R v Tran - [2022] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRAN
[2022] SADC 44
Reasons for Rulings of her Honour Judge Kudelka
14 April 2022
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE - ILLEGALLY OBTAINED EVIDENCE - GENERALLY
The accused is charged with drug and firearm offences. The items which are the subject of the charges were found inside a sub-woofer box in the boot of the vehicle. The police had directed the accused to stop the vehicle and then searched it.
The accused applies for an order excluding the evidence on the basis that the direction given for him to stop the vehicle was unlawful. In the alternative, he applies for an order that the evidence of the testing, dismantling and reconstruction of the box be excluded on the basis that it is irrelevant or more prejudicial than probative.
Held: The direction to the accused to stop the vehicle was a lawful direction pursuant to s 40H of the Road Traffic Act, 1961.
The deficiencies in the evidence regarding the sub-woofer box do not render the evidence irrelevant. The evidence is not more prejudicial than probative.
Both applications are refused.
Road Traffic Act 1961 (SA) s 40H, S 40V; Motor Vehicles Act 1959 (SA) s 96, referred to.
R v Neal (2017) 128 SASR 20, applied.
R v Nguyen (2013) 117 SASR 432; Police (SA) v Prinse (1998) 196 LSJS 267, considered.

R v TRAN
[2022] SADC 44

The accused, Minh Taun Tran, is charged with eight offences said to have been committed on 31 July 2019. Those offences are trafficking in a commercial quantity of a controlled drug (count 1), aggravated possessing a firearm without a licence (count 2), aggravated possessing a firearm without a licence (count 3), possessing an unregistered firearm (count 4), aggravated possessing a firearm without a licence (count 5), possessing a sound moderator (count 6), possessing ammunition (count 7) and possessing ammunition (count 8).
The prosecution case is that the accused was stopped by police when driving a motor vehicle on Salisbury Highway. Upon searching the vehicle, the police found the drugs and firearms/ammunition/silencer, which are the subject of the charges, inside a sub-woofer box in the boot of the vehicle.
Rule 49 Notice
The accused has applied pursuant to Rule 49 of the District Court Rules for an order that all evidence obtained consequent to searches undertaken by police of the accused’s vehicle, the accused and the accused’s residence on 31 July 2019 be excluded.
The ground for the exclusion is that the search of the accused’s vehicle was unlawful because the police acted with an improper purpose when they directed the accused’s vehicle to stop pursuant to s 40H(1) of the Road Traffic Act 1961 (the RTA).
In the alternative, the accused has applied for an order that the evidence of witnesses regarding the testing, dismantling and reconstruction of the sub‑woofer box located in the accused’s vehicle be excluded. The grounds for exclusion are that the evidence is irrelevant or more prejudicial than probative.
On the voir dire, the prosecution called three witnesses, Brevet Sergeant Matthew Tieman, Senior Constable Timothy Matheson and Mr Simon Phillips (a radio technician employed by the South Australian Police).
The stop and search of the accused’s vehicle on 31 July 2019
The facts regarding the direction to stop and the subsequent search of the accused’s vehicle are largely not in dispute.
On 31 July 2019, at about 1.00pm, Matheson was driving a police vehicle on the Salisbury Highway at Greenfields in company with Tieman. They saw the accused’s vehicle travelling along the highway in the same direction. On the back of the vehicle was a badge that said ‘Tinh Ban’. They decided to stop the vehicle.
The accused’s vehicle was stopped in a turning lane on the Salisbury Highway. The police vehicle was parked close behind.
Both officers activated their body worn video cameras.[1] Tieman approached the driver’s side of the accused’s vehicle followed soon after by Matheson.
[1]The footage is contained in exhibit VDP2.
Tieman told the driver (the accused) that he had been stopped for a licence check and asked if he had his driver’s licence there. The accused indicated he did not have his licence. Tieman asked him to turn his car off and then asked if he had anything with his name on it. He also asked the passenger (the co-accused) if she had any identification on her as well. He asked the driver for his name and the accused provided that information. A card was produced to Tieman who then asked the accused if he still lived at the Underdale address. The accused said yes. Then Tieman said ‘so what’s the go with your licence’. Matheson said to Tieman ‘I’ll get something off her at least’ and moved to the passenger side of the car and spoke to the co-accused.
The accused told Tieman that his licence had been cancelled. Tieman asked if he had ever been in trouble with the police for anything before. His response on the video is indistinct, but the accused mentioned drugs. He was asked some questions about that, including how long ago and what type of drugs. He was then asked to get out of the car for a quick chat. He was asked whether the child in the back was his and how old was the baby. The accused responded that the baby was his and was about six weeks. He was asked if the car was registered to him and the accused replied that it was registered to a friend, David who lives in Port Adelaide. He was asked if he was on parole or bail. He said he was on bail for driving. He was asked for his contact number and supplied that information. He was asked about his bail conditions. He agreed they included not to be in a driver’s seat. He was asked whether he was subject to a firearms prohibition order and he said no. Tieman then asked him to wait whilst he did a couple of quick checks.
Tieman made a call on his mobile phone and spoke on the phone whilst seated in the police vehicle. He asked another officer to conduct some checks, saying ‘I reckon I’ve stopped one of Crazy Fung’s associates’. Tieman received information from the officer conducting the checks about the accused’s suspended driver’s licence and bail conditions. He eventually received information about the accused being suspected in relation to a firearm. He decided to search the accused’s vehicle pursuant to the Firearms Act 2015 (SA). Upon searching the accused’s motor vehicle, he located drug related items. He then decided to conduct a search pursuant to the Controlled Substances Act 1984 (SA) with the assistance of a sniffer dog.
The sniffer dog gave an indication of suspicion around the sub-woofer box in the boot. Tieman turned off his body-worn video camera whilst he made attempts to open that box. The box was eventually opened and the items the subject of these charges were found.
The decision to stop the accused’s vehicle
Section 40H of the RTA gives the police power to direct the driver of a vehicle to stop the vehicle:
Section 40H
(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) …
Significantly, for the purpose of this voir dire, the direction must be ‘for the purpose of or in connection with exercising other powers under a road law’.
The defence submitted that the direction to stop the vehicle was not ‘for the purpose of or in connection with exercising other powers under a road law’. Rather, the direction was solely for the purpose of gathering intelligence about the criminal organisation, Tinh Ban. It was improper to use the s 40H power for such a purpose.
The prosecution submitted that the direction to stop was given ‘for the purpose of or in connection with exercising other powers under a road law’, those other powers being (i) to direct a driver to provide their personal details (pursuant to s 40V of the RTA[2]) or (ii) to require the production of a driver’s licence (pursuant to s 96 of the Motor Vehicles Act 1959[3]). The existence of what the prosecution described as a collateral purpose (to find out who may be associated with an organised crime group) did not make this exercise of the s 40H power improper. Here, the collateral purpose was a proper policing purpose. The prosecution relied upon the decision of the Court of Criminal Appeal in R v Neal[4].
[2]Section 40V of the RTA
(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]Section 96 of the Motor Vehicles Act
(1)The driver of a motor vehicle, if requested by a police officer to produce the driver’s licence or learner’s permit, must produce the licence or learner’s permit either ‑
(a)    forthwith to the police officer who made the request; or
(b)    within 48 hours after the making of the request, at a police station conveniently located for the driver, specified by the police officer at the time of making the request.
[4](2017) 128 SASR 20.
Evidence of Tieman and Matheson
Tieman gave evidence that they decided to stop the vehicle for the purpose of a licence check.[5] Matheson gave evidence that he decided to stop the vehicle to identify the driver.[6] I do not consider anything turns on that discrepancy. Neither of the two officers disputed that, prior to making the decision to direct the driver to stop, they had an interest in the Tinh Ban badge on the back of the vehicle.
[5]T5.
[6]T60.
Tieman gave evidence that he saw the Tinh Ban badge and was aware through previous intelligence holdings that Tinh Ban is a criminal group involved in drug trafficking and the possession of firearms.[7] The badge sparked his interest in the vehicle.[8] Before they stopped the vehicle, he believes he said to Matheson that Tinh Ban was a criminal group. He gave evidence that ‘I am aware that Tinh Ban is a criminal group and that they are involved in criminality … that it was of interest to stop that vehicle … because as mentioned, the vehicle’s of interest in relation to that logo … I wasn’t sure what I was going to find’.[9] He agreed that after the stop, when he was speaking to the officer who was conducting checks, he said he believed that he had pulled over an associate of Crazy Fung. That belief was not based on anything that had occurred in his contact with the driver after pulling him over, but rather, was based on seeing the badge on the back of the vehicle prior to the direction to stop.[10]
[7]T5.
[8]T21.
[9]T33.
[10]T37.
He agreed that it would be an improper use of police powers to stop a vehicle just for the purpose of intelligence gathering.[11] He said that whilst the badge sparked his interest, the reason for the stop was to conduct a licence check on the driver to ensure that the driver was lawfully authorised to be driving a vehicle.[12] When he directed the vehicle to stop, he was not intending to try and search the vehicle at that stage, rather the scope of what he was looking at was limited to a licence check.[13]
[11]T22.
[12]T23.
[13]T37, 38.
He agreed that they were not on a routine traffic patrol but were attending somewhere in the Elizabeth area on unrelated enquiries.[14] He agreed there was nothing about the driving, the condition of the vehicle or the driver that caused him to direct the vehicle to stop.[15]
[14]T16, 17.
[15]T32.
He agreed that the accused was directed to stop his vehicle in a turning lane on the Salisbury Highway and consequently one lane was blocked. He said there was nothing atypical about pulling over a vehicle in such a location as long as it was a safe position with a police vehicle positioned behind it enabling a corridor of safety to allow officers to approach the vehicle.[16]
[16]T40.
He did not consider there was any significance in the fact that both officers got out of the vehicle and approached the driver’s side door. In this case, there was possibly a safety concern because of the Tinh Ban badge on the vehicle and knowing the association with firearms and drugs.
He said that he spoke to the accused’s partner ‘out of investigative interest at that time’ namely, ‘just of interest to know who she was at that time’.[17]
[17]T44.
Matheson gave evidence that Tieman pointed out the Tinh Ban badge and said it represented a gang linked to criminal offending.[18] He agreed that Tieman had a suspicion that there was criminal offending linked to Tinh Ban.[19] Matheson thought they would pull the car over and find out who was driving the vehicle. He said there was suspicion that the driver was connected to Tinh Ban. He disagreed with the suggestion that they were investigating criminal activity.[20]
[18]T66.
[19]T67.
[20]T70.
He agreed there was nothing wrong with the roadworthiness of the vehicle nor the accused’s driving. He gave evidence that it was standard practice for him to ask questions of the passenger when they stop a vehicle in those circumstances.
Whether the direction to stop was unlawful
The defence submitted that the breadth of the power to stop and detain members of the public for the purpose of ensuring road safety should not be taken to suggest they may be deliberately used as a tool for the purpose of intelligence gathering and the discovery of potential offences against other Acts.[21]
[21]Applicant’s written submissions, 31 March 2022, [9].
The defence submitted the sole purpose of the direction to stop the accused’s vehicle was intelligence gathering on the Tinh Ban organisation and had nothing to do with exercising powers under a road law. It was submitted that ‘it is readily apparent that the decision was entirely speculative, capricious, and used powers designed to facilitate investigations into the Road Traffic Act as an instrument of intelligence gathering’.[22]
[22]Applicant’s written submissions, 31 March 2022, [12].
The defence referred to the decision of the Court of Criminal Appeal (CCA) in R v Nguyen[23]. The CCA found that the police search of Mr Nguyen’s vehicle was unlawful because there was insufficient information to raise a reasonable suspicion for such a search pursuant to s 52(9)(b) of the Controlled Substances Act 1984 (SA). The defence relied upon the following observations made by the CCA (particularly as highlighted below) regarding references in Constable Koch’s evidence about police powers to stop a vehicle pursuant to the RTA:
[39] We have already observed that the prosecutor did not rely on any powers other than those conferred by the CSA. Nonetheless, we make some observations about Constable Koch’s reference to police powers pursuant to the Road Traffic Act 1961 (SA) (RTA). Until 30 April 2007, s 42 of the RTA conferred a power on police officers to stop a vehicle on a road for the purpose of ascertaining whether an offence against the RTA had been committed. Thereafter, with the making of the uniform Australian Road Rules, the powers of search and detention have been even more closely prescribed. The evidence of Constable Koch discloses that his purpose in detaining and searching cars and persons in the way described in his evidence was not to investigate the commission of Road Traffic Act or Australian Road Rules offences, but to discover evidence of offending against the CSA. The provisions of the RTA have never authorised the detention of motor vehicles in private premises. Nor have its provisions ever given a general power to require drivers to alight from the vehicles detained.
[40] Constable Koch’s view of the scope of the powers conferred by s 52(6) and s 52(9) of the CSA greatly exceeds their true limits. It is a view which is calculated to lead to widespread and arbitrary infringements on civil liberties. The testimony of Constable Koch well illustrates that danger. On Constable Koch’s attitude, power designed to facilitate investigations can readily be misused as instruments of harassment. No evidence was adduced to show that the mistaken understanding of the breadth of the powers shared by Constables Koch and Beatty was a peculiar or isolated one.
[23](2013) 117 SASR 432
The prosecution distinguished those comments in Nguyen on the basis that reference was being made to powers under the RTA to detain and search a vehicle, not the power to stop a vehicle.
The prosecutor relied upon the decision of the CCA in R v Neal[24] to submit that the interest of Tieman and Matheson in the Tinh Ban badge prior to directing the accused’s vehicle to stop did not make the exercise of the s 40H power unlawful.
[24](2017) 128 SASR 20.
In Neal, the appellant had submitted that SC Horner stopped the vehicle being driven by Ms Booth in order to harass the passenger, Mr Neal (the appellant). SC Horner gave evidence that the vehicle was speeding. He recognised the appellant in the passenger seat because he had gone to school with him and had previously arrested him for driving offences. He denied that his prior dealings with the appellant played any significant part in his decision to pull over the vehicle. The trial judge rejected the proposition that SC Horner stopped the vehicle to harass the appellant. She accepted that SC Horner noted the vehicle was speeding and determined to stop it to conduct a licence check with the driver.
Kourakis CJ referred to the findings of the trial judge but observed that no reasons were given by the trial judge for those findings. The trial judge did not address the submission that SC Horner’s account about the vehicle speeding was a recent invention nor did the trial judge address the evidence of the other police officer that he was told by SC Horner that there was a person of interest in the vehicle. In relation to the latter, the Chief Justice observed that that evidence ‘tells strongly against SC Horner’s account that he only decided to conduct the licence check because the Mitsubishi SUV appeared to him to be speeding’.[25] The Chief Justice continued as follows:
[24] Regardless, it is plain that for whatever reason, SC Horner pulled the Mitsubishi SUV over in order to conduct a licence check because that is precisely what he did when the Mitsubishi SUV was pulled over. SC Horner made the request that Ms Booth pull over for that purpose even if he had a collateral motive for doing so. Those collateral motives were no doubt to see whether or not he might discover evidence of offending by Mr Neal or Ms Booth, or perhaps both.
[25] However, it is not improper for a police officer to make a request of a person in circumstances in which a duty to comply with the request will arise, and at the same time be alert to other proper policing objectives. It is different if the power or authority is exercised for illegitimate reasons like personal vindictiveness, or in an attempt to obtain a personal benefit. The exercise of the power or authority for reasons of that kind is an abuse of the power and the conduct may be unlawful.
[26] More difficult questions may arise in cases sometimes loosely described as police harassment. It is understandable that police resources will be focussed on persons and occasions where they are more likely to be effective. For those reasons, it is sometimes the case that police powers or authorities are properly enlivened, and exercised more frequently with respect to certain persons, or in certain kinds of circumstances where the persons being targeted may subjectively view that conduct as harassment. However, other than in the extreme cases of personal vindictiveness or benefit it is difficult to see how that conduct can be characterised as unlawful or improper.
[25]At [23].

The prosecution emphasised the words which I have highlighted in bold at [24]. It was submitted that, whilst the Chief Justice was observing that the trial judge had not supplied the reasons for her findings, the resolution of the matters raised would not have altered the outcome. Applying Neal to this matter, the prosecution submitted that it is plain that Tieman pulled the accused’s vehicle over in order to conduct a licence check because that is precisely what he did when the vehicle was pulled over. He gave the direction that the driver stop for that purpose even if he had a collateral motive for doing so. The collateral motive was to find out who may be associated with an organised crime group. It is not improper for a police officer to make a request of a person in circumstances in which a duty to comply with the request will arise, and at the same time be alert to other proper policing objectives. The prosecution submitted that a proper policing purpose is the purpose of the police at large, not restricted to a purpose under the RTA. There is a proper policing purpose to want to know who is publicly advertising themselves as being associated with a serious crime group. There is no suggestion in this matter of personal vindictiveness or an attempt to obtain a personal benefit. The prosecution submitted that stopping the vehicle because of such a badge on the vehicle is not police harassment.[26]
[26]T146 – 147.
The defence sought to distinguish the decision in Neal on the basis that there was an identifiable purpose under the road law for stopping the vehicle in that case, namely, the vehicle was speeding. Here, there was no such identifiable purpose. The s 40V RTA power or the s 96 MVA power was just a ruse to stop the vehicle pursuant to s 40H and investigate the Tinh Ban crime group.
Both officers agreed that they were interested in the Tinh Ban badge on the back of the vehicle but emphasised that their purpose was to identify the driver/conduct a licence check. In cross-examination, they left open the possibility that they would have pulled over the vehicle even if the Tinh Ban badge had not been present. I consider it highly unlikely that they would have done so. They were on their way to another investigation and there was nothing about the vehicle or the manner of driving which would have gained their attention. I find that it was solely the Tinh Ban badge on the vehicle which made them decide to direct the driver to stop. They believed they had a general power to give such a direction in order to identify the driver/conduct a licence check.
The defence did not contend that the officers were wrong in their belief that Tinh Ban was a crime group.
There is no doubt that the police investigation of such a group is a proper policing purpose. The issue is the extent to which such a motivating purpose permits the police to lawfully direct a driver to stop a vehicle pursuant to the s 40H power to identify the driver/conduct a licence check.
The defence referred to the decision of Bleby J in Police (SA) v Prinse[27] regarding s 42 of the RTA[28], which was the predecessor to s 40H. I note that s 42 did not contain the phrase now contained within s 40H namely, that a police officer may ‘for the purpose of or in connection with exercising other powers under a road law’ direct the driver to stop.[29]
[27](1998) 196 LSJS 267.
[28]42(1) A member of the police force or an inspector may:
(a)request the driver of a vehicle on a road to stop that vehicle;
(b) ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.
(2)A person must forthwith:
(a)comply with a request made under subsection (1) to stop a vehicle;
(b)truthfully answer any questions put under subsection (1).
[29]There is no reference in the second reading speech to the significance or otherwise of that addition when enacting s40H of the RTA. See Statutes Amendment (Road Transport Compliance and Enforcement) Bill, House of Assembly, 11 May 2006, 260- 276.
Justice Bleby found that the provision as it then stood was not unique ‘in providing an apparently unfettered discretion on a police officer to stop a vehicle and to interfere with a person’s immediate right to drive a vehicle on the road. The question is whether there are to be implied any fetters on the exercise of that discretion’.[30] He observed that ‘the requirement to stop and identify oneself, even where an offence has not been committed, is a small sacrifice to make and a very minor infringement of the right – I would prefer to call it a privilege – to drive a motor vehicle on public roads’.[31]
[30]Page 54.
[31]Page 54.
In that case, there was nothing in the evidence which suggested that the exercise of the power was outside the course of police duty or that it was an improper exercise of the power. On that occasion, the police first conducted a motor vehicle check by using the computer in the police vehicle. That check revealed that the vehicle was registered to a female who resided at Glandore. There was a prior notification that the vehicle was stolen, but that was recorded as being closed. The police observed that the driver was male and the vehicle was a long way from the address of the registered owner. At the time, the police were not aware, nor did they suspect from observation of the vehicle, that the driver had committed or was committing any offence, nor was there any concern about the manner in which the vehicle was being driven. The police had not acted unlawfully.
Justice Bleby stated that there may be circumstances where it can be shown that the exercise of that power ‘has been carried out capriciously or for an identifiable purpose not connected at all with legitimate policing of the law’.[32] In those circumstances, the direction may fall into an unlawful category.
[32]Page 54.
In this matter, the defence submitted that the s 40H power had been exercised capriciously. The police had used powers designed to facilitate investigations into the Road Traffic Act as an instrument of intelligence gathering.[33]
[33]Applicant’s written submissions, 31 March 2022, [8], [12].
I accept the evidence of Tieman and Matheson that there was nothing out of the ordinary in stopping the vehicle in the location where it was stopped or in both of them approaching the driver’s side. Although other vehicles would need to bypass the police vehicle and the accused’s vehicle, there is no suggestion the traffic on the highway was brought to a halt. The fact that both officers approached the driver’s side is consistent with the focus being on the safety of the officers in the conducting of the licence check/identification of the driver. There was nothing unlawful about the questioning of the passenger. I do not consider that all of those matters combined suggest that the s 40H power was exercised capriciously.
I am bound by the construction of s 40H as set out in Neal. After the police vehicle was stopped, Tieman did conduct a licence check. In the course of so doing, he became aware that the accused was driving disqualified. If a licence had been produced and no other suspicions raised, then lawful policing would have necessitated the accused to be permitted to drive on. The motivation for the direction to stop did not fall outside a proper policing purpose. There is no suggestion that the purpose was borne out of personal vindictiveness or benefit. Nor is there suggestion that the targeting amounted to harassment in regard to the accused or members of the Tinh Ban group generally.
I consider the prosecution is correct in the application of that decision in Neal to the facts in this case. I find that the police did not act unlawfully in directing the accused to stop his vehicle. I dismiss paragraph 2 of the Rule 49 application.
The opening of the sub‑woofer box
The sub‑woofer box in the back of the vehicle driven by the accused contained the items the subject of these charges. The prosecution case is that the keys to the vehicle, which were in the accused’s possession, can be used to operate the mechanism which opens the sub‑woofer box. That evidence is probative of the accused being knowingly in possession of those items.
The defence submits that there are multiple deficiencies in the prosecution case which make the evidence either irrelevant or more prejudicial than probative. Those deficiencies include (1) the failure of the police to record the opening of the sub-woofer box at the scene on video, (2) the officers not knowing how the sub-woofer box was opened at the scene, (3) the video-recorded demonstration on 7 August 2019 of how the sub-woofer box may be opened (which involves the use of the keys/remote which were in the possession of the accused) not being representative of the way the sub-woofer box was opened at the scene, (4) the inability to know whether any interference with the sub-woofer box at the scene has impacted upon the demonstrated method of opening the box, and (5) the failure to exclude other possible of ways in which the sub-woofer box may be opened which do not implicate the accused.
Evidence of Tieman
Tieman gave evidence that he observed a series of wires running towards the front of the vehicle from the box consistent with it being used as an amplifier. He also observed another set of wires that went into the boot lid which he believed was not consistent with such a purpose.[34] The box was closed. He saw a seam where it looked like it might open. He tried to forcefully prise it open with a screwdriver. He did not damage the box.
[34]T8.
He gave evidence that Matheson came along with a set of car keys to the vehicle which had some electronic transmitter type devices on it. There was some playing around with those devices and eventually he heard a pop and the cover released slightly off the box. He does not know how the lock opened. After it opened, he removed one of the packages which he suspected at the time to be methamphetamine. He looked through the speaker hole and observed the handle of a handgun.
Tieman agreed that he turned off the body worn camera from 1.55pm to 2.22pm. His attempts to open the box and the opening of the box were not recorded on his body worn camera. He gave evidence that at that time he did not think there was a requirement or a need to record his attempts to open the box.[35]
[35]T49.
The demonstration video dated 7 August 2019
On 7 August 2019 the police made video recordings of the vehicle which was impounded at Ottoway.
In the first video at 1.03pm, there is a walk-through of the vehicle. The footage includes the inside of the opened boot.
In the second video, about 50 minutes later, Mr Phillips demonstrates how the sub-woofer box may be opened. The footage shows the boot in a different state to the state it was in during the first video. Mr Phillips demonstrated a method for opening the sub-woofer box using the vehicle’s remote control.
Mr Phillips gave evidence that he was asked to determine how the latch on the sub‑woofer box could be operated. He did not see the boot in the state that it can be seen in in the first video.
When he started his examination, the sub‑woofer box was not connected to the vehicle. Before the second video was started, he connected the colour coded wires that were coming out of the sub-woofer box to some wires which were loose in the boot of the car. He did not see any evidence of damage or interference to those wires or the sub‑woofer box.
On the second video, Mr Phillips explains how the boot opens with the remote control. Upon removal of the boot lining, a button was located which was connected to various wires. He explains that the pressing of the button simultaneously with the remote diverts electricity away from the boot opening mechanism and down wires to the sub‑woofer box which then operates a catch and releases the lock.
Evidence not excluded
The defence submitted that the actions of the police at the scene in interfering with the box, its unlocking mechanism and the items said to have been various keys and fobs removed from the applicant’s possession, were extraordinary, reckless and wholly unnecessary in circumstances where a decision had already been made to impound the vehicle.[36] The lack of a recording at the scene means that the methodology can never be safely ascertained.[37]
[36]Applicant’s written submissions, paragraph 34.
[37]Para 36.
The defence submitted that the reconstruction on 7 August 2019 is problematic. There is no recording as to how the boot came to be from the visible state in the first video to the state in the second video. Further, a reconstruction which is not substantially similar or equivalent to the events in question should not be allowed as a demonstration.[38]
[38]Para 48 R v Quinn [1962] 2 QB 245, R v Thomson (1986) 13 FCR 165.
The defence submitted that on the prosecution case it remains a mystery as to how the box was opened at the scene. Mr Phillips’ conclusion that the opening of the box required both the pressing of a hidden button and the vehicle key cannot be to the exclusion of other possible explanations, including the possibility that there are multiple key fobs in existence which might open the mechanism in multiple ways.[39] The circumstances are such that the evidence is insufficient to enable a jury to fairly assess the possibility of those alternative hypotheses. The jury would not be equipped with evidence allowing it to safely discriminate between those multiple hypotheses and so the applicant’s possession of the vehicle keys could never be safely equated with knowledge of how the locking mechanism worked and the contents of the sub-woofer box which remains the core issue at trial.[40]
[39]Para 43.
[40]Para 46.
Ultimately, the defence submitted that the evidence of the testing, dismantling and reconstruction of the sub‑woofer box said to implicate the applicant through his possession of items on his person would inevitably be grossly unfair to the applicant with its prejudicial value far outweighing its probative effect.[41]
[41]Para 50.
The prosecution submitted that Mr Phillips’ evidence is not a reconstruction because it is not the prosecution case that the officers used that mechanism to open the box. In fact, there is a clear inference that they did not press the hidden button under the boot lining in order to open the box.[42] That leaves open at least one alternative way of opening the box, which is what occurred at the scene.
[42]T169.
The prosecution submitted the evidence establishes that somebody has set up a wiring system so that the person in possession of the remote control for unlocking the vehicle can access the sub‑woofer box. The power from the boot lock mechanism is diverted when you press the remote control at the same time as the button. That means that a remote control for another vehicle would not work. The fact that the accused was in possession of the vehicle keys with the remote is a significant point. The fact that there is an alternative (unknown) way of opening the box is a matter of weight.
I consider that it is unsatisfactory that the police did not record their attempts to open the sub‑woofer box at the scene. It is also unfortunate that the police did not record the process by which the boot as seen in the first video came to be in the state as is apparent in the second video.
I do not consider that Mr Phillips’ evidence and the second video taken on 7 August 2019 amounts to a ‘reconstruction’. It is not a reconstruction of what happened at the scene, rather, it demonstrates one way in which the sub‑woofer box may be opened using the vehicle keys/remote which were in the possession of the accused. The evidence is strongly probative of the prosecution case that the accused was knowingly in possession of the items in the sub-woofer box. Plainly, because that was not the way in which it was opened at the scene, there is another (unknown) way to open the box which does not involve the use of the hidden button.
In my view, all of the matters raised by the defence on this application can be properly raised before the jury, if the defence so chooses. They are matters which go to the weight of the evidence. I find that the evidence is relevant and admissible. I do not consider that the prejudice, as identified by the defence in terms of the various outlined deficiencies, outweighs the probative value of the evidence.
I dismiss paragraphs 7, 8 and 13 of the Rule 49 Notice.