R v THOMPSON
[2017] SADC 142
•15 December 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THOMPSON
[2017] SADC 142
Reasons for Ruling of Her Honour Judge McIntyre
15 December 2017
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
The accused has been charged on information with four counts of trafficking in a controlled drug, unlawful possession, possessing a firearm without a licence possessing an unregistered firearm and failing to secure a firearm and ammunition. The charges arise out of a search of the accused’s vehicle and his home address. The accused has applied under Rule 49 of the District Court Criminal Rules for orders that the evidence of the two searches be excluded from evidence in his trial on the ground that the search and seizure in each case was unlawful.
Held:
1. The initial search of the vehicle was unlawful.
2.The second search of the accused’s house was based solely on the initial unlawful search and therefore tainted by the unlawfulness of the initial search.
3.The evidence of both searches ought to be excluded in the exercise of the discretion.
District Court Criminal Rules Rule 49; Australian Road Rules Reg. 208; Road Traffic Act 1961 s40H; Controlled Substances Act 1984 s56(6); s52(9), referred to.
R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASFC 7; R v Bainbridge [1999] NZCA 180; R v Eggen & Eggen-Zeytoun [2016] SADC 26; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391; R v Golja [2017] SASFC 61, considered.
R v THOMPSON
[2017] SADC 142
The accused has been charged on information with four counts of trafficking in a controlled drug, unlawful possession, possessing a firearm without a licence, possessing an unregistered firearm and failing to secure a firearm and ammunition. The charges arise out of a search of the accused’s vehicle and his home address.
The accused has applied under Rule 49 of the District Court Criminal Rules for orders that the evidence of the two searches be excluded from evidence in his trial on the ground that the search and seizure in each case was unlawful. Specifically he seeks exclusion of:
·all evidence and items seized by the police on the 16th September 2016 from a white Mitsubishi Utility (SA) XRF 761 (“the first search”); and
·all evidence and items seized by the police on the 16th September 2016 following with execution of a General Search Warrant at 140 Rowley Road Aldinga Beach (“the second search”)
The Evidence
Two police officers gave evidence on the voir dire; Senior Constables Whyatt and Struthers. Their evidence, in brief, was that at about 11am on the 16th September 2016, they were on patrol in uniform in an unmarked police vehicle. They drove down Jerome Street, Morphett Vale in order to observe a house at number 14 which was of interest to police because of a past connection with illicit drugs. As they turned into Jerome Street, they saw a white Mitsubishi Utility (SA) XRF 761 (“the vehicle”) outside number 14 facing in the wrong direction in contravention of the Australian Road Rules, Reg. 208. Shortly after they turned into the street, a matter of seconds, the vehicle pulled away from the kerb.
The two officers decided to stop the vehicle under S40H of the Road Traffic Act 1961, to talk to driver about the breach of the road rules. Senior Constable Whyatt was driving. She says that she activated the red and blue lights but the vehicle did not stop and so she then activated the police vehicle siren. Senior Constable Struthers says that the lights and the siren were activated together. Both agreed that the vehicle finally stopped having travelled about 950m from where Senior Constable Whyatt first activated at least the red and blue lights.
As they were driving, checks were made on the registration of the vehicle; likely by Senior Constable Struthers. Although neither officer kept notes of the results it appears that these checks were innocuous. Both officers said that the vehicle was registered to a woman and that there was no criminal intelligence related to either the vehicle or the registered owner. There was no link to drugs or the house in Jerome Street.
Senior Constable Whyatt said that, as she was driving behind the vehicle, the driver could be seen through the rear window grabbing items from the passenger side and moving them around in a manner which she thought was consistent with him hiding those items.
Senior Constable Struthers said that he could see through the rear glass window of the vehicle that there was a single male occupant of large build. He could see by the reflection in the rear mirror that the driver appeared to be looking back towards the police car. Further, the driver was moving towards the front passenger seat causing Senior Constable Struthers to think that he was attempting to secrete something into the passenger side of the vehicle.
It can be seen therefore that there is a difference between the two officers as to the stage at which the siren was activated and as to their observations of the driver of the vehicle; specifically, whether he was hiding items on the passenger seat or retrieving items from the passenger seat. It is however common ground between the two police officers that they had jointly made the decision to search the vehicle under s52(9) of the Controlled Substances Act 1984 (CSA) by the time the two vehicles had stopped and before they identified or had any conversation with the driver. They said that they suspected that the vehicle contained a substance or equipment that would afford evidence of an offence against the CSA.
When the vehicle stopped Senior Constables Whyatt and Struthers went to the car and spoke to the driver, the accused. Unfortunately, neither made notes of this conversation but it appears that they asked him to exit the car and asked for his name and address, which he gave them. The accused went with Senior Constable Struthers to the rear of his vehicle whilst Senior Constable Whyatt commenced a search of the vehicle. She located $4,200 in cash and a crystalline substance that she suspected to be methylamphetamine in a swag on the front passenger seat.
The officers then arrested the accused and read him his rights. They did not specify the charge as they are required to do although reference was made to cash and methylamphetamine being located in the car.
I note at this point that there was a defence argument to the effect that the accused was in de facto custody and therefore apprehended shortly after he was asked to step out of his vehicle. It was contended that he should have been afforded his arrest rights at an earlier point in time. I reject this argument as it appears to be based on a misapprehension that the accused was asked to place his hands on the bonnet of the police car and was restrained by officer Struthers placing a hand on his back immediately after he got out of his car. I do not consider that the evidence supports this view of the facts. Rather the evidence is that the accused was not placed in this position until after the location of the material by Officer Whyatt very shortly prior to his arrest and the reading of his rights.
The crystalline substance found by Senior Constable Whyatt was subsequently analysed; it weighed 28g and contained 19.6g of methylamphetamine. A subsequent search of the vehicle located a further $14,600 in cash and a further 21.3 g of crystals found to contain 16.9g of methylamphetamine in a bag on a child’s seat in the rear of the vehicle together with a number of other items suggestive of drug trafficking including containers, plastic resealable bags, electronic scales and weights for calibration of those scales, a tick list and three mobile telephones.
Acting on this information the accused’s home address was searched under the authority of a general search warrant held by Detective Brevet Sergeant Timothy Cooper. At the home address police located:
·Crystals weighing 7.48g containing 4.69g methylamphetamine;
·Crystals weighing .67g and containing methylamphetamine;
·A class A Adler, A-110, 12-gauge lever action shotgun and 118 rounds of ammunition suitable for use in the shotgun; and
·2 plastic resealable bags containing 293g of female cannabis plant material.
The First Search
A police officer has the authority to detain and search any vehicle if they “reasonably suspect” that in the vehicle there is any substance or equipment that would afford evidence of an offence against the CSA. The key issue in this case is whether the police had the requisite reasonable suspicion. This is a matter of a question of fact to be decided on the balance of probabilities.
Both counsel referred to the Court of Criminal Appeal decision in R v Nguyen[1] when discussing the concept of reasonable suspicion where it is 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. New curiosity, speculation or “idle wondering” about the existence of the fact is not the same as suspicion that it exists.
Importantly, s.56(6) and s.52(9) of the Controlled Substances Act 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 Controlled Substances Act in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power of much of its utility, to demand material which supports the positive belief in the existence of the relevant facts (citations omitted)
[1] (2013) 117 SASR 432 at 437
It is therefore important to consider the material before Senior Constable Whyatt and Senior Constable Struthers at the time they each formed their suspicion. The prosecution submits that the suspicion was based on the combination of the following factors:
·The vehicle was parked initially outside a house considered by police to be a highly active address for drug dealing
·The vehicle was parked incorrectly, facing the wrong direction, indicating that the driver only intended on staying a short time
·The vehicle failed to stop when police activated the red and blue lights
·The vehicle failed to stop for some distance when police activated the siren, and
·The behaviour displayed by the driver whilst driving.
I accept that this is an accurate summary of the matters that each police officer identified as founding their respective suspicions. However, I note the difference between the two as to the activation of the siren and the behaviour that they observed.
Defence counsel contends that any suspicion entertained by the police was not reasonable for a number of reasons.
·Whilst the vehicle was in the vicinity of a house known by police officers to be involved in the illicit drug trade, the evidence shows that the two officers only observed the vehicle there for one or two seconds before it moved off.
·There was no connection asserted between the accused and the address, or between the vehicle and the address.
·The only basis upon which any suspicion related to drugs arises is by reference to the Jerome street house and such a connection is speculative.
·There is no suggestion on the evidence of excessive speed or that the accused attempted to flee. At most it can be said that he failed to stop in a timely manner but in considering that it is said that the police car was unmarked, there was a discrepancy in the evidence about the activation of lights and sirens, and there was no evidence about the movements between the two vehicles over the distance travelled.
Defence counsel further contended that the asserted observations by the police must be viewed with caution because during the time that they were following the vehicle it is said that they had a very restricted view. In particular it is contended that:
·The photographic evidence shows that the windows of the vehicle were tinted.
·There was a significant height difference as the police were in a sedan and the vehicle was a utility.
·There were a number of obstructions such as the utility being a dual-cab with rear passenger seats and a baby seat.
I consider that defence counsel’s criticisms of the reasonableness of the police suspicion are well founded. The information available to the police was very limited; that is the vehicle was parked incorrectly near a house known to have links to drugs, the unknown driver seemed to the police to be reluctant to stop and they thought he was hiding items.
The observations of the vehicle outside number 14 were so brief as to be properly described as fleeting. Whilst it was reasonable to stop the accused’s vehicle to speak to him about the parking infringement that infringement could not, without more, give rise to a suspicion that a search of the vehicle would afford evidence of an offence against the Controlled Substances Act. True it is that the car was outside an address that was known to police in connection with drugs but the police officers did not know of any other connection between the accused, the vehicle he was driving and that property beyond those fleeting observations.
I accept that the police officers could see the accused through the rear window of his utility as they said notwithstanding the tinting; however, their view was obstructed given the height difference between the vehicles, the head rests and the baby seat. Indeed, both officers conceded in cross-examination that they could not see the accused’s hands. They both agreed that they could only see his upper body; they could not see his hands or any items in his hands. This may account for the difference in their conclusions as to precisely what he was doing but in any event, it is a considerable leap from these limited observations to a suspicion that the accused was hiding drugs or equipment that would afford evidence of an offence against the Controlled Substances Act.
Likewise, the failure to stop may have had any number of explanations including that the accused did not immediately realise that he was being pulled over particularly given the uncertainty over the activation of the siren. Whilst Senior Constable Struthers said the accused appeared to him to have seen the police car, Senior Constable Whyte made no such observations. I do not find this evidence compelling. Moreover, the accused did not drive in any manner that suggested he was trying to evade the police. There was nothing about the failure to stop immediately that gives rise to a suspicion that the vehicle contained evidence of an offence against the CSA.
The police were entitled to stop the accused’s vehicle to speak to him about the traffic violation.[2] They were further entitled to request him to identify himself and to question him further about their observations and his failure to stop promptly. This may have provided further information which could have founded a reasonable suspicion for the purposes of the CSA. They did none of these things for reasons that are not readily apparent.
[2] Section 40H Road Traffic Act 1961
This is a similar factual situation to that which obtained in two of the Nguyen cases. In R v Nguyen[3] police were conducting surveillance on a home unit when the appellant’s vehicle pulled into the common driveway of the units. The vehicle had in the past been associated with drugs and was registered to the person who lived at the home unit. In finding that the material did not support a reasonable suspicion for the purposes of a search under the CSA, the Court of Criminal Appeal said:[4]
We readily accept that at the time Constables Beatty and Koch saw the Laser on 30 July 2011, there was material on which they could reasonably have suspected that some persons who had an association with the Laser had committed offences against the CSA and that they were continuing to offend. However, that material could not support a reasonable suspicion that all persons who had a connection, or associating, with the Laser were continuing to offend against the CSA. Nor did the material support a reasonable suspicion that there was evidence of offending against the CSA in the Laser at the point in time when the police saw an unidentified person drive it down Hawker Street at 7.30 pm on July 2011.
[3] (2013) 117 SASR 432.
[4] At page 437 - 8
In R v Nguyen[5] the Court of Criminal Appeal said that the search of a vehicle was not a lawful search under the CSA because there were no reasonable grounds to suspect that there were drugs in the vehicle or the appellant. The suspicion was based on two matters; first that the vehicle emerged from the driveway of a house associated with past drug offending and second because the vehicle had previously been searched and found to contain drugs.
[5] [2015] SASFC 7
Arguably there was more basis for a suspicion in each of those cases than in the present. The vehicle in each case had some prior association with drugs, the vehicle in one had a connection with the premises under surveillance and in the other the vehicle emerged from the driveway. These features are absent in the present case. I consider that the state of mind of the police at the time they pulled the accused’s vehicle over was, at best, one of curiosity or speculation based upon limited information and “tenuous, albeit rational, connections”. It is my view that the factors identified, even in combination do not provide a reasonable basis to suspect the possession of illicit drugs or evidence of an offence under the Controlled Substances Act sufficient to authorise the search of the accused’s vehicle.
The Second Search
It is agreed by the prosecution that the sole information available to the officer who determined to execute his general search warrant was the prior search of the vehicle. Defence say that, if the vehicle search is unlawful, then it follows that the information upon which the general search warrant (GSW) was executed is “irrevocably tainted by the initial search”[6] and therefore the second search is unlawful.
[6] R v Bainbridge [1999] NZCA 180 at [23]; R v Eggen & Eggen-Zeytoun [2016] SADC 26
Notwithstanding that the officer who executed his GSW would not have known that the search of the vehicle was to be declared unlawful his decision to search was based solely upon that search which I have determined to be unlawful. In those circumstances, I accept the defence submission that the second search was also unlawful.
The Discretion
Given this I must now consider my discretion to exclude the evidence obtained from the first and second searches in line with the principles articulated by the High Court in R v Ireland[7] and Bunning v Cross[8] and the Court of Criminal Appeal in this State in cases such as R v Nguyen[9], R v Rockford[10] and R v Golja[11].
[7] (1970) 126 CLR 321
[8] (1978) 141 CLR 54
[9] (2013) 117 SASR 432
[10] (2015) 122 SASR 391
[11] [2017] SASFC 61
Defence counsel says that curial approval of a search conducted unlawfully, based on little more than speculation and flimsy material, with a process of reasoning reliant on tenuous connections is inconsistent with the principles set out by the High Court and the Court of Criminal Appeal which reinforce the need to protect an important civil right in our society namely, the right of a citizen to be protected from unlawful search. It is said that it is necessary to exclude the evidence in this case to censure the actions of police in order to secure their compliance with the law they are charged to uphold and to maintain the integrity of the administration of justice.
The Prosecution, on the other hand, say that the following factors weigh against excluding the evidence:
·The unlawfulness by the police was not deliberate
·The police did not act upon trite information
·The police actions were not of a wilful or malicious nature
·The cogency of the evidence was unaffected
·The evidence is of considerable probative value in relation to a serious charge
The discretion involves a difficult balancing act. In R v Ireland Barwick CJ said[12]:
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 and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
In Bunning v Cross Stephen and Aickin JJ, said that[13]
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 lay its part in the whole process of consideration.
The discretion has been the subject of consideration by the Court of Criminal Appeal in this State on numerous occasions. In R v. Rockford Stanley J said[14]:
In my view, while the considerations favouring the admission of the impugned evidence are strong, the considerations favouring the exclusion of that evidence are stronger.
The right of a citizen to be protected from unlawful search and entry is an important civil right in our society. As this court said in R v Nguyen, it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. From the moment of their entry onto the property the police were engaged in a search. Recourse to euphemisms by the police does not alter that fact. The erroneous views of Detectives Hanssen and Moore of the scope of their powers of entry represent a view which, if tolerated by the courts, is calculated to lead to wide-spread and arbitrary infringements on civil liberties. It is those limitations on police powers of search and entry which constitute a fundamental safeguard of those civil liberties (citations omitted)
[12] At page 335
[13] At page 74
[14] At page 401
In R. v Golja, Stanley J repeated his observations in Rockford and said[15]:
The discretion is enlivened by unlawful or improper police conduct. Once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations. Those considerations focus on competing aspects of the public interest. While the court must be careful to protect the citizen from the abuse of police powers, the court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of the search power or the result of some systematic misunderstanding by police about the limits of that power.
[15] At para 35
His Honour stated that had he been required to exercise the discretion afresh, he would not have excluded the evidence in that case because there was no “conscious impropriety” by the police, nor was it an instance of widespread misunderstanding by the police of the conditions governing the exercise of the search power as in Rockford. He went on to say that[16]
In addition to those factors, this case involved serious offending involving trafficking in methylamphetamine and the unlawful possession of approximately $23,000. There is a strong public interest in the detection and prosecution of such offending. Further, the offending in this case would have been in the category of unlawfully procured evidence relating to offending which had already occurred, rather than the category discussed in Ridgeway of offending which would never have occurred but for the unlawful conduct of the police. The factors favouring the exclusion of such evidence is not as strong in the former category as in the latter category.
The administration of justice would not have been demeaned in this case by the admission of the evidence procured by the search if the search had been unlawful.
[16] Paras 37 - 38
In the present case, the evidence obtained in both searches is highly cogent evidence of the commission of serious offences. There was a considerable quantity of methylamphetamine, a smaller quantity of cannabis, a firearm, ammunition and $18,900 in cash together with a number of items suggestive of drug trafficking. Nothing the police did in either search affects the cogency of that evidence.
I accept that the unlawfulness by Senior Constables Whyatt and Struthers was not deliberate, wilful or malicious however the information they relied on was as I have said limited. Both officers said, and I accept, that they turned their mind to their powers under section 52 of the Controlled Substances Act. However, I have found that the factors they relied on fell far short of what was required to form a reasonable suspicion for the purposes of an exercise of that power.
The following observation of the CCA in R v Nguyen[17] is apposite in this case:
It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.
[17] (2013) 117 SASR 432 at [41]
The Court of Criminal Appeal went on to exclude the evidence to “censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of powers of detention and search conferred by the CSA”.[18]
[18] Ibid at [42]
It is my view that the failure of the police in this case to properly consider their powers and obligations under the CSA was so lacking that it, likewise, calls for censure. The failure to stop promptly and the observations of the police did not raise the prospect of an offence against the CSA. The only basis upon which drugs were introduced into the equation was the limited connection with number 14, a known drug address. This lead to no more suspicion of involvement in drugs than would attach to any person who, by happenstance, stopped outside a questionable address say checking street numbers or answering a telephone call. Law abiding members of the community should not be at risk of being searched by the police simply by being in the wrong place. Such a risk would inevitably lower the police in the estimation of the public.
For these reasons, I exercise the discretion to exclude the evidence obtained in the two searches and I uphold the accused’s application under Rule 49.
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