem had a significant connection to the property at 225 Torrens Road. He also understood from other intelligence holdings that Nghiem was involved in dealing other drugs, recorded in his notes as MDMA, cocaine and heroin.[19]
[19] T 276.28-277.26.
Metschke agreed with a proposition put to him in cross-examination that he knew, either as a result of having been told by Hazel or reading the TAC Order, that intelligence held by SA Police (SAPOL) as at 15 May 2020, with respect to Nghiem, was that he collected drugs from an unknown location on Wednesday night and dealt in those drugs from Thursday onwards.[20] When asked whether that intelligence suggested that Nghiem was probably without a controlled substance on Wednesday 20 May 2020, Metschke said:[21]
No I wouldn’t agree with that. In my experience, typically people want to reload prior to selling all of their drugs.
[20] T 278.10-16.
[21] T 278.36-38.
He was asked if at the time of the briefing, police did not have sufficient basis to execute a general search warrant with respect to the property. Metschke gave the following evidence:[22]
A.That was the view of the person that was intending to use the general search warrant, if appropriate.
Q.And so part of this operation was designed to generate a reasonable suspicion so that 225 Torrens Road could be searched, correct.
A.Yes, that's an accurate reflection of it.
[22] T 279.11-16.
Metschke agreed that the overall goal or mission as outlined in the TAC Order was:[23]
To locate Quy Nghiem after making an exchange and search his vehicle under the Controlled Substances Act.
[23] T 280.32-34.
He agreed that the mission was predicated on Nghiem leaving the house to deal in drugs.[24]
[24] T 281.3-20.
Metschke was asked whether the contingency plan, as outlined in the TAC Order, involved police pulling over cars and searching them. Metschke answered that he was unable to recall precisely what was written in the TAC Order and would need to read it to refresh his memory. He was asked the purpose of a stop car and said it was to stop cars. The following exchange then occurred in cross-examination:[25]
[25] T 281.35-282.21.
Q.And if I was to suggest to you that the stop cars on this occasion were to search cars leaving the premises for the purpose of ascertaining whether or not a drug deal had taken place does that accord with your memory of what your task was on 20 May 2020.
A.Not the way you've phrased it.
Q.And depending on the result of your search, consideration would then be made whether or not to search 225 Torrens Road, is that your recollection of it.
A.Yes, it would be to considered if it was lawful and appropriate to conduct the search.
Q.Isn't it the case that the stop car was simply going to pull over a vehicle leaving 225 Torrens Road and search it irrespective of whether or not reasonable suspicion existed.
A.No, I've previously answered this question several times, the answer is 'no'. A search can only be conducted if I was satisfied that it was lawful and appropriate.
Q.If I was to suggest to you that that was not the case you would disagree with that proposition.
A.I'd disagree and, as I've previously explained, in my view searching any vehicle would be counterproductive to the objective.
Metschke had previously disagreed with a proposition put to him in cross-examination, that police intended to stop and search any car that was seen leaving the property. He said that this was potentially counter-productive, depending on which vehicle was stopped. He said that it was his understanding that they would stop the vehicle, speak with the driver and make an assessment. He said that not every vehicle leaving the address was going to be searched.[26]
[26] T 201.12-202.8.
Metschke agreed that the TAC Order said:[27]
If Nghiem continues to stay at the West Croydon property and other vehicles and people attend, a controlled traffic stop will occur on one of the vehicles leaving the address to ascertain if a deal has taken place. Depending on the result, consideration will be made whether a search of the West Croydon property should occur at that time.
[27] T 283.10-17.
He was again asked, whether it was the case, that police were simply searching cars that left the address in the hope of ascertaining whether or not a deal had taken place. Metschke disagreed with that proposition.[28]
[28] T 283.18-21.
Metschke was asked if he understood what the term ‘controlled traffic stop’ meant, as used in the context of the TAC Order. He said it was not a phrase that he would use and that he had not written the document. He had not sought advice from anyone as to what that phrase meant.
Metschke gave evidence that the only information he had with respect to Nghiem’s alleged involvement in drug activities as at 15 May 2020 was the information he received at the briefing, the TAC Order and that he had acquired from being involved with an attendance at Virginia and the discovery of 7,000 cannabis plants. He did not acquire any additional knowledge as to Nghiem’s practices as a drug dealer between the date of the briefing and 20 May 2020.[29]
[29] T 285.4-21.
It was suggested to Metschke that if that was the case, how could he offer the opinion that Nghiem would have ‘reloaded’ before finishing the sale of his previous batch of drugs. Metschke said that he could not say that with certainty but that it was commonplace.[30] He was asked if he accepted that by a Wednesday evening it was more likely that Nghiem did not have drugs at his house. He said:[31]
I do, with a caveat that excludes the intelligence reports that I also had access to.
[30] T 286.19-25.
[31] T 287.36-37.
When asked what additional intelligence reports he had with respect to Nghiem, he agreed that he could not say with 100% certainty whether there were any such further intelligence documents.[32]
[32] T 291.2-7.
After very lengthy cross-examination on this particular topic, Metschke finally agreed with the proposition that the only information he had with respect to the Nghiem investigation, as at 20 May 2020, was that which he had obtained at the briefing as set forth in his notebook, the information in the TAC Order, what he had gleaned from his involvement attending at the Virginia cannabis crop and that he understood that covert resources were being deployed. He did not have access to any other information relevant to Mr Nghiem.[33]
Between 15 May and 20 May 2020
[33] T 290.2-294.27.
Metschke was cross-examined as to a comment he made over Police Radio Communications with Glasson on 20 May 2020, namely:
Just letting you know me and Dazza propped up in that little park we were last week, so we’re there.
Metschke did not have any notebook entries relevant to his involvement in the Nghiem investigation as between 15 May and 20 May 2020. However, he confirmed that between those two dates, he and Glasson had waited to perform the same function as they were undertaking on 20 May, that is being a stop car. He said, ‘there were no suitable cars to stop, nothing occurred and in my view there was nothing noteworthy to write down’.[34]
[34] T 180.13-18.
He said that as other covert operatives were making notes of the results of their surveillance, there was no need for him to make a note, unless anything specific occurred. However, he agreed with a proposition that the fact nothing of interest had occurred, may also be relevant to any investigation. He agreed that as he had not made a note of his attendance on that occasion, his notes were incomplete.[35]
20 May 2020 – What Happened Roadside
[35] T 181.33-35.
Metschke gave evidence that on 20 May 2020 at approximately 4:50pm, he was with Widdrington at a location in the West Croydon area, when they received some information from other officers. He was uncertain if that information was received via a phone call or radio transmission.
Metschke was questioned as to its contents of the audio recording of the Police Radio Communications.[36] Having had the benefit of hearing that recording, Metschke gave evidence that he received information via police radio with respect to the attendance of a vehicle at the property at around 4:55pm. He was told that the vehicle had only been at the property for a short period of time, was leaving and that he was to facilitate stopping that vehicle. He understood he was utilising the power provided for under the Road Traffic Act 1961 (RTA) in order to stop the vehicle.[37]
[36] Exhibit VDP1.
[37] T 48.26-28.
Metschke gave evidence that he then stopped the vehicle in Rickaby Street, West Croydon.[38] He parked the police vehicle behind the vehicle, approached the driver’s side of the vehicle and spoke to the driver. As it was raining, he suggested that the driver get out. The driver agreed and they both went and stood under a nearby tree.[39]
[38] T 48.31-34.
[39] T 49.11-20.
Metschke said he then had a conversation with the driver, the accused, on several topics. He asked the accused to provide his name, date of birth and address. The accused provided that information.[40]
[40] T 49.30-34; T 50.1-5.
He then requested the accused produce identification to confirm his identity. The accused produced a driver’s licence. He said that when he compared the photograph on that licence to the person in front of him, he became concerned that the accused may have given him false details, as he was not confident it was the same person.[41] He then asked the accused where he had been and what he had been up to. The accused told him that he was just coming from visiting his mum at her house, being an answer that Metschke knew to be false.[42]
[41] T 50.7-23.
[42] T 51.11-24.
Metschke said that he challenged the accused on that answer, told him that that was not true and asked him to explain. He said the accused did not give him an answer and “sort of froze up”.[43] He waited for a response but none came.[44]
[43] T 51.33.
[44] T 51.35.
Metschke gave evidence that he told the accused that it was his intention to search him and his vehicle under the authority provided for in the Controlled Substances Act. When asked how the accused responded, he said:[45]
[45] T 52.9-32.
A.I've proceeded to try and commence the search, he's flexed or tensed his arms and expressed that he doesn't consent to the search.
Q.And what was your response when he said that he did not consent to the search.
A.So I've stopped at that point and I've explained to him that it wasn't an issue of consent, that there was an authority I was going to use and it didn't require him to consent, and that we were going to search him.
Q.Did he respond to your information.
A.He has repeated that he does not consent.
Q.Can you tell us what happened when he said he doesn't consent for the second time, what did you do.
A.So, to be clear, so on the first occasion I informed him he was being searched, we tried to do the search, he said he didn't consent, flexed his arms. Then I explained what was happening. I tried to do the search again and then we repeated that process one more time. So, effectively, the same process occurred again.
Q.After that process what did you do.
A.After trying to facilitate the search three times he's been restrained, handcuffed and arrested.
Q.Did you say three times.
A.Yes.

He explained that the arrest was physical in the sense that the accused’s arms were restrained and handcuffs were placed on him. He was on the right arm of the accused and Widdrington was on the left arm.
Metschke gave evidence that after handcuffs were applied to the accused, Widdrington then conducted some checks over the radio, as recorded in the Police Radio Communications. The results of those checks were that the accused had been arrested previously and had cautions in relation to drugs and for weapons.[46]
[46] T 53.10-19.
Metschke gave evidence that a matter of minutes after handcuffing the accused, Glasson and Hazel attended the scene. He said that while Widdrington was conducting the checks, he had a further conversation with the accused and that after that conversation and those checks, the accused was placed in the rear of the police vehicle.
When Glasson and Hazel arrived, he had a conversation with them. When asked what information was conveyed to them, Metschke said:[47]
A.Basically, the circumstances of what had happened. The parts of what had occurred that day that they weren't aware of.
Q.And that would include the conversation you had with the accused.
A.That would include stopping the accused, the conversations that were had with him, the things that were said that were untrue and the fact that he'd been arrested and what for.
[47] T 54.1-9.
Metschke said that he never conducted a search of the vehicle and that the vehicle was searched by Glasson and Hazel. He was not sure if Widdrington had participated in the search.
He was subsequently informed that a large quantity of drugs had been located inside the vehicle.
Metschke confirmed that the accused was given his arrest rights on video when seated in the police car. The transcript of that recording was tendered on the voir dire as VDP5.
Cross-Examination – Stopping the Vehicle
In cross-examination, Metschke maintained that he pulled the vehicle over, utilising the power provided for in s 40H RTA.
He gave evidence that his understanding was that s 40H RTA gave him the power to stop a vehicle to obtain details of the driver of that vehicle.[48]
[48] T 58.17-29.
He explained that on the day, he took the view that this was Hazel and Glasson’s operation and that he would taking his cues from them. When asked if they had asked him to do something in relation to the investigation, whether he would do it, he said that he would if he felt it appropriate.[49]
[49] T 63.36-38.
Metschke was asked what he understood Glasson to mean when he said over the police radio “we are definitely interested in taking this car”. He was asked whether he understood that meant that he (and Widdrington) would be pulling that car over and he said yes.[50] He further confirmed that when Glasson said to him “let’s try and grab this one boys”, he understood Glasson was asking for them to stop the vehicle and he had no issue with stopping it.[51]
[50] T 64.8-11.
[51] T 65.8-20.
Metschke maintained that it was not his intention to search the vehicle when he stopped it.[52] He disagreed with the proposition that from the moment he was told to stop the vehicle, he intended to search it. He maintained that it would be counter-production to do so and that his only intention was to stop the vehicle.[53]
[52] T 165.6-9.
[53] T 89.5-9: T 90.5-6.
Later in cross-examination, Metschke confirmed that as at 20 May, he had an understanding that s 40V RTA allowed him to require a driver of a vehicle to provide their details and that he was allowed to use s 40H to stop the vehicle to exercise that power. He was asked if in fact it was the case that s 40V RTA only gave power to a police officer to direct a person to produce evidence of their personal details, if they suspected on a reasonable ground that the personal details given by that person, in response to a direction, was false or misleading.
He confirmed that when he spoke to the accused and the accused provided him with his name, he did not, at that stage, suspect that he had provided him with any false particulars.
He then gave evidence that he was uncertain whether the accused had provided him those details independently of the driver’s licence or by way of provision of his driver’s licence. He said he only suspected the details to be false when he compared the photo on the licence to the presentation of the accused. He said that the photo looked quite different in appearance to the accused and that that, coupled with the fact that he had lied during the conversations he had with him, exacerbated his concerns.
Metschke denied that he had revisited the terms of s 40V RTA and denied that he had tailored his evidence to fit with that provision.[54]
[54] T 194.17-196.38; T 199.5-200.35.
Metschke gave evidence that he did not note the time that he pulled the vehicle over in his notebook.[55] He said that when he prepared his first statement, he reviewed his notebook and made an error in terms of interpreting that time to have been 1725, being the time adjacent to the entry in his notebook where he referred to stopping the vehicle. This was the time he had made the entry in the notebook, rather than the time he had stopped the vehicle.[56]
[55] T 60.30-32.
[56] T 257.4-14.
Metschke said that he had corrected this error in his second statement. He maintained that the error as to this time in his first statement, was simply due to a misunderstanding of what was in his notes.[57]
The Arrest
[57] T 272.12-21.
Metschke agreed that he had not made a note of the time that he arrested the accused.[58] He acknowledged that the time of an arrest was an important detail and something that he would usually record in his notebook.[59]
[58] T 60.33-35.
[59] T 59.37-60.2.
He confirmed that the accused was arrested for hindering a search. It was suggested to Metschke that in order to hinder a search, that would require a positive act on the part of the accused. Metschke gave the following evidence:[60]
[60] T 80.33-81.7.
A.My understanding is it needs to make my job substantially more difficult.
Q.But it requires a positive act, doesn't it.
A.Yes.
Q.It requires someone to do something.
A.It required them to do something, yes, I agree with that statement.
Q.So him simply saying that he didn't consent wouldn't make your job substantially more difficult, would it.
A.No.
Q.And so there's no way that he would be charged with hinder if all he had done was say 'I didn't consent'.
A.If that was all he had done, then, yes.
Metschke gave evidence that in this case, that was not all that the accused had done, rather he had provided resistance when Metschke had attempted to commence the search, by flexing his limbs. He described the accused having flexed on three occasions, thus prompting his arrest.
Defence counsel asked Metschke which part of the accused’s body did he flex and when. He said:[61]
His right arm each time I tried to commence the search. I’m not sure what he’s done with the left arm.
[61] T 81.28-29.
Shortly thereafter, Metschke was asked whether he told Widdrington that the reason he had arrested the accused for hindering the search was because of him flexing. Metschke said:[62]
A.In my conversations with Widdrington, he experienced the same thing.
Q.Widdrington told you that he experienced the flexing as well.
A.On the other arm.
Q.On the other arm.
A.Yeah.
[62] T 85.23-29.
He said that it was the flexing that was preventing the search from occurring.[63]
[63] T 81.34-35.
Metschke agreed that nowhere in either of his statements had he mentioned that the accused was flexing. He said he did not feel it necessary to include that detail as the statements were in fact provided as part of the investigation into the major indicatable offence, not the summary offence of hindering a search.[64] He reiterated that in re-examination.
[64] T 82.15-23.
Metschke confirmed that in his first statement he had described the ‘hinder’ in this way:[65]
He refused to comply with the search instead stating ‘I do not consent’. I subsequently twice explained the authority to him and the fact that it did not require his consent, each time the accused refused to comply, instead repeated the same phrase.
[65] T 91.22-30.
He agreed that there was no reference to flexing in that statement, nor any reference in that statement to the accused doing anything that made his job harder.
In addition, Metschke agreed that he would expect that the reason for the accused to be arrested for hindering the search would be recorded in his notes. He gave the following evidence:[66]
[66] T 84.11-32.
Q.Would you expect that given that the flexing is the reason why you say he was hindering your search, that would be recorded in your notes; wouldn't it.
A.Yes, I wrote it down as 'refusing/preventing search'.
Q.So no mention of flexing there, is there.
A.That's what was covered under the term 'preventing the search'.
Q.See, that note reads this, doesn't it 'Hinder police/trafficking, refusing/preventing search on grounds that he does not consent', that's what your note says; doesn't it.
A.That's the reason that he stated for his behaviour, yes.
Q.There is no mention anywhere in there of flexing, is there.
A.No, I've covered it with the word 'preventing the search'.
Q.It's the case, isn't it, that you've simply made up today that Mr Than was flexing his arm.
A.No.
Q.But you accept that the word flexing does not appear in either of your statements or in your notes.
A. Correct.
Metschke was also asked about the Facts of Charge that were prepared with respect to the accused’s arrest for hindering a search. He said he had not prepared the Facts of Charge.[67] However, he agreed that whoever prepared that document would have needed to ascertain information from others (ie either him or Widdrington) to complete the Facts of Charge, as only he and Widdrington were present when various of the matters outlined in the Facts of Charge, in fact occurred.[68]
[67] Noting the Court later heard evidence from Hazel that he was responsible for the preparation of the Facts of Charge.
[68] T 85.8-15.
The Facts of Charge state:[69]
At about 5:20pm police Widdrington/Metschke activated lights and stopped behind the vehicle on Rickaby Street, Croydon Park. The accused remained to be the driver and sole occupant of the vehicle.
Police directed the accused out of the vehicle and advised that they would be conducting a search under the Controlled Substances Act.
The accused stated that he did not consent to the search and refused to allow police access to the vehicle.
The direction and requirement for the search was explained to the accused on numerous occasions, he continued to not comply with the requirements of the search.
At about 5:25pm the accused was placed under arrest for hinder police.
[69] Exhibit VDD7.
Metschke confirmed that this narrative was incorrect. He said that the accused was not directed to leave the vehicle and rather, he had voluntarily left the vehicle.[70] Further, the Facts of Charge did not mention the accused ‘flexing’, thus precipitating the accused’s arrest.
[70] T 86.30-33; T 87.4-7.
As previously stated, Metschke’s notebook entries do not record the time of the arrest and, on his evidence, the note was not made in the correct time sequence. Metschke agreed that as such, his notes were not accurate and complete and all entries had not been kept in sequence as required under s 2 of the General Order Notebooks.[71]
[71] Exhibit VDD8 s 2 p 3 of 4.
As to why that note was out of sequence, he gave the following evidence:[72]
A.So, as I previously stated, when I initially stopped the accused I hadn't initially had the intention of searching him, nor did I anticipate he would be arrested. As a result, once that incident did happen, I commenced making notes. Those - for the other entries where there are times I'm writing these things as they are occurring. In relation to things that have occurred prior to me writing notes I've had to write those post. I'm not sure of the time, so I haven't put a time down, and I'm indicating, obviously, those are out of sequence.
Q.And so based on that practice do we understand that the entry on the previous page, that is p.65, at 17:55 is something that you've recorded contemporaneously.
A.Yes.
Q.And do we, again, understand that the entry at 18:17 on p.66 is recorded contemporaneously.
A.Yes.
[72] T 167.15-32.
Metschke agreed the Facts of Charge contained the same sequence error. He denied that following receipt of the Shield Audit and Police Radio Communications, he and Widdrington had perceived some disadvantage in maintaining the version of events as set forth in the Facts of Charge as to the arrest and had decided together to present a version which included that the accused had flexed, to provide a proper basis for the arrest.[73]
Arrest Rights
[73] T 270.36-271.26.
Metschke gave evidence that the accused was first given his arrest rights at approximately 5:33pm in the back of the police vehicle.[74] He agreed that after the arrest, but before the arrest rights were given, he had a discussion with the accused about whether he had been in trouble before.[75]
[74] T 60.20-23.
[75] T 336.37-337.3.
He did not make a record of any conversations he had off camera with the accused in question and answer format.[76]
Errors in First Statement dated 15 June 2020
[76] T 87.22-24.
Metschke gave evidence that when he prepared his first statement, he misinterpreted the sequence of events by reference to his notes and as a result, had said in that statement that Widdrington conducted checks on both the accused and the vehicle prior to the arrest.
He denied that he had deliberately tailored his statement in this way to give the impression that the checks on the accused had been conducted prior to commencing the search. He said:[77]
My initial recollection was it occurred in the sequence of events, I’ve later realised that was a mistake.
[77] T 273.31-33.
He said that at the time he made that statement (ie 15 June 2020), his recollection was that Widdrington conducted the checks prior to the accused being arrested for hindering the search. He gave the following evidence:[78]
Q.So between 20 May 2020 and 15 June 2020, a period of about three or three-and-a-half weeks, your recollection of what occurred on 20 May 2020 had become confused, that's fair to say.
A.Yes, I think that's reasonable to say.
[78] T 274.10-14.
Metschke was cross-examined at length as to the circumstances in which he became aware of the two errors contained in his first statement, that is the error relating to the time upon which the accused’s vehicle was stopped and the errors relating to the sequence in which specific events had occurred.
Metschke confirmed that as a result of being shown material other than his own first statement and his own notebook entries, he significantly revised the chronology of what had occurred in his second statement dated 28 February 2023. Metschke said that those materials included the statement from McGreevy, which was emailed to him by Glasson on 29 November 2022 containing the Shield Audit, a copy of the record of interview that he conducted with the accused in the back of the police vehicle and the audio of an excerpt of the Police Radio Communications.[79]
[79] T 78.4-11.
Metschke gave evidence that having reviewed that material, he recognised there were two mistakes in his first statement; one in relation to a time and a second in relation to the sequence of events. He gave the following evidence:[80]
[80] T 78.21-35.
Q.That's because in your original statement you said that the checks on Mr Than were conducted prior to his arrest; didn't you.
A.It could be inferred from the way the statement was structured that that's what was said.
Q.That's what you said in your statement, isn't it.
A.I said that I was present when Detective Widdrington conducted the checks.
Q.Well, that's what you meant to convey in your statement, wasn't it, that you had access to the material that those checks revealed before you arrested Mr Than.
A.That was my initial recollection of events.
Q.Yes, so that's what you meant to convey in your original statement.
A.Yes.
Later, he gave the following evidence:[81]
Q.Is it the case that, in your first statement, you deliberately recorded a version of events that had the checks on Mr Than conducted prior to your arrest.
A.No, that's not the case.
Q.And did you do that because, without that, you did not think that you had a reasonable suspicion to search him under the Controlled Substances Act.
A.No, I thought there would be reasonable suspicion without it.
[81] T 91.13-21.
He said he was present when Widdrington conducted the checks with Gabel via police radio, as Widdrington was seated in the police vehicle, in the front passenger seat with the door open and he was standing with the accused on the side of the road, adjacent to the police vehicle. He said he could hear what Widdrington was saying.[82]
[82] T 79.13-34.
Metschke was asked if, in the ordinary course, he would expect to be emailed affidavit material from other witnesses in a matter. He said, “it’s pretty common for police to share relevant materials with people involved in the investigation, particularly to refresh people’s memory”.[83]
[83] T 77.36-38.
It was suggested to Metschke that by accessing those materials, what he was doing was not in fact refreshing his memory but learning about other evidence that existed in the case. He denied that what he was in effect doing was reconstructing his evidence to fit the other documented evidence.[84]
[84] T 223.28-225.12.
Metschke maintained that he had a recollection of the events and that all he had done was made a mistake with the sequence. He said he had corrected that mistake as soon as it had become apparent to him, by providing the second statement. He maintained that his present recollection of the sequence of events was as set forth in that second statement and as outlined in the evidence he gave in-chief.[85]
[85] T 225.21-226.3; T 226.30-33.
Metschke was cross-examined at length about why he had recorded in his notebook the various matters which formed the reasonable suspicion for the search of the vehicle. Those suspicions are listed at the end of Metschke’s notebook entries for 20 May, with no time or date alongside them, nor time recorded on the notes anywhere to reflect the time that they had been completed.
It was put to Metschke in cross-examination that the suspicions that he had written in his notebook referred to him exercising his search powers at that time. He denied this. He denied these were the suspicions he had when he commenced exercising his search powers on the accused on the side of the road, after pulling him over. He gave the following evidence:[86]
A.No. So when I spoke with him after that conversation some of those grounds were present and then post his arrest additional grounds were present in relation to his vehicle.
Q.So is it the case that these entries are not necessarily referable to the suspicions that you entertained at the time you commenced attempting to search Mr Than.
A.I'd have to address each one individually.
Q.I will ask you this question: do all of the entries under that heading relate to suspicions that you held prior to commencing or attempting to commence the search of Mr Than.
A.No. So in relation to what I've written when I've formed the intention to search the accused, so dot point 1, applies 'Intel from briefing on 15/5/20 by Hazel regarding 225 Torrens Road, West Croydon and Quy Nghiem'. The second point applied 'The brief attendance of Than, the accused'. The fifth point 'The accused stated he had just been to visit his mother. This was known to be false. He was challenged and there was no response' and then the last point 'The driver's licence photo looked quite different in appearance to the accused. Checks done to verify his identity'. However, those checks, as I clarified in my addendum statement, were done post his arrest.
[86] T 164.6-30.

Metschke gave evidence that the note relevant to the CSA suspicions for the search was the final entry he made for the day in his notebook and that he had not recorded the time when his notes were completed.[87] He agreed that as such, his notes did not comply with the General Order which required the dates and times when the notes were commenced and completed to be included in the body of the notes.[88]
[87] T 172.28-32.
[88] T 173.2-8.
Metschke was asked if it was possible, given he had not recorded the time the notes were completed, if space permitted on the page, those notes could be added to at a later time. Metschke said, ‘[t]hat’s possible but it’s not what I do :[89] He denied a proposition put to him that the suspicions that he had named with respect to enlivening the powers under s 52 of the Act were something he had made up after the fact.[90]
[89] T 173.36.
[90] T 202.9-14.
Metschke denied a proposition put to him that the reason he had incorporated into his first statement the fact the checks had occurred prior to the search taking place, was because he needed to rely upon those checks to found his reasonable suspicion. He said:[91]
A.No, it's incorrect. At the time I was satisfied there was sufficient grounds to search the accused and his vehicle and when it came to compiling my statement I've used my notes. Effectively, I've written a standard preamble, I always write for my statements, I've then gone through my notes and, effectively, for entries that I thought were relevant for the statement I've taken the time and placed it in chronological order. Then when I've got to the end of the statement I have this section which I've written post - post or after it's occurred, not at the time, and then I've had to take that information and put it where I believed was a correct place in the statement to put it. I made a mistake in doing so, and I've addressed that.
Collusion with Widdrington as to ‘Reasonable Suspicion’
[91] T 274.25-38.
Both Metschke and Widdrington’s notes and first statements contain the same error in terms of the sequence of events, namely that the checks Widdrington conducted of the accused via Gabel, occurred prior to the accused’s arrest.
Metschke denied a proposition put to him in cross-examination that he had not recorded his suspicions contemporaneously (and included this only at the end of his notes of that day) because he wanted time to collude with Widdrington about the reasonable suspicion.[92] It was suggested to Metschke that he had been in Widdrington’s company during the evening of 20 May 2020, allowing them plenty of time to discuss the alleged foundation for any reasonable suspicion to search Than and the vehicle. The following evidence was heard:[93]
[92] T 275.1-6.
[93] T 275.13-34.
Q.And you wanted to reflect on your reasonable suspicion and incorporate Detective Widdrington into that process to make sure that his records were broadly consistent with yours.
A.No, it's not the case. In reality, I'm the one that's made the decision to conduct the search, I'm the one that's informed the accused he's going to be searched. As far as I was concerned I'm the one that's attempted to use the power to search him. Whatever Widdrington's thoughts or suspicions at the time are his own. In the end it's up to me.
Q.His actions at the scene though were important to your reasonable suspicions as they're recorded in the statement of 15 June 2020, aren't they.
A.Yes.
Q.And they're important because Widdrington conducts the checks on the accused, correct.
A.Yes.
Q.And so you wanted to make sure that you and Widdrington had your stories straight with respect to the timing of those checks, correct.
A.No.
Metschke maintained that at the time he advised the accused he was going to be searched under the Act, he was satisfied there was reasonable suspicion to conduct the search, even without the checks having been done.[94] He said that reasonable suspicion was based on the information he had received at the briefing, the information in the TAC Order, the brief attendance of the accused at the property, the fact the accused had falsely told him that he had just visited his mother and the fact that the accused did not look like the person on the photograph on the driver’s licence produced by him.[95]
[94] T 276.3-8.
[95] T 164.18-30.
He had never had any prior interactions with the accused or the vehicle.[96]
[96] T 298.8-21.
He agreed with a proposition that where a search was conducted by someone else, there was no need for him to record other people’s suspicions in his notebook.[97] He agreed that he was involved in briefing both Hazel and Glasson when they arrived at the scene but denied that he told them that the accused had refused to allow the vehicle to be searched.[98] He said that insofar as Hazel may have recorded any such information in his notes, he must have misinterpreted what he said during the briefing about the accused saying he did not consent to the search.[99]
Identifying and Correcting Mistakes in First Statement
[97] T 295.35-38.
[98] T 340.3-9.
[99] T 340.10-19.
Metschke received Glasson’s email containing the Shield Audit in November 2022. However, he gave evidence that it was not until he attended a proofing at the DPP prior to giving evidence on the voir dire that he formed the opinion that there were mistakes in his first statement.[100]
[100] T 299.7-8.
He confirmed it was likely that he had first reviewed the Police Radio Communications at the same time he received a transcript of that material by way of email from Gabel on 24 February 2023.[101] He was asked whether upon receiving that email, he reconsidered his earlier version of events. He gave the following evidence:[102]
A.No, so, again I've opened the attachment, I've reviewed it. I looked at the content of the conversation and it was consistent with my memory, however I didn't give any consideration to the sequence of events. So, again, I've read the document, not realised there was any contradictions at all, assumed it really had no impact or relevance to my evidence and then disregarded it.
[101] T 301.6-25.
[102] T 301.28-34.
Metschke gave evidence that he became aware that the times at which various communications had taken place could be reconciled or ascertained by reference to other material and that is what he ultimately did. He reviewed the Shield Audit to see what time Gabel conducted the checks as requested by Widdrington and was able to marry up the sequence of events in that way.[103] He then realised that those checks were undertaken after the accused had been placed in handcuffs and therefore after his arrest. He then realised that his original version of events was inconsistent with the objective evidence insofar as there were two mistakes in his original statement.
[103] T 302.8-15.
As to whether at that stage he discussed that mistake with Widdrington, Metschke said:[104]
Prior to being aware it was definitely a mistake I discussed it with him to try and determine if it was a mistake or if there was a reasonable explanation.
[104] T 303.16-18.
As to why he had done this, he said that Widdrington may have said something that would refresh his memory as to what had occurred.[105] Metschke said he wanted to review their phone calls and phone records to try to determine what had happened and to see if he had any reasonable explanation for any mistake.
[105] T 304.7-20.
Metschke discussed the events of 20 May 2020 with Widdrington; before compiling his second (addendum) statement. He denied that when he realised the objective evidence contradicted aspects of his first statement that he alerted Widdrington to this, so he could also alter his version of events, to marry up with the objective evidence. He said, curiously:[106]
No, that’s not the case. I presumed that the DPP would proof him also.
[106] T 304.5-6.
Earlier in his evidence, Metschke had been cross-examined about whether he had supplied a copy of his notes to Widdrington. He said he recalled supplying a copy of his notes to Glasson and may have supplied a copy to Widdrington but could not remember having done so.[107]
[107] T 209.9-20.
Metschke was shown a copy of an email that he sent to Widdrington dated 25 February 2023 (Exhibit VDD12). In that email, Metschke stated:
Hey mate,
My notes are attached to assist refreshing your memory. Last page is the briefing we attended.
Looking at everything together, 1725 is the time I started writing notes, not the time we stopped him – my mistake there.
Looking at Google Maps – I am believe we propped in Brown Lane West Croydon.
He denied that there was any risk in contaminating Widdrington’s memory of events by providing him with that material. As to why he did not believe that to be a risk, he said:[108]
Because I believe he is competent enough to realise what is his memory and what isn’t.
[108] T 210.15-16.
Metschke was asked why he had sent that email to Widdrington. He explained that Widdrington had a particular query in relation to the location that they were waiting at before the incident, namely Brown Lane, West Croydon. He said he remembered Widdrington being unsure of that, but he could not recall when Widdrington had said that to him, it being several months ago.[109]
[109] T 210.36-211.29.
Metschke was cross-examined in detail as to why he had sent Widdrington a copy of his notes the weekend prior to them both giving evidence on the voir dire. He gave the following evidence:[110]
[110] T 213.10-214.5.
Q.Now, the reason you sent that email to Detective Widdrington was to enable him to review your notes, correct.
A.It was to assist him refreshing his memory.
Q.Which he would do by reviewing your notes, correct.
A.Yes.
Q.Your purpose in doing that was to ensure that he knew what was in your notebook, correct.
A.No, he'd contacted me unsure on some details, he asked for a copy of my notes, I provided them and also in the same email clarified a question he had in relation to the location we stopped our vehicle.
Q.How did Widdrington contact you.
A.I don't remember the location or how he's contacted me. I remember some of the words of the conversation but I don't remember that.
Q.This email is you providing Widdrington with your notes to assist him to give evidence in the same terms that you were giving evidence, correct.
A.No, it was to assist him in refreshing his memory in relation to some facts he was unsure on.
Q.This is simply written documentation of you and Widdrington trying to ensure that your evidence in this court is consistent, isn't that right.
A.I'd presume that he'd have his own recollection of events, I'd presume he'd have some differences to mine. The reason I provided him the document is to help assist him in refreshing his memory.
Q.The reason you provided him with the notes was to attempt to ensure that yours and his evidence was consistent in this court, isn't that the truth of the matter.
A.No, it's not the truth and I'd presume that he'd have his own notes as well.
Metschke denied that he had informed Widdrington of his mistake about the time the vehicle was stopped because he already knew Widdrington had made the same mistake.[111] He said he simply did not want Widdrington to make the same mistake.
[111] T 214.12-24.
Metschke was also cross-examined about whether he had told Widdrington about the mistake he had made in his first statement about the sequence of events and he agreed that he had but could not recall when. As to why he had done that, he gave the following evidence:[112]
A.Well, initially with the mistake in sequence my first assessment of it upon reviewing the materials - actually, when I fist (sic) reviewed the materials I didn't realise there was a mistake. I skim read the materials, I didn't notice any issues and I disregarded them as not being really relevant to me. When I later spoke with the DPP it caused me to review the materials again and at that stage I realised there potentially was a mistake. However, I wasn't a hundred per cent sure, I was a little confused as to how the mistake came about. In my view, before compiling the addendum, I was of the view that possibly there wasn't a mistake and there was a reasonable explanation. With that in mind I sought to try and either corroborate that my original version was correct or confirm that it was incorrect. So with that in mind, ironically, I sought to look at my own phone records that you have tried to subpoena, look at my own phone records to see if there was just a bit of confusion. However, upon reviewing everything and speaking with Darrin, I came to the conclusion that there was a mistake in the sequence of events. I wanted to be sure, a hundred per cent confident, that I had actually made that mistake before compiling another addendum saying there was a mistake.
[112] T 215.17-216.2.
Metschke was asked if he was aware that Widdrington’s first statement also contained the same mistaken sequence of events. He said:[113]
I was aware that he had his own recollection of events which didn’t entirely match mine but I didn’t see that as an issue at all.
[113] T 216.22-24.
As to how Widdrington’s version of events differed from his and what Widdrington had told him about that, he said:[114]
A.I can't remember exactly when the conversation was. I remember trying to clarify this issue to identify if there was a mistake or if there was a reasonable explanation. I remember there were details where his view differed to my memory, but in my view the differences in his memory or recollection of the events was inconsequential. I would expect every witness to have a slightly different memory of what had occurred.
Q.Can I ask you this question; when you spoke to Detective Widdrington about the sequence of events as per your first affidavit, did what he told you of his recollections match with your first statement.
A.No, he was unsure himself and he wanted to look into it.
Q.So you were both unsure as to the sequence of events.
A.Yeah, it took me some time to review everything and come to a conclusion which was in my addendum statement.
[114] T 216.27-217.4.
He denied that what had simply occurred was that he and Widdrington had discussed the evidence that they were going to give in court with the purpose of ensuring that their evidence was consistent.[115]
[115] T 217.38-218.12.
Metschke gave evidence that had only discussed his version of events with Widdrington on one occasion prior to him giving his evidence on the voir dire, in addition to sending the email on 24 February 2023.[116] He denied that within the SOCB there was a practice of disseminating information amongst members of that section to ensure that the evidence given by those officers was consistent in court.[117] However, he agreed it was possible he had seen Widdrington’s statements prior to giving evidence.[118]
[116] T 218.20-24.
[117] T 220.32-37; T 221.33-38.
[118] T 271.27-34.
Notwithstanding the mistake he had made in his first statement as to the sequence of events, Metschke maintained that he had confidence in his memory, such that he did not consider it could be contaminated by being exposed to other evidence. He denied his memory of events had been contaminated as a result of any other input.[119]
[119] T 305.19-20.
Metschke denied that he had kept his notes deliberately vague and had omitted to include in those notes the time of the arrest, to allow him to later tailor his evidence to imply that the checks on the accused were undertaken prior to him commencing the search.[120]
Other Methods of Police Communication
[120] T 305.21-34.
During cross-examination, Officer Metschke was cross-examined extensively about whether he had communicated with any other members of the investigation team in any way, other than via police radio on 20 May 2020 or indeed, at any time thereafter.
Metschke gave evidence that the use of encrypted messaging services such as Signal and What’s App was approved and authorised by the SOCB. He said he did not use any telephone service associated with his encrypted messaging services with respect to this matter on 20 May 2020.[121]
[121] T 320.31-321.2.
However, he said that from time to time, police used their own personal mobile phones to communicate with each other during these types of investigations. He denied that they did this to ensure that those communications would not be disclosed to defence.[122] He explained that it was easier to use the phone rather than the radio if having a longer conversation.[123]
[122] T 67.24-68.36: T 70.20.
[123] T 70.11-13.
Metschke could not recall receiving any calls on his mobile phone during the period from 4:45pm to 6:00pm on 20 May 2020.[124] However, he confirmed that he had received a text message via his mobile phone from Glasson at 5:43pm on 20 May 2020 identifying the drug in the vehicle as methamphetamine.[125]
[124] T 71.16-19.
[125] T 321.23-34; T 322.8-19.
He said there were no other messages sent via text on that mobile phone relevant to the investigation between 4:50pm and the accused’s arrest.[126]
[126] T 324.36-325.3.
Metschke could not recall receiving any information on 20 May 2020 with respect to the matter by way of What’s App but agreed that he had sent a copy of his notebook entries to Glasson via Signal on 27 July 2022. He said he was at home at that time and it was the quickest method to provide them.[127]
[127] T 71.32-34; T 234.5-32; T 235.7-13.
Officer Widdrington
Preliminary Observations
In order to understand the overall effect of Widdrington’s evidence, it is necessary to outline some preliminary observations.
Widdrington provided two statements dated 4 July 2020 and 28 February 2023. Neither of those statements were in evidence. However, Widdrington was extensively cross-examined as to their contents and in particular, as to various inconsistencies in his first statement as to the sequence of events on 20 May 2020 and the evidence ultimately given by him.
Widdrington’s notebook entries were received and admitted into evidence. He was extensively cross-examined as to how he prepared his notes and how he said their contents came to be misinterpreted by him, when he relied upon them to form the basis of his first statement.
The content of Widdrington’s notes and first statement effectively mirrored the contents of the notes and first statement made by Metschke. Widdrington’s subsequent statement and his evidence effectively mirrored the subsequent statement and evidence provided by Metschke.
Widdrington denied that any of the content of his notes came from Metschke[128] and he denied that he and Metschke had constructed their notes and their initial statements to improve on the issue of reasonable suspicion.[129]
Notebook Entries
[128] T 426.25-28.
[129] T 428.3-6.
It is important to reproduce some of Widdrington’s notebook entries in order to understand his evidence and the basis for much of cross-examination. Reproduced below is an extract of those notes relevant to what occurred immediately prior to and after the arrest.

1650

Brown Lane West Croydon

I/C Metschke re operation re Qui Van Nguyen Nghiem b 1-6-94

225 Torrens Road, West Croydon

1725

Rickaby Street, West Croydon

Black Toyota Camry SA plate S188ADS stopped

1 x occupant Tri Khang Than.

b.23-7-93, 444 Grand Junction Road M-0416xxxxxx

Produced driver’s licence as ID

Licence no CJxxxx (photo taken)

Did not resemble image.

Stated M/V belonged to mother

Checks conducted via DSgt Gabel

Than warning flags for drugs and may be armed. Previous arrest record cannabis located at (indecipherable) & images on phone.

Than had come from known dealer’s house on this occasion.

Than got out of vehicle stood with Metschke. Denied previous arrest.

Stated M/V belong to mother again.

Than stated he did not consent to search when Metschke explained we would be searching him and M/V under Controlled Substances Act section 52

Explained didn’t need his consent but Than kept saying he was not consenting

Explained by not allowing us to search he would be arrested for hinder

Than again stated he wouldn’t consent.

Metschke arrested Than for hinder

Handcuffed to rear (2 sets) (double locked)

DBSgt Metschke searched person

DBSgt Glasson, Constable Hazel attend scene

M/V searched DBSgt Glasson located in backpack on rear seat 4 oz packages of meth.

Than placed into police vehicle

1733

Than arrested in police vehicle on video. Rights given

1737

Video deactivated. Than conveyed to CWH

1742

On route video reactivated

Advised drug meth.

1743

Video deactivated

1755

Arrive CWH. Than placed in holding cell

To Shield and notes

1858

Than charged

Mobile + $490 seized

1942

I/C DBSgt Metschke, attend 144 Grand Junction Road, Mansfield Park …

…

2055

Search completed

2130

Attend I/C Metschke. Also present Gabel, Webber and Northern District Officers

Search of premises under authority of GSW of DSgt Gabel

Nil items seized. Returned to base

2230

Base. Attention to Shield

Items seized re Than.

PPMS 20/A39996

2240

Handed backpack seized from Than and motor vehicle by DBSgt Glasson. All items seized labelled photographed and decanted.

2310

Commenced decant of TKT003 backpack – change gloves each item

Inside 4 x oz of meth wrapped 4 separate packages. Kitchen paper tied with elastic band around plastic resealable bag with approx. 1 oz of meth inside.

Also in brown paper bag contained within backpack was approx 1 kg of meth in 2 x plastic resealable bags (1 bag within other)

0105

To MESU with drug exhibits with Glasson

0135

MESU. All exhibits deposited

Drugs – 20/A39996

Drugs – 20/A40026

Documentation completed.

0200

Completed 2½ O/T

Having regard to all of the evidence, I find that the vehicle was not stopped under the RTA. Rather, the vehicle was stopped pursuant to the contingency plan, meaning it was stopped to ascertain if a drug deal had taken place. This could only be ascertained if the vehicle and/or its occupant(s) were searched. As such, police must have been purporting to exercise the authority to stop and search the vehicle under s 52(9) of the Act when they made the decision to stop the vehicle.
When did the Search of the Vehicle commence?
As outlined by the Court of Appeal in Schatto v The King,[376] when a vehicle is stopped under s 52(9)(a) of the Act, the time the vehicle is stopped is the time the exercise of the statutory search powers is taken to have commenced.
[376] [2022] SASCA 129 at [37].
Having regard to my earlier finding, it must therefore follow that the search of the vehicle commenced when the vehicle was stopped on Rickaby Street by Metschke.
If I am wrong and the vehicle was in fact stopped under the RTA, then, at the very latest, the search must have commenced at the time the accused was arrested for hindering the search.
Both Metschke and Widdrington gave evidence that the accused was informed by Metschke that he intended to search both the accused and the vehicle. For the reasons as previously outlined, I do not accept the evidence given by Metschke and Widdrington that what the accused did to hinder the search included flexing or tensing to prevent a physical search of his person (as potentially distinct from a search of the vehicle). I am satisfied that the accused was arrested for hindering the search simply because he verbally informed Metschke and Widdrington that he did not consent to ‘the search’.
Having regard to the language used by both Widdrington and Metschke in their notes, the Facts of Charge and the purpose for which the vehicle was stopped as outlined in the contingency plan, I am satisfied that the only reasonable interpretation of all of the evidence is that the accused was arrested for hindering both the search of the vehicle and of his person.
The accused could not have been charged with hindering a search that had not commenced. I am satisfied that at the very latest, the search of the vehicle commenced at the time the accused was arrested for hindering it. This was well prior to Hazel and Glasson arriving at Rickaby Street and prior to Widdrington conducting any checks on the accused via Gabel.
Who made the decision to search the vehicle and what information formed the basis for the decision?
Hazel and Glasson identified the vehicle as being an appropriate vehicle to stop in accordance with the contingency plan under the TAC Order.
Neither Hazel nor Glasson gave evidence that they either held a reasonable suspicion to stop and search the vehicle under s 52 or had made any decision to search the vehicle prior to their arrival at Rickaby Street.
Although Hazel gave evidence that he formed a reasonable suspicion under s 52(9) of the Act prior to physically commencing the search of the vehicle, and absent any material being provided to him by Widdrington and/or Metschke,[377] he did not record in his notebook what matters founded the basis of any reasonable suspicion held by him at that time to search the vehicle. Hazel agreed that he had been trained to record in his notebook matters including any suspicions acted upon to exercise a search power.
[377] T 485.6-24.
Similarly, Glasson gave evidence that he formed a reasonable suspicion under s 52(9) of the Act prior to physically commencing the search of the vehicle, but after being briefed roadside by Widdrington and Metschke. He said that it was at that point he was more than satisfied there was enough information for the purposes of s 52.[378] However, again, Glasson did not record in his notebook what information formed the basis for any reasonable suspicion held by him under s 52(9). Similarly, he made no mention of him exercising search powers under s 52 in his first statement. Glasson agreed with a proposition that had he been exercising such search powers it would be important to record this in his notes.
[378] T 530.15-28.
Perhaps more importantly, it was never the prosecution case that Hazel and/or Glasson had sufficient material to amount to a reasonable suspicion to stop and search the vehicle under ss 52(9)(a) and (b).
Metschke in fact stopped the vehicle. At that time, he did not have any of the information that Hazel obtained when conducting the earlier checks on both the vehicle and the accused, which had informed Hazel and Glasson’s decision to stop the vehicle under the contingency plan.
It was Metschke who communicated to the accused that he intended to conduct a search under s 52 of the Act. Metschke’s evidence on this topic did not identify whether he was acting under s 52(6) or s 52(9) of the Act or both, noting there is a subtle difference in terms of the requirements as outlined by the Court of Criminal Appeal in R v Nguyen.[379]
[379] [2015] SASCFC 7 at [21]-[22].
Nevertheless, I am satisfied that, on the evidence, Metschke was the person who first determined to search both the accused and the vehicle.
In Schatto v The King, the Court of Appeal said:[380]
Whether there exists a reasonable suspicion must usually be assessed at the time the search is conducted and the statutory powers are exercised. Though it is relevant to take into account what was known to the police officer at the time the decision to search is made, if more information becomes available by the time the search is undertaken then that further information can be taken into account in order to assess the question of reasonableness. Here, however, the assessment had to be made at the time the vehicle was stopped, for that is when the exercise of statutory search powers commenced, see s 52(9)(a) of the Controlled Substances Act 1984 (SA) …’ (my emphasis)
[380] [2022] SASCA 129 at [37].
If, as I have found, the search commenced at the time the vehicle was stopped, then it follows that the relevant assessment of what material informed the decision to search must be undertaken at the time the vehicle was stopped.
Metschke gave evidence that he formed the reasonable suspicion to search the vehicle based on the following information:
·the information he received at the briefing.
·the information in the TAC Order.
·the brief attendance of the accused at the property.
·the accused lied to him when he said he had just come from visiting his mother.
·the accused did not look like the person on the photograph on the driver’s licence produced by him.[381]
[381] T 164.18-30; T 276.3-6.
Of these five matters, only the first three were known to Metschke at the time the vehicle was stopped.
The Information received by Metschke at the Briefing[382]
[382] Noting Metschke also gave evidence that he knew some of the information provided at the briefing already because he was one of the officers who attended at the cannabis crop in Virginia.
The focus of the briefing was the Nghiem investigation, not the accused.
I accept Metschke’s evidence that Nghiem’s fingerprints had been located on a heatsealed bag discovered at an address in Virginia where there were also some 7,000 cannabis plants located and that Nghiem had a significant connection to the property at 225 Torrens Road. I accept Metschke’s evidence that at the briefing he learned that police had other intelligence that Nghiem was involved in dealing other drugs, which Metschke recorded in his notes as MDMA, cocaine and heroin.[383]
[383] T 276.28-277.26.
Hazel gave evidence that he spoke at the briefing with respect to the TAC Order that he prepared. He gave evidence that police had other information to suggest Nghiem was dealing in drugs namely:
·Intelligence received on 12 February 2019 suggesting that 5,000 gelatine capsules had been delivered to Nghiem’s home address at Pooraka.
·Intelligence received on 13 June 2019 suggesting that Nghiem was part of a syndicate involved with the distribution of controlled drugs in the city.
·Surveillance conducted in May 2020 during which Nghiem was observed on four separate occasions leaving the house, meeting people quickly in nearby suburbs and then returning home.
I consider it is likely that this is the information to which Metschke was referring about intelligence to the effect that Nghiem was dealing in other drugs, noting there was no other evidence of any such intelligence.
The Information in the TAC Order
The TAC Order was not in evidence. However, the primary goal, or mission, as contained in the TAC Order was to locate Nghiem after he had left the property, making an exchange (ie dealing in drugs), and to then search Nghiem’s vehicle. The contingency plan was to cover off on a possible scenario whereby Nghiem may have dealt in drugs at the property, and to find evidence of that drug deal by stopping and searching a car leaving the property.
Metschke’s evidence, contrary to Hazel’s, was that there was not, at that time, sufficient information to provide the basis to issue a General Search Warrant with respect to the property and that part of the Nghiem investigation was to generate reasonable suspicion for a search of the property.
Metschke agreed that he knew from the briefing or the TAC Order, that there was intelligence that Nghiem collected drugs from an unknown location on a Wednesday night and dealt in those drugs from Thursday onwards. It was submitted that such intelligence suggested that Nghiem was probably without a controlled substance on Wednesday 20 May 2020. I do not necessarily agree with that submission.
While that intelligence was consistent with there being less likelihood of drugs being at the property on a Wednesday night, it does not necessarily follow that there would not be any drugs at the property at such time if that intelligence was otherwise accurate. Further, as no information was to hand as to where Nghiem collected his drugs, having regard to such intelligence, it remained a possibility that drugs were delivered to Nghiem at the property on a Wednesday, rather than him leaving the property to collect same.
The Brief Attendance of the Accused at the Property
The only information Metschke knew about the presence of the vehicle at the property came from what he heard being said by Hazel and Glasson over the Police Radio Communications. He confirmed he did not receive any other information with respect to this by way of a phone call or via an encrypted application.
That is, he knew from what Glasson said over the Police Radio that the vehicle was at the property, that it had been there for about five minutes and that Glasson and Hazel were ‘definitely interested in taking’ that car. He heard Glasson say, ‘Let’s try and grab this one boys’ and shortly thereafter, heard Glasson say they were caught in traffic and ask ‘are you guys able to get back to this car”.
As such, Metschke knew Glasson wanted to stop the vehicle under the contingency plan and that he needed his help to do so.
Metschke had no other information about the vehicle, or the accused. He had never previously dealt with the accused.
He was not told about the results of any checks conducted on the vehicle (or the accused) by any other officer, prior to stopping it.
There was no evidence that Metschke knew that before the vehicle had attended at the property, another vehicle had also briefly attended at the property.
There was no evidence that Metschke was informed of any interaction between the accused and the property, albeit the fact the accused was driving the vehicle shortly after the vehicle was observed at the property, was a factor in Metschke’s decision making.
The remaining two matters identified by Metschke as forming part of the basis for his reasonable suspicion to search the vehicle were not ascertained by him until after the vehicle was stopped.
The Difference in the Accused’s Appearance to that on his Driver’s Licence Photo
Metschke gave evidence that the accused looked different in person to the photograph on the driver’s licence produced by him. He also recorded this in his notebook and in his first statement.
There was no evidence by way of photographs or video evidence depicting the accused’s physical appearance as at 20 May 2020. The accused’s driver’s licence was marked for identification but not tendered in evidence. The date that driver’s licence was issued is unknown.
Obviously, the time which has passed between the time the licence was issued (and therefore when the photograph on that licence was taken) and the date of comparison, will be critical in determining what, if any, significance can be attached to any apparent difference in appearance of the person purporting to be depicted therein. The mere fact of any difference in appearance must carry limited weight.
The Accused’s Lie about having come from visiting his Mother
Metschke gave evidence that after the accused produced his driver’s licence, and at a time when he was concerned the accused did not look like the man in the photograph on that licence, he asked the accused ‘where he had been and what he had been up to’. He said that in response, the accused said he ‘had just come from visiting his mum at her house’, which answer he knew to be false. [384] He said he challenged the accused on this, he froze, and never responded.
[384] T 51.11-24.
Metschke did not record this conversation with the accused, being an off-camera conversation, in question and answer format in his notebook. In his notebook he recorded the fact of this conversation, out of chronological sequence, under the heading ‘CSA Suspicions for search’ at the end of his notes made on 20 May 2020. The notes state that the accused, ‘stated that he had just been to visit his mother, this was known to be false. Challenged and no response’.[385]
[385] Exhibit VDD9.
In his first statement, Metschke described having two conversations with the accused following the production of his driver’s licence. These conversations were described in the following terms:[386]
… I asked him questions about his previous interactions with Police, with a view that the owner of that licence would know those details. The accused lied in response to those questions, further exacerbating concerns over the correctness of his identity.
I spoke with the accused and he stated that he had just been to visit his mother. I was aware that this was also untrue …
[386] Exhibit VDD14 at [5] and [6].
In cross-examination, Metschke agreed that he had a conversation with the accused after his arrest, as to whether he had been arrested before. He agreed that as a result of the checks conducted by Widdrington (with Gabel), it was ascertained the accused had been arrested before. Those checks were only conducted after the accused’s arrest. As such, any conversation that Metschke had with the accused about his prior interactions with police, which may have elicited a response which Metschke knew to be untrue, must have occurred after the accused’s arrest, and therefore after the commencement of the search.
The fact Metschke placed that conversation, in his statement, as being the first thing that raised in him a concern that the accused was not the same person as that in the driver’s licence, is of concern, given he described it as being the first of the two alleged lies by the accused which raised suspicions.
If that conversation occurred before Metschke asked the accused where he had come from, as could be inferred from the structure of Metschke’s first statement, then that latter conversation must have also occurred after the arrest and therefore after the search occurred.
Given my doubts as to the reliability of Metschke’s evidence and the obvious errors in sequence in both his notes and first statement, I am unable to accept his evidence as to precisely when in the sequence of events this conversation occurred (albeit obviously being after the vehicle was stopped).
Further, in the absence of Metschke’s notes reproducing this conversation in question and answer format, it is difficult to ascertain whether the answer given by the accused was, in fact, false. The accused was driving his mother’s car. He may well have come from her house shortly prior to the vehicle being sighted at the property. The precise words used during that exchange are important in considering how this conversation may have added to any suspicion held by Metschke.
Was the Search of the Vehicle Unlawful?
In determining whether the search of the vehicle was authorised under s 52(9) of the Act, the Court must determine if at the time the search commenced, Metschke held a genuine suspicion that any substance or equipment that would afford evidence of an offence against the Act was in the vehicle and, if so, whether that suspicion was reasonable.
This is a factual question that is to be decided on the balance of probabilities.[387]
[387] Zenuni v The King [2022] SASCA 106, [12].
It is important to bear in mind that as outlined by the Full Court of the Supreme Court in R v Nguyen,[388] a suspicion that a fact exists is less certain than a belief in the existence of that fact. However, the connection between the supporting material and the suspicion must be rational and not tenuous, and mere curiosity, speculation or idle wondering about the existence of a fact is not the same as a suspicion that it exists. The requirement for the suspicion to be reasonable is to prevent incredulous, gullible, naïve and artificially held subjective suspicions from empowering police officers to execute powers of search that effect a substantial intrusion into civil liberties.
[388] (2013) 117 SASR 432 at [21].
The difficulty facing the prosecution in this case is that Metschke did not give any evidence to the effect that he held any reasonable suspicion for the purposes of s 52(9) of the Act until after he had stopped the vehicle and specifically, until after the accused presented a driver’s licence which apparently bore a photograph of someone who did not physically resemble him, and after the accused allegedly lied to him about his previous movements.
There is simply no evidential basis therefore for the Court to make a finding that at the time Metschke stopped the vehicle, he held even a genuine, let alone reasonable suspicion, for the purposes of s 52(9).
Further, there is no evidence that either Hazel or Glasson held such a reasonable suspicion at the time they made the decision to stop the vehicle in accordance with the contingency plan.[389] Even if either Hazel or Glasson had given such evidence, as previously stated, Hazel gave only limited evidence as to what he learned about the accused when he conducted the checks prior to making the decision to stop the vehicle. In my view that material, even combined with what was known about Nghiem and the property, was not sufficient to amount to a reasonable suspicion under s 52(9)(a), particularly absent any reliable information to the effect that a male occupant of the vehicle was seen to interact either with the property or Nghiem.
[389] Although Hazel gave evidence that he believed he had a reasonable suspicion prior to being briefed roadside by Metschke and/or Widdrington, this was in the context of him also having heard the results of Gabel’s checks with respect to the accused, which were then communicated to Widdrington over the Police Radio, after the accused’s arrest.
If, as I have found, the exercise of the statutory search power commenced at the time the vehicle was stopped, then the search was unlawful.
If my conclusion as to when the search of the vehicle commenced is wrong, and it was only commenced when Metschke informed the accused of his intention to search both him and the vehicle, then the Court must determine first if Metschke had a genuine suspicion for the purposes of s 52(9) at that time, and second if that suspicion was reasonable.
Notwithstanding my reservations as to aspects of Metschke’s evidence, I accept that at that time, he did genuinely suspect there were drugs or equipment in the vehicle contrary to the Act. I make that finding having regard to those matters which I am satisfied were known to him at that time, namely, what he learned at the briefing, what he knew from the TAC Order and what he knew about the vehicle’s attendance at the property. He also knew that Officers Hazel and Glasson had identified the vehicle as an appropriate vehicle to stop in accordance with the contingency plan in the TAC Order, albeit he did not know why that decision had been made.

I also accept Metschke’s evidence that the accused did present his driver’s licence to him prior to Metschke informing him of his intention to conduct a search of the vehicle. However, any difference between the photograph on the driver’s licence and the accused’s appearance was of very little moment, given that such licences can be issued for a period of up to ten years.
Further, as previously stated, given my doubts about the reliability of Metschke’s evidence, I cannot make a finding as to when any alleged conversation between the accused and Metschke about the accused’s prior movements occurred, and specifically, I am unable to find that this occurred prior to the accused’s arrest. Even if that conversation did occur before the arrest, in the absence of knowing precisely what was said, it is difficult to attribute much, if any, weight to the accused’s statement in those circumstances, or the accused’s apparent reaction to then having been called a liar. [390]
[390] Noting what was said by the Chief Justice in R v Marafioti (2014) 118 SASR 511 at [12]-[13], as to attributing illegality to conduct which may be the result of a suspect’s anxiety in the presence of police.
Whether the genuine suspicion being subjectively held by Metschke was a reasonably held suspicion requires an assessment of whether the information available to Metschke would ‘rationally produce a suspicion in the mind of … a person thinking reasonably about that information’.[391]
[391] R v Nguyen (2013) 117 SASR 432, [22].
In answering this question, the Court must put itself in Metschke’s position and ask whether, in the circumstances, the suspicion was reasonably held.
Relevant considerations when examining the reasonableness of that suspicion include; the nature and extent of the information, the particularity (or generality) of the information, the source of the information, the apparent reliability and credibility of the information and the nature, duration and currency of the illegal activity to which the information relates.
Metschke was not in possession of any information linking the vehicle itself to the commission of any previous drug offending.
Similarly, neither at the time the vehicle was stopped, nor prior to the accused’s arrest, was Metschke aware that the accused had any prior criminal history, let alone any prior drug related history.
Metschke’s suspicions related primarily to his knowledge that the vehicle was observed to spend a short period of time in the driveway at the property, being an address closely associated to Nghiem. Although Metschke was aware that there was intelligence linking Nghiem to drug dealing, that intelligence was limited.
The fact that Nghiem’s fingerprints were located on a heat seal bag found at the scene of a large cannabis crop at Virginia, was equally consistent both with Nghiem being involved in the manufacture of that cannabis and that fingerprint having been left on that bag in innocent circumstances. The date of the discovery of that cannabis crop was not in evidence. Although there was intelligence received in February 2019 and June 2019 consistent with Nghiem potentially dealing in drugs, there was no evidence as to the source or reliability of that intelligence, and it related to a period between 11 and 15 months prior to the search. The other (current) evidence police had linking Nghiem to drug dealing was all to the effect that he would leave his home to deal in drugs, rather than deal in them from the property.
Further, the intelligence was that Nghiem would deal in those drugs from Thursday onwards. The search occurred just after 5:00pm on a Wednesday.
All of this information was sufficient to engender a suspicion that there may be drugs at the property. Whether any such suspicion was itself reasonable is another matter, and not one that this court is required to determine.
However, in circumstances where there was no reliable evidence that the driver of the vehicle was seen to interact either with the property or Nghiem, and where Metschke was unaware of any information linking the vehicle or the accused to drugs or drug offending, any suspicion generated by the information known to Metschke at the time he informed the accused of his intention to search the vehicle, at its highest, amounted only to mere speculation or conjecture that there may have been drugs inside the vehicle.
The combined effect of that material was not sufficient, in my mind, to engender a suspicion in the mind of a person thinking reasonably about that information, that there was a substance or equipment that would afford evidence of an offence against the Act in the vehicle.
In my view, any suspicion for the purposes of s 52(9) which was held by Metschke either at the time he stopped the vehicle, or at the time he informed the accused of his intention to search the vehicle, was in the nature of mere curiosity or speculation about the existence of that fact, rather than a suspicion based on a rational connection between the supporting information and the suspicion.
Finally, as previously stated, there was no evidence that Hazel or Glasson held any reasonable suspicion under s 52(9) at the time they decided to stop the vehicle. By the time Hazel and Glasson arrived at Rickaby Street, the accused had already been arrested for hindering the search. As previously stated, I find that he was arrested for hindering both the personal search and the search of the vehicle, meaning the search of the vehicle must have commenced before Hazel and Glasson arrived at Rickaby Street.
I find that the search of the vehicle was unlawful.
Other Issues
In light of these findings, there is no necessity for the court to determine whether the arrest was lawful and/or whether any conversations between the accused after his arrest and prior to his arrest rights being administered, ought be excluded from the evidence.
Having regard to my findings as outlined at paragraphs 512 to 514 herein, I am satisfied that the errors in the notes and initial statements made by Metschke and Widdrington are the product of impropriety and not simply a product of human error.
While I have made several adverse findings with respect to both the reliability and credibility of the evidence given by Metschke and Widdrington, I have not made similar criticisms of the evidence given by Glasson.
Glasson is a Detective Sergeant and a person in a position of authority. While it is possible that Glasson was aware of the errors in sequence and timing in the notes and initial statements of Metschke and Widdrington, I am unable to make such a finding on balance. I am further unable to make a finding that he knew of and condoned any improper conduct on the part of either Metschke and/or Widdrington.
Discretion
The unlawfulness of the search of the vehicle does not render the evidence as to the fruits of that search inadmissible, however I have a discretion to exclude the evidence if its admission would operate unfairly as against the accused and/or having regard to broader questions of high public policy.
In R v Ireland,[392] Barwick CJ stated:
… Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful or unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[392] (1970) 126 CLR 321, 335.
In Bunning v Cross,[393] Stephen and Aickin JJ (Barwick CJ agreeing) said:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
[393] (1978) 141 CLR 54, 74.
The principles governing the exercise of a discretion to exclude relevant and admissible evidence based on public policy considerations, where the evidence has been obtained illegally or unlawfully were outlined in detail in R v Golja.[394]
[394] [2017] SASCFC 61 at [33]-[35] per Stanley J.
Those matters which may play a role in informing the exercise of the discretion include:
·The nature of the offence charged.
·The probative value of the evidence sought to be excluded.
·Whether the conduct of the police was deliberate or resulted from a mistake.
·The ease with which the law could have been complied with to procure the evidence.
·The legislative intention of the law said to have been infringed.
·In the case of unlawful conduct, whether the conduct in question is tolerated or encouraged by those in higher authority in the police force.
I also note the observations made by both David AJ and the Chief Justice in Ghamrawi v The Queen,[395] wherein reference is made to the proper balance that needs to be struck between individual liberty and privacy and the enforcement of the criminal law. In particular, I note the Chief Justice’s observation, namely:[396]
Police officers should be guided by a good working knowledge of those powers and their limits. They should not act on their subjective view of what they ought to be free to do and then hope, after the event, that they have observed the limits of the law.
[395] [2019] SASCFC 108.
[396] [2019] SASCFC 108 at [2].
I have made several critical adverse findings with respect to the evidence given by both Metschke and Widdrington. I am satisfied that together they crafted their notes to give a false and misleading impression of what information was available and relied upon by Metschke when he purported to exercise his authority to search the vehicle under s 52(9) of the Act.
It is apparent from a consideration of all of the evidence that the initial shortcut that was taken by police, which led to the later difficulty Metschke and Widdrington sought to overcome, was the fact the vehicle was stopped in the absence of police observing any interaction between its male occupant (that is, the accused) and either Nghiem or the property.
If police knew the driver of the vehicle was a male, then having regard to the checks conducted with respect to the vehicle and its owner by Hazel, it may have been reasonable for them to assume that driver was the accused.
Hazel then conducted checks on the accused. His evidence as to what those checks revealed was confined to the following:[397]
I recall there being some warning flags attached to his name in relation to drugs. There was some history of drug-related searches and that's what I recall at the moment.
[397] T 466.4-7.
The Court did not hear evidence about what that ‘drug warning’ was (or meant), nor the results of any of those drug related searches (or when such searches were undertaken). However, it may have been the case, given what Widdrington learned later from checks conducted by Gabel, that there was sufficient material on the system implicating Than with drug activity, in combination with the other information known to Hazel, to amounted to a reasonable suspicion to both stop and search the vehicle under s 52(9).
Hazel and Glasson decided to stop the vehicle under the contingency plan. I am satisfied that having done so, police were always going to search the vehicle as this is what was stated in that plan. As such, for such procedure to be lawful, it was necessary for one of those officers to have ‘reasonable suspicion’ under s 52(9). Indeed, unless this necessary precondition is read into the TAC Order it would, in effect, be an endorsement for police to simply ‘turnover’ any vehicle seen leaving the property.
This was not a case where once the vehicle was stopped, further checks would be conducted and only then would a decision be made whether or not to search it. The mere fact of police stopping any vehicle seen leaving the property had the very real potential to adversely impact the ongoing Nghiem investigation. Police had to get that decision right.
In this case, a shortcut was taken.
This was very serious offending, carrying with it a potential maximum penalty of life imprisonment. The controlled drugs found in the vehicle were destined for sale on the streets, causing irreparable and untold damage to the community. There is obviously considerable public interest in drug offenders being tried and brought to account.
The cogency of the evidence found in the search was not diminished by the illegality.
However, as outlined in Bunning v Cross:[398]
To treat cogency of evidence as a factor favouring admission, where the legality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of the discretion where the illegality involved in procuring it was intentional or reckless. To this there will no doubt be exceptions: for example, where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist.
[398] (1978) 141 CLR 54 , 79.
If the illegality was confined to the ‘short cut’ outlined above, of itself, this would not have led me to conclude that it was appropriate to exercise my discretion to exclude the evidence, having regard to the balancing act required.
However, the Court is satisfied that what occurred after this short cut was taken, is that Metschke and Widdrington, both being experienced officers, working within the SOCB, together worked towards creating a false narrative, in order to give the procedure legitimacy, based on what information ultimately came to be known by police about the accused as the investigation unfolded on 20 May 2020. While I do not doubt that in doing so, both officers honestly considered that the means justified the ends, given what the search had uncovered, this was deliberate conduct, designed to retrospectively cure (or camouflage) what was unlawful police conduct.
In R v Rockford the court stated: [399]
… it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not to be 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.
[399] [2015] SASCFC 51, 39.
By way of further observation, in this case, the fact Metschke and Widdrington both changed the narrative in their notes and initial statements would never have come to light, given the absence of any record in their notes as to the time of the arrest, but for the contents of the Police Radio Communications considered in conjunction with the Shield Audit.
This improper conduct must not be given curial approval.
To condone the unlawful conduct in these circumstances, despite the seriousness of the alleged offending, would amount to an abrogation of the legislature’s safeguard of individual liberties.
Having conducted the balancing exercise of the various competing considerations as discussed in Ghamrawi v The Queen,[400] I consider in these circumstances it is appropriate to exercise my discretion to exclude the evidence of the search of the vehicle.
[400] [2019] SASCFC 108.

20/05/20	2DOTFV61 Gabel 2DOTF616 Widdrington
1725	Rickaby Street West Croydon S188ADS Toyota Camry Black D/L CJ3… Than Tri Khang ‘John’ 23/7/93 (26) 444 Grand Junction Road Mansfield Park 0416…
1733	Video fault with first camera Video activated (new camera – working) Rights Caution Does not want to answer questions Allegations given
1737	Video deactivated
1741	Advised of right to apply for bail
1742	Video reactivated Advised drug is suspected methamphetamine Bail right
1743	Video deactivated
1755	CWH

Hinder Police / Trafficking Refusing / preventing search On the grounds that he “does not consent” Twice explained s 52 CSA authority and that his consent was not required. Arrested + handcuffed. Searched and placed in fleet. M/V searched and approx. 4 ounces meth located. Search of M/V by Glasson/Hazel/Widdrington.
1817	Phone placed in flight mode. Black iphone locked
1825	DNA sample taken
1858	Charged CWH 4 x $100 1 x $50 2 x $20 $490
1901	Cash seized
1942	444 Grand Junction Rd Mansfield Park GSW search

2055	Search complete
2130	19 Borrakola Street Pooraka GSW search (Gabel) …
2230	Base Data entry of exhibits PPMS receipt 20/A39996
0109	Drug exhibits with Glasson/Widdrington to MESU Remaining exhibits to evidence locker 3 Cash to safe evidence locker
CSA suspicions for search · Intel from briefing on 15/5/20 by Hazel regarding 225 Torrens Rd West Croydon and Quy Nghiem · The brief attendance of Than · Than using a vehicle not registered to him · Police checks – drug user warning - Prior search of H/A located cannabis - Prior search of phone showed photos of cannabis crops – suspected ecstasy · Stated that he had just been to visit his mother this was known to be false. Challenged and no response · D/L photo looked quite different in appearance to Than. Checks done to verify identity. Checks showed he had been previously arrested by Than denied ever being arrested. Concerns held re identity due to this lie.

1650	Brown Lane West Croydon I/C Metschke re operation re Qui Van Nguyen Nghiem b 1-6-94 225 Torrens Road, West Croydon
1725	Rickaby Street, West Croydon Black Toyota Camry SA plate S188ADS stopped 1 x occupant Tri Khang Than. b.23-7-93, 444 Grand Junction Road M-0416xxxxxx Produced driver’s licence as ID Licence no CJxxxx (photo taken) Did not resemble image. Stated M/V belonged to mother Checks conducted via DSgt Gabel Than warning flags for drugs and may be armed. Previous arrest record cannabis located at (indecipherable) & images on phone. Than had come from known dealer’s house on this occasion. Than got out of vehicle stood with Metschke. Denied previous arrest. Stated M/V belong to mother again. Than stated he did not consent to search when Metschke explained we would be searching him and M/V under Controlled Substances Act section 52 Explained didn’t need his consent but Than kept saying he was not consenting Explained by not allowing us to search he would be arrested for hinder Than again stated he wouldn’t consent. Metschke arrested Than for hinder Handcuffed to rear (2 sets) (double locked) DBSgt Metschke searched person DBSgt Glasson, Constable Hazel attend scene M/V searched DBSgt Glasson located in backpack on rear seat 4 oz packages of meth. Than placed into police vehicle
1733	Than arrested in police vehicle on video. Rights given
1737	Video deactivated. Than conveyed to CWH
1742	On route video reactivated Advised drug meth.
1743	Video deactivated
1755	Arrive CWH. Than placed in holding cell To Shield and notes
1858	Than charged Mobile + $490 seized
1942	I/C DBSgt Metschke, attend 144 Grand Junction Road, Mansfield Park … …
2055	Search completed
2130	Attend I/C Metschke. Also present Gabel, Webber and Northern District Officers Search of premises under authority of GSW of DSgt Gabel Nil items seized. Returned to base
2230	Base. Attention to Shield Items seized re Than. PPMS 20/A39996
2240	Handed backpack seized from Than and motor vehicle by DBSgt Glasson. All items seized labelled photographed and decanted.
2310	Commenced decant of TKT003 backpack – change gloves each item Inside 4 x oz of meth wrapped 4 separate packages. Kitchen paper tied with elastic band around plastic resealable bag with approx. 1 oz of meth inside. Also in brown paper bag contained within backpack was approx 1 kg of meth in 2 x plastic resealable bags (1 bag within other)
0105	To MESU with drug exhibits with Glasson
0135	MESU. All exhibits deposited Drugs – 20/A39996 Drugs – 20/A40026 Documentation completed.
0200	Completed 2½ O/T