R v Toovey No. DCCRM-96-1385 Judgment No. D3662

[1997] SADC 3662

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Ruling of His Honour Judge Anderson

Hearing

24/07/97.

Catchwords

PRELIMINARY APPLICATIONS Application to exclude evidence upon basis of: 1)illegality2)that the Accused was held in defacto arrest. Application refused.

Materials Considered

• Summary Offences Act (1953);
• Controlled Substances Act (1984), referred to.
• Gibson v Ellis (1992) 59 SASR 420;
• Bunning v Cross (1978) 141 CLR 54;
• R v Fazio CCA unreported 13/6/97 judgment no S6196, applied.

Representation

Director Of Public Prosecutions R:
Counsel: MR A KIMBER - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused ANDREW PAUL TOOVEY:
Counsel: MR W BOUCAUT - Solicitors: DIXON GALLASCH

DCCRM-96-1385

Judgment No. D3662

20 August 1997

(Criminal)

R v Toovey

Criminal

Judge Anderson

Ruling

At the conclusion of the Voir Dire hearing conducted upon the Rule 9 Notice filed herein I refused to grant the application in relation to paragraphs 1-4 thereof.I reserved the right to give my reasons which I now do.

I was not required to rule upon paragraph 5 of the Notice as agreement was reached between counsel (transcript p148).

The relevant paragraphs in the Notice are as set out herewith:

1. That the evidence obtained as a result of the search of Andrew Paul Toovey by Constable Michael Cornish be excluded.

2. That the evidence obtained as a result of the search of Andrew Paul Toovey by Constable Eye be excluded.

3. That the evidence obtained as a result of the search conducted by Constable Baker be excluded.

4. That the record of interview conducted by Constable Cornish with Andrew Toovey at 1.10 am in the presence of Constable Eyre be excluded.

Paragraph 1 relates to the consequences of the search of a wallet produced by the accused.

Paragraph 2 relates to the consequences of a direction that the accused empty his pockets.

Paragraph 3 relates to the consequences of a search of the accused's vehicle in which, firstly a Samurai sword and then other items were located.

Paragraph 4 relates to a conversation with the accused after his wallet was searched.

This matter commenced when three police officers, Baker, Cornish and Eyre were on foot patrol in Hindley Street West.They were on the footpath opposite the entrance to Macdonald's.They noticed the manner of driving of a vehicle as it entered and passed through the carpark at speed and then left the carpark into Newmarket Street, which is parallel to Hindley Street West to the north.They sought the car.Baker located it in a first level carpark when it still had its lights on.He went to it.The accused was in the process of leaving the vehicle and near to it when as Baker said in evidence and I so find, he spoke to the accused about his manner of driving.I find that as he was taking the accused's details he glanced into the car and saw the handle of a Samurai sword protruding from under the seat.The accused agrees with Baker that this occurred at this time.

Baker inquired about the sword suspecting an offensive weapon as he was entitled to pursuant to s68Summary Offences Act 1953.He retrieved the sword.

Baker then conducted a search of the vehicle.He found a baseball bat, a plastic bag containing white powder and syringes, a silver and brass pipe with a cone and a .22 calibre bullet.These items were all removed from the vehicle.

Having seen the bat, sword and other items, Eyre who was then speaking to the accused concerning the vehicle asked him "What have you got in your pockets you shouldn't have?"Eyre said he expected a weapon to be produced.The accused then produced a small brass pipe from his pocket.Eyre smelt cannabis in its bowl.He then required the accused to empty his pockets.He was here exercising a power given him by s52 of the Controlled Substances Act 1984.

The accused emptied his pockets as directed.A butterfly knife was produced, as was a wallet.

Cornish joined Eyre and the accused at this time and searched through the wallet.He found a small bag of white crystalline powder and another small plastic bag containing some squares (transcript p34).

A search of the car's boot revealed more syringes and a pipe.

Thereafter, Cornish spoke to the accused concerning his manner of driving and advised him that he would be reported for driving without due care.

Cornish then spoke to the accused about what was found in his wallet.That conversation was recorded in longhand in question and answer form.It commenced at 1.10 am.The accused was first seen in his car at about 12.45 am on 10 August 1996.

The accused was given a caution.He had not then been arrested and so was not given his full rights pursuant to s79(a) Summary Offences Act 1953.He answered the questions, admitting that the white powder was "speed", and was advised that he would be reported in relation thereto.

The conversation then continued about the paper in the other plastic bag found in the wallet after a further caution (transcript p57).The accused said that there were 196 tabs of "LSD" in the plastic bag.

This conversation ended at 1.32 am.

Nothing involving the accused then occurred until 2.31 am by which time Cornish had obtained a tape recorder from a CIB patrol.At the commencement of that recorded conversation the accused was arrested and given his full rights (transcript p60).

The accused was then taken to his home address which was searched in the presence of he and his mother and thereafter, with his mother, to Police Headquarters where a video record of interview was conducted.

Mr Boucaut of Counsel for the accused complained that the search of the car by Baker and the subsequent search of the wallet were unlawful and should be excluded.Both Baker and the accused agree as to the circumstances in which Baker saw the sword and what he did thereafter.I prefer that evidence to that of Cornish and Eyre where there is a difference.These officers were not present until after Baker had commenced speaking to accused.

Once the sword was seen Baker was entitled to act as he did pursuant to the provision of s68Summary Offences Act 1953.

Cornish, aware of what Baker had found in the vehicle, required the accused to produce what he had in his pockets.Irrespective of whether he was moved by the offensive weapons or the likelihood of the presence of drugs consequent upon the car search, he was entitled so to act.The powers of search within the Summary Offences Act 1953 and the Controlled Substances Act 1984 overlap: Gibson v Ellis (1992) 59 SASR @ 20 and R v Fazio CCA unreported 13/6/97 s6196.

Thus, in my opinionnothing which relates to the search of the accused's vehicle, his pockets or his wallet is unlawful.The officers were exercising powers given to them by Parliament.

However, should any of this activity be tainted with illegality I would exercise my discretion in favour of admitting the evidence:Bunning v Cross
(1978) 141 CLR 54.

I turn then to whether or not the accused was in a defacto arrest situation and required to be given his rights at an earlier time than shortly after 2.31 am.

The Crown's evidence on the voir dire is that until 2.31 am the accused was not under arrest of any sort.The police officers said that they were keeping their eye on the accused in case he tried to run away once the vehicle had given up its contents and thereafter until 2.31 am.

I reject the submission that the accused was in fact detained against his will prior to his arrest.It is important to bear in mind the time frame.His vehicle was first seen at about 12.45 am.By 1.10 am it had been located, he was spoken to about his driving and the vehicle.It had been searched and he had been required to empty his pockets.

As I have said, in my opinion all this occurred lawfully.I reject the accused's evidence that Baker and another officer (he was somewhat unsure in his evidence) told him to stay.I prefer Baker's evidence that he said no such thing.There is no evidence to suggest that the accused was inclined in any way at all to leave the scene.There was much activity in twenty five minutes and I find he just stayed.

When spoken to at 1.10 am he was cautioned in relation to both the powder and the "tabs" but answered the questions fully and in some detail.This is hardly indicative of something happening against his will.

The questions asked in the second stage of that interview revealed an offence almost immediately but that in itself does not require that the accused be given his full rights.The officer was entitled to ask further questions in the hope of obtaining further evidence of another offence.In any event the questioning was not pressed past that further point.

Cornish explained that notwithstanding what the accused had told him he remained uncertain as to the "tabs" - they were many in number and not designed like those he had seen on a few previous occasions.

Cornish said in cross examination that after the conversation about the "LSD" that the accused was not detained because he never sought to go.He agreed that had that occurred something would have been done to detain him in some way.

I find, despite Cornish's uncertainty about the "LSD" because of its form, that from that time - 1.32 am - the accused was in defacto arrest.This was about one hour earlier than when he was actually arrested.

On the evidence nothing occurred between the police officers and the accused in this time.There was no conversation or further searching.Nothing which the Crown seeks to use at trial was produced.Hence there is no Crown evidence to be excluded.

I am not persuaded that any of the behaviour or activity by the police officers prior to 1.32 am was unfair or prejudicial to the accused.

I reject the suggestion that at a very late stage the accused requested the presence of a solicitor.When he allegedly did so his mother was there, he was about to commence a video interview where, despite again being cautioned he continued to answer questions and made no mention of a solicitor and neither did his mother.

Should I be wrong in this conclusion, in the exercise of my discretion, I would admit the evidence of the 1.10 am conversation:Bunning v Cross.The police acted carefully and with no obvious unfairness to the accused.