R v Tram - [2023] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRAM
[2023] SADC 105
Reasons for Ruling of his Honour Judge Handshin
4 August 2023
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION
Application to exclude evidence of drug offending on the basis it was obtained after the applicant and his vehicle had been unlawfully detained. On 3 June 2021, police detained the applicant, who was suspected to be engaged in drug dealing, by parking an unmarked police car bonnet to bonnet with the applicant’s vehicle, with its emergency lights activated. A female alighted from the applicant’s car and produced two deal bags containing a substance believed to be drugs, which she indicated she had just purchased from the applicant. The applicant was subsequently asked to get out of his vehicle. He was asked if he had any identification and whether he had drugs on him. In response he produced multiple deal bags later found to contain a total of 2.12g of heroin. The applicant made frank admissions at the scene to trafficking heroin and reiterated those admissions during a subsequent interview.
The issue to be determined was whether, at the time the detention commenced, the police had a reasonable suspicion that any substance or equipment that would afford evidence of an offence against the CSA was in the vehicle. The asserted basis of the suspicion was that on 26 May 2021, the applicant had twice attended at the Mansfield Park Hotel car park in his vehicle whereupon a male and female had, on separate occasions, got into the front passenger seat of the applicant’s car for short periods of time. Nothing was known of the identity of those people, or the applicant for that matter, and nothing resembling an exchange of items for money was seen to take place. Police had no information suggesting that the applicant, his vehicle, or the male or female, had any association with drugs. On 3 June 2021, and prior to the detention, another female was seen to get into the front passenger seat of the applicant’s vehicle. Again, nothing resembling an exchange of an item for money was observed and police had no information as to the identity of the female nor anything to suggest an association with drugs.
Held: The detention of the applicant and his vehicle was unlawful. The suspicion genuinely held by the detaining police officer was not reasonably held. In circumstances where the police had no information linking the applicant, his vehicle or any of the other people seen to get into his car with drugs, a suspicion that the applicant was dealing drugs was a product of mere idle wondering. The production of the ‘deal bags’ by the female on Killara Street and her response to the police inquiry occurred after the detention had already been effected and could not be taken into account in assessing the reasonableness of the suspicion said to be held. Accordingly, the pre-conditions to the exercise of the power conferred by s 52(9) of the CSA were not made out and there was no alternative source of power relied upon by the police or which, as a matter of fact and law, rendered the detention lawful. The evidence was illegally obtained and ought to be excluded in the exercise of the public policy discretion.
Controlled Substances Act 1984 (SA) ss 32(3), 52(6), and 52(9); Summary Offences Act 1953 (SA) ss 74AB, 74D, and 74E ; Road Traffic Act 1961 (SA) ss 40H and 40V ; Motor Vehicles Act 1959 (SA) s 96 ; Narcotics and Psychotropic Drugs Act 1934 (SA), referred to.
R v Willingham [2012] SASCFC 104; R v Lavery (1978) 19 SASR 515; Police v Pocius [2018] SASC 38; R v Conley (1982) 30 SASR 226; R v Trotter (1992) 58 SASR 223; New South Wales v Le [2017] NSWCA 290; Bae and Koo v The Queen [2020] SASCFC 7; R v Armistead [2019] SASCFC 85; R v Nguyen (2013) 117 SASR 432; Zenuni v The King [2022] SASCA 106; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; George v Rockett (1990) 170 CLR 104; Prior v Mole (2017) 91 ALJR 441; McHugh v The Queen [2022] SASCA 5; R v Colenso [2016] SASCFC 128; R v Nguyen (2015) 248 A Crim R 398; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 112 ALR 463; Police v Moukachar (2010) 107 SASR 450; R v Dam and Nguyen [2015] SASCFC 131; Collins v Wilcock [1984] 1 WLR 1172; R v Neal (2017) 128 SASR 20; Coco v The Queen (1994) 179 CLR 427; Bropho v The Queen (1990) 171 CLR 1; ACCC v Daniels (2002) 213 CLR 543; Momcilovic v The Queen (2011) 245 CLR 1; Ex parte Simms [2000] 2 AC 115; R v Amital (2022) 372 FLR 53; Lockwood v The Commonwealth (1954) 90 CLR 177; Brown v West (1990) 169 CLR 195; John Holland v Industrial Court of New South Wales [2010] NSWCA 338; R v Romeo (1982) 30 SASR 243; Police v Grozev [2006] SASC 353; Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19; Rockford v The Queen (2015) 122 SASR 391; Kadir v The Queen (2020) 267 CLR 109; R v Golja [2017] SASCFC 61; Van Houten v The King [2023] SASCA 57; Pollard v The Queen (1992) 176 CLR 177; Williams v The Queen (1986) 161 CLR 278; Cleland v The Queen (1982) 151 CLR 1, considered.

R v TRAM
[2023] SADC 105
Criminal Jurisdiction

This is an application pursuant to Rule 39 of the Joint Criminal Rules 2022 for the exclusion of evidence said to have been obtained following an illegal detention of the applicant and the vehicle he was in on Killara Street, Angle Park on 3 June 2021.
The applicant, Hai Tram, is charged with two counts of trafficking in a controlled substance, namely, heroin, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA).
The events giving rise to the charges took place on 3 June 2021, when Senior Constable Baldwin (Baldwin) and Senior Constable Bretag (Bretag) detained the applicant and his vehicle, a silver Holden commodore (the Holden), on Killara Street on suspicion that he was trafficking drugs.
That suspicion, according to Baldwin, had its genesis in observations he made on 26 May 2021 whilst conducting surveillance duties in the Mansfield Park Hotel car park. On that day, on two occasions, Baldwin saw the vehicle in which the applicant was discovered on 3 June 2021, enter and park in the hotel car park, whereupon, on the first occasion, a male exited the gaming room of the hotel and for a short period of time sat in the front passenger seat of the Holden. A short time later and after the Holden had departed and then returned to the car park, a station wagon pulled up in the parking spot next to it. A female alighted the station wagon and entered the front passenger seat of the Holden, where she remained for a short period of time. Nothing of the interactions between the driver of the Holden, the male or the female, all of whom were unknown to Baldwin, were observed save for the time the male and female spent in the passenger seat.
Thereafter, the Holden left the car park and nothing further of note occurred until 3 June 2021.
On 3 June 2021, and in the immediate lead up to the detention of the applicant and the vehicle, another police officer, Senior Constable Cahill (Cahill), had followed the Holden from the Mansfield Park Hotel – where it was not seen to be associated with any occurrences of the kind seen on 26 May – to Killara Street, Angle Park. In Killara Street, the Holden parked on the eastern side of the road. Cahill observed a female (Fitzgerald), who was not known to police at the time, alight from the front passenger seat of a vehicle parked on the western side of the road. She walked around the front of the bonnet of that vehicle, crossed the road and got into the front passenger seat of the Holden. Nothing further of any interaction between the driver of the Holden and the female passenger was observed.
A short time later, Baldwin and Bretag, having been advised by Cahill of his observations, arrived in Killara Street. Baldwin parked the unmarked police vehicle bonnet to bonnet with the Holden with emergency lights activated. It was Baldwin’s intention to detain and search the vehicle and the driver and the positioning of the police car was designed to give effect to that intention. Baldwin also wanted to confirm the identity of the driver which, to that point, he did not know.
As Baldwin and Bretag approached the Holden, Fitzgerald got out of the vehicle. Baldwin asked her ‘what are you up to’. In response, Fitzgerald produced two resealable bags containing a white substance suspected to be heroin.[1] (Count 1) She told the officers she had just purchased the drugs from the applicant.
[1] The bags each contained 0.06g of heroin.
The applicant was told by Bretag to get out of the Holden. Baldwin then asked the applicant to produce identification, at which time Baldwin observed a substantial quantity of cash in his wallet. Having made that observation Baldwin asked the applicant whether he had drugs on him. The applicant produced a plastic bag containing a number of resealable ‘deal bags’.
In response to a further inquiry from Baldwin, the applicant produced from his groin, a tin in which there were more deal bags apparently containing drugs. In total, 33 ‘deal bags’ containing between 0.05g and 0.07g of heroin were located. The total quantity of heroin found in the applicant’s possession was 2.12g. (Count 2)
The applicant was arrested and conveyed to the Port Adelaide Police Station where he was formally interviewed.
Both on Killara Street and at the Port Adelaide Police Station, the applicant made frank admissions to trafficking heroin.
By Rule 39 notice filed 8 May 2023, the applicant seeks an order:
That the prosecution not be permitted to lead evidence of the (2) search [sic] of the applicant TRAM and that the “fruits” of the searches conducted on 3 June 2021 be excluded from evidence.
In the application, the grounds on which the order for exclusion is sought are articulated as follows:
That both the first search and the subsequent search of the applicant TRAM and his premises were illegal in that the “predicate observations” of Senior Constable BALDWIN said to have been recorded on video on 26 May 2021 were wholly insufficient to give rise to the “reasonable suspicion standard” required under section 52 of the Controlled Substances Act, 1984.
It is clear from the above summary of relevant events that the controlled drugs to which the charges relate were not in fact detected as a result of any search of the applicant or his house. To my mind, the critical issue is, rather, whether the detention of the applicant and his vehicle, which was properly conceded by the prosecutor to have occurred, was a lawful exercise of the power to detain conferred by s 52(9) of the CSA and, if not, whether there was an alternative power which authorised police to detain either the applicant or his vehicle?
The resolution of the threshold question concerning the application of s 52(9) of the CSA turns on whether Baldwin had a reasonable suspicion at the time that he parked the police vehicle bonnet to bonnet with the Holden that a search of the car or the applicant would reveal evidence of offences against the CSA.
For reasons that follow, I find that the suspicion that I accept Baldwin genuinely held to this effect, was not objectively reasonable. Accordingly, the detention of the Holden and the applicant was not authorised by s 52(9) of the CSA. Further, I am not satisfied that the detention of the Holden or the applicant was justified by reference to any other statutory power.
I consider that the evidence obtained as a result of the unlawful detention of the Holden and the applicant should be excluded in the exercise of the public policy discretion.
Evidence of Senior Constable Baldwin
26 May 2021
The prosecution called Baldwin, Bretag and Cahill to give evidence on the voir dire.
As at May 2021, Baldwin had been a police officer for around 30 years.
On 26 May 2021, Baldwin was conducting surveillance observations from within a Toyota HiAce van as part of an operation called the ‘Stop Car Theft Program’. The van was equipped with a camera and computer system that allowed for observations captured by the camera to be recorded to the computer hard drive and reviewed, or watched in real time, via a monitor in the van. The camera could be positioned throughout the van by affixing it to a rail system. Essentially, the surveillance operative could manually position the camera to record images through the van’s passenger side or rear windows.
Just prior to midday, Baldwin observed a Hyundai (the Hyundai) in which there were known motor vehicle offenders enter the Mansfield Park Hotel car park. The occupants of the vehicle made their way to the gaming room.
Shortly thereafter, Baldwin observed the Holden enter the car park. The driver of the Hyundai was seen to run from the gaming room to the Holden. According to Baldwin, the driver of the Hyundai got into the front passenger seat of the Holden where he remained for less than two minutes before returning to the gaming room.
Baldwin did not see what, if anything, took place in the Holden. The Holden then departed the car park. Baldwin observed the driver to be an Asian male with long dark hair. He did not recognise the driver.
Within a few minutes the Holden returned to the car park, this time parking in a different parking spot almost directly opposite Baldwin’s van. A short time later, a red Holden station wagon (the station wagon) pulled into the park on the driver’s side of the Holden. A female passenger from the station wagon got out of that vehicle and entered the front passenger seat of the Holden where she remained for a minute.
Thereafter, the female returned to the station wagon which departed the car park. The Holden left a short time later, but before doing so, the driver of the Hyundai again approached the driver of the Holden. Nothing further of note was observed.
It was Baldwin’s evidence that he suspected, as at 26 May 2021, that the driver of the Holden was dealing drugs. He suspected that the occupants of the Hyundai and the station wagon had made telephone contact with the driver of the Holden and arranged to meet in the car park of the Hotel. Baldwin said that what he observed of their interactions was consistent with his experience of the modus operandi of drug transactions.
In cross-examination, Baldwin said that the reason he did not act on his suspicions on 26 May and conduct a search of the Holden was because of ‘man-power’ issues.
After 26 May 2021, Baldwin conducted no further checks on the Holden but he thought he became aware that the vehicle was registered to a female. As will be seen, it appears that Cahill provided him with this information on 26 May.
3 June 2021
On 3 June 2021, Baldwin was on duty with Bretag in an unmarked police car when they received information from Cahill that the Holden had entered the Mansfield Park Hotel car park. The driver alighted the vehicle and briefly entered the gaming room before returning to the car. Nothing resembling the interactions of 26 May were seen by Cahill to take place in the car park.
Baldwin decided to have Cahill follow the Holden which Cahill duly did. Whilst following the Holden, radio communications were passing between Cahill and Baldwin and Bretag.
The Holden made its way onto Killara Street at which time Cahill advised Baldwin that the female who later became known as Fitzgerald had got out of a car parked across the road from the Holden and entered the front passenger seat of the Holden.
Having received this information, which was consistent with his observations on 26 May 2021, Baldwin suspected that another drug deal was taking place in Killara Street. He decided that the vehicle would be detained and the driver searched. In examination in chief, Baldwin confirmed that he made a ‘concrete decision’ to search the Holden when he learnt it had left the Mansfield Park Hotel car park. In cross-examination, Baldwin acknowledged that he had determined to search the driver of the vehicle upon being informed by Cahill of the events in Killara Street. At this point, he thought ‘this is another drug deal, let’s act on it, that’s it’.
It is clear from Baldwin’s evidence that, prior to his arrival in Killara Street, decisions had been made to stop, detain and search the Holden and the driver.
When Baldwin and Bretag arrived in Killara Street, Fitzgerald was still in the front passenger seat of the Holden. Baldwin parked the police vehicle bonnet to bonnet with the Holden to prevent its escape. The lights of the police vehicle were activated. The methodology employed by Baldwin was objectively consistent with giving effect to the decisions he had already made.
Baldwin got out of the police vehicle and approached the passenger side of the Holden, at which time Fitzgerald alighted. Baldwin observed the driver of the Holden and suspected him to be the same male seen driving the vehicle on 26 May.
Baldwin asked Fitzgerald ‘what are you up to’ at which point she produced two deal bags containing a white substance and said she had just purchased the bags from the driver of the Holden.
The driver got out of the Holden and Baldwin determined it would be appropriate for him to deal with the driver and for Bretag to engage with Fitzgerald.
Baldwin described what happened thereafter in the following terms:
I actually said to him ‘I’m a police officer. Can I see anything with your name on it please.’ He said ‘yes’. I said ‘Do you understand me when I speak to you’… he said ‘yes’. He then produced a black wallet from his person, opened it in front of me and all I could see was a large amount of cash. So at that point with the drugs and the cash I suspected that he would have drugs on his person or in the vehicle.[2]
[2] T39.33 – 40.3
And then:
AWhat happened from there. I then was going to take some sort of action, so then because of what I'd seen I said - I gave him a caution 'I'm going to ask you some further questions. You are not obliged to answer them but anything you do say will be recorded, do you understand' he said 'yes'. And I then said 'Do you have any drugs on you at the moment' he said 'Yes'. He then put his left hand into the left pocket of the pants he was wearing, removed a large resealable bag and put that onto the bonnet of the police vehicle. The bag contained numerous bags, what I call deal bags, that's my terminology which were the same as the two produced by the female passenger. I then said to Senior Constable Bretag to go and get a video recorder.
QThank you.
AThat was it.
MS TABUTEAU
QWhen he had produced his wallet did he also produce his ID for you.
AHe did. Can I just go back, I've left out two lines on my notes. So when he produced the plastic bag, put them on the bonnet, I said 'What is inside the bag' and he said 'heroin'.[3]
[3] T40.28 – 41.12
I interpolate that Baldwin’s request that the driver produce identification occurred after the Holden and its driver had been detained and the female had produced the two ‘deal bags’.
The applicant’s identity as the driver was confirmed.
The above exchanges were not recorded in accordance with s 74D of the Summary Offences Act 1953 (SA) (SOA) and the prosecutor accepts that the conversation is therefore subject to the conditional exclusionary rule created by s 74E of the SOA.
It was only after the above conversation that Baldwin requested that Bretag retrieve the video camera from the police vehicle. Curiously, when asked why a video camera was not activated beforehand, Baldwin said:
AWe didn't know actually what we had at that particular stage. All we had then when the female produced the two bags was a drug diversion which is not a requirement to search or video. As soon as we had found the large amount of drugs, straight to the video.
QDid you consider starting the recording equipment at the time you gave -
ANo.
Q- the accused a caution.
ANo.
QWhy was that.
AAs I said we only had a summary offence with a drug diversion with the female at that stage.[4]
[4] T42.12-24.

Baldwin subsequently confirmed that it was not until the applicant produced the ‘deal bags’ that he suspected the commission of an indictable offence:[5]
QAt the time that you approached Mr Tram on 3 June 2021, the first time that you approached him, did you have suspicion then that he might be committing or had committed or was about to commit an indictable offence.
ANo.
QDid you at any point prior to the production of the bags consider that he had been, was or was about to commit an indictable offence.
ANo.
[5] T50.26-34.
There is a tension between, on the one hand, Baldwin’s assertion that he strongly suspected the driver of the Holden was dealing drugs for the purpose of supporting the detention of the Holden and the applicant in Killara Street and, on the other hand, Baldwin’s suggestion that he did not suspect the driver of the Holden to have committed an indictable offence until the deal bags were produced – evidence that Baldwin gave in defence of the failure to record his initial interactions with the applicant on video. The assertions may not be completely irreconcilable but there is an inescapable illogicality to them.
Returning to the narrative, after the video camera was activated, Baldwin informed the applicant he was going to be arrested and provided his arrest rights. During this process, and after the applicant had produced the ‘deal bags’ that he said contained heroin, Baldwin asked the applicant ‘have you got any more’. This inquiry prompted the applicant to remove from his groin a tin containing further deal bags of heroin.
Baldwin gave evidence that none of the drugs produced by the applicant were located as a result of a ‘search’ of the applicant. Rather, the suggestion seems to be that the applicant voluntarily produced the drugs. Indeed, the prosecution case is that the applicant was not searched by Baldwin until after the drugs had been produced and the applicant had been arrested.
Following his arrest, the applicant was conveyed to Port Adelaide Police Station where a formal record of interview was conducted, in the course of which the applicant made admissions to the charged offending.
8 June 2021 – reviewing the footage
It was not until 8 June 2021 that Baldwin reviewed the footage from 26 May 2021 together with Bretag. They attempted to download the original recording but were unable to do so. As a result, Bretag made a video recording of the original footage, which was played via the computer system in the van.
In the course of this exercise, Baldwin controlled the computer system in the van and would move the position of the original footage to points of interest as the recording was lengthy. The recording taken by Bretag of the original footage was tendered on the voir dire (VDP1).
A number of points should be made about the recording.
First, the recording does not show the driver of the Hyundai getting into the Holden. It appears from the recording that when the driver of the Hyundai ran past the van, Baldwin did not reposition the camera to follow him. In cross examination, Baldwin said that was because the ‘camera wasn’t able to be pointed in that direction’. Baldwin said he made direct observations of the male getting into and remaining in the front passenger seat of the Holden.
Secondly, the recording does not show the passenger of the station wagon getting into or out of the Holden. The footage does capture the passenger door of the Holden shutting but not how that came about. Equally, the footage does show the female getting back into the passenger seat of the station wagon but, again, it does not show where she came from. Baldwin’s evidence was that he made direct observations of the female’s movements throughout this period.
Save for these matters, the recording was otherwise generally consistent with Baldwin’s evidence.
The state of the information available to Baldwin as at 3 June 2021
The information available to Baldwin at the time the police vehicle parked bonnet to bonnet with the Holden on 3 June may be briefly summarised:
·On 26 May 2021, Baldwin had observed two occupants of other vehicles get into the front passenger seat of the Holden for short periods of time and not long after the Holden had arrived in the car park.
·The circumstances in which these interactions occurred indicated that the meetings had been pre-arranged.
·On 3 June 2021, after the Holden arrived in Killara Street, a female occupant of another vehicle parked in that street made her way into the front passenger seat of the Holden.
·The circumstances in which this interaction occurred indicated it had been pre-arranged.
·Baldwin considered that the interactions he observed were consistent with his experience of how drug deals are transacted.
However, it is also important to reference the following matters. Baldwin was not able to say what happened in the Holden on either 26 May or 3 June or whether any items exchanged hands.
Baldwin had no information about the driver of the Holden or anyone else seen to get into the Holden, save that the driver of the Hyundai appears to have been a known motor vehicle offender.
Baldwin had no information that any participant in the above events had an association with drugs.
Findings as to Baldwin’s credit and reliability
Counsel for the applicant challenged the credibility and reliability of Baldwin’s evidence concerning his observations in the Mansfield Park Hotel car park on 26 May 2021. The gravamen of the challenge was that if, as Baldwin said in his evidence, he observed the driver from the Hyundai and the female passenger from the station wagon get into the Holden, he would have captured these events via the van’s camera. It was suggested, in effect, that as those events were not captured on the recording of the original footage, I could have no confidence that they in fact occurred.
I reject the challenge to Baldwin’s credibility concerning his observations of 26 May. I accept that, as to these matters and generally, Baldwin was an honest witness endeavouring to recall events that transpired two years ago. That Baldwin made such observations is circumstantially supported by the radio communications that passed between Cahill and Baldwin on 3 June 2021. These communications tend to suggest that Baldwin had informed Cahill of his observations from 26 May, if not his suspicions that the driver of the Holden was engaged in drug trafficking. This in turn supports the proposition that Baldwin must have advised Cahill that he had seen others getting into the front passenger seat of the Holden for short periods of time.
As for the absence of the original footage and the disconnect between Baldwin’s observations and what can be seen on the recording, I am unpersuaded that these matters adversely affect the reliability of Baldwin’s evidence that he observed the driver of the Hyundai and the female passenger from the station wagon get into the front passenger seat of the Holden. The nature of these observations are such that I do not consider that the absence of contemporaneous notes or the limitations of the footage provide any reason to doubt the substance of what Baldwin said he observed.
I find therefore that on 26 May 2021, Baldwin observed the driver from the Hyundai and the female passenger from the station wagon get into the front passenger seat of the Holden for short periods of time in the circumstances that he described.
Further, I accept Baldwin’s evidence that he was advised by Cahill on 3 June 2021 of a similar occurrence taking place in Killara Street after the Holden was followed from the Mansfield Park Hotel car park.
I do have some reservations about Baldwin’s evidence concerning his intention to ascertain the identity of the driver. I do not accept that his primary motivation on 3 June 2021 was to confirm the identity of the driver. From 26 May 2021, Baldwin was strongly of the view that the driver of the Holden was dealing drugs. When he was informed on 3 June 2021 of the events in Killara Street, he made a ‘concrete decision’ to detain and search the Holden and its driver. I accept that a part of that process would necessarily involve confirming the identity of the driver but the chronology of events points persuasively to the conclusion that this was very much a subsidiary objective on 3 June 2021. That is to say, confirming the driver’s identity was simply going to be a part of the process of searching the vehicle and its driver.
Evidence of Senior Constable Cahill
26 May 2021
On 26 May 2021, Cahill, who was also part of the Stop Car Theft Program, was on light duties in an unmarked police vehicle in the vicinity of the Mansfield Park Hotel. He was in radio contact with Baldwin who relayed observations to him about the Holden. Cahill said that Baldwin told him he suspected drug transactions were being conducted in the Holden. Baldwin advised Cahill the driver of the Holden was an Asian male.
As a result of the information provided to him, Cahill conducted a vehicle check on the Holden which revealed that it was then registered to a female. Cahill believed he would have relayed this information to Baldwin.
At the conclusion of his shift, Cahill returned to the Thebarton barracks where, together with Baldwin, he reviewed the video captured from the HiAce van. According to Cahill, the video showed other vehicles attending the car park and passengers from those vehicles getting into the front passenger seat of the Holden.
Cahill said that the camera in the HiAce could be fixed to ‘a few different angles at the back of the vehicle’ and that the camera can capture whatever the operator wants by the operator manually directing it to a point of interest.
In cross examination, Cahill’s recollection of what was captured by the original footage was challenged. It was put to him that in VDP1, no one can be seen getting into the front passenger seat of the Holden. Cahill agreed with this but maintained he had seen people getting into the passenger seat of the Holden on the original footage.
It was put specifically that Cahill did not in fact see on the recording the female alighting the red station wagon and getting into the passenger seat of the Holden and that he had not mentioned making such an observation in his affidavit of 2 August 2021. Whilst Cahill accepted the latter proposition, he rejected the former. He maintained he had seen on the original footage, the female from the station wagon getting into the Holden.
It was similarly put to Cahill that he had not in fact seen any occupant of the Hyundai enter the front passenger seat of the Holden when he reviewed the original footage with Baldwin. Cahill reiterated that he had seen people getting into the Holden but could not recall which vehicles they had been linked to.
Cahill’s summary of the original footage
I pause here to make some observations about Cahill’s evidence as to the content of the original footage.
With respect to the red station wagon, it appears to me that this part of the recording of the original footage does seem to indicate that the recording was continuous and uninterrupted. That is to say, unlike other portions of the recording where it is apparent that Baldwin is fast forwarding or otherwise manipulating the original footage, that does not appear to be the case here.
Accordingly, I am not satisfied that the original footage in fact showed the female from the station wagon getting into the Holden.
In my view, the most probable explanation for Cahill’s evidence – he not having made any contemporaneous record of what he saw on the footage when he watched it two years ago – is that Baldwin, who would have been in a position to make this observation on 26 May 2021, commentated what he actually saw when the two were reviewing the footage or otherwise informed Cahill of his observations from 26 May.
I consider it likely that this has, in a sense, contaminated Cahill’s recollection of what could be seen on the original footage.
As to the driver of the Hyundai, it is equally clear that the recording does not capture the driver getting into the Holden. Given the importance of those observations to Baldwin’s working hypothesis, it seems unlikely that he would have omitted any portions of the original footage that captured such events when determining what should be recorded by Bretag on 8 June 2021. Accordingly, I am not satisfied that the original footage in fact captured the driver of the Hyundai getting into the front passenger seat of the Holden.
Again, the most likely explanation for this disconnect between the oral evidence and the recording of the original footage, appears to me to be that Baldwin has provided a commentary of what he saw as he maintained surveillance on the Holden from the van on 26 May 2021. I consider it likely that Cahill has, due to the passage of time, wrongly assumed that he observed people getting into the passenger seat of the Holden by reference to the original footage.
I do not accept that this reflects adversely on Cahill’s credibility but it does raise a question as to the reliability of his evidence concerning what he saw on the original footage. Although it makes no material difference to the relevant factual matrix, I am not prepared to act on Cahill’s recollection of what could be seen on the original footage.
As I have previously said however, I accept that Baldwin in fact made such observations, so my reluctance to act on Cahill’s evidence in this respect is inconsequential.
Moreover, I am satisfied that Baldwin must have conveyed to Cahill the substance of his observations because that is the only rational explanation for why Cahill immediately contacted Baldwin on 3 June having observed the ‘heroin dealer’ in the ‘commy’ in the Mansfield Park Hotel car park.
3 June 2021
On 3 June 2021, Cahill was again on light duties. At 11:30am, and whilst conducting observations in the Mansfield Park Hotel car park, Cahill saw the Holden being driven by the Asian male he had seen driving the vehicle in the footage taken on 26 May 2021. The Holden parked and the driver thereafter alighted the vehicle and entered the gaming room of the Hotel. A short time later, the driver emerged and returned to the Holden, before departing the car park.
Cahill relayed his observations to Baldwin and Bretag who were also in the vicinity of the Hotel.
When the Holden left the car park, Cahill followed in his unmarked police car. The Holden made its way to Killara Street and stopped on the eastern side of the road. There was another vehicle parked near to the Holden but on the western side of the road. As Cahill made his way down Killara Street, he observed a female, later identified as Fitzgerald, who he assumed had alighted the vehicle on the western side of the road, cross over and enter the front passenger seat of the Holden. Cahill communicated his observations to Baldwin.
Cahill exited Killara Street and, by the time he returned, Baldwin and Bretag had already engaged with the female and the applicant.
Later that day, Cahill was involved in a search of the applicant’s home address. That search was conducted pursuant to a general search warrant held by Brevet Sergeant Kepka.
Evidence of Senior Constable Bretag
3 June 2021
Bretag was on duty on 3 June 2021 in company with Baldwin. They were conducting proactive policing duties in and around the Angle Park and Woodville Gardens area.
They received a communication from Cahill in relation to the Holden. Bretag could not recall whether she had been made privy to the events of 26 May to that point.
Cahill was asked to follow the Holden while Bretag and Baldwin made their way to his general location. Radio communications record that Bretag informed Cahill ‘we might go stop him’. In her evidence in chief, Bretag said that she understood they were going to conduct a traffic stop of the Holden. This, she said, was a decision that Baldwin would have made.
En route to Killara Street, Bretag and Baldwin were advised by Cahill that a female (Fitzgerald) had got out of another vehicle and entered the passenger seat of the Holden.
When Baldwin and Bretag entered Killara Street, the Holden had already parked. Baldwin stopped the unmarked police car so that it was bonnet to bonnet with the Holden. Baldwin and Bretag got out of the police vehicle and Fitzgerald got out of the Holden. Baldwin said to Fitzgerald ‘What are you doing’, at which point she removed two plastic bags containing what was suspected to be drugs from her pocket and commented ‘I bought these from him’, indicating the applicant.
Bretag then approached the applicant, who was still in the driver’s seat of the Holden, and asked him to get out of the car. At this point, Bretag suspected that the applicant may have had more drugs on him and she wanted to speak to him for that reason. In her mind, she was engaging the power conferred by s 52 of the CSA although she did not specify in which respect. Bretag could not recall the words she used when speaking with the applicant or whether she directed him to get out of the car.
When the applicant got out of the Holden, Baldwin engaged with him. Bretag saw the applicant remove items from his pocket and place them on the bonnet of the police vehicle. Baldwin then requested Bretag to obtain a video camera from the police vehicle, which she did.
After the recording was activated, the applicant produced a tin from his groin area.
8 June 2021
On 8 June 2021, Bretag assisted Baldwin in making a recording of portions of the original footage from 26 May 2021, having been unable to download or otherwise copy the original footage in its totality. Bretag was unable to describe what she observed on the original footage.
Analysis
Was the detention of the Holden lawful?
As I have earlier said, in light of the evidence concerning Baldwin’s intention and conduct upon entering Killara Street, the threshold question to be determined is whether the detention of the Holden and the applicant was lawful.
The resolution of this issue turns, at least initially, on whether the criteria to exercise the power of detention conferred by s 52(9) of the CSA were here satisfied. Section 52(9) 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 Act is in any vehicle, vessel or aircraft, the officer may—
(a)     require the driver of the vehicle, the 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.
As things turned out on 3 June 2021, there was in fact no search of the Holden because after the vehicle was detained, the applicant, in response to an inquiry from Baldwin, produced from his person the drugs the subject of Count 2, Fitzgerald having already produced the drugs relating to Count 1.
Nonetheless, it is common ground that the Holden and/or the applicant were detained as a matter of fact and law and, had it not been accepted by the prosecution, I would have made that finding in any event.[6] Detention of that kind requires a lawful authority and, according to Baldwin, the authority he purported to exercise when detaining the vehicle and the applicant in Killara Street was s 52(9).
[6] There is support in the cases dealing with the circumstances in which someone is taken to be ‘apprehended’ for the purpose of s 79A of the Summary Offences Act for the proposition that determining whether someone has been detained is a largely objective inquiry. See, eg the discussion in cases such as R v Lavery (1978) 19 SASR 515, 516-518; Police v Pocius [2018] SASC 38; R v Conley (1982) 30 SASR 226, 239-240; R v Trotter (1992) 58 SASR 223, 235-236; New South Wales v Le [2017] NSWCA 290, [7]; Bae and Koo v The Queen [2020] SASCFC 7, [44]; R v Armistead [2019] SASCFC 85, [81]-[88].

It is well understood that examining the lawfulness of the power conferred by s 52(9) of the CSA involves two separate inquiries. In R v Willingham [2012] SASCFC 104 at [10], the sequential questions to be asked were articulated in these terms:
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.
I interpolate that I accept Baldwin’s evidence that he suspected the driver of the Holden was engaged in drug dealing, notwithstanding the obvious difficulties in reconciling this aspect of his evidence with his claim that he did not suspect the commission of an indictable offence until the deal bags were produced by the applicant.
Returning to the objective limb of s 52(9), whether a suspicion genuinely held by a police officer was a reasonably held suspicion is a factual question that is to be decided on the balance of probabilities.[7]
[7] Zenuni v The King [2022] SASCA 106, [12].
It is important to bear in mind that a suspicion that a fact exists is less certain than a belief in the existence of that fact. As the Full Court of the Supreme Court explained in R v Nguyen (2013) 117 SASR 432 at [21]:
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.
The purpose of the qualifier ‘reasonable’ in s 52(9) of the CSA 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. In R v Nguyen (2013) 117 SASR 432 at [22], the significance of the objective limb was explained in the following way:
Importantly, s 52(6) and (9) of the [Act] require more than an actual suspicion; the police officers must not only suspect but ‘reasonably suspect’ that the person possesses an illicit substance or that there is evidence of an offence against the [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 this 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…
As the above passages demonstrate, a ‘reasonable’ suspicion is often contrasted with a suspicion that is the product of or involves little more than ‘mere idle wondering’. A ‘reasonable’ suspicion is one founded on ‘more than a reason to consider or look into the possibility of the existence’ of a particular fact – in this case, that there were drugs or evidence of drug related offending in the Holden or on the applicant himself. For Baldwin’s suspicion to be a reasonable one, there had to be something more than a tenuous, even if rational, connection between the information he had available to him and the working hypothesis that there was evidence of drug offending in the Holden or in the applicant’s possession.[8]
[8] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303.
Whether a subjectively held suspicion is a reasonably held suspicion requires an assessment of whether the information available to the relevant police officer at the time the power of search, or in this case detention, is engaged would ‘rationally produce a suspicion in the mind of…a person thinking reasonably about that information’.[9] In Bae and Koo v The Queen [2020] SASCFC 7 at [76], the test was expressed in the following slightly different, but conceptually aligned terms, namely, whether a ‘reasonable person in possession of the same information as the police officer would entertain the same suspicion’.[10]
[9] R v Nguyen (2013) 117 SASR 432, [22].
[10] See also George v Rockett (1990) 170 CLR 104, 112; Prior v Mole (2017) 91 ALJR 441, [4].
Relevant considerations when examining the reasonableness of a suspicion based upon information available to a police officer when a power of search or detention is deployed include:
·The nature and extent of the information.
·The particularity or generality of the information.[11]
·The source of the information.
·The ostensible reliability and credibility of the information.
·The currency of the information.
·The nature and duration of the illicit activity to which the information relates.
[11] See, eg, McHugh v The Queen [2022] SASCA 5, [9]-[10].
The implications that follow from the characteristics of the information available to a police officer will of course be fact sensitive. There is no prescriptive formula for determining the age, quality and content of information that may, in any given case, support a finding that a subjectively held suspicion was a reasonable one.[12] It is, in part, for this reason that the courts retain a supervisory role in determining whether a subjectively held suspicion was in a fact a reasonably held one in the circumstances of the particular case.
[12] R v Colenso [2016] SASCFC 128, [32]; McHugh v The Queen [2022] SASCA 5, [11].
As I have earlier said, I accept Baldwin’s evidence that he observed the driver of the Hyundai and the female passenger from the station wagon get into the front passenger seat of the Holden in the circumstances he described. Those interactions justifiably aroused some curiosity as to what was going on. It remains the fact, however, that Baldwin had no information suggesting the driver of the Holden or the vehicle itself was associated with drug offending; no information that the Hyundai driver or the female from the station wagon had any association with drugs; and Baldwin did not observe anything in the nature of an exchange of an item or items for money. Baldwin had no information about whether the occupants of these vehicles were known to each other and, if so, in what capacity.
The information provided to Baldwin on 3 June 2021 did not materially advance things. The observations Cahill made of the Holden in the Mansfield Park Hotel car park on 3 June 2021 were in fact qualitatively different to those made by Baldwin on 26 May. Moreover, nothing was known of the nature of the relationship, if any, between the female in Killara Street who got into the passenger seat of the Holden and the driver of the Holden. No items were seen to exchange hands. As with the events of 26 May, what was seen by Cahill in Killara Street might rightly have evoked some curiosity but it did not add substantially to what was already known by Baldwin.
Whilst there is little utility in comparing this case with others given the application of the principles will turn on a fact sensitive analysis, it may be doubted whether the information available to Baldwin was more compelling than the information available to the police in R v Nguyen (2013) 117 SASR 432 and R v Nguyen (2015) 248 A Crim R 398; [2015] SASCFC 7 – both cases involving unlawful searches of a vehicle or a driver.
I am unpersuaded that Baldwin’s experience as a police officer is a makeweight for the objective shortcomings in the information. I accept that it is appropriate to have regard to the experience of police when evaluating the reasonableness of a suspicion and I have taken into account Baldwin’s evidence that, to his mind, what he observed on 26 May 2021 and what he was told of the events of 3 June 2021 were consistent with drug transactions. However, there are limits to which experience can convert what is otherwise insufficient information to justify a detention or search into a lawful exercise of power.
As I have said earlier, the purpose of the qualifier ‘reasonable’ in s 52(9) is to overlay the powers so conferred with an objective control. The functionality of the qualifier is undermined to some extent if uncritical deference is afforded to ‘police experience’ in satisfaction of the objective limb.
In any event, taking into account Baldwin’s long experience as a police officer, I find that his suspicion that the applicant was drug dealing was a product of mere idle wondering. To my mind, the connections Baldwin drew between the conduct he observed or was told about and the suspicion the applicant was engaged in drug dealing were tenuous. I accept that the interactions he observed and was informed about were sufficient to pique one’s curiosity but I do not consider that they provided a sound basis upon which to suspect that the driver of the Holden was dealing drugs.
If the lawfulness of the detention turned on the capacity of the information available to Baldwin at the time the police vehicle parked bonnet to bonnet with the Holden, I would find the detention was unlawful.
However, before finally determining the issue of lawfulness, it is necessary for me to address two additional matters. The first is whether the detention was justified pursuant to any other source of power or authority. The second is whether the production of the two deal bags and the accompanying comments by Fitzgerald are relevant to the lawfulness of the detention.
Was the detention of the Holden justified by an alternative source of power?
It was put by counsel for the prosecution, Ms Tabuteau, that because Baldwin also intended to check the identity of the driver upon his arrival in Killara Street, the lawfulness of the police conduct did not rest solely on compliance with s 52(9) of the CSA. Ms Tabuteau submitted that notwithstanding Baldwin himself did not suggest that he had in mind engaging any particular power pursuant to the Road Traffic Act 1961 (SA) or Motor Vehicles Act 1959 (SA) to ascertain the identity of the driver, the existence of any such power could provide lawful authority for the detention of the vehicle.
It should be said at the outset that there is, with respect, considerable artificiality in this contention in the circumstances of this case. The desire to confirm the identity of the driver was inextricably bound up in the suspicion that the driver was trafficking drugs and the ‘concrete decision’ that Baldwin had made to detain and search upon being informed by Cahill of the sequence of events. This was not a case where police determined to conduct a random identification check and, having made that inquiry, thereafter decided to conduct a search or detain a vehicle because of matters that came to their attention in the course of pursuing that inquiry. To the contrary, in this case, the car was to be, and was, detained because Baldwin suspected the driver was dealing drugs and it was simply part and parcel of that anticipated exercise that the identity of the driver would need to be confirmed. I do not accept that Baldwin contemplated a mere traffic stop and identification of the driver of the vehicle. From the moment Baldwin was told of the Holden departing the Mansfield Hotel car park and the events in Killara Street, he had determined to detain the car and conduct a search. I consider that ascertaining the identity of the driver was entirely ancillary to detaining the vehicle to search for drugs.
Of course, it is well established that there may be situations in which the existence of an alternative source of lawful authority for the police to engage in conduct which is, as a matter of fact and law, not authorised by the power the police in fact invoke, may salvage the legality of such conduct even though the relevant police officer never turns his or her mind to engaging the alternative source of authority. There are however limits to this permissive principle.[13]
[13] Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 112 ALR 463, 466, 490.
Whilst it is not determinative, I add that there is no evidence that Baldwin in fact turned his mind to exercising any power or authority to require the driver of the Holden to provide his details. As far as the evidence goes, Baldwin may have contemplated nothing more than asking a question of the driver, which the driver would of course have been at liberty to decline to answer unless and until a power or authority capable of compelling an answer was engaged and relied upon by Baldwin.[14] Baldwin did not suggest he had such an exercise in mind.
Section 40H of the Road Traffic Act 1961 (SA)
[14] Police v Moukachar (2010) 107 SASR 450, 453; R v Dam and Nguyen [2015] SASCFC 131, [32].
Ms Tabuteau argued that s 40H of the Road Traffic Act provided a source of power for Baldwin to detain the Holden. Section 40H provides:
40H—Direction to stop vehicle to enable exercise of other powers
(1) An authorised officer may, for the purpose of or in connection with exercising other powers under a road law, direct—
(a)     the driver of a vehicle to stop the vehicle; or
(b)     the driver of a vehicle or any other person not to do one or more of the following:
(i)      move the vehicle;
(ii)     interfere with it or any equipment in or on it;
(iii)    interfere with its load.
(2) A direction to stop a vehicle may require that it be stopped without delay, or that it be stopped at the nearest place for it to be safely stopped as indicated by the authorised officer.
(3) A direction to stop the vehicle, or not to move it, or not to interfere with it or any equipment in or on it or with its load, does not prevent an authorised officer from giving the driver or another person any later inconsistent directions under a road law or any other law.
(4)     A direction ceases to be operative to the extent that an authorised officer—
(a)     gives the driver or other person a later inconsistent direction; or
(b)     indicates to the driver or other person that the direction is no longer operative.
(5)     A person commits an offence if—
(a)     the person is subject to a direction under subsection (1); and
(b) the person engages in conduct that results in a contravention of the direction.
Maximum penalty: $5 000.
(6)     In this section— stop a vehicle means to stop the vehicle and keep it stationary.
Before turning to the detail of the provision, it is necessary to bear in mind what s 40H is designed to achieve. It confers authority on a police officer to direct a driver to stop their vehicle or not move it, in the event the vehicle is stopped. The purpose of exercising that authority must be to facilitate the exercise of another authority or power connected with a road law. Section 40H does not confer a general authority or power to stop or detain a vehicle. Put another way, s 40H cannot be used as a device to arrest the movement of a vehicle in order to conduct a search of the vehicle pursuant to a general search warrant or s 52 of the CSA.
In the event a direction is given under s 40H and a driver fails to comply with that direction, the driver may be arrested and, for that purpose, detained.
No direction was here issued to the applicant. In any event, it has been said that s 40H does not confer a power on police to stop a vehicle. It merely confers a power to give a direction to that effect.[15] A failure to abide such a direction gives rise to a liability to punishment, but that is not to say that s 40H confers on police an implied power to detain a vehicle. The prosecutor’s argument is that s 40H provides an implicit power to detain a vehicle for the purpose of issuing a direction that the vehicle is to stop or not move. There is some circularity in that process of reasoning – that for the purpose of giving a direction to stop or not move a vehicle, there is an implied power to in fact stop and detain a vehicle.
[15] R v Neal (2017) 128 SASR 20, 27.
In R v Armistead [2019] SASCFC 85 at [96], which neither party here relied on, Hinton J suggested that provisions such as s 40V of the Road Traffic Act and s 96 of the Motor Vehicles Act implicitly empower police to ‘detain a person…in order to ask the relevant question or questions’. However, the form of detention which Hinton J was there contemplating might be described as a form of de-facto detention; not detention of the type under consideration here but, rather, the type of ‘detention’ or ‘stopping’ that occurs when a police officer makes a request which a civilian considers he or she may need to comply with by virtue of the officer’s status. That is consistent with Hinton J’s suggestion that the detention which is impliedly authorised ‘is distinguished in the authorities from arrest’ and by His Honour’s reliance on Collins v Wilcock [1984] 1 WLR 1172 at 1180.
Here, Baldwin’s manner of parking the police vehicle and the activation of the vehicle’s lights conveyed, unequivocally, that the applicant was not free to leave the area and that was not going to change when his identity was confirmed. This was not a case of a mere request inadvertently conveying that the recipient ought to stop and answer.
The nature of any implied power conferred by s 40H to stop or detain a vehicle must be for the purpose of giving a direction authorised by the section. The giving of such a direction must not be incidental to the detention. The detention must be for the purpose of giving the direction. On my findings, that is not the purpose for which the Holden was detained. I doubt that s 40H can be used as a device for procuring the detention of a vehicle where the real objective of the detention is not to give a direction to stop or not move a vehicle, but to conduct a search of the vehicle and its occupant/s for drugs. Moreover, where such a direction is not in fact given – as it was not here - that might afford evidence that the purpose of the detention in fact lay elsewhere. The purpose of detaining the vehicle and the applicant was to effect a search under the CSA. As part of that exercise, as would usually be the case, Baldwin may have intended to confirm the applicant’s identity which was, to that point, unknown to him. However, I do not accept that ascertaining the driver’s identity was anything other than entirely subsidiary to the plan to conduct a search.
Accordingly, I reject the contention that s 40H authorised the detention of the Holden and the applicant in the circumstances of this case.
Section 40V of the Road Traffic Act 1961 (SA)
I move then to Ms Tabuteau’s further contention that s 40V of the Road Traffic Act authorised the detention of the Holden. That provision is in the following terms:
40V—Direction to give name and other personal details
(1)In this section—
personal details, in relation to a person, means—
(a)     the person's full name; and
(b)     the person's date of birth; and
(c)     the address of where the person is living; and
(d)     the address of where the person usually lives; and
(e)     the person's business address.
(2) If an authorised officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a)     is or may be a responsible person; or
(b)     has committed or is committing or is about to commit an Australian road law offence; or
(c)     may be able to assist in the investigation of an Australian road law offence or a suspected Australian road law offence; or
(d)     is or may be the driver or other person in charge of a vehicle that has been or may have been involved in an accident,
the officer may direct the person to give the officer then and there any or all of the person's personal details.
(3) If an authorised officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.
(4) A person commits an offence if—
(a)     the person is subject to a direction under subsection (2) or (3); and
(b)     the person—
(i)      engages in conduct that results in a contravention of the direction; or
(ii) gives any detail that is false or misleading in a material particular in purported response to the direction; or
(iii) produces any evidence that is false or misleading in a material particular in purported response to the direction.
Maximum penalty: $5 000.
(5)     Subsection (4)(b)(iii) does not apply if the person has a reasonable excuse.
(6) In proceedings for an offence of contravening a direction under subsection (2) in relation to a failure to state a business address, it is a defence if the person charged establishes that—
(a)     the person did not have a business address; or
(b)     the person's business address was not connected (directly or indirectly) with road transport involving vehicles.

It can again be seen that s 40V merely confers a power to direct a driver of a vehicle to give the officer their personal details. The failure to comply with a direction under s 40V sounds in liability to a fine not exceeding $5,000. The section does not in its terms authorise a police officer to detain a vehicle or a person in order to give a direction. Ms Tabuteau contended that s 40V contained an implied power to detain a person or a vehicle in order to give a direction, however that argument was not developed by reference to the text, context or purpose of s 40V and the consequences of reading in a power, and ascertaining the scope of any such power, to effect a substantial intrusion into civil liberties.[16] To the extent that the comments of Hinton J in Armistead to which I have earlier referred support the contention that there is an implied power in s 40V to stop a person to make a request for their personal details, I repeat the matters I have already set out. Any such implied power must be exercised for the purpose of giving a direction that a driver provide personal details and not as a device for some other, extraneous purpose, such as facilitating a search of a vehicle. A police officer cannot call in aid s 40V in order to stop and detain a person so that they may conduct general investigations. That would not be a bona fide exercise of the power conferred by s 40V.[17]
[16] See, eg, Coco v The Queen (1994) 179 CLR 427, 437; Bropho v The Queen (1990) 171 CLR 1, 17-18; ACCC v Daniels (2002) 213 CLR 543, 582; Momcilovic v The Queen (2011) 245 CLR 1, [43]; Ex Parte Simms [2000] 2 AC 115, 131.
[17] R v Amital (2022) 372 FLR 53, [124].
As I have said, it may be doubted that Baldwin ever gave a direction that the applicant provide his personal details. The closest he came was a request that the applicant show him something with his name on it. In my view, this reflects adversely on the merit of the contention that a substantial or even material consideration in the decision to detain the vehicle was to exercise the power conferred by s 40V.
Accordingly, I reject the argument that s 40V provided a source of authority for Baldwin to detain the Holden in the circumstances.
Section 74AB of the Summary Offences Act
Next, Ms Tabuteau relied on s 74AB of the SOA to establish the legality of the detention of the vehicle:
74AB—Questions as to identity of drivers etc
(1) A police officer may ask a person questions for the purpose of obtaining information that may lead to the identification of the person who was driving, or was the owner of, a vehicle on a particular occasion or at a particular time.
(2)     A person who—
(a)     refuses or fails, without reasonable excuse, to answer a question under subsection (1); or
(b)     in response to a question under subsection (1) gives an answer that is false or misleading in a material particular, is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
(3) A police officer who has asked a person a question under this section is required to comply with a request to identify himself or herself, by—
(a)     producing his or her police identification; or
(b)     stating orally or in writing his or her surname, rank and identification number.
The purpose of s 74AB is to authorise police to ask and, essentially, require answers to questions asked for the specific purposes enumerated in s 74AB(1).[18] That there is an obligation to answer, and answer truthfully, is manifest from the creation of offences in s 74AB(2). Importantly, however, s 74AB(1) delimits the purpose for which the power or authority conferred by s 74AB can be exercised.
[18] Police v Moukachar (2010) 107 SASR 450, [13]-[14].
It seems clear enough that Baldwin never subjectively or objectively engaged this power, nor did he purport to rely on any implied power in s 74AB to detain the vehicle for the purpose of asking a permissible question. In any event, the relevant question for present purposes is whether s 74AB confers an implied power on police to stop and detain a person. If so, then plainly enough, the purpose of any such interference with a person’s freedom of movement can only be to enable police to ask the questions permitted by sub-section (1).
For the reasons I have given above any implied power conferred by s 74AB to stop or detain a person for the purpose of asking the permitted questions, must be limited in accordance with the observations made in Armistead. What occurred on Killara Street was not a merely incidental disruption of the applicant’s freedom of movement for the purpose of asking a question under s 74AB.
In any event, and as I have said, I do not accept that a substantial or even material consideration in the decision to detain the Holden was a desire to ask questions under s 74AB of the SOA. Baldwin gave no such evidence and the fact that no such questions were asked tends to confirm that was not what Baldwin had in mind. The purpose of detaining the Holden and the applicant was to facilitate searches under the CSA. Any implied power conferred by s 74AB to stop or detain a person or vehicle for the purpose of asking an authorised question does not therefore avail the prosecution in this case.
I reject the submission that s 74AB made lawful the detention of the applicant and the Holden.
Mistake as to source of authority
Ms Tabuteau also relied on what were said to be ‘the authorities’ concerning a mistake by a police officer as to the source of power pursuant to which a particular act is carried out. Those authorities were not explored in the course of submissions but I take Ms Tabuteau to be referring to the principle summarised in Lockwood v The Commonwealth (1954) 90 CLR 177 at 184, where Fullagar J said:
It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power.
In Brown v West (1990) 169 CLR 195 at 203, Mason CJ, Brennan, Deane, Dawson and Toohey JJ said of a determination purportedly, but mistakenly, made by a remuneration tribunal pursuant to certain statutory powers:
However, the validity of the Tribunal’s determinations is unaffected by mistaking the source of power to make them.
In John Holland v Industrial Court of New South Wales [2010] NSWCA 338 at [95], Spiegelman CJ said of the principle:
In the context of the exercise by an arm of the executive of a statutory power it is now the better view that a decision will not be invalidated if the holder of the power purports to exercise an inappropriate head of power, when another head of power was available.
In R v Romeo (1982) 30 SASR 243, a police officer who conducted a search of premises held a valid warrant under the then Narcotic and Psychotropic Drugs Act 1934 (SA). Other police held warrants under that Act that were invalid but those officers were also in possession of general search warrants that would have authorised their entry and search, notwithstanding that the officers wrongly thought, in the circumstances, that the general search warrants could not be relied upon. As Cox J explained at 277:
However, if the detectives in this case correctly believed that the law authorized them to act as they did that morning, and if in an objective sense they were right about that, I do not think in principle that their acts would be invalidated merely because they had a wrong view about the proper source of their legal authority.
However, this has been said to merely be a general principle that is neither absolute nor categorical.[19]
[19] Police v Grozev [2006] SASC 353, [64].
Given my construction of the nature and scope, and hence unavailability of the alternative sources of power on which Ms Tabuteau relied to justify detention of the kind under consideration, it is not necessary to address the question of mistake in any detail. It should be said however that this is not, in truth, a case about a mistake as to the source of authority pursuant to which an act is undertaken. Baldwin was clear that he was acting in accordance with s 52(9) of the CSA. Section 52(9) in fact authorised him to do what he did, provided he had a reasonable suspicion as required by the section. The issue in this case is whether the conditions precedent to the exercise of that power were satisfied. I have held they were not. No issue of mistake arises.
The authorities on mistake are concerned with situations where, for example, a police officer misapprehends the source of the power they are exercising but the evidence otherwise supports the criteria upon which the exercise of the true source of authority could be justified. For example, the principle might have application in a case where a police officer gives evidence that a search of a person thought to be in possession of controlled drugs was conducted pursuant to s 52(9) of the CSA when, in fact, the relevant power to search a person is conferred by s 52(6) of the CSA. That is a scenario far removed from this case.
Can regard be had to the conduct and comments of Fitzgerald?
Having concluded that the power Baldwin purported to exercise was that conferred by s 52(9) and that the alternative sources of power to detain the Holden and the applicant could not justify the events of 3 June 2021, it remains to consider whether anything that occurred after the arrival of Baldwin and Bretag can be taken into account when assessing the reasonableness of Baldwin’s suspicion.
This issue can be disposed of briefly. If, as I have found, the only relevant source of power to detain the Holden and the applicant applicable on 3 June was, in the circumstances, that conferred by s 52(9), the point at which the lawfulness of the detention is to be determined is demarcated by the commencement of the detention.[20] The detention commenced when Baldwin parked the police vehicle bonnet to bonnet with the Holden with emergency lights activated. The applicant was not free to leave from that point.
[20] McHugh v The Queen [2022] SASCA 5.
Accordingly, in assessing the legality of the detention and, in particular, the reasonableness of Baldwin’s suspicion, I may have regard only to the information available to him prior to that time.
This necessarily excludes the production of deal bags, and the third party confession by Fitzgerald after Baldwin and Bretag arrived. It also excludes the subsequent production by the applicant of drugs from his pocket and groin and the admissions made by the applicant, in answer to interrogative questions asked by Baldwin. That information was acquired only after the detention commenced and accordingly it cannot inform the reasonableness of Baldwin’s suspicion.
Furthermore, it is immaterial that after Fitzgerald produced the bags she claimed to have purchased from the applicant, Bretag formed an independent suspicion capable of satisfying either ss 52(6) or (9) of the CSA. That suspicion, which was plainly reasonable, cannot retroactively cure any illegality associated with the commencement of the detention. However, that is of little moment because no searches were conducted, save for the search of the applicant as part of the arrest process.
Conclusion on lawfulness of the detention
For the reasons I have given, and confining my consideration to the information available to Baldwin prior to the police vehicle parking bonnet to bonnet with the Holden, I find that the detention of the Holden was unlawful.
It was unlawful because, although Baldwin genuinely suspected that the driver of the Holden was dealing drugs, that suspicion was not reasonably held. Rather, it was a suspicion borne out of speculation and idle wondering.
The detention was illegal and it remains for me to address the exercise of the public policy discretion.
Public policy discretion
Having found that the detention of the Holden and the applicant was unlawful, it is necessary to consider whether the evidence obtained in consequence should be excluded in the exercise of the public policy discretion. The exercise of that discretion requires consideration to be given to the matters identified in Bunning v Cross (1978) 141 CLR 54 at 78-80 by Stephen and Aickin JJ and, in particular, the balance between bringing offenders to account and ensuring that curial processes do not provide tacit endorsement or acquiescence in unlawful or improper conduct by those conferred with responsibility to investigate contraventions of and enforce the law.[21]
[21] R v Armistead [2019] SASCFC 85, [104]; Kadir v The Queen (2020) 267 CLR 109; R v Golja [2017] SASCFC 61, [35].
In Ridgeway v The Queen (1995) 184 CLR 19 at 38, it was said by Mason CJ, Deane and Dawson JJ that a court considering the exercise of the public policy discretion should have regard to the seriousness of the alleged offending, the cogency of the evidence obtained as a result of the unlawful conduct and whether the illegality or impropriety is the result of genuine misunderstanding, reckless or deliberate subversion of jealously guarded rights. Moreover, whether the approach taken by police is sanctioned at higher levels or is otherwise suggestive of an endemic disregard for appropriate and lawful practices or procedures should also be taken into account. Finally, the ease with which police might have complied with the law is not to be overlooked.
These considerations were drawn together in Rockford v The Queen (2015) 122 SASR 391. Stanley J, with whom Kourakis CJ and Sulan J agreed, explained at [39] and [41] how the questions of high public policy that must be addressed intersected with the nature of the illegality in that case:
As his Honour observed, it is the duty of the Court to be vigilant to ensure that unlawful conduct on the part of police is not 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.
...
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 on to 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 widespread 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.
It is well understood that the exercise of the discretion is not concerned with fairness to the accused. In Bunning v Cross (1978) 141 CLR 54 at 74-75, Stephen and Aickin JJ explained that what is involved in the exercise of the ‘public policy discretion’ 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.[22]
[22] Ibid at 74.
In the recent decision of Van Houten v The King [2023] SASCA 57 at [68], the competing aspects of the public interest to be considered were summarised in the following terms:
While the court must be careful to protect citizens 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.
Whilst I accept that the cogency of the evidence obtained on account of the unlawful detention was not in any way diminished by the illegality, that will, with rare exceptions, ordinarily be the case. To return to Bunning v Cross (1978) 141 CLR 54 at 79, Stephen and Aickin JJ explained that where the illegality involved is deliberate or reckless (and there is an element of recklessness involved in the exercise of the power here), the cogency of the subsequently obtained evidence will often play no or no material role in shaping the exercise of the discretion:
To treat cogency of evidence as a factor favouring admission, where the illegality 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 discretion where the illegality involved in procuring it is 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.
In R v Nguyen (2013) 117 SASR 432, an unlawful search that produced only a moderate infringement of the accused’s civil liberties was held to nonetheless warrant the exclusion of the illegally obtained evidence, notwithstanding the cogency of the evidence was unaffected. The degree of departure from a proper exercise of intrusive powers compelled the exclusion of the evidence.
I do not lose sight of the fact that the trafficking charges here are serious offences, carrying a maximum term of imprisonment of 10 years and that it is in the community’s interest that drug offenders be tried and brought to account where their guilt is proved to the criminal standard. However, I consider the offending that was detected as a result of the illegal detention was not, on the face of it, so grave as to supply a powerful justification for declining to exclude the evidence if the other factors relevant to the discretionary calculus point in favour of exclusion.
In Pollard v The Queen (1992) 176 CLR 177 at 202-203, Deane J observed of the passage of Bunning v Cross extracted above:
As that passage makes plain, the principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police in not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this 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. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.

It may be accepted that the nature of the illegality here was, in some respects, relatively minor. The Holden was already stopped on Killara Street and the interference with the applicant’s freedom of movement did not involve direct physical restraint. It is also imperative to bear in mind that Baldwin did not deliberately effect an unlawful detention, nor engage in that conduct for a punitive or personal motivation. He had available to him a power which in fact authorised the conduct he engaged in and which he genuinely believed permitted him to take the course he did. The illegality arose out of a misappraisal by Baldwin of the sufficiency of the information he had to hand at the time he arrived in Killara Street to engage the power of detention provided by s 52(9). Nonetheless, the unlawful detention led to a cascade of subsequent events that ultimately resulted in the applicant’s arrest and remand.
On my findings, Baldwin’s approach involved an alarming readiness to suspect that the applicant was engaging in serious acts of drug trafficking, particularly given his long experience, notwithstanding that:
(1) the identity of the applicant was unknown until after the detention of the vehicle;
(2) Baldwin had no information whatsoever to suggest that the driver of the Holden, or the vehicle itself, had any known associations with drug dealing;
(3) the identities of those who were seen to get into the passenger seat of the Holden were, at least in two instances, completely unknown to Baldwin;
(4) Baldwin had no information to suggest that the driver of the Hyundai or the two females to whom reference has been made had any association with drugs;
(5) Baldwin had no information about the nature of any transactions that took place in the Holden and, in particular, whether any items were exchanged.
In those circumstances, the assumption that had been by made by Baldwin, and which is manifested by Cahill’s radio communication on 3 June describing the driver of the Holden as a ‘heroin dealer’, bespeaks an uncritical approach to the evaluation of information. In turn, this suggests a misunderstanding of the scope and importance of the power contained in s 52(9) of the CSA.
It is also important to bear in mind that the common law jealously guards liberty and freedom of movement. Indeed, in Williams v The Queen (1986) 161 CLR 278 at 292, Mason and Brennan JJ said that personal liberty was the most elementary and important of all common law rights. In Cleland v The Queen (1982) 151 CLR 1 at 26, Deane J said that:
It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.
In the circumstances, I am satisfied that the evidence obtained in consequence of the unlawful detention should be excluded. I consider it is necessary to do so in order to prevent the integrity of the administration of justice from being demeaned or threatened by the admission of evidence obtained as a result of an unlawful interference with the applicant’s freedom of movement. Additionally, that Baldwin – a police officer with long experience – considered that he had sufficient information to detain the Holden and the applicant on 3 June 2021, suggests that there may be a lack of continuing education amongst the ranks of police about the care required before exercising a power such as that conferred by s 52(9).
Disposition
In light of the above, I uphold the application. I find the detention of the Holden was unlawful and the evidence obtained in consequence of the unlawful detention ought to be excluded.
For the sake of clarity, I consider that all of the evidence obtained on Killara Street, including the admissions of the applicant, and the repetition of those admissions in a formal interview, is tainted by the illegality. It would be unprincipled, in circumstances where the unlawful detention was the catalyst for everything that followed thereafter, to allow the prosecution the benefit of admissions made by the applicant in circumstances where he had been unlawfully detained.
The consequence of the way I would exercise the Bunning v Cross discretion is that it is unnecessary for me to separately consider the admissibility of the admissions made by the applicant and the applicability of s 74E of the SOA.