R v Toovey No. Sccrm-97-206 Judgment No. S6510
[1998] SASC 6510
•14 January 1998
R v TOOVEY
Court of Criminal Appeal: Cox, Prior and Williams JJ
Prior J
Appeal against conviction.
The appellant was found guilty by verdict of a jury of possessing lysergide (LSD) for sale: s32(1)(e) Controlled Substances Act 1984.
In this appeal it is said that the conviction must be set aside. The trial judge is said to have erred as a matter of law in his approach to the consideration of the question of whether conversations between the appellant and a police officer should be excluded. The appellant says that the trial judge should have found that he was under arrest before being questioned and that conversations with respect to drugs should have been excluded. It is also said that the trial judge failed to give an adequate direction to the jury with respect to admitted lies told by the appellant to the police officer.
Before the jury was empanelled the trial judge heard evidence upon an application to exclude evidence obtained as a result of a search of the appellant as well as evidence of the conversations referred to in the grounds of appeal. Those conversations were between the appellant and a Constable Cornish.
The evidence called on the voir dire was that Cornish was on foot patrol, with Constables Baker and Eyre, in Hindley Street west on 10 August 1996. They noticed a motor vehicle driving at a high speed through a car park. The tyres of the vehicle were squealing. The officers observed the vehicle as it left the car park and turned into Rose Street. They decided to see if they could locate the vehicle. They found it in a car park at the junction of Rose and Newmarket Streets, Adelaide. Baker’s evidence was that he was the first to approach the car, then on the first level of the car park. Cornish and Eyre were elsewhere. Baker said that as he approached the car the appellant was just getting out of it. Baker said he asked the appellant whether he always drove like an idiot. There was no response to that question. The appellant gave Baker his personal details. Baker said that he observed the handle of a Samurai sword, behind the driver’s seat, on the floor of the car. He proceeded to search the vehicle against his belief that the sword was an offensive weapon. Baker located a baseball bat, just to the left of the driver’s seat. In the rear seat pouch, behind the driver’s seat, he found a black pouch. Inside it were syringes and a plastic bag containing a small amount of white powder. In the glove box, he located a brass pipe and syringes.
By the time Baker was conducting this search the other two officers were at the car. Eyre said that he checked the condition of the motor vehicle and its registration disk and spoke to the appellant about ownership of the vehicle and the condition of its tyres. Constable Cornish conducted a registration check over the Police radio. Eyre said that at about the time the sword was removed from the vehicle, he questioned the appellant, asking him whether he did some kind of martial arts and what the baseball bat was doing in the car. The appellant said that he played baseball and had done so that day. Eyre then said that he asked the appellant what he had in his pockets that he should not have. Eyre’s evidence was that that question was a standard question he asked most people he came across in situations like that. Eyre said that against the discovery of the sword and the baseball bat, he expected that the appellant was likely to have a weapon. The appellant produced a small brass pipe from a pocket in his jacket. Eyre said that he could smell burnt Cannabis. He said he intended to search the appellant for drugs and that he told the appellant that he had the power to search him for drugs, before telling him to empty his pockets on the boot of his car. The appellant walked to the car, emptied his pockets and placed a butterfly knife and a wallet on the back of the vehicle. Inside the wallet, Cornish found two plastic bags, one of which contained a piece of paper, divided into squares. This bag was shown to have contained LSD, the other a small amount of amphetamine. Eyres’ evidence was that he asked the appellant about the white powder and a bullet, which had been found in the car by Baker. The appellant said that the powder was Epsom Salts and that he did not have a gun, but had simply found the bullet.
Eyre and Baker then conducted a search of the boot of the car. They found a toiletry bag containing syringes and a pipe. Cornish said that soon after he had inspected the wallet, he asked the appellant about his manner of driving, and that the appellant explained that he had been held up and was in a hurry to get somewhere. Cornish said that he then spoke to the appellant about the contents of the wallet; this conversation commencing at 1.10 am and concluding at 1.32 am. At the outset of this conversation, the appellant was cautioned. He said that the white powder was speed and that he had injected the drug. He claimed to have obtained it, some four to five months before, from someone whom he could not remember. The appellant was cautioned a second time. He then admitted that the squares of paper were 196 LSD trips. He denied any association with the LSD and said they must have been left in his wallet by someone who had been in his vehicle.
Baker said that, at about 1.35 am, he asked the appellant about the pipes and Cannabis and issued the appellant with two expiation notices. It was at about this time that Cornish called for the assistance of personnel from the Criminal Investigation Branch with respect to identification of the contents of the squares of papers found in the appellant’s wallet. He said he also wanted the CIB to supply him with a cassette recorder because of his intention to further question the appellant.
Two detectives came to the car park at about 2.00 am, telling Cornish what they believed the squares of paper to contain. Further inquiries were made. At 2.31 am, Cornish told the appellant that he was under arrest for possessing a prohibited substance. He then gave the appellant his rights under s79A of the Summary Offences Act 1953. The appellant said he wished to contact his mother. The evidence was that that request was declined because of an intention to search the appellant’s home. The appellant lived at the same address as his mother. Cornish said that he believed that for the appellant to contact his mother might result in lack of evidence at those premises. A search was conducted at the appellant’s home, after which he was interviewed at the Adelaide Police Station by Cornish, in the presence of Eyre and the appellant’s mother. This interview was video-taped. It began at 4.39 am and concluded at 5.15 am. The evidence was that the appellant was again cautioned and advised of his s79A rights. He declined to exercise any of those rights. When questioned about the drugs found in his possession, the appellant largely repeated what he had earlier told the police. He maintained that they must have been left in his wallet by someone else. At the trial he admitted that this was not true, saying that it was just the first thing that popped into his head.
At the voir dire hearing, the trial judge accepted Baker’s evidence and acknowledged that s68 of the Summary Offence Act entitled Baker to inquire about the sword, suspecting that it was an offensive weapon. On the judge’s view of the facts that is plainly correct. The judge also found Eyre had lawfully required the appellant to empty his pockets. He properly referred to s52 of the Controlled Substances Act.
With respect to the conversation Cornish deposed to about what was found in the appellant’s wallet, the trial judge found that this commenced as Cornish said, at 1.10 am, some twenty-five minutes after the appellant was first seen in his car. The trial judge found a caution was given but said that the appellant had not then been arrested, so that s79A of the Summary Offences Act did not apply. With respect to the submissions made that the search of the car by Baker was unlawful, the trial judge maintained that once the sword was seen by Baker, he was entitled to act as he did pursuant to s68. The trial judge was of the opinion that nothing relating to the search of the appellant’s vehicle, his pockets or his wallet was unlawful. The police officers were exercising powers given to them by Parliament. His Honour referred to the overlapping powers of search within the Summary Offences Act and the Controlled Substances Act. That being said, the trial judge indicated that even if there was some tainted illegality with respect to the search he would exercise his discretion in favour of admitting the evidence. The judge cited Bunning v Cross .
With respect to what His Honour described as the de facto arrest situation, the trial judge rejected a submission that the appellant was detained against his will before an arrest took place at 2.31 am. The trial judge specifically rejected the appellant’s evidence that Baker and another officer told him to stay when he was spoken to at the car. Baker’s evidence was preferred. His Honour said that there was no evidence to suggest that the appellant was inclined, in any way at all, to leave the scene. He spoke of much activity in 25 minutes and found that the appellant just stayed at the scene.
As to the conversation which commenced at 1.10 am, the trial judge said that the appellant answered questions fully and in some detail. This was what the trial judge saw as "hardly indicative of something happening against his will". After referring to some of Cornish’s evidence, the trial judge said that from 1.32 am, the appellant was in de facto arrest, this time being about one hour earlier than when the appellant was actually arrested. The trial judge pointed out that nothing which the prosecution sought to use at the trial was produced between that time and 2.31 am. His Honour made a specific finding that any behaviour or activity by police officers before that time was not unfair or prejudicial to the appellant. His Honour also rejected a suggestion that the appellant requested the presence of a solicitor. He concluded his reasons for ruling by saying that if he was wrong in his conclusion, he would exercise his discretion and admit evidence of the 1.10 am conversation, again referring to Bunning v Cross and saying that the police "acted carefully and with no obvious unfairness to the accused". That case involves a discretion to exclude evidence because of some illegal or improper conduct. The language used by the judge must be understood as an indication that he declined to exercise a discretion to exclude Cornish’s evidence of his conversation with the appellant because no illegal or improper conduct had been established.
I agree with the submission put to this Court, that the evidence acted upon by the trial judge discloses no conduct indicative of a de facto arrest at 1.32 am. This particular finding is irreconcilable with the trial judge’s other findings.
In my view, the trial judge had correctly found that the appellant had not been apprehended within the meaning of s79A before completion of his conversation with Cornish at 1.32 am. There was nothing in the actions of the police which would have induced a reasonable person in the position of the appellant to believe that he was not free to leave nor was there a finding that the appellant was in fact induced to believe that he was not free to leave. Rather, the trial judge specifically rejected the appellant’s evidence that he had been told to stay, when first approached by police, and felt compelled to remain in the area . The initial approach by Baker involved a lawful process and the exercise of a power to obtain the appellant’s personal particulars . No apprehension occurs in such a situation . The search by Baker was, as the judge correctly found, authorised by s68 of the Summary Offences Act. It did not involve detention of the appellant within that section or apprehension on suspicion of having committed an offence within s79A . Eyre’s search of the appellant was authorised by s68. Again, no apprehension on suspicion of having committed an offence within s79A occurred. When the appellant was asked to empty his pockets and told, by Eyre, of his power to search for drugs, again, Eyre was acting entirely lawfully. The search of the appellant was authorised by s52(6) of the Controlled Substances Act and s68(1)(b) of the Summary Offences Act . Cornish’s conversation with the appellant was both lawful and appropriate. There were two cautions. It is not the law that police officers are required to acquaint a person of rights under s79A before speaking to a person suspected of having committed a crime . A person is not under de facto arrest simply because an arrest would have occurred had the person decided to leave. At no time did the appellant seek to leave the company of police officers . Against his credibility findings, the trial judge erred in finding that a de facto arrest occurred at 1.32 am.
The findings made did not call for the exercise of a discretion to exclude evidence on the ground of a failure in the police to comply with the demands of s79A. The trial judge declined to find any of the behaviour or activity by police before 1.32 am unfair or prejudicial to the appellant. He said they acted carefully and with no obvious unfairness to the accused. He also said that the answering of questions fully, when the appellant was spoken to at 1.10 am, was "hardly indicative of something happening against his will". These statements were criticised. Voluntariness is not the issue when considering the exercise of a Bunning v Cross discretion to exclude evidence because of illegal or improper conduct. Unfairness to an accused was said to be just one aspect of one discretion and that in his ruling, the trial judge had failed to consider the question whether it was unfair to use the evidence obtained against the appellant. Accepting that unfairness is an issue going to the exercise of discretions to exclude evidence, the findings of the trial judge do not call for the exercise of any discretion to exclude the evidence objected to. Material discovered was not illegally or improperly obtained, nor were there circumstances rendering it otherwise unfair to admit that material . The first ground of appeal fails.
With respect to the complaint about the inaccuracy of the directions to the jury with respect to the admitted lie, counsel for the appellant emphasised the fact that in this particular case, the appellant carried an onus to prove that his possession of LSD was not for sale. The ability to discharge that onus depended upon the appellant’s credibility. The prosecution relied on the appellant’s lies to police in order to challenge his credibility and contend that he had not discharged that onus. In that situation, it was said that the trial judge should have given a full and "proper lies direction". Reliance was placed upon Edwards v The Queen . Both counsel referred to the appellant’s admission in evidence that he had lied to the police. In his short summing-up to the jury, the trial judge simply said:-
"In assessing the accused’s evidence reference has been made to the fact that he admitted in evidence that when speaking to the police, both in the car park and on the video at the police station, he told them a lie about how he came into possession of the tabs the previous day. You will have no difficulty in being satisfied, because of the admission made by the accused, that the lie was told and that it was knowingly told by him.
You heard the accused say that he told a lie because when being spoken to by the police. It was the first thing that popped into his head, to use his words. Perhaps, there was in his so doing a degree of panic, being spoken to by the police, and that once told it was repeated. That behaviour goes only to your assessment of his credit."
After that, the trial judge referred to what counsel had put and reminded the jury that the appellant’s evidence to them was that he had the drug in his possession for his personal use, with no intention to sell it, he having a heavy drug habit at the time.
In Edwards the High Court made plain that in any case where a lie is relied upon to prove guilt, the lie should be precisely identified as should the circumstances and events that are said to indicate that it constitutes an admission against interest. In such a case a jury must be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence or because of a realisation of guilt and a fear of the truth . In my view, the prosecution was not relying upon the admitted lie as evidence of a consciousness of guilt. Against the background of the entire case, including the addresses of counsel, the directions given by the trial judge were adequate. This was a case where the reason for the lie was given to the jury. The jury was invited to consider whether it believed the appellant’s explanation for that lie. It was a matter for the jury to consider whether they were satisfied, on the balance of probabilities, that he was not possessed of that substantial quantity of LSD for sale. The evidentiary onus imposed upon him did not call for any further direction given the nature of the case, the clear indications of counsel that any lie was relevant only to credit and the plain and emphatic direction of the trial judge. I am not persuaded that there was a real possibility that the jury might have pursued an improper line of reasoning without further directions . The second ground of appeal also fails.
The appeal should be dismissed.
Cox J
I am in general agreement with the reasons prepared by Prior J. There are two passages in the learned trial Judge’s voir dire ruling which have caused me concern. That the appellant answered Senior Constable Cornish’s questions at 1.10 am willingly was not an issue on the voir dire and could not, in my view, have assisted in determining whether the appellant was under de facto arrest at that time. The learned Judge held that he was not, but found that he was under de facto arrest from the conclusion of the interview at 1.32 am. There were no words of arrest or detention, formal or informal, at 1.32, and it is not obvious why the appellant should have believed that he was not free to leave then if he did not have that belief at some earlier time. There is a question, then, whether those passages in the ruling invalidate the learned Judge’s finding that the appellant had not been detained, informally but effectively, before 1.32. I have reached the conclusion that the Judge’s findings of fact on the subject of arrest are sufficiently disengaged from the two problem passages as to cast no real doubt on the critical finding that there was no relevant detention prior to 1.32 am. If the appellant was not arrested at or before that time, the better view appears to be that he was not arrested until Cornish spoke to him again at 2.31 am, when the officer used the standard terms of arrest. I would dismiss the appeal.
Williams J
I agree.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
(1978) 141 CLR 54
R v Webb and Hay (1992) 59 SASR 563 at 571
ss38 and 42 Road Traffic Act 1961
Scott v Pavia (1987) 46 SASR 563; Burgess v Hall (1988) 48 SASR 394
DPP v Smith (1994) 179 LSJS 25 at 26
Gibson v Ellis (1992) 59 SASR 420
R v Schutze and Cornelius (1994) 179 LSJS 418 at 426
R v Lavery (1978) 19 SASR 515 at 516
Cleland v R(1982) 151 CLR 1 especially at 27, 33-35
(1993) 178 CLR 193
(1993) 178 CLR 193 at 210 and 211
Roberts v R (1994) 178 LSJS 131
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