R v Tran - [2022] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TRAN
[2022] SADC 7
Ruling of her Honour Judge Thomas
21 January 2022
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
Defendant charged with trafficking in a controlled drug - application by defendant to exclude drugs and other evidence found during police search of motorcycle – whether police had reasonable cause to suspect the motorcycle was stolen and stop, search and detain it under s 68 of the Summary Offences Act 1953 (SA) – whether defendant unlawfully detained while further police background checks conducted – whether requisite suspicion existed to search the motorcycle under 52(9) of the Controlled Substances Act 1984 (SA).
Held: The police had reasonable cause to suspect the motorcycle was stolen and stop, search and detain it under s 68 of the Summary Offences Act. The defendant was not unlawfully detained while further background checks were conducted in the circumstances found. The police reasonably suspected that a substance or equipment that would afford evidence of an offence against the Controlled Substances Act was in the Motorcycle. Even if the search of the motorcycle was unlawful, the proper exercise of the public policy discretion favours admission of the evidence.
Application to exclude evidence dismissed.
Summary Offences Act 1953 (SA) s 68; Controlled Substances Act 1984 (SA) s 52(6) and (9), referred to.
R v Willingham (No 2) [2012] SASCFC 104; George v Rockett (1990) 170 CLR 104; Hussien v Chong Fook Kam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; Bae v R; Koo v R (2020) 135 SASR 522; R v Nguyen (2013) 117 SASR 432; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; Matthews v R (2020) 135 SASR 281; R v Neal (2017) 128 SASR 20; R v Nguyen [2016] SASCFC 96; R v Nguyen [2015] SASCFC 7; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; R v Armistead [2019] SASCFC 85; Ridgeway v The Queen (1995) 184 CLR 19; R v Chapman (2001) 79 SASR 342, considered.

R v TRAN
[2022] SADC 7
Introduction

The defendant is charged with one count of trafficking in a controlled drug (methylamphetamine) in contravention of s 32(3) of the Controlled Substances Act 1984 (SA) (Controlled Substances Act).
The charge results from the search of a small red Honda motorcycle[1] with an Australia Post tub fixed to its rear (the Motorcycle) following a traffic stop on Martins Road, Salisbury Downs in the early hours of Sunday morning, 16 February 2020. A large amount of methylamphetamine was found in a black Nike bum bag in the Australia Post tub, together with other paraphernalia indicative of involvement in drug trafficking.[2]
[1] SA Registration Number YZX103.
[2] $3,250 in cash, two Samsung mobile phones, numerous empty resealable bags, scraping utensils and a straw cut into a scoop. It was not in dispute that 48.12 grams of methylamphetamine was found in the search with a value at then current market prices of between $4,000 and $6,000 if sold in ounces or $14,400-$19,250 if sold in grams. T71.26-72.12; T73.19-.29.
The defendant has made an application pursuant to Rule 49 of the District Court Criminal Rules 2014 for the exclusion of the evidence found as a result of the search of the Motorcycle. The defendant challenges the lawfulness of the traffic stop, the police officers’ power to detain the defendant and the Motorcycle whilst further background checks were conducted, and the lawfulness of the search of the Motorcycle.
I dismiss the defendant’s application to exclude the evidence found as a result of the search of the Motorcycle. My reasons follow.
The Evidence
The prosecution called evidence from Detective Brevet Sergeant Trudie Pursche (Detective Pursche) and Constable Andrew Cooper (Constable Cooper). Their evidence was largely unchallenged. The defendant accepted that factually not a great deal was in dispute, save whether Detective Pursche was mistaken in her evidence that she viewed the defendant’s criminal history from outside the police vehicle.[3] The defendant did not give evidence.
[3] T58.32-59.2.
Detective Pursche
In February 2020, Detective Pursche was stationed at the Northern Volume Crime section. In the early hours of Sunday, 16 February 2020, she was driving an unmarked patrol car in the northern suburbs in the company of Constable Cooper. Detective Pursche was the more senior officer, having worked as a police officer for 16 years.[4]
[4] T42.28-.29.
Detective Pursche gave evidence that she made the decision to stop the Motorcycle believing that it was stolen, having regard to her observations that it looked like a typical Australia Post-delivery bike, when, where and how it was parked when they first observed it and that Australia Post does not work at 1 o’clock in the morning.[5] After stopping the Motorcycle and obtaining the driver’s licence, she made the decision to search after Constable Cooper told her that the defendant had a drug history. Constable Cooper had obtained that information from further background searches he conducted on the police computer inside the police vehicle, the results of which she said she viewed from standing next to him, outside the police vehicle. Accordingly, I have scrutinised Detective Pursche’s evidence closely.
[5] T35.6; T37.24-.32.
My general observation is that Detective Pursche gave evidence in a forthright and direct manner. She was candid in her account of matters she recalled informing decisions made in the field over the course of minutes. I was reassured by her recall of detail and the concessions she made about matters she did not know or could not recall.
Unsurprisingly, as the key decision-maker, Detective Pursche was cross-examined on a number of critical topics. She was challenged on each of the matters founding her suspicion as to whether the Motorcycle was stolen and her reasons for stopping it and then deciding to search it. I accept her evidence as truthful and reliable. I accept she genuinely suspected the Motorcycle to be stolen and the stop necessary to check its vehicle identification number (VIN) and question the rider.
As regards the basis of her suspicion for searching the Motorcycle, Detective Pursche was cross-examined extensively about her knowledge of the defendant’s drug history, one of the factors she said that had formed the basis of her suspicion that the defendant either had a substance or equipment in contravention of the Controlled Substances Act in his possession or in the Motorcycle. It was put to her directly that she was “making up” having seen his drug trafficking history on the computer screen in the police vehicle.[6] For the reasons below,[7] I accept Detective Pursche’s evidence that she came back to the police vehicle whilst Constable Cooper was undertaking further background checks. I also accept her evidence that she genuinely held the requisite suspicion to search the Motorcycle and was truthful about the reasons she articulated as enlivening her suspicion. I address below the separate question as to whether her suspicion was objectively reasonable on the basis that I accept Detective Pursche as an honest and reliable witness overall.[8]
[6] T47.35-T48.7.
[7] See [47] below.
[8] See [83]-[99] below.
Constable Cooper
In February 2020, Constable Cooper was also stationed at Elizabeth as part of the Volume Crime Section.[9] At the time of the traffic stop and search in question, he and Detective Pursche were together in an unmarked police vehicle on patrol.
[9] T3.8-.10.
I found Constable Cooper to be an honest witness, who genuinely did his best to recall the events in question. He made appropriate concessions when he could not recall matters of detail put to him. However, on occasion, by comparison to Detective Pursche’s evidence, Constable Cooper’s evidence was generalised and appeared to be reconstructed from his general practice for all traffic stops. One example was his evidence to the effect that he asked the defendant for his driver’s licence.[10] Another was his practice for licence checks generally.[11]
[10] T7.15-.33.
[11] T9.27-28.6.
Bearing in mind that the police audit reports for checks conducted on police systems show that the time that elapsed between the initial registration searches conducted directly before the traffic stop[12] and the last background searches[13] was approximately five minutes, and Constable Cooper gave evidence of those events 17 months later, I make no criticism of his limited recollection of some matters of detail.
[12] At 1:05:16 as shown in Appendix A to Exhibit D3.
[13] At 1:08:41 as shown in the table at page 9 of Exhibit D4, being the affidavit of Mick Bedell sworn
on 11 June 2021 (Exhibit D4).
Constable Cooper was challenged as to whether he did in fact check the Motorcycle’s VIN after it was stopped. I accept his independent recollection that he did, although he could not say exactly when he did that in the order of events.[14] I found his evidence about the searches he conducted on police systems helpful and confirmed by the police audit reports, the reliability and veracity of which were not challenged by the defendant.[15]
[14] T18.2-.18.
[15] T7.32-8.19.
Constable Cooper’s account of events was generally consistent with that of Detective Pursche. Other than who asked the defendant for his driver’s licence, the key difference between their evidence was whether Detective Pursche returned to the police vehicle when he conveyed to her the defendant’s drug history and precisely what he said about that.[16] For the reasons elaborated on below, I prefer Detective Pursche’s evidence on this issue[17] and find Constable Cooper was mistaken in his recollection that he went to her.[18]
[16] T12.31-.36; T27.22-.32; T49.7-.23].
[17] See [47] below.
[18] T49.7-.23.
Factual Findings
In the early hours of Sunday morning, 16 February 2020, Detective Pursche and Constable Cooper were carrying out patrol duties in an unmarked police vehicle in the northern suburbs. As they drove past a house on the corner of Waterloo Corner Road and Napoleon Court, known as 1 Napoleon Court, Paralowie, they observed a small red motorcycle with an Australia Post tub strapped to its back, parked right up near the front doorway under an alcove.[19]
[19] T3.27-.33; T29.29-.30; T35.6-.24; T36.10-.16.
This address was well-known to police as an address involved with drug activity the subject of a current police operation called Operation Vinegar that was close to resolution phase.[20] Detective Pursche briefly described her knowledge of this house as an address of interest in the following terms:[21]
…for a very long time that address has been well-known as a drug address. Drug users frequent that address, drug dealers live and associate at that address and that is going back from 2010 straight through to present day and at the time there was an active investigation being conducted into that address and a drug syndicate surrounding that address.
[20] T3.33-.35; T37.1-.10.
[21] T29.15-.24.
At this point, both police officers genuinely suspected the Motorcycle was stolen because it looked like a typical Australia Post-delivery vehicle and it was parked outside the front door of an address of well-known interest to police in the early hours of a Sunday morning at a time and place Australia Post would not be working .[22]
[22] T13.34-.1; T14.28-.36; T29.2-.24; T35.6-36.16.
They parked in a side street on the northern side of Waterloo Road to observe the entrance to the address and see if the Motorcycle would leave. After about five minutes,[23] they saw the Motorcycle depart by turning right down Waterloo Corner Road towards Martins Road. Whilst Detective Pursche could not be definitive about for how long or the distance travelled, [24] on her rough estimate they followed the Motorcycle for several minutes at a distance so as not to alert the defendant that they were following him or had followed him from 1 Napoleon Court. The Motorcycle turned right into Martins Road, left around a roundabout onto Burton Road and right again back onto Martins Road.[25]
[23] T4.35-5.1.
[24] T38.18-.21.
[25] T38.27-.33.
The route travelled is uncontroversial and was described by both officers consistently by reference to a street map.[26]
[26] Exhibit P1.
When the police vehicle was close enough to the Motorcycle for Constable Cooper to see its registration number (YZX103), he undertook a “Mobile Computing Application” (MCA) check of its registration to retrieve details of the registered owner. The vehicle registration check returned a result of a red/maroon Honda motorcycle or scooter registered to a Minh Tam Tran, date of birth second of the first of 1990 and to a 160 Andrew Smith Drive, Parafield Gardens address.[27]
[27] T5.31-T6.11; T14.37-T15.15; T16.1-.23; T21.34-22.8; T26.26-.34.
The MCA Audit Report[28] in evidence shows that Constable Cooper conducted the initial registration searches at 1:05:16 am, which he acknowledged as correct.[29]
[28] See Appendix A to Exhibit D3.
[29] T27.8-.10.
Detective Pursche activated the police emergency lights to stop the Motorcycle.[30] She said their reason for following the Motorcycle was to stop it and conduct checks as to the driver’s identity and to see if the VIN on the Motorcycle matched the VIN for the registration plate affixed to its rear.[31] Both officers gave unchallenged evidence that it was standard practice to check the VIN registration on a vehicle to see it matched the VIN recorded for the registration.[32]
[30] T16.24-.26.
[31] T30.13-.-17.
[32] T16.20-.23; T39.18-.21.
Detective Pursche said in evidence that she made the decision to stop the Motorcycle.[33] Constable Cooper gave evidence to the effect that they made the decision jointly.[34] Whilst I accept that they likely discussed what they were doing as events unfolded, I find that ultimately Detective Pursche made the decision to stop given her relative seniority in rank and experience and that as the driver, she activated the police emergency lights which brought the Motorcycle to a stop.
[33] T37.24-.32.
[34] T13.34-14.1; T14.19-.24.
Detective Pursche said it took them a while to get within view of the Motorcycle’s registration and that when they did, they were close to Burton/Martins Roads, not long before the Motorcycle stopped or as Constable Cooper was punching in the registration details and she got out of the police vehicle.[35] Her evidence is consistent with Constable Cooper’s evidence that the registration was not visible until they were closer to it after following it for a while at a distance.[36] He was not asked how much time had elapsed between him undertaking the initial registration search using MCA and Detective Pursche activating the police emergency lights and stopping the Motorcycle. I accept Detective Pursche’s evidence in this regard and find the initial registration searches on MCA were conducted at 1:05:16 directly before or as both vehicles came to a stop.
[35] T37.33-T38.17; T38.34-T39.6.
[36] T27.33.
On activation of the police emergency lights, the Motorcycle stopped and its rider alighted. The police vehicle parked two to three metres behind the Motorcycle.[37] Both police officers got out and approached the rider. It was Detective Pursche’s evidence that she asked the rider to produce his driver’s licence or identification, which he did. She handed it to Constable Cooper to undertake some further checks and he returned to the police vehicle to do so.[38] Whilst Constable Cooper agreed that he took the defendant’s drivers licence back to the police vehicle, his account differed as to which of them asked the defendant for his licence and whether Detective Pursche or the defendant handed him the licence. He said in evidence-in-chief that he had a brief conversation with the defendant and requested his licence; however when pressed, he did not recall what was discussed and instead gave evidence of his general practice for all his traffic stops. [39]
[37] T49.15-.16.
[38] T31.15-.22; T39.28-.35.
[39] T7.15-.25; T16.27-.36.
Although nothing turns on the issue, I prefer Detective Pursche’s evidence as to who asked the defendant for his licence. Her evidence on this issue was unequivocal, whilst Constable Cooper’s evidence was based on his general practice and not his actual recollection. Detective Pursche’s account is supported by her as the senior officer taking command of the situation as shown by her making the decision to activate the emergency lights to stop the Motorcycle and her focus in getting out of the police vehicle to speak to the defendant. Whilst I find Constable Cooper was mistaken in his recollection of this matter of detail, I make no criticism of him given the passage of time between this traffic stop that took minutes and his evidence 17 months later.
On sighting the defendant’s licence, Constable Cooper concluded that the image on the driver’s licence resembled the defendant rider and he believed the details on the driver’s licence to be the same as the registered operator.[40] Leaving Detective Pursche with the defendant, Constable Cooper returned to the police vehicle with the defendant’s licence[41] to conduct further searches on the police computer inside the police vehicle.
[40] T7.15-T7.32.
[41] T7.33-.35; T20.1-.6.
Constable Cooper said he always verifies the licence produced at a traffic stop with the computer records to ensure everything matches up including offender images as a cross-check.[42] He further explained why he conducted the further checks he did as follows:[43]
A.So when I conduct traffic stops, I like to check [the] police system to make sure that the licence of the person that produces it to me is not disqualified, expired, or any other thing similar to that.
Q.When you conducted those checks, did you obtain any additional information.
A.Yes, I also checked to make sure that the person didn’t have any outstanding matters with police, such as bail, warrants, etc. I also obtained the VIN for the motorcycle as per the registration that’s provided by police systems.
[42] T17.1-.11.
[43] T7. 38-8.10.
It is apparent from the audit data of the searches conducted by Constable Cooper using the Shield application, that he obtained the VIN for the registration for the Motorcycle at 1:07:23.[44] Similarly, from the record for the registration “YZX103”, at 1:07:31[45] he opened a street check[46] and then between 1:08:19 and 1:08:21[47] expanded sections of that check which showed that the same Motorcycle had been stopped by police in the early hours of the morning with the rider suspiciously appearing to be an Australia Post employee.[48]
[44] See row 98 of the table on page 9 of Exhibit D4.
[45] See row 102 of the table on page 9 of Exhibit D4.
[46] T9.34-T10.10.
[47] See rows 103 and 104 of the table on page 9 of Exhibit D4.
[48] T10.7-.21.
At 1:08:21,[49] Constable Cooper opened the person record for “TRAN, MINH TAM, DOB: 02/01/1990” from the street check. The person record displayed a summary of the defendant’s personal details and a caution for drugs.[50] At 1:08:41,[51] Constable Cooper expanded a tab for “Involved Occurrences” to see a summary of the types of incidences for the defendant’s person record.[52]
[49] See row 105 of the table on page 9 of Exhibit D4.
[50] T10.22-.11.3.
[51] See row 109 of the table on page 9 of Exhibit D4.
[52] T11.4-.37; T12.2-.30; Exhibit P2 Occurrences Involvement relating to Minh Tran dated 16/2/2020.

Constable Cooper also conducted an MCA search for details of the defendant’s criminal history.[53] In evidence, he recalled seeing that the defendant had a history of trafficking but at the time of giving evidence, he said he possibly looked at but could not now recall the date of that history.[54] He said he conducted that search whilst conducting the Shield searches.[55]
[53] T21.32-22.11.
[54] T22.12-.20.
[55] T22.5.
The MCA Audit Report[56] shows that Constable Cooper accessed the criminal history of the defendant at 1:06:52, which was 29 seconds before he accessed information from the Shield database.[57]
[56] Comprising Appendix A to Exhibit D3.
[57] See row 97 of the table on page 9 of Exhibit D3.
Constable Cooper could not recall whether he accessed the MCA criminal history of the defendant before or after they stopped the Motorcycle.[58] Given the proximity between accessing the MCA criminal history and undertaking the vehicle search in the Shield database (29 seconds), I find it likely that Constable Cooper accessed the criminal history as the first step in conducting the further checks he did on returning to the police vehicle with the defendant’s licence after the Motorcycle was stopped.
[58] T27.11-.13.
On my analysis, 29 seconds was not long enough for Constable Cooper to get out of the police vehicle, obtain the defendant’s licence and return to it. I find it most likely that he returned to the police vehicle shortly before initiating the next search, the MCA criminal history. That is, at 1:06:52 (1 minute and 36 seconds after the initial MCA registration searches). [59]
[59] As shown in Appendix A to Exhibit D3.
As Constable Cooper returned to the police vehicle, Detective Pursche conversed with the defendant and asked where he had come from. He said Waterloo Corner Road, so she asked him what address and he said “I think No.11”. Detective Pursche gave evidence that she knew this was a lie because she had observed the Motorcycle leaving 1 Napoleon Court.[60] She said there was some further conversation about whose bike it was and, in her words: “what the go was with the Australia Post box”. She recalled him saying he had got it from a friend, even though she said she had not put this in her notes.[61]
[60] T31.28-.30.
[61] T32.1-.12.
Constable Cooper’s recollection was that after he had conducted the further checks, he spoke to Detective Pursche and told her words to the effect that the defendant had “some drug related history and interactions with police.”[62] He said he did not convey to her the dates of that drug history[63] or the number of occurrences.[64] He recalled an apparently brief conversation with Detective Pursche at the stage before she conducted the search.[65]
[62] T12.33-.36; T27.30-.32.
[63] T27.22-.26.
[64] T27.27-.32.
[65] T12.33-13.7; 22.29-.34.
It was Constable Cooper’s evidence that he went back to Detective Pursche to convey the drug related history. His evidence that he did go to her (and she did not come back to the police vehicle) was equivocal.[66]
[66] T49.7-.23.
Q.Detective Pursche stayed with Mr Tran whilst you went and did the checks didn’t she.
A.Yes.
Q.At no point did she come back to the police vehicle and view what you were doing on the system did she.
A.I don’t recall exactly, I mean it’s all in close proximity where he was standing where I was and where Trudie was sort of within a couple of metres.
Q.How far was the vehicle parked behind the motorcycle.
A.Probably two to three metres maximum.
Q.But Detective Pursche didn’t come back and watch what you were doing at the police vehicle did she.
A.I don’t recall that happening.
Q.And your evidence is that you then went back to Detective Pursche and conveyed the drug related history.
A.Yes.
Detective Pursche’s account of events at this point was different in several material respects. Consistent with Constable Cooper’s evidence, she gave evidence confirming that after conducting the further checks, he informed her the defendant had some previous history for drugs. However, on her account, he also told her the defendant had been linked to several drug incident street checks.[67]
[67] T32.13-.23; T40.23-.27.
Further, she said she was told this when she walked over to the police vehicle to see what checks he had done.[68] She said she could see the computer screen from outside the vehicle and saw the most recent “Involved Occurrences”.[69] Despite the screen for this search showing dates and including types of occurrences (ie street checks, incidents and intelligence),[70] when challenged about whether she checked or noted the dates she ultimately acknowledged that she had no knowledge of the dates of the incidents at the time. The key passage of her evidence on this topic follows:[71]
[68] T40.18-.24.
[69] T41.8-.18.
[70] As shown in Exhibit P2.
[71] T40.38-42.3.
Q.But, for instance, you didn’t check if they were dated, did you.
A.Well, they would have dates on them; I just was not aware of what the dates were for them.
Q.As far as you know, it could have been from 10 years’ prior, couldn’t it.
A.It could have, but it was the most recent occurrences, so the last six that he had been involved in.
Q.You didn’t view the occurrences, did you.
A.Well, from the vehicle, I can see the screen that he’s doing the checks on so he can turn the screen and I can see what’s there.
Q. So you’re now saying that you viewed the occurrences, did you.
A.Not in great detail, no. I just viewed the screen where he said he’s involved in drug incidences.
Q.And you saw six, did you.
A. Well, I saw the little bunch there [indicates] which would probably only hold six or seven.
Q. But you didn’t take note of the dates, did you.
A.No, I didn’t take note of the dates and times, I was satisfied that there [were] drug incidences and street checks that he had been linked to recently.
Q.You didn’t check the dates, though, did you.
A.No, but –
Q.How can you be satisfied that they were recent.
A.Because it was his most recent occurrences with police. He had been convicted for trafficking earlier and spend some time in prison, so I believe they were all from 2019 or later.
Q.If they were the most recent incidents, they still could have been from 10 years ago, couldn’t they.
A.Possibly.
Q.So you really had no knowledge as to the dates of those incidents, did you.
A.No.
As this passage from her evidence reveals, Detective Pursche was unable to explain the basis of her satisfaction as to the recency of the drug incidents she said she observed on the “Involved Occurrences” screen in the Shield application. I accept her evidence that she saw the searches displayed on the screen and that she did not at the relevant time note or know the dates of the six or seven incidents she saw. I accept she observed and was told (consistent with what Constable Cooper said he told her) they were drug related.
Detective Pursche gave further evidence that while she was standing next to Constable Cooper who was seated in the police vehicle, she saw from the MCA criminal history tab that the defendant had been convicted of drug trafficking and spent some time in prison.[72] She was pressed on this point in cross-examination repeatedly. First, she said she was certain about what she saw. When it was put to her that she was incorrect, she disagreed[73] and when pressed again for the fourth time, she said she was positive she had seen a previous conviction for drug trafficking on the MCA tab.[74] When finally it was put to her that she was making it up, she denied that.[75] Detective Pursche said she did not check the dates or know the circumstances of the drug trafficking, and repeatedly confirmed so.[76]
[72] T42.4-.22; T43.17-.27; T41.25-.29.
[73] T43.17.27.
[74] T47.11-.25.
[75] T47.38-48.7.
[76] T43.28-.33; T44.16-.18.
In support of the defendant’s contention that Detective Pursche did not see the MCA criminal history tab, it was put to her that neither the notes she made when matters were fresh in her memory nor the affidavit she had sworn in July 2020 mentioned a drug trafficking conviction. She accepted neither did. [77]
[77] T43.34-44.11.
Ultimately, the defendant submitted that I should reject Detective Pursche’s evidence that she viewed the defendant’s criminal history on the MCA application tab from outside the police vehicle as mistaken.
In view of the challenges made to the veracity of Detective Pursche’s evidence on this critical issue about her knowledge of the defendant’s conviction for drug trafficking, I have considered all of her evidence carefully. Having done so, I have concluded her evidence is truthful and reliable. She was consistent in her repeated accounts of this matter, and her candour in accepting that she did not check dates or the circumstances of the trafficking conviction, a matter she could easily have done since this information was on the screen before her, was reassuring. On all the evidence, I find she did view the defendant’s MCA criminal history.
I am not persuaded that omission of this detail from her notes or her affidavit undermines the veracity of her evidence.
I have also considered Detective Pursche’s evidence in light of Constable Cooper’s evidence that he did not recall her coming back to the police vehicle and viewing what he was doing on the police computer. As I have said, Constable Cooper’s evidence was equivocal, his first answer being: “I don’t recall exactly, I mean it’s all in close proximity where he was standing where I was and where Trudie was sort of within a couple of metres”.[78] On balance, I prefer Detective Pursche’s evidence and find Constable Cooper’s recollection on this detail mistaken. By comparison to Constable Cooper, Detective Pursche was both emphatic and definitive in her recollections, which I found convincing.
[78] T49.12-.14.
Accordingly, I reject the defendant’s submission that her evidence did not have the ‘ring of truth’.[79] I found entirely plausible her account that she could see the computer screen in the police vehicle from outside the passenger door, just a metre away, whilst Constable Cooper conveyed the results of his searches. Considering all the evidence and, specifically, on my analysis of the timeline revealed by the MCA Audit Report[80] and the audit of the Shield searches,[81] I am satisfied that it was not inherently unlikely for Detective Pursche to be standing next to Constable Cooper for the relevant timeframe as the defendant submitted.[82]
[79] T60.1.
[80] Appendix A, Exhibit D3.
[81] As set out in the table on page 9 of Exhibit D4.
[82] T50.7-.38.
The total time elapsing between the initial registration searches and the final search on the Shield application was approximately three minutes and 25 seconds.[83] The first Shield search was conducted shortly after the MCA criminal history search.[84] On my analysis, there was sufficient time available for Detective Pursche to stop the Motorcycle, get out, obtain the defendant’s licence, speak to him briefly and return to the police vehicle and view the criminal history and the subsequent searches.[85]
[83] That is from 1:05:16 to 1:08:41.
[84] 29 seconds later.
[85] That is, two minutes and 15 seconds, almost half the time available.
The added detail in Detective Pursche’s evidence that she was told about drug incident street checks undertaken by Constable Cooper was not challenged directly in cross-examination. As regards this difference between their evidence, I find her account plausible given my finding that she did go to the police vehicle and saw the MCA criminal history and the results of the Shield checks.
Moreover, there was nothing improbable about her seeing the “Involved Occurrences” screen in the Shield application or Constable Cooper telling her the defendant had been linked to several drug incident street checks when he undertook that check within minutes of navigating from the MCA application into the Shield application[86] whilst she was standing next to him sitting in the police vehicle, within a metre of the computer screen.
[86] That is, one minute and 20 seconds after initiating the first Shield search.
It was Detective Pursche’s evidence that she formed the suspicion to search the Motorcycle under the Controlled Substances Act after information from the further searches had been conveyed to her.[87]
[87] T32.29-.33; T33.1-.15.
Constable Cooper was cross-examined as to whether he checked the VIN on the Motorcycle or not. Whilst he could not recall exactly when he did that check, his evidence was that he did check it and he had an independent recollection of doing so.[88] I accept his evidence, bearing in mind that it is standard practice to do so and that was the purpose for stopping the Motorcycle. Having regard to the timeline established by the Shield audit,[89] I find Constable Cooper checked the Motorcycle’s VIN after 1:08:41 once he had finished all the Shield searches, shortly after Detective Pursche’s search of the Motorcycle. His evidence was consistent with Detective Pursche’s recollection that they did check it.[90]
[88] T18.2-.18.
[89] As set out in the table of page 9 of Exhibit D4.
[90] T39.11-.27.
Consideration
The defendant’s primary contentions, as refined during closing argument following evidence from the police officers concerned, were as follows.
1.The suspicion entertained by Detective Pursche and Constable Cooper in stopping the Motorcycle was not reasonable and incapable of grounding a lawful stop.
2.Once it was determined that the Motorcycle was not stolen by checking that the VIN on the Motorcycle matched that of the registration and the defendant was licensed, there was no further reason or power to detain the defendant to conduct further background checks.
3.The suspicion entertained by Detective Pursche in searching the Motorcycle was not reasonable and was incapable of grounding a lawful search. The police should never have searched the defendant’s Motorcycle given the paucity of information available at the time the decision was made to search.
4.In these circumstances, evidence obtained as a consequence of the search should be excluded in the exercise of the Bunning v Cross discretion. Exclusion of the evidence found is necessary so that the administration of criminal justice is not brought into disrepute by statements of judicial disapproval of the unlawful procuring of evidence by police appearing hollow and insincere. Otherwise, to permit the introduction of the evidence would give curial approval to the police exceeding their lawful powers.
In summary, the prosecution contended that it was reasonable on the information available to the officers and their observations for them to suspect the Motorcycle was stolen and exercise their powers under s 68 of the Summary Offences Act 1953 (SA) (the Summary OffencesAct), as they did.
Secondly, the evidence shows that the police officers’ s 68 powers had not been exhausted when Constable Cooper performed the further background searches that were legitimately undertaken and revealed information informing the requisite suspicion under s 52(9) of the Controlled Substances Act. Constable Cooper did not go beyond what was reasonably required, and Detective Pursche was entitled to consider all the information known to her from the searches on the police computer at the relevant time.
Thirdly, despite Detective Pursche not knowing the dates and times of the defendant’s previous drug history, the prosecution contended that the factors she articulated as giving rise to the requisite suspicion conditioning her power to search were objectively reasonable.
Finally, if the search was unlawful, in all the circumstances the Court should exercise the Bunning v Cross discretion by refusing to exclude the evidence obtained in the search. All occurred within a very short timeframe and there was no deliberate cutting of corners or egregious conduct by the officers concerned.
Stopping the Motorcycle
As I have found, it was ultimately Detective Pursche’s decision to stop the Motorcycle.[91] Constable Cooper gave evidence that they were exercising their powers under s 68 of the Summary Offences Act to stop, search and detain a vehicle and person for stolen items[92] and the defendant does not challenge this was the purported basis of Detective Pursche’s power to do so.
[91] See [24] above.
[92] T20.18-.24.
Section 68 provides:
68—Power to search suspected vehicles, vessels, and persons
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a)     a vehicle or vessel in or upon which there is reasonable cause to suspect that—

(i)    there are stolen goods; or
(ii)     there is an object, possession of which constitutes an offence; or
(iii)    there is evidence of the commission of an indictable offence;

(b)     a person who is reasonably suspected of having, on or about his or her person—

(i)    stolen goods; or
(ii)     an object, possession of which constitutes an offence; or
(iii)    evidence of the commission of an indictable offence.
(2)     In this section—
stolen goods includes goods obtained by the commission of an offence.
The principles governing the exercise of a police officer’s power to stop, search or detain a vehicle or person were not in contention in this case. That is, the lawful exercise of such power required Detective Pursche both to hold a genuine suspicion and, based on her knowledge at the time she decided to stop the Motorcycle, that her suspicion was objectively reasonable. Reasonableness is to be judged by the Court putting itself in the position of Detective Pursche with her knowledge and asking, whether in the circumstances of the particular case, the suspicion was reasonably held. [93] In exercising this power, Detective Pursche did not have to know of a particular offence or its commission.
[93] R v Willingham (No 2) [2012] SASCFC 104 at [10].
Suspicion, as distinct from belief, and the concept of reasonable grounds for the suspicion were considered by the High Court in George v Rockett.[94]The Court referred to the statement in Hussien v Chong Fook Kam[95] that suspicion “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’”. That some factual basis for the suspicion must be shown was explained as follows, citing Queensland Bacon Pty Ltd v Rees:[96]
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
[94] (1990) 170 CLR 104 at 115-116.
[95] [1970] AC 942 at 948 per Lord Devlin.
[96] (1966) 115 CLR 266 at 303 per Kitto J.
The South Australian Supreme Court has discussed the concept of reasonable suspicion and reiterated the same principles in numerous authorities in the context of s 52 of the Controlled Substances Act.[97] In R v Nguyen, in discussing the difference between suspicion and belief, the Court said: [98]
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.
Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
[Citations omitted]
[97] More recently in Bae v R; Koo v R (2020) 135 SASR 522.
[98] (2013) 117 SASR 432 at [21]-[22].

In this case, the defendant accepts the police officers genuinely held a suspicion that the Motorcycle was stolen but challenges the reasonableness of such suspicion. Whilst only Detective Pursche’s evidence is strictly relevant, each of the police officers concerned gave evidence that, at the point of stopping the Motorcycle, they were suspicious that it was stolen for the same reasons. They observed what appeared to be a typical Australia Post-delivery bike, parked near the front door on the porch of an address known by police to be involved in drug activity in the early hours of a Sunday at a time when Australia Post would not be working.
Detective Pursche gave detailed evidence about her knowledge of the drug associations for the Napoleon Court address that was objectively reliable and recent, and unchallenged as such.
They followed the Motorcycle at a distance after it left Napoleon Court so as not to alert the defendant that they were following him or where they had come from. As I have found, they could not see the registration plate until shortly before stopping the Motorcycle on Martins Road. As the number plate became visible, Constable Cooper conducted a registration search on the MCA application that showed the description of the Motorcycle matched the registration number. From the registration search, it was common ground that both officers knew that the registration matched the description of the vehicle they were following: a red/ maroon 2004 Honda scooter.[99]
[99] T16.4-.14.
According to Detective Pursche, the reason for following and stopping the Motorcycle was to conduct checks as to the driver’s identity and to check the VIN registration on the Motorcycle matched the registration attached to its rear[100] as per the registration search.
[100] T30.13-.17.
The defendant contends that the suspicion entertained by Detective Pursche in stopping the Motorcycle was not reasonable and incapable of grounding a lawful stop.
In my view, at the point of stopping the Motorcycle, it was reasonable for Detective Pursche to be suspicious about the whether the Motorcycle was stolen in all the circumstances. In the context of investigating whether it was stolen, the working hypothesis she shared with Constable Cooper was that it was an Australia Post vehicle. Their mutual suspicion was based on their initial observations of the Motorcycle’s appearance (ie a small red scooter with an Australia Post tub affixed to its rear) and when, where and how it was parked. From the photographs taken of the Motorcycle when it was stopped,[101] it was in my view objectively reasonable to suspect it to be an Australia Post vehicle. Based on their observations, it was no idle speculation.
[101] Exhibit P5.
The defendant submits that having established from the initial registration searches that a motorcycle fitting the description of the Motorcycle was registered to a Minh Tam Tran, and by implication not Australia Post, it was unreasonable to suspect the Motorcycle was stolen. Both officers gave evidence that they still suspected the Motorcycle was stolen despite the initial registration checks indicating otherwise, because is not uncommon for registration plates not to match the VIN on the vehicle to which they are attached.[102] Contrary to the defendant’s submission, it was in my view objectively reasonable for the police officers to suspect the Motorcycle was stolen based on all the information known to them at the time Detective Pursche activated the emergency warning lights and stopped the Motorcycle and continue their investigation as they said they intended and did.
[102] T16.4-.23; T39.11-.21.
It is important to bear in mind that reasonableness is not tested by individually assessing the quality and weight of each matter relied on. Rather, an assessment must be made as to whether there is a rational connection between the suspicion and the entirety of the information (inculpatory and exculpatory) accumulated by Detective Pursche at the time she decided to stop the Motorcycle.
Was the defendant unlawfully detained or the further searches outside the scope of the police officers’ power under s 68 of the Summary Offences Act?
As a matter of general principle, a statutory power expressed in general terms only authorises an exercise of the power as is reasonable in all the circumstances for the specified purpose of that power. Statutory powers to stop, detain and search are to be construed narrowly because they involve an intrusion upon basic individual rights. Specifically, they are to be construed as not authorising an interference with individual rights beyond what is stated expressly or follows by necessary implication.[103] Succinctly expressed, the power to stop, detain and search under s 68 of the Summary Offences Act is limited by a requirement that it be reasonably exercised in all the circumstances.[104] These principles are the foundation of the defendant’s second challenge on the voir dire.
[103] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281.
[104] As stated by Nicholson J in Matthews v R (2020) 135 SASR 281 at [55] in considering the power to search under s 52 of the Controlled Substances Act.
The defendant accepted in closing submissions that if I were to find the police officers had lawfully stopped the Motorcycle (as I have found), they were entitled to detain the defendant and the Motorcycle whilst they completed checking its VIN against that of the registration.[105]
[105] T50.11-.24.
However, the defendant did not resile from the contention in his written outline that that the police nevertheless exceeded their powers under s 68 of the Summary Offences Act by unlawfully detaining him by undertaking further background checks that were not reasonably required to ascertain if the Motorcycle was stolen.[106] It was put that all that was reasonably required was to match the VIN on the Motorcycle because it had come up registered to the defendant, who was licensed. A reasonable person in the position of the defendant would be under no illusion that he was not allowed to leave whilst the further background checks were undertaken: Constable Cooper had his licence and Detective Pursche made it clear the Motorcycle had to remain there whilst they were conducting their checks.[107] The defendant in those circumstances was unlawfully detained.
[106] T50.24 and following.
[107] T20.10-.13; T40.6-.13.
It was further submitted Constable Cooper had deliberately taken the opportunity to use the period of detention created by exercise of his s 68 powers to conduct the unnecessary background searches on the defendant. Although it was accepted there was in this case no mala fides, it was pointed out that Constable Cooper gave evidence that this was general practice for all his traffic stops and such practice should be discouraged.[108]
[108] T58.20-.29.
I do not accept the defendant’s submissions in this regard.
As the defendant properly conceded in closing submissions,[109] on the evidence it was plainly the practice, and reasonably necessary, to match the VIN number on the vehicle with that shown by the registration search.[110] The evidence further shows that the police officers had not exhausted their s 68 powers when Constable Cooper conducted the further checks. The VIN number was not identified until the Shield search was undertaken (at 1:07:23), which was after Constable Cooper had taken the defendant’s licence back to the police vehicle to verify the licence details with the computer records and cross-check with other data including offender images. Further, the VIN on the Motorcycle could not be and was not checked until after the further searches had been completed (at 1:08:41).
[109] T52.26-.27.
[110] T16.20-.23; T39.19-.21.
The defendant tacitly accepted that it was a legitimate exercise of the police officers’ s 68 powers in the circumstances of this case to undertake a licence check of the defendant.[111] The defendant’s objection was that Constable Cooper exceeded the scope of his power by doing more than was reasonably necessary. As the defendant put it, there was no more to be done to check the defendant’s licence: “Clearly the bike had come up registered to this accused, he was licensed, he had provided his licence”.[112]
[111] Defendant’s outline at [30].
[112] T50.30-.31.
I accept on the evidence this much had occurred, but I do not consider the police power to undertake a licence check was constrained in the circumstances of this case as the defendant suggests. It was in my view appropriate and practicable for Constable Cooper to take the defendant’s licence back to the police vehicle to confirm his check against the registration information shown on the police computer, rather than Constable Cooper relying on his memory of the search results undertaken in the police vehicle. I see no excess or abuse of power in Constable Cooper checking that the defendant was currently licensed as well as searching for the VIN.
The question then becomes whether it was unlawful for Constable Cooper to contemporaneously take a few further minutes to undertake routine background checks to ascertain information about who they were dealing with, having identified the defendant as the registered owner of a motorcycle resembling an Australia Post scooter parked at a known drug address in the early hours of the morning. In considering this question, I have borne in mind that the evidence shows that the further computer searches took less than two minutes from opening the defendant’s criminal history on the MCA application and concluding the Shield searches to ascertain the VIN for the registration and check the defendant’s licence details.[113] The further intrusion on the defendant’s liberty while he waited was in my view insignificant.
[113] In fact, 1 minute and 49 seconds elapsed between 1:06:52 and 1:08:41.
It is not improper for a police officer to be alert to other proper policing objectives in the course of carrying out a specific power or authority.[114] It would be different if the power or authority was exercised for illegitimate reasons like personal vindictiveness, for example. In this case, having seen the defendant’s criminal drug history tab in MCA, there was nothing wrong in Constable Cooper being alert to other offending and investigating the defendant’s criminal history further, as he did by navigating to the “Incident Occurrences” screen in the Shield application from the initial registration and VIN searches. His evidence that he opened the most recent street incident shown on the “Incident Occurrences” screen and saw it had involved a stop of a motorcycle resembling an Australia Post vehicle demonstrates the relevance of his searches to the extant investigation as to whether the Motorcycle was stolen and clear connection between his searches.
[114] R v Neal (2017) 128 SASR 20 at [24]-[26].
For these reasons, I consider the defendant was not unlawfully detained whilst Constable Cooper conducted further searches.
Did Detective Pursche hold the requisite suspicion to search the Motorcycle?
Section 52(6) and (9) of the Controlled Substances Act provides:
(6)An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
(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.
The power to search the Motorcycle under s 52(9) of the Controlled Substance Act is conditioned on both Detective Pursche holding the suspicion at the time she decided to search and that her suspicion was objectively reasonable given the facts and circumstances known to her.[115] It was not in issue that Detective Pursche held a genuine suspicion, as I have found she did. The question was whether the suspicion she held was objectively reasonable on the basis of all the information, both inculpatory and exculpatory, known to her.
[115] R v Nguyen [2016] SASCFC 96 at [24].
It is not necessary to repeat the principles governing the concept of reasonable suspicion as referred to above,[116] other than to reiterate some further salient observations made by the Court of Criminal Appeal in Bae v R; Koo v R.[117] In considering the requirements of reasonable suspicion for the purposes of s 52(6) and (9) of the Controlled Substances Act, Kelly J explained that the requisite suspicion does not require anything other than the police officer hold a relevant suspicion and that suspicion is objectively reasonable, meaning that a reasonable person in the position of the police officer would entertain the same suspicion.[118] It must be a relevant suspicion in the sense that it must relate to the requirements of the section that the search will afford evidence that the person is in possession of, or the vehicle contains, a substance or equipment in contravention of the Controlled Substances Act.[119] It does not dictate that any threshold be reached by requiring the strength of the suspicion to be assessed on some sliding scale.[120]
The fact is that both police officers did hold a relevant suspicion. A suspicion either exists or it does not. As the Court of Appeal held in Holtham, regardless of whether a suspicion is based on reasonable grounds, it remains a suspicion and nothing more. It may be weak or strong or something in between, however, while the strength of the suspicion held may shed light on whether it is reasonable, there is nothing in s 52(9) of the CSA which sets a threshold for the degree of suspicion which must be in the mind of the police officer other than that it must be objectively reasonable. Section 52(9) of the CSA is triggered when a police officer holds a suspicion which is objectively reasonable, that is, a reasonable person in possession of the same information as the police officer would entertain the same suspicion.
[116] See [61] to [63] above.
[117] Op cit.
[118] Ibid at [75].
[119] Ibid at [67].
[120] Ibid at [75].
Properly analysed, a police officer’s opinion of whether their suspicion was sufficient to trigger a s 52 power to search is irrelevant.[121]
[121] Ibid at [78].
With the principles in mind, I turn to consider the matters said by Detective Pursche to give rise to the requisite suspicion at the time she determined to search the Motorcycle.
In evidence, Detective Pursche articulated the basis for the suspicion she formed that the defendant either had in his possession or in his vehicle a substance or equipment in contravention of the Controlled Substances Act as follows:[122]
…There were quite a number of factors. Obviously it was one o’clock in the morning. There was the motorcycle with the Australia Post box on the back, making it appear that he was trying to portray to be a member of Australia Post. At that time of morning, you would not typically see an Australia Post bike out on the roads. It had left a well-known drug address. He had previous history for drug-trafficking as well being linked to drug occurrences or street checks, so I formed the suspicion that he either had in his possession a substance or equipment that would be in contravention of the Controlled Substances Act.
[122] T33.4-.15.
Detective Porsche later said she also relied on the “lie” she said she was told by the defendant in her conversation with him about where he had come from. In recounting her conversation with him, she said she asked him where he had come from and he said Waterloo Corner Road. She asked what address and he said “I think No.11”, which she considered to be a lie since she had observed him leave 1 Napoleon Court.[123] She was challenged in cross-examination as to the reasonableness of her suspicion in this regard given 1 Napoleon Court is on the corner of Waterloo Corner Road and he had indicated he was not sure about the number. The defendant said he had come from his brother-in-law’s. The defendant also criticised her for not asking the further question as to who his brother-in-law was.
[123] T31.25-.30.
It must be borne in mind in assessing the reasonableness of Detective Pursche’s suspicion, that it was formed from the constellation of information known to her, taken in combination with, and accumulated from, her observations in the context of her knowledge and experience in the entirety of the circumstances. Reasonableness is not tested by individually assessing the quality and weight of each factor relied on, which may be weak or strong. Rather, an assessment is to be made as to whether there is a positive link between the entirety of the constellation of factors relied on and the suspected criminality. If the constellation of factors in its entirety comprises flimsy material or relies on a process of reasoning based on tenuous (albeit rational) connections, the suspicion would not be reasonably held.
Detective Pursche’s suspicion developed over the course of the incident. The foundation of Detective Pursche’s suspicion was her initial observations of a small red motorcycle, typical in appearance of an Australia Post-delivery bike, parked right at the door of a known drug address. The time, place and way in which it was parked were in her words: “odd”[124]. Objectively assessed, I agree. In my view, there is a rational connection between the Motorcycle’s appearance (as shown by the photographs in evidence)[125] as an Australia Post-delivery bike in the circumstances observed and its use to collect or deliver drugs. Australia Post does not deliver mail in the early hours of a Sunday morning or let its employees use its delivery bikes for personal purposes.
[124] T29.5-.12.
[125] Exhibit P5.
By the time she spoke to the defendant, the initial registration searches showed a motorcycle of the same description was registered to a Minh Tam Tran (not Australia Post) and the rider produced a licence bearing that name with a photograph resembling the rider. Constable Cooper returned to the police vehicle to undertake further checks to investigate their shared working hypothesis that the Motorcycle was stolen.
Whilst this additional information weighed against a reasonable suspicion that he was riding a stolen Motorcycle, it rationally and reasonably gave rise to a question as to why, at 1 o’clock in the morning, the defendant was riding a Motorcycle that appeared to be a typical Australia Post-delivery bike away from an address well known by police to be frequented by drug users and where drug dealers lived and associated.
The reliability of Detective Pursche’s information about 1 Napoleon Court as a well-known drug address was not challenged. As such, it was ultimately an important matter in the constellation of factors informing her suspicion that the defendant possessed or had in his vehicle a substance or equipment in contravention of the Controlled Substances Act.
From her conversation with the defendant about where he had come from, Detective Pursche deduced he was lying to her because it was inconsistent with her observations. Having regard to all her evidence about their conversation and what she thought about it, whilst Detective Pursche had insufficient basis to believe that the defendant was lying about where he had come from, it was rational to suspect that he may be lying and was being evasive about where he had come from. Whilst a matter of lesser significance, it is not to be considered in isolation or discounted entirely, bearing in mind that Detective Pursche was an experienced officer momentarily assessing matters in the field.

The final factor informing Detective Pursche’s suspicion was the information conveyed to her by Constable Cooper about the defendant’s drug history and what she saw on the computer screen. She was told the defendant had a drug history and interactions with police. She saw from the criminal history tab in MCA that the defendant had a prior conviction for drug trafficking. She then saw six or seven most recent incidences on the “Involved Occurrences” screen in the Shield application. She did not know the dates or the detail because she did not note or inquire about that detail. Nonetheless, this information was relevant and weighed in favour of her suspicion about the presence of a controlled substance or equipment.
Detective Pursche was challenged about the relevance of the currency or detail of the defendant’s drug history in forming the requisite suspicion. She was adamant she has seen that he had a conviction for drug trafficking and gave evidence that in her experience previous drug history is usually ongoing drug history and use.[126] I accept that the dates and detail of the defendant’s drug history may have further informed the reasonableness of Detective Pursche’s suspicion and that she could have easily inquired further. However, she did not, and the question is whether on an objective assessment of all the information available to her at the time she decided to search, her suspicion was reasonably formed. Her subjective opinion as to whether what she knew (or hypothetically might know) was (or would be) sufficient to trigger her s 52 power to search is irrelevant.
[126] T44.9-45.2
Objectively considered, I am satisfied on the evidence that the constellation of information Detective Pursche had accumulated, inculpatory and exculpatory, at the time she decided to search, gave rise to the requisite suspicion to enliven her power to search the Motorcycle. In my view, it was rational to connect her observations of the defendant leaving a known drug address at 1 o’clock on a Sunday morning on a motorcycle resembling an Australia Post-delivery bike with his drug history and a conviction for trafficking, without knowing the dates and details of his history or conviction, and suspect an involvement with drugs. It was objectively reasonable to suspect that his purpose in attending 1 Napoleon Court was connected with drug use or trafficking and he therefore was either in possession or had in his vehicle a substance or equipment in contravention of the Controlled Substances Act. Accordingly, this case is distinguishable from earlier cases[127] where the suspicion relied on was of a very general nature or based on dated information. Detective Pursche’s information about 1 Napoleon Court was specific and current, as were her observations of the defendant and the motorcycle earlier that morning.
[127] Ie R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7.
It is therefore more than “mere curiosity, speculation or ‘idle wondering’”[128] that connects the defendant’s visit to 1 Napoleon Court in all the circumstances and his drug history with the reasonable suspicion of drugs being in his possession or in the vehicle.
The Bunning v Cross Discretion
[128] R v Nguyen (2013) 117 SASR 432 at [21].
Given my conclusion that the evidence was lawfully obtained, my discretion to exclude the evidence from the search for public policy reasons arising where evidence has been obtained unfairly or unlawfully according to the rule in Bunning v Cross is not enlivened. If my conclusion is wrong and the search unlawful, I would refuse to exclude the evidence from the search in the exercise of the public policy discretion. My reasons follow.
The Court has a discretion to exclude relevant admissible evidence on public policy grounds when the evidence has been obtained unfairly or illegally. In exercising the discretion: [129]
…the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[129] R v Ireland (1970) 126 CLR 321 at 335 per Barwick CJ.
In the leading judgment in Bunning v Cross, Stephen and Aickin JJ further explained the rationale for the public policy discretion as follows:[130]
…The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be "a less evil that some criminals should escape than that the Government should play an ignoble part"- per Holmes J. in Olmstead v. United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
[citation omitted]
[130] (1978) 141 CLR 54 at 77-78.
In Cleland v The Queen, referring to unlawfulness and impropriety, Deane J emphasised the exercise of the discretion as involving:[131]
… a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law.
[131] (1982) 151 CLR 1 at 20; emphasis supplied.
In R v Armistead,[132] the Court of Criminal Appeal summarised the considerations relevant to the exercise of the discretion as identified in the seminal authorities as follows:[133]
In Bunning v Cross Stephen and Aickin JJ identified five factors to be weighed in the exercise of the discretion: whether the unlawfulness was deliberate or reckless, on the one hand, or the product of a mistaken belief on the other (how remote is the error from a deliberate or reckless decision to disregard the law by those whose duty is to enforce?);
·    whether the unlawfulness affects the cogency of the evidence obtained (but generally cogency has no role where the unlawfulness was deliberate or reckless; the availability of other cogent evidence that may be relied upon points to exclusion of the unlawfully or improperly obtained evidence);
·    the ease with which the law might have been complied with (was there a deliberate cutting of corners?);
·    the nature of the offence (a comparison of the seriousness of the charge and the unlawful conduct engaged in is required); and
·    whether it was the legislature’s intention narrowly to restrict the police in the exercise of the power conferred.
[citation omitted]
[132] [2019] SASCFC 85.
[133] Ibid at [104] referring to Bunning v Cross ibid at 78-80; Ridgeway v The Queen (1995) 184 CLR 19 at 31.
In this case, the defendant contended that the relevant unlawfulness enlivening the public policy discretion was the police conduct in:
·stopping and detaining the defendant without reasonable cause under s 68 of the Summary Offences Act
·deliberately conducting further unnecessary background searches on the defendant whilst he was detained that revealed his drug history
·searching the Motorcycle in the absence of any reasonable suspicion that it contained a controlled substance or equipment in contravention of the Controlled Substances Act.
At the point of stopping the Motorcycle, the nature of the unlawfulness complained of is the objective unreasonableness of the cause for suspicion and not any deliberate or reckless disregard of the law. The police officers’ observations of the Motorcycle at 1 Napoleon Court were by chance. The evidence establishes they determined to follow the Motorcycle because they had cause to suspect it was stolen in the circumstances observed. It is accepted they genuinely suspected the Motorcycle was stolen. Their suspicion could not be regarded as wholly unreasonable.
This was also not a case where they had taken the opportunity to ‘turn over’ the defendant just because he was seen leaving a known drug house. Instead, genuinely suspecting the Motorcycle to be stolen, they followed it until close enough to see the registration and then ran registration checks and stopped it to speak to the rider and undertake licence and VIN checks to investigate their shared hypothesis that the Motorcycle was stolen.
At the start of conducting further routine checks, by opening the criminal history tab in MCA for the registered owner shown for the Motorcycle’s registration, it came to Constable Cooper’s attention the defendant had a criminal history. He took several minutes more to investigate the detail of that history as the natural consequence of seeing that information. In this way, his discovery of the defendant’s drug history was fortuitous and not a deliberate overstepping of his s 68 power for an ulterior purpose.
In closing submissions, the defendant accepted that if the further background checks had been done before the Motorcycle was stopped, there would be no ongoing detention or conduct in excess of power.[134] It was submitted that Constable Cooper’s conduct in seeking information about the defendant’s background after the stop was deliberate and not reasonably necessary for the purpose of exercising the power conferred on him by s 68 of the Summary Offences Act to investigate whether the Motorcycle was stolen. Since the defendant was being detained whilst unnecessary background searches were undertaken, Constable Cooper exceeded the scope of his s 68 power and interfered with the defendant’s basic rights.
[134] T57.23-.37.
I do not agree. In my view, it was relevant to know who they were dealing with in investigating whether the Motorcycle was stolen, including by quickly running what were shown to be routine checks on the defendant as the Motorcycle’s registered owner and licensed driver. The further searches took a few extra minutes and were not an egregious breach of the defendant’s liberty.
It also cannot be said that either officer deliberately or knowingly acted unlawfully. Constable Cooper’s conduct was not deliberate in the sense that he knew or was reckless as to his authority to conduct the searches and cannot be characterised as such just because it was his general practice to be thorough and cross-check information between the different police databases whenever he did a licence check. Further, the background searches were not undertaken in circumstances where he had deliberately used his s 68 power to stop the Motorcycle to create an opportunity to ‘turn over’ the Motorcycle by searching it. The evidence shows the police officers’ intention at that time was to check the VIN and its rider’s licence. It was only after Detective Pursche became aware of the defendant’s drug history that she made the connection between their earlier observations of the defendant’s visit to a known drug house and the presence of illicit drugs or equipment and determined to exercise her power to search under s 52(6) and (9) of the Controlled Substances Act.
Accordingly, as the prosecution submitted, this case is to be distinguished from R v Chapman.[135] That case involved the exercise of the quite different police power to stop and question a driver under s 42 of the Road Traffic Act 1961 (SA) in circumstances where the police, having completed their inquiries of the driver, technically detained the defendant to create an opportunity to ‘turn him over’ by exercising their powers of search under s 52 of the Controlled Substances Act. In this case, the police had not exhausted their lawful powers under s 68 of the Summary Offences Act and technically detained the defendant or used their power to create an opportunity to ‘turn over’ the Motorcycle.
[135] (2001) 79 SASR 342.
As regards the search of the Motorcycle, the defendant submitted Detective Pursche ‘cut corners’ by first concluding he was lying without asking the defendant enough questions about what he had been up to and then not investigating the details and dates of the defendant’s drug history when she could easily have done so. It was submitted that her evidence in cross-examination that she did not check the dates of the drug history because in her experience “like they say a leopard doesn’t usually change its spots; previous drug history is usually ongoing drug history and drug use”[136] represents an attitude that needs to be curbed to send a message to the police to take an objective and realistic approach. In support of this submission, the defendant criticised Detective Pursche variously for not critically analysing the drug history and not caring about when the drug history was because she thought she had enough. [137]
[136] T44.16-45.1.
[137] T63.19-.28.
Bearing in mind that Detective Pursche’s questioning of the defendant was only one factor informing her suspicion as to the presence of illicit drugs or equipment, I am not persuaded that she ‘cut corners’ by not testing whether he had lied. I accept that hindsight is a virtue, as she said when pressed about why she did not ask further questions[138] in the course of one of no doubt hundreds of traffic stops conducted by a busy police officer patrolling the northern suburbs. Further, there is nothing in the evidence to suggest that she deliberately refrained from asking any further questions of the defendant.
[138] T47.10.
As to Detective Pursche’s evidence on the topic of her inquiries into the recency of the defendant’s drug history, I found the criticisms of her evidence overstated. It was not evident from a fair reading of all her evidence that she did not ‘check’ the dates of the drug history because she did not care about its recency or had an attitude that some drug history was enough in this case or generally, even if dated. When Constable Cooper told her the defendant had a drug history and interactions with police, she saw the six or seven “Involved Occurrences” on the computer screen and a conviction for trafficking on the criminal history tab in MCA. Her clear evidence was that she believed that her suspicion in this case was reasonably based on her knowledge of the defendant’s drug history in combination with all the other factors she had identified.[139] Her assessment of the circumstances and the information she considered in forming her suspicion could not be regarded as wholly unreasonable. Nor does the evidence establish any deliberate or reckless cutting of corners or flouting of the law or her powers in this case or generally, which if tolerated would lead to widespread and arbitrary infringements on civil liberties.[140]
[139] T44.25-.14.
[140] Cf R v Nguyen (2013) 117 SASR 432.
The defendant accepts the evidence resulting from the search is cogent evidence of the commission of a serious offence and its quality is not affected by any conduct of the police officers.[141]
[141] T64.12.
For these reasons, I would refuse to exclude the evidence from the search because the circumstances of this case do not give rise to any need to censure the excesses of police powers in order to better secure their compliance within the limitations imposed by the legislature or to protect the integrity of the administration of criminal justice.