R v Trandafilov
[2021] SADC 85
•15 July 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRANDAFILOV
[2021] SADC 85
Ruling of her Honour Judge Fuller
15 July 2021
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused is charged with one count of trafficking in a controlled drug -accused driving vehicle when observed by a police dog handler on uniformed patrol with police dog in rear of vehicle -police dog handler decided to conduct random breath test – lost sight of vehicle and found vehicle parked in unit complex car park with no sign of driver. Police dog handler suspected vehicle stolen and opened driver’s door which was unlocked and looked inside – mobile phone observed on seat – police dog handler deployed police dog to search for driver – accused found on private property shortly thereafter – other police patrols attended and physically removed accused from premises – accused not arrested – police dog handler returned to vehicle to search it – observed ice-pipe and informed other police officers – search of vehicle by other police officers and mobile phone, ice-pipe and resealable bags found and seized – accused searched by police and cash found – accused put in cage car and conveyed to his vehicle – police dog handler conducted ‘article search’ on private property and found methylamphetamine in bin. Accused then arrested.
Voir dire challenge to lawfulness of searches of vehicle and bin – argued that no reasonable suspicion existed. Challenge to lawfulness of entry onto private property – argued that this was a trespass. Conceded that certain searches conducted by police were lawful. Application to exclude evidence –exclusion of lawfully obtained evidence by reason of preceding unlawful conduct by police and cumulative effect of illegalities.
Held: Searches of vehicle by police dog handler unlawful. Search of bin unlawful. Other searches lawful but were causally linked to preceding unlawful conduct. Entry onto private property to search for and remove accused did not constitute a trespass. Accused unlawfully detained. Evidence of items located during all police searches excluded.
District Court Criminal Rules 2014 (SA) Rule 49(1)(h); Controlled Substances Act 1984 (SA) ss 32(3); 52; 52(6); 52(9); Summary Offences Act 1953 (SA) ss 17(1)(a); 17A; 17A(1)(c); 68; 75; 79A, referred to.
R v Rockford (2015) 122 SASR 391; Bunning v Cross [1970] HCA 21, (1970) 126 CLR 321; R v Nguyen (2013) 117 SASR 432; State of NSW v Le [2017] NSWCA 290; R v O'Neill [2020] HCA 45; Halliday v Nevill (1984) 155 CLR 1; R v Rondo (2001) 126 A Crim R 562; R v Trotter (unreported decision of Duggan J) delivered 28 February 1990; R v Amad (1962) VR 545; R v Rogers (Ruling of Simpson DCJ) 11 February 2003; R v Rogers [2011] 109 SASR 307; R v Frantzis (1996) 66 SASR 558; R v Willingham (No 2) [2012] SASCFC 104; Florida v Jardines (2013) 569 US 1; Smethurst v Commissioner of Police (2020) 376 ALR 575, considered.
R v TRANDAFILOV
[2021] SADC 85
Criminal
By application pursuant to Rule 49 (1) (h) of the District Court Criminal Rules 2014 dated 18 September 2020 the accused sought orders excluding evidence to be led at his trial. I grant that application. The following are my reasons for so ruling.
The accused is charged with one count of trafficking in a controlled drug contrary to section 32 (3) of the Controlled Substances Act 1984 (SA). It is alleged that the accused, on the 28th day of July 2018, at Mile End, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact that the substance was a controlled drug.
Rule 49 Application
The accused made application pursuant to Rule 49 (1)(h) for, inter alia, the following orders or directions:
1.That all evidence of items seized by police from a Honda motor vehicle, registration number WGT 777 at Mile End on 28 July 2018 be excluded from evidence in the trial of the applicant, on the ground that the search and seizure was unlawful, and a voir dire be granted to the applicant to determine this question of law.
2.That all evidence of items seized by police from the applicant at Mile End on 28 July 2018 be excluded from evidence in the trial of the applicant, on the ground that the search and seizure was unlawful, and a voir dire be granted to the applicant to determine this question of law.
3.That all evidence of items seized by police from a bin situated at 26 Railway Terrace, Mile End on 28 July 2018 be excluded from evidence in the trial of the applicant, on the ground that the search and seizure was unlawful, and a voir dire be granted to the applicant to determine this question of law.
The accused contended that the following actions by police on 28 July 2018 were unlawful:
·Each of the 3 searches of the Honda motor vehicle, registration number WGT777 (the Honda) by Senior Constable Craig Charles.
·The search of the Honda by Brevet Sergeant Sasha Yan.
·The search of the Honda by Constable Luke Sibbons.
·Searches of premises at Charles Loader Drive, Mile End by Charles.
·Each of the 2 searches of premises at Railway Terrace, Mile End by Charles; and
·The detention of the defendant by Constable Nathan Nicholson and Senior Constable Matthew Sampson and Senior Constable Bradley Wingate at 21 Charles Loader Drive.
There being no opposition by the prosecution, I granted the accused’s application for a voir dire. The evidence on the voir dire was heard on 5 and 6 May and closing submissions on 3 June 2021.
The prosecution called 5 witnesses on the voir dire, Senior Constable First Class Craig Adrian Charles, Senior Constable Bradley James Wingate, Brevet Sergeant Sacha Yan, Constable Luke Edward Sibbons and Constable Nathan Ryan Nicholson.
The following exhibits were tendered on the voir dire:
·VDP1: Disc dashcam footage 28 July 2018.
·VDP2: Aerial view of Railway Terrace, Charles Loader Drive and surrounding streets.
·VDP3: Disc containing radio communications on 28 July 2018.
·VDP3a: Transcript of VDP3.
·VDD4: Bundle of photographs of unit complex and nearby buildings on Railway Terrace.
·VDD4A: Legend to photographs in VDD4.
·VDP5: Disc containing video walk through of 26 Railway Terrace.
·VDP6: Disc containing footage of arrest.
·VDP7: Disc containing body worn footage of Sibbons.
·VDD8: Agreed fact.
The evidence
Senior Constable Adrian Charles
In July 2018, Senior Constable Charles was attached to the dog operations unit. He was on duty on 28 July 2018 with his police dog (PD) Ruger. At about 2.42am he was driving on King Street Mile End, approaching a roundabout.[1] He noticed a red Honda, registration number WGT-777 drive through the roundabout ahead of him. It had one occupant, the driver, who was male. Having seen the vehicle, Senior Constable Charles decided to stop the vehicle for a mobile random breath test.[2]
[1] T 8.
[2] T 9.
Senior Constable Charles explained that whilst on duty he would ‘just cruise waiting for a tasking that is relevant to our skill set’. Whilst doing so, he said he was ‘required to contribute to road safety’ and it was not unusual for him to stop a vehicle for a random breath test. On this occasion, he was driving a marked police car with a dash camera (dash cam) attached to it.[3] The footage taken from that dash cam was tendered.[4]
[3] T 10.
[4] VDP1
The footage recorded a time stamp of 2:39:48 and recorded the vehicle speed as 34km/h at the commencement of the footage.[5]
[5] T 11.
After deciding to stop the red Honda to conduct a random breath test, Senior Constable Charles turned left at the round-about, executed a U-turn and then approached the roundabout and turned right to follow the direction of the red Honda. As he slowed to conduct the U-turn, he typed in the registration of the vehicle into the police computer system to check if the vehicle was stolen.[6]
[6] T 12.
Senior Constable Charles said this check would have revealed the registered owner’s details and licence number and the engine model and number of the vehicle. [7] He could not recall the information revealed by the check, but the check did confirm that the vehicle was not stolen.[8]
[7] T 13.
[8] T 14.
After proceeding back the way he had come, Senior Constable turned left at the end of King Street. As he did so he saw a red flash ahead and thought it was the brake or tail lights of the Honda.[9] Senior Constable Charles located the red Honda in a car park of a unit complex, parked at an angle across two car parks.[10] To get to the unit complex, Senior Constable Charles drove through Flaherty Lane. The unit complex was at 26 Railway Terrace.[11] The relevant areas can be seen on VDP2.
[9] T 15.
[10] T 16.
[11] T 17.
Senior Constable Charles turned the ignition off in the police car and got out to see if there was anyone in the Honda.[12] He used his torch to illuminate the inside of the vehicle. He could not see anyone inside.[13] Senior Constable Charles was asked what his thoughts were about why the car was parked in that spot and he said:
My thoughts were that I believed the driver had been – the manner of driving was to evade me or to try and hide from the police vehicle once it was seen, just the speed and the quickness of getting down to there. That part of Flaherty Lane is a little dead-end street in a cul-de-sac and the vehicle parked across the two car parks, as soon as I pulled up it looked like it had been abandoned.[14]
[12] T 15.
[13] T 16.
[14] T 16, 23-30.
After seeing that there was no one in the Honda, Senior Constable Charles tried the door handle and, when the door opened, he discovered that the car was not locked. He saw a mobile phone on the driver’s seat.[15]
[15] T 19.
I asked him why he wanted to see if the car was unlocked, and he responded:
Just building my own suspicions up to a point. If a car is secured it references me that it’s likely to be an owner or someone with keys who can lock and secure a vehicle. Whereas if it’s unlocked and parked in the way it was, it looked like it was abandoned and it makes my judgment about whether the car is stolen or not. That’s where I was leaning with that.[16]
[16] T 18, 28-34.
Senior Constable Charles said that he had suspicions that the car was stolen, ‘but no definite that I knew, sort of thing’.[17] I asked him upon what he had based his suspicion that the car was stolen. He said:
Its manner of driving initially, the fact that it turned into what I knew is a dead-end road and had been abandoned in that car park within 10 to 15 seconds of me pulling in after it. So, I was suspecting it may have been stolen at that stage, and then to test the door handle and see personal belongings, just that’s where I was heading with it.[18]
[17] T 18, 38; T 19, 1.
[18] T 19, 8-14.
The only suspicion that he held in relation to the driver of the vehicle was that he had committed the offence of illegal use.[19]
[19] T 19.
Senior Constable Charles said that at the time he opened the car door to see if the vehicle was locked, he did not think he needed a source of power to do so. He was asked if, at the time of giving evidence, he thought he would need a power to open the car door. He gave this evidence:
ARight at the time, just checking a door handle, I didn’t believe that was actually a search, I was just checking the car’s security. I didn’t enter the car at all, I just checked whether the car door was open or unlocked and then moved on with what I do with the dog.[20]
QDo you presently have any view as to whether what you did constituted a search at that point.
ARight at that time, no. But right now what my view is of that, I guess opening the door is technically a search, so yes. I understand my powers would be under s 68 but at the time of the incident in 2018 it was more about the security of the car.[21]
[20] T 19, 32-37.
[21] T 20, 4-10.
Senior Constable Charles remained with the car for no more than 5 seconds. He said that once he discovered it was unlocked, his suspicions ‘about whether it was stolen were starting to form’ so he deployed the police dog as quickly as he could. He did that because the longer a track is left by someone running away the more the scent dissipates. He deployed PD Ruger for the purpose of finding the driver.[22]
[22] T 20.
Senior Constable Charles said that the presence of the mobile phone on the driver’s seat affected his suspicion because generally a person who was the owner of a car would retrieve personal items from a vehicle when leaving it. The presence of the mobile phone made him suspect the driver had left in a ‘real hurry’.[23]
[23] T 21.
Senior Constable Charles then gave PD Ruger the tracking command and released him on a 10-metre lead to commence tracking. PD Ruger was first deployed to the driver’s door of the Honda to pick up a scent picture and after that he commenced to track slightly to the south along a path between the two unit blocks.[24] There was a front gate to the unit complex on 26 Railway Terrace. At that point, PD Ruger had a change of behaviour in the vicinity of a group of wheelie bins.[25] PD Ruger lifted his nose around the area of the bins. This indicated to Senior Constable Charles that there was a stronger source of scent in that area. He interpreted that to suggest that the person being tracked had climbed up on the bin and jumped over the fence crushing all the ivy that was covering the fence, giving rise to a large pool of scent.[26]
[24] T 22-24.
[25] T 25.
[26] T 26.
Once Senior Constable Charles and PD Ruger had exited the gate, he recast PD Ruger in a big circle to relocate the track. They then followed a track from the dotted line on Railway Terrace as marked on VDP2 diagonally south-east through a reserve area towards the corner of 1 Charles Loader Drive.[27]
[27] T 27.
Upon arriving at 1 Charles Loader Drive, they skirted around the property north along and up to 17 Charles Loader Drive. At that location, PD Ruger started to lift his head and probably barked.[28] This behaviour indicated to Senior Constable Charles that they were close to the source of the human scent. He then wound in the tracking line to bring PD Ruger closer to him. At this point, PD Ruger pulled him into the front yard of 21 Charles Loader Drive. Senior Constable Charles illuminated the area and saw a male hiding behind a verandah pillar. He recognised this male as the driver of the Honda.[29]
[28] T 27.
[29] T 28.
Throughout the incident, Senior Constable Charles had kept Police Communications informed via police radio of his observations and activities.[30] The radio communications are contained in VDP3 and the transcript VDP3A. He advised Communications that he had found the male in 21 Charles Loader Drive. Other police then attended. [31]
[30] T 29.
[31] T 31.
Whilst on the property at 21 Charles Loader Drive, Senior Constable Charles directed the male to come out where he could see him and that he should have nothing in his hands.[32]The male then said, ‘my mate just said ‘run’’.[33] Senior Constable Charles responded, ‘Mate, there was only one person in the car, I saw it was you, don’t treat me like an idiot’. The male then said, ‘yeah, okay I’m unlicensed.’[34] Senior Constable Charles formed the view that the male had lied because he ‘didn’t want to be done as the driver of the car’.[35]
[32] T 31.
[33] T 32, 1.
[34] T 32, 5-8.
[35] T 32.
When other police attended, he briefed them as to his observations of the car, where he and PD Ruger had tracked and his suspicions. He could not recall exactly what he said about his suspicions, but it would have been ‘in reference to the car being stolen or something dodgy with the car’.[36] Neither he nor Ruger touched the driver. The male was compliant the entire time.[37]
[36] T 32.
[37] T 33.
Senior Constable Charles then returned to the Honda by walking back via Flaherty Lane. He put PD Ruger back in the police car. Although Senior Constable Charles believed that police were there when he returned to the Honda, upon subsequently reviewing body worn footage taken by Constable Sibbons, he realised that there were probably not police present when he returned.[38]
[38] T 35-36.
On his way back to the Honda, Senior Constable Charles had received information via Police Communications that there was a new owner of the vehicle, a female who had not yet registered the car under her name.[39] I asked Senior Constable Charles if he made any inquiries as to the licence status of the driver. He said he had not because he had handed that over to patrols. He said that he did not consider as plausible the explanation that the driver ran away because he was unlicensed[40] He said:
I’ve been 28 years in this job now and it’s very rare that simple unlicensed drivers run. Disqualified, yes. Anything that’s going to probably lead to an arrest, yes. But unlicensed, I rarely come across those who run away from us.[41]
[39] T 37.
[40] T 37.
[41] T 37, 24-28.
Senior Constable Charles opened the door of the Honda to look for evidence of the vehicle being stolen. He explained that he was looking for ignition damage, a key in the ignition that did not fit, cut wiring or smashed corner vent windows.[42] He opened the driver’s door and, although he could not recall exactly what he then did, he said he would have been looking at the ignition barrel and underneath the steering wheel. He did not see any damage to the ignition barrel.[43]
[42] T 36.
[43] T 38.
Senior Constable Charles said that it was obvious from the body worn video footage that he had looked in the centre console alongside the driver’s seat. He said that this was not shown in the footage, but he reached this conclusion because one of the police officers could be heard to ask, ‘where did you find the icy’ and Senior Constable Charles answered, ‘centre console’. At the time he gave evidence, he had no recollection about the centre console.[44]I asked him what the centre console could indicate to him about whether the car was stolen. He replied:
Nothing in relation to the centre console. I’d say I had to open the driver’s door and get into the driver’s side and have a look underneath into the wiring or into the ignition and the centre consoles, on a lot of vehicles, are open. It’s not my absolute recollection but I would imagine an ice pipe would have just been sitting in that open part of the centre console and I’m checking the vehicle’s ignition, I’ve just scanned and seen that. Without noting recollection, that’s my belief of what happened.[45]
[44] T 39.
[45] T 44, 18-27.
Whilst in the carpark with the Honda, Brevet Sergeant Yan and Constable Sibbons arrived. He could not recall the exact conversation he had with them but said he would have briefed them on where he had followed the vehicle, where he had located the driver and his suspicions regarding the vehicle. It was clear from the body worn video footage that he had advised Constable Sibbons that he had located an ice pipe in the car.[46]
[46] T 39.
After the two other police officers arrived, Senior Constable Charles deployed PD Ruger to conduct an article search. An article search involves a search for items or articles that may have been discarded but which still have a human scent attached to them.[47]Senior Constable Charles deployed PD Ruger around the route of the track he had taken towards 21 Charles Loader Drive.[48]When PD Ruger was in the area of the wheelie bins he had his head up and was a bit more interested and started to zig-zag along the ‘cone of scent’.[49]PD Ruger jumped up at one of the bins which indicated to Senior Constable Charles that someone had touched the bin or there something emitting an odour from that bin.[50] He opened the bin and found a package at the bottom which contained what he suspected to be methamphetamine. There was nothing else in the bin, it was empty.[51]
[47] T 39.
[48] T 40.
[49] T 41.
[50] T 42.
[51] T 43.
Senior Constable Charles explained that he did not initially consider doing an article search. However, when he learnt over the police radio that around $2500.00 had been found on the driver, he considered that information, coupled with the mobile phone on the driver’s seat which had been ringing constantly, was consistent with drug dealing.[52]It was for this reason that he decided to conduct an article search. However, as there were no signs of damage to the vehicle and if there was nothing else to suggest it was stolen, he said that he would nevertheless have conducted an article search because ‘there are always reasons why people run’.[53]If there had been an explanation for the person running, for example a warrant or the car being stolen, he may not have done an article search.[54]
[52] T 43.
[53] T 45.
[54] T 45.
In cross-examination, Senior Constable Charles confirmed that his call sign was fleet 905.[55]Before giving evidence, he had the opportunity of reading his affidavits. He also watched the body worn camera vision from the camera worn by Constable Sibbons on 28 July 2018 for the first time on the Sunday before giving evidence.[56]He did that to refresh his memory as to what happened.[57] He also listened to some of the communications recorded between him and the other officers on 28 July 2018.[58]He had requested both of those from Senior Constable Wingate to assist him in recalling what occurred on 28 July 2018.[59]
[55] T 48.
[56] T 48.
[57] T 51.
[58] T 49.
[59] T 53.
Senior Constable Charles agreed that he did not have a memory of locating the ice pipe[60] but had deduced that from watching the body worn video footage. Until he watched the footage on Sunday, he did not realise that this was an issue.[61]
[60] T 51.
[61] T 52.
On 28 July 2018, Senior Constable Charles had an alcometer with him. His shift started at 2300.[62] He agreed that there was another vehicle he passed before he saw the red Honda.[63]He was asked why he did not subject the driver of that vehicle to a random breath test, and he said he did not know. He made the decision to stop the red Honda as he was approaching the roundabout. He agreed that the red Honda had its indicator on to turn right at the roundabout and had given way to him as he was turning left at the roundabout. Senior Constable Charles said there was no particular reason for his decision to stop the red Honda.[64]
[62] T 53.
[63] T 54.
[64] T 55.
Senior Constable Charles confirmed that he was travelling along King Street as the red Honda was on Victoria Street approaching the roundabout. Senior Constable Charles then turned left from King Street onto Victoria Street.[65]At that time, his headlights illuminated the driver’s side. He was not able to see the registration number at that time, but as he made the left-hand turn he checked his rear-vision mirror and saw the rear number plate. He had one second to see the registration number. By the time he executed the U-turn, the vehicle was nowhere to be seen on Victoria Street.[66] Just prior to the U-turn he typed in the registration number into the computer to perform a check. He was looking for information regarding registration and whether the vehicle was stolen.[67]
[65] T 56.
[66] T 57.
[67] T 58.
All that Senior Constable Charles could recall from that check was that the vehicle was currently registered, but he did not take notice of the registered owner’s details.[68] There was nothing that appeared untoward regarding the vehicle as a result of that check.[69] Senior Constable Charles watched the vehicle in his rear vision mirror and saw that it was veering right around the roundabout, and he then lost sight of it. He agreed that this was not a situation where he activated the emergency lights or sirens, and he did not do that because the driver had not committed any road traffic offence. The checks did not reveal anything untoward about the driver of the vehicle and he could not tell whether the vehicle was exceeding the speed limit.[70] He was then asked what made him think that the vehicle was trying to evade police:
Probably not in the King Street section because that’s a relatively shortish section but by the time I got up to Railway Terrace, the vehicle was way out of sight. Considering how slow and careful it was at the roundabout, to get that distance up on me that quickly raised my suspicions.[71]
[68] T 59.
[69] T 59-60.
[70] T 60.
[71] T 60, 36-38; T 61, 1-3.
Senior Constable Charles agreed that he could not possibly know that the tail lights and brake lights that can be seen on VDP1 were from the red Honda. He also agreed that because he had not activated his lights or sirens, there was nothing to suggest to the driver that the police were pursuing him. He agreed that he was curious as to where the vehicle had gone. He explained:
Because I was aware that – well I don’t know what the driver was thinking but I was curious because he had obviously seen a police vehicle turn in front, or not in front of but alongside his car, as I’ve done a U-turn to go and do a mobile RBT, that was my objective, I thought that the vehicle was way further up than where it should have been, he would have been aware of my presence and I thought it was suspicious in the way it went. And being the only other car on the road, the only tail-lights that I had were that far in advance and had ducked, ducked in left into a dead-end road.[72]
[72] T 61, 24-34.
By the time Senior Constable Charles arrived in Flaherty Lane, he had not received any further information regarding the vehicle. Once he found the Honda, he did not do any further checks as he wanted to find the driver.[73]He was able to determine whether there was anyone in the Honda by using his torch and without touching the vehicle.[74]He shone his torch inside the Honda before he touched the door handle to see if it was unlocked. The sole purpose of shining his torch was to see if anyone was inside the vehicle.[75] The door opened when he pulled or lifted the handle. He did not shine the torch into the vehicle after opening the door. However, he could see a mobile phone on the driver’s seat.[76]He did not touch the mobile phone. He did not recall it ringing at that stage, that happened later. He could not recall how far he opened the door, but his intention was to see if it was unlocked, so he would have simply determined that and then closed the door. He opened the door because he wanted to see if it was locked and secured which may have led him to think the driver was the owner of the car.[77]
[73] T 63.
[74] T 64.
[75] T 66.
[76] T 68.
[77] T 69.
When asked whether he was relying on a power to deliberately open the car door, he said that, at that point in time, he was not considering a power.[78]In relation to the subsequent search of the car, he was exercising his power under s 68 of the Summary Offences Act. It was when he undertook that search that he found the ice-pipe.[79]He did not make any note of locating the ice pipe and nor did he mention it in the two affidavits he provided. At the time he provided those affidavits, he did not remember that he had located the ice-pipe.[80] Senior Constable Charles was asked to read the note that he said he had made regarding his search of the vehicle:
So p.35 down the bottom of, ‘after the initial conversation with the driver’ – excuse my writing but it’s ‘patrol arrived and took over dealing with male. I removed barking Ruger and returned to my fleet. Check WGT 777 for signs of 604. WA – ‘ which stands for ‘Western Adelaide’ ‘-patrol arrived and commenced search of vehicle’.[81]
[78] T 70.
[79] T 71.
[80] T 72-73.
[81] T 74, 1-7.
The reference to 604 is a Ratel code for stolen vehicle. Senior Constable Charles agreed that his note referred to the search by another patrol of the vehicle and that he did not make a note that he searched the vehicle. When he wrote ‘check WGT 777 for signs of 604’ that signified that he was checking the vehicle and searching for evidence of it being a stolen car.[82]
[82] T 74.
Senior Constable Charles said that the location of the ice-pipe was not of significance in terms of any suspicion regarding controlled drugs because an ice-pipe was a drug of dependence item. It showed signs that there may be use of drugs and there may be other articles within the vehicle, or on the person that afforded evidence of the commission of an offence under the Controlled Substances Act but it was of no real significance to him.[83] The money found on the driver was of greater significance.[84]
[83] T 74.
[84] T 75.
As he was walking back to the Honda, he was not thinking that the driver may have disposed of controlled drugs after leaving the vehicle. He suspected that the driver may have disposed something, whether that be a firearm, stolen goods or drugs but he was not thinking about that on his way back to the Honda; his focus was on looking for signs that the vehicle was stolen. If he had been thinking about that, he would probably have taken PD Ruger back along the route of the track before going back to the vehicle. [85]
[85] T 75.
Senior Constable Charles agreed that in his first affidavit dated 30 July 2018, his recollection was that he left the driver with other officers, went back to the Honda and that another patrol had arrived and were searching the Honda. He made no reference to searching the Honda himself. He recalled Sibbons and Yan searching the Honda, but he could not remember if he arrived at the Honda before or after them.[86]
[86] T 76-77.
Senior Constable Charles agreed that when he was looking for evidence of a 604, he was searching the vehicle.[87]
[87] T 77.
Senior Constable Charles agreed that when he deployed PD Ruger to locate the driver this involved him going onto private property.[88]Senior Constable Charles said he was certain he deployed PD Ruger to do an article search after he received information that the money had been located on the driver.[89]
[88] T 78.
[89] T 81.
Senior Constable Charles was then taken through the photographs in VDD4. He identified the car park in which he located the Honda in photographs 3 and 4 and the area he started tracking with PD Ruger in photograph 6. He said the gate that he went through was open at the time.[90] The verandah area where the driver was located at 21 Charles Loader Drive appeared to be depicted in photograph 16 and 21.[91]
[90] T 81-83.
[91] T 88.
PD Ruger was about 1 metre from the driver when he was located, and Senior Constable Charges was 3 metres from the driver. He was not able to see the driver until PD Ruger reacted to him. He could not see him when he was at the front of the premises.[92]Senior Constable Charles agreed that the driver’s first reaction was to give an explanation for what he had done, but said he did not recall asking him ‘why did you run?’[93]
[92] T 90.
[93] T 91.
The registration check occurred at 2.42am. Senior Constable Charles noted this time when he sat in his car to make his notes and he checked his computer screen for the time of the registration check.[94]
[94] T 93.
Senior Constable Charles said that PD Ruger did not identify a particular bin in the group of bins when he was tracking the scent.[95]When doing an article search, it was PD Ruger’s reaction that led him to decide to open the bin.[96]
[95] T 95.
[96] T 96.
Senior Constable Charles was then taken through VDP3A. He was asked about the entry recording he told Police Communications ‘Yeah, 905, at this stage I don’t have any offences. What’s going on after’. He agreed this was before he had located the driver.[97] When he said, ‘I don’t have any offences’ he meant any substantive offences.[98] Senior Constable Charles agreed that after he said, ‘patrols have got this now’ he signalled his intention to go back and search the Honda by saying ‘I’ll go back to the car and see if we’ve got anything in there’.[99]
[97] T 98.
[98] T 99.
[99] T 100.
Senior Constable Charles was asked what he meant when he said to Police Communications, ‘This bloke’s got more than just unlicensed, so we’ll try and work out what he’s ditched or what his story is’, and he said the reference to ‘ditching’ was to ‘ditching any item’. He had an interest in anything the driver may have discarded that was of interest, but not specifically controlled drugs. He confirmed that this related to items which would afford evidence of the commission of an offence or possession of which would have been an offence.[100]
[100] T 101-102.
Senior Constable Charles agreed that there was a delay between PD Ruger locating the driver on the premises of 21 Charles and the attendance of other police. It was put to him that during that time the front door of the premises opened, and a resident stood behind the screen door. Senior Constable Charles said he did not recall that occurring or him having any conversation with a resident.[101]
[101] T 103.
Senior Constable Charles said that his entry onto the premises was authorised by the common law right to enter to go to a front door. He explained that this right was to enter someone’s yard to approach the front door for ‘inquiries, bill service, whatever the case may be’.[102]He said that if PD Ruger had indicated over a back fence, he would have knocked on the door and asked for permission to go into the back yard. At that stage, he did not have any reason to arrest the driver because he had no idea who he was, what his story was or anything about the vehicle. He was not chasing him for immediate apprehension.[103]
[102] T 104.
[103] T 106.
Senior Constable Charles agreed that when he went into the area of the housing trust units, he did not obtain permission from any of the residents to be there. There were no barriers to his entry to the property surrounding the actual units. He did not see any distinction between the units and the front of 12 Charles Loader drive in terms of his understanding of his common law right to be on premises.[104]
[104] T 107.
When he returned to the vehicle after the first deployment of PD Ruger, he searched the vehicle under s 68 Summary Offences Act. He understood that he could search a car for evidence of the commission of an indictable offence and for items and articles, possession of which is an offence. He said he had a reasonable suspicion that the offence of illegal use of a vehicle had been committed.[105]
[105] T 108.
In re-examination, Senior Constable Charles said that PD Ruger started to bark at 21 Charles Loader Drive. It was PD Ruger that led him onto those premises.[106]His behaviour indicated that someone was either in the front yard or down the side of the premises.[107] VDP5 was then tendered and played, and Senior Constable Charles identified Flaherty Lane and the carpark he pulled into at 41 seconds and the bins in the foreground as being in the area PD Ruger gave an indication at 1 minute 32 seconds. At 1 minute, 46 seconds the gate through which he tracked the driver is depicted. [108]At 1 minute 56 seconds Railway Terrace is depicted and at 2 minutes 26 seconds the path to get to Charles Loader Drive is visible. At 3 minutes 33 seconds the location of 21 Charles Loader Drive is shown.[109]
Senior Constable Bradley James Wingate
[106] T 109.
[107] T 110.
[108] T 111.
[109] T111-112.
On 28 July 2018, just before 3.00am, Senior Constable Wingate was tasked to Mile End to assist a dog patrol. He had received information from ‘dog 905’, Senior Constable Charles, that a vehicle had taken off from him in Mile End and he had located the vehicle dumped on Flaherty Lane and the driver had decamped. Senior Constable Wingate and Constable Maitland then drove a cage car to Mile End. Senior Constable Wingate dropped Constable Maitland off and headed south to the intersection of Railway Terrace and Charles Loader Drive.[110]
[110] T 116.
Senior Constable Wingate stayed at the cordon point for a short period of time. He left when Senior Constable Charles advised him over the radio that he had located a male in the front yard of 21 Charles Loader Drive. Senior Constable Wingate drove the cage car to 21 Charles Loader Drive. At that time, Senior Constable Charles, Senior Constable Matthew Sampson and Constable Nathan Nicholson were present. Constable Nicholson was in the front yard, Senior Constable Sampson was nearby, and Senior Constable Charles was with his police dog in the front yard. A male was sitting on the grass in the front yard.[111]
[111] T117.
He heard the male say to Senior Constable Charles that he had run because he was disqualified from driving. Senior Constable Wingate went into the front yard because he saw a male occupant of the premises behind the screen door. He looked concerned so he advised him to shut the door which the male did. Senior Constable Wingate then asked Constable Nicholson to bring the male out to where the police vehicle was parked.[112]He could not recall what Constable Nicholson did, but the male was asked to come out of the yard, and he complied.[113]He asked Constable Nicholson to bring the male out of the yard because of the impact on the occupant’s ability to enjoy their residence.[114]
[112] T 118.
[113] T 119.
[114] T 120.
Senior Constable Wingate did not have any information to suggest the male was supposed to be on the premises or not supposed to on the premises. However, he did not think the male lived at the address because the occupant looked scared and concerned and this led him to believe the male was not meant to be there.[115]
[115] T 119.
When Senior Constable Wingate entered the front yard of 21 Charles Loader Drive, he did not think he needed a power to do so. He said that there was ‘tacit consent or the right to walk onto someone’s front yard to knock on the front door to speak to an occupant. If the owner of the property asks you to leave, then you must leave’.[116]
[116] T 120, 12-15.
Once the male was taken to the back of the cage car, he was searched by Constable Nicholson. The search occurred because they received information over the radio that the vehicle at Flaherty Lane had been searched and numerous deal bags and a constantly ringing phone had been located. This information led him to suspect that the male had substances or objects that would contravene the Controlled Substances Act. Senior Constable Wingate advised the male that he would be searched, and he asked Constable Nicholson to conduct the search.[117]
[117] T 121.
Senior Constable Wingate said that the power to search existed where a police officer or authorised officer reasonably suspects that a person has a substance or object that is in contravention of the Act. The male said that he had money in his left jeans pocket and Constable Nicholson retrieved it. Senior Constable Wingate estimated it was around $2000 and put it in a tamper-proof evidence bag.[118] After locating the money, Senior Constable Wingate suspected that the male was selling illicit substances. His suspicion was based on what was located in the vehicle. The male was then put in the back of the cage car so that he could be conveyed to Flaherty Lane for a further search of the vehicle. He was not handcuffed. I asked Senior Constable Wingate if he was under arrest, and he said no. He said he would have been within his rights to walk off. He could not recall if the male was told whether he was free to leave.[119]
[118] T 122.
[119] T 123-124.
Once the male was placed in the back of the cage car, Senior Constable Wingate spoke with the occupants of the house to advise them that the male was not targeting them and that they could go back to sleep. He then drove to Flaherty Lane with Constable Maitland.[120]Upon arrival, Brevet Sergeant Yan, Constable Sibbons, Senior Constable Matthew Sampson, Constable Nicholson and Senior Constable Charles were present. The male remained in the cage car but when he said he was feeling claustrophobic, the door was opened, and he was allowed to stand at the back. The back of the cage car was not padlocked but it could not be opened from the inside.[121]
[120] T 124.
[121] T 125.
Senior Constable Wingate did not search the red Honda, but he was shown the multiple packets of resealable bags, the ice pipe, a lock box and a mobile phone that had been found in the vehicle. The phone display showed multiple messages had been received. The ice pipe was in the centre console and was visible from a standing position with the driver’s door open. Senior Constable Sampson issued a drug diversion for the ice pipe. Senior Constable Wingate said they had been advised over police radio that the male had a suspended driver’s licence due to fines and his licence had expired.[122] Senior Constable Matthew Sampson told the male he would receive an expiation notice for the expired driver’s licence.[123]
[122] T 126-127.
[123] T 127-128.
No action was taken in relation to the suspended licence because the feedback police had received from prosecution was that it was difficult to prove service of the notice of suspension, even where an accused makes an admission.[124]
[124] T 128.
Senior Constable Wingate was aware that Senior Constable Charles was going to perform an article search. He was subsequently told that he had located within a council bin a quantity of a substance believed to be methamphetamine. At 3.28am, Senior Constable Wingate then placed the male under arrest on suspicion of trafficking in a controlled substance and gave him his arrest rights.[125]The arrest was recorded on video.[126]
[125] T 129.
[126] T 130, VDP6.
In cross-examination Senior Constable Wingate said he was the investigating officer.[127] Senior Constable Wingate could not recall if there were vehicles in the driveway at 21 Charles Loader Drive. Senior Constable Wingate said PD Ruger was between the legs of Senior Constable Charles but could not say how far he was from the male sitting on the ground. The male was talking to Senior Constable Charles when Senior Constable Wingate arrived.[128] He was confident that the male said he was disqualified.[129]
[127] T 131.
[128] T 133.
[129] T 134.
Senior Constable Wingate agreed that he swore an affidavit on 14 September 2018 in which he said that the information he received which led to the search of the accused was that deal bags and an ice pipe had been found in the vehicle. He agreed that upon reviewing the radio communications, that was not the information he received. The radio communications reveal that Senior Constable Charles told him over the radio that multiple deal bags were found in the vehicle.[130]
[130] T 136.
Senior Constable Wingate agreed that after removing the male from the front of 21 Charles Loader Drive, he conducted a licence and then PIMS check. At that stage he had not advised the male that he was not under arrest and did not tell him that he was required to stay or that he was free to go. Prior to searching the male, he had received information from Senior Constable Charles there were deal bags and the phone located in the vehicle was ‘running hot’, which he interpreted to mean he was receiving lots of text messages about drug dealing. In addition, the male was perspiring significantly despite it being a cold morning in July. That indicated to him that he had either taken drugs or was panicking because he was trying to hide something. This, added to the time of the morning and the other information received, led to the decision to search.[131]
[131] T 139-140.
It was put to Senior Constable Wingate that the communications from Senior Constable Charles, in which he indicated what items had been found in the vehicle occurred one minute before a communication advising that the accused was being searched. Senior Constable Wingate said that the search was virtually instantaneous, following receipt of the information from Senior Constable Charles.[132] Senior Constable Wingate agreed that the information regarding what was found in the vehicle triggered the search of the accused. Prior to that, he did not believe there were reasonable grounds to search him.[133]
[132] T 141.
[133] T 142.
Senior Constable Wingate said that he wanted the accused present during the search of the vehicle for ‘the transparency side of things’.[134] He did not tell the accused that he did not have to get into the cage car. He asked him to get in the cage car because that was quicker than walking.[135]When they arrived at Flaherty Lane the search of the vehicle had already started. Senior Constable Wingate did not participate in the search of the vehicle.[136]He agreed that the search had been completed by the time he arrived with the accused and the accused was not in a position to see what was happening during the search.[137]The accused was not given the opportunity to be present when the contents of the bin were examined.[138]
[134] T 143, 6.
[135] T 143.
[136] T 144.
[137] T 145.
[138] T 146.
Senior Constable Wingate believed that the ice pipe, deal bag and lock box were in situ in the vehicle when he saw them, but the mobile phone was in Brevet Sergeant Yan’s hand. Senior Constable Wingate agreed that there was a console with a flip on it and that he could not say if someone had moved the ice pipe when he saw it.[139]
[139] T 147.
By reference to the exhibits log, Senior Constable Wingate said that the money located on the accused was found at 3.06 am inside the left pocket of his jeans. The Apple iPhone was located inside the Honda ‘front area’ at 3.09 am. The plastic resealable bags were located inside the front centre console at 3.06am. The ice pipe was located ‘centre console of vehicle’ at 3.06am. There was also a small resealable bag containing multiple bags located at 3.06 am. The times recorded in the exhibit log signified either the time the item was located or the time it was seized.[140]
[140] T 149-152.
Senior Constable Wingate said that the search of the accused was not recorded electronically but in hindsight probably should have been. No photographs were taken of the items in situ in the Honda.[141]
[141] T 153-154.
Senior Constable Wingate confirmed that he provided a disc of the body worn camera footage taken by Constable Sibbons to Senior Constable Charles at his request in October 2020.[142]
[142] T 154.
Senior Constable Wingate attended private premises within the ‘Housing SA area’ to sight the items that were found in the bin. He did this so that when he interviewed the accused, he would have a clear idea of what he was interviewing him about.[143]He did not consider this area to be private property because it was a thoroughfare to get through to other parts of other properties and there was tacit consent to go into the buildings.[144] Senior Constable Wingate said that the police are taught that they have tacit consent to go onto the front yard of a property and this was a view that was generally accepted by other officers with whom he has worked.[145]
[143] T 156.
[144] T 157.
[145] T 158.
Senior Constable Wingate said that he had transported other persons who had not been arrested in a police vehicle in similar circumstances but could not say on how many occasions he had done that.[146] He had been present when other officers had done this.[147]
[146] T 159.
[147] T 160.
In re-examination, Senior Constable Wingate said that a member of the public could go and set up some chairs in the bin area of the unit complex but would have to leave if asked to do so.[148] Senior Constable Wingate confirmed that the ‘time found’ column in the exhibits log recorded the information provided to him in relation to the time an exhibit was found.[149]
Brevet Sergeant Sacha Yan
[148] T 160.
[149] T 161.
On 28 July 2018, Brevet Sergeant Yan was tasked to attend Mile End as a result of a motor vehicle taking off from a dog operations member. He drove to a cordon point near Hughes Street with Constable Sibbons, arriving just before 3.00 am. He left the cordon point shortly afterwards when he heard over the police radio that the accused was being spoken to by police. He drove to Flaherty Lane with Constable Sibbons where he saw a burgundy Honda and a police vehicle.[150]He had been told that the Honda had decamped from Senior Constable Charles and a male had abandoned it and taken off on foot. The only person present when he arrived was Senior Constable Charles. The driver and passenger door of the Honda were open. He spoke with Senior Constable Charles and then searched the vehicle. When asked what caused him to search the vehicle he said:
[150] T 163-164.
AI searched it because I wasn’t aware whether the vehicle was stolen or who it had belonged to.
QBefore you decided to search the Honda what information had you received that caused you to decide to search.
AThe fact that the vehicle failed to stop for Senior Constable Charles, the fact that a male had ran from that motor vehicle and left it abandoned.
HER HONOUR
QWhat were you told about the failure to stop, that is what sort of failure to stop was it.
AIt was a brief fail to stop and from the police radio I recall Charles saying that it wasn’t a pursuit, it was a fail to stop into a laneway.
QAnd in your mind what scenario did you envisage.
AI pictured Senior Constable Charles with his red and blue emergency warning lights activated, the burgundy Honda not pulling over and stopping, entering the laneway and Senior Constable Charles seeing a male decamp from the driver’s seat leaving the door open and running away from police.[151]
[151] T165, 34-38; T166, 1-15.
After Brevet Sergeant Yan started searching the Honda, he heard a conversation between Constable Sibbons and Senior Constable Charles about an ice pipe being located in the centre console. When he searched the vehicle initially, he thought he had power to do that under s 68 Summary Offences Act.[152] He said that gave him the power to see if the vehicle had stolen goods or any object possession of which constitutes an offence or any evidence of the commission of an indictable offence, if he had a suspicion about those matters. When he started searching the vehicle, he did not have to open the driver’s door because it was already opened. The first thing he noticed was that the ignition barrel was not damaged. That signified to him that it was not stolen.[153]
[152] T 166.
[153] T167.
Brevet Sergeant Yan said he continued his search and found some plastic resealable bags in the glove box.[154] He then gave the following evidence in response to questions from me:
QYou said that when you saw the ignition barrel wasn’t damaged it signified to you that at that point the vehicle wasn’t stolen.
ACorrect, your Honour.
QSo the continuation of the search, what were you looking for then and what was your suspicion.
ALooking for identity as to who the motor vehicle may have belonged to.
QAnd your purpose in that.
ATo establish the owner of the motor vehicle.[155]
[154] T 167.
[155] T 167, 38; T 168, 1-9.
In addition to plastic resealable bags in the glove box, he saw a mobile phone next to an ice pipe which was in the centre console. The console had a lid which was open, and both were in the compartment which had a lid. He knew that Senior Constable Charles had been in the vehicle, because he heard Constable Sibbons ask him where the ice pipe was located and Senior Constable Charles said, ‘in the centre console’.[156]
[156] T 168-169.
Brevet Sergeant Yan said his initial suspicion was that the vehicle was stolen because Senior Constable Charles had attempted to stop the vehicle, it failed to stop, he followed it into a dead-end street and the driver decamped and abandoned the vehicle. That behaviour was not normal. In addition to looking for damage to the ignition barrel, he also looked for evidence of identity of the owner of the vehicle. He did not find any in this vehicle.[157]
[157] T169.
Senior Constable Charles did not give him any information regarding any vehicle checks he had conducted, and Brevet Sergeant Yan was unable to do any checks himself because the system was down.[158]
[158] T 170.
Brevet Sergeant Yan found the ice pipe before he located the resealable bags in the glove box.[159] Once Brevet Sergeant Yan found the ice pipe the focus of the search changed to look for anything drug related. He believed that he was using s 52 of the Controlled Substances Act which allowed him to search a vehicle if drugs were involved with a vehicle, person or vessel. He held the suspicion that drugs were involved because of the fact that there was a glass ice pipe in the centre console and the person driving had decamped after being signalled to pull over.[160]
[159] T 170, 28-30.
[160] T 171.
In cross-examination, Brevet Sergeant Yan said that it was after the search commenced that he obtained information regarding the registered owner of the vehicle.[161] He agreed that the mobile phone and ice pipe could not be seen if a person was standing outside of the vehicle. He was certain that when he first attended Flaherty Lane Senior Constable Charles was present with PD Ruger on a lead.[162]
[161] T 172.
[162] T 173.
Brevet Sergeant Yan said that he did not have any conversation with Senior Constable Charles about the details of his pursuit of the vehicle, including his belief that the lights and sirens had been activated and the vehicle failed to stop, and the driver decamped.[163] He did not have a conversation with Constable Sibbons in relation to the search of the vehicle or his suspicion.[164]
Constable Luke Edward Sibbons
[163] T 174.
[164] T 175.
On 28 July 2018, Constable Sibbons attended Mile End with Brevet Sergeant Yan to assist another police officer in relation to a vehicle that had ‘absconded from him’. They originally attended a cordon point at James Congdon Drive. They left the scene shortly afterwards when they heard over the radio that Senior Constable Charles had located the car on Flaherty Lane.[165]They drove to Flaherty Lane and arrived at a car park in a unit block. They saw Senior Constable Charles, his police vehicle and a few civilian cars, including a Honda. He could not recall if the doors to the Honda were open. Constable Sibbons spoke to Senior Constable Charles who told him he had located an ice pipe in the Honda. Constable Sibbons then searched the Honda because he suspected that there was ‘substance or equipment that would afford evidence against the Controlled Substances Act’. When he started searching, the driver’s door was already open. Constable Sibbons was wearing a body worn camera. The footage from that camera was tendered.[166]
[165] T 176,
[166] T 177-178, VDP7.
At 57 seconds on the footage, the mobile phone that was in the Honda can be heard ringing. At 1 minute and 59 seconds, Constable Sibbons can be heard to say to Senior Constable Charles, ‘Where did you find the icy?’ Senior Constable Charles responded, ‘in the centre console’. At 2 minutes 42 seconds, Constable Sibbons had a conversation with Brevet Sergeant Yan and asked him if he had grip on his gloves. At 2 minutes 30 seconds, Constable Sibbons located a small magnet attached to a larger sphere which he thought might be a potential hiding spot for drugs. At 4 minutes 52 seconds, Constable Sibbons pulled up the grip on the steering wheel to search for drugs.[167]The bonnet was opened to look for drugs.[168]
[167] T 179-181.
[168] T 182.
Constable Sibbons said that Brevet Sergeant Yan started searching the vehicle first. Constable Sibbons started searching about 10 – 20 seconds later and located a small plastic tube, resealable bags, the sphere and magnet and an ice pipe. The ice pipe was located in the centre compartment area, but he could not say whether the lid to the console compartment was open or closed.[169] There was no discussion with Brevet Sergeant Yan regarding the search and he formed his own decision to search the vehicle.[170]
[169] T 182.
[170] T 183.
In cross-examination, Constable Sibbons agreed the information from Senior Constable Charles about locating an ice pipe in the vehicle led him to conclude that there had been at least part of a search of that vehicle.[171]He did not discuss with Senior Constable Charles the extent to which he had searched the vehicle. Constable Sibbons disagreed with the suggestion that the ice pipe was inside the centre console; he said it was slightly in front of that, in the ‘centre area’.[172]
[171] T183.
[172] T 184.
Before he started to search the vehicle, Senior Constable Charles had not told him where the ice pipe had been located. When he saw the ice pipe for himself, he did not touch it. When pressed he said there was a ‘slim possibility’ that he may have touched it. He did not see anyone remove it from the vehicle.[173]The other items that he found were put back in the vehicle because he had not found any drugs.[174]
[173] T 185.
[174] T 186.
The mobile phone was on the driver’s seat, and he did not touch it. Constable Sibbons was shown VDP6 and said that the ice pipe could be seen at 4 minutes and 53 seconds and 5 minutes and 49 seconds.[175]
Constable Nathan Ryan Nicholson
[175] T 187-188.
On 28 July 2018, Constable Nicholson attended Railway Terrace, Mile End with Senior Constable Sampson. They took up a cordon point at Railway Terrace but after a short while received information over the police radio that a male had been located nearby. They then walked to 21 Charles Loader Drive where they found Senior Constable Charles and Senior Constable Wingate. The accused was near the front door of the address. Constable Nicholson went into the front yard to help get the male out. He believed the male was not supposed to be there because he looked like he was trying to hide, and he believed he was the driver of a vehicle that had been located nearby.[176]The accused appeared sweaty and stressed. They then walked him to Railway Terrace by physically putting hands on his arm and escorting him from the premises.[177]He could not recall if he explained to the accused what he was doing before he did it. He subsequently searched the accused near the corner of Gladstone Road and Railway Terrace where the police car was.[178]
[176] T 192.
[177] T 192.
[178] T 193.
Constable Nicholson said he was one of the most junior officers there and was acting under another officer’s direction. He searched the accused because ‘we suspected that he was the driver of the car’. The police had received information over the police radio from the dog operations handler that there were plastic deal bags in a car located at Flaherty Lane. Constable Nicholson thought he needed a power in order to search the accused.[179] When he searched the accused, he was using s 52 (6) of the Controlled Substances Act. His understanding of that power was that if he reasonably suspected that a person has in, or in their possession, or on them, an item or substance in contravention of that Act he could search that person to locate that item or substance. He said he had that state of mind for the following reasons:
I believed that being the driver of the car and the fact that the male had run from that car and the fact that there was the deal bags located inside that he might have more evidence in contravention of the Controlled Substances Act on him.[180]
[179] T 194.
[180] T 195, 11-15.
When he went onto the premises at 21 Charles Loader Drive, he did not think he needed a power to remove the accused and walk him to the area he was searched. He said in evidence that he now thought that he quite possibly needed a power to do that. He said:
I’d say at that stage it could be he would be being placed under arrest. So I believe quite possibly, yes.[181]
[181] T 195, 32-35.
When he searched the accused, he found a set of car keys and some cash, more than $1000.00.[182]
[182] T 196.
In cross-examination, Constable Nicholson said it was most likely Senior Constable Sampson who assisted him to escort the accused from the premises.[183] He agreed that the decision to search the accused was made in conjunction with speaking to other police officers who helped him form the suspicion. Constable Nicholson said that after the search, the accused was placed under arrest. He was fairly confident about that and agreed that he was put in the cage car at that stage. When Constable Nicholson arrived at Flaherty Lane he gave the car keys to other officers for use, if necessary, to open the vehicle. He was present whilst the vehicle was searched but could not recall if he searched it.[184]He could not recall if he arrested the accused. Constable Nicholson filmed the contents of a wheelie bin at a unit complex. He did that at the direction of Senior Constable Charles. He had been given a video recorder. He agreed that he did not use the camera to record the search of the accused but said that was because he did not believe it was necessary.[185]
[183] T 196.
[184] T 197.
[185] T 198.
I asked Constable Nicholson the following questions:
HER HONOUR
QAt the time when you attended and you said that you wanted to get the male out of the front yard and then you and another officer walked him to Railway Terrace. If Mr Trandafilov had decided just to leave, what would you have done.
AProbably would have stopped him from leaving at that point.
QFor what reason.
AJust until we could figure out who he was.
QSo as far as you were concerned was he in police custody at that time in any sense.
AIn the fac that we were with him, yes.
QIn your mind was he free to leave if he wanted to.
AAt that stage, no.[186]
[186] T198, 33-38; T 199, 1-8.
In cross-examination, Constable Nicholson said that his decision to search the accused was based on information over the radio from Senior Constable Charles that plastic deal bags had been found in the Honda.[187] He said that he found out after the search was carried out that an ice pipe had been located in the Honda. He agreed that in his statement dated 14 September 2018, he said that he had been told by Constable Sibbons that numerous items had been located including a glass pipe. He understood that to be an ice pipe. He said the same thing in a statement in September 2020. He said this was incorrect and that having looked at the communication records he realised his recollection was incorrect.[188]
[187] T 200.
[188] T 200.
Constable Nicholson made notes on 28 July 2018. He said that note ‘during after arrest, search keys’ indicated the keys were found after the arrest.[189]
[189] T 202.
Defence case on voir dire
The accused did not give evidence. However, it was an agreed fact that:
If called to give evidence, Senior Constable Matthew Sampson would give evidence that when he attended Charles Loader Drive, Mile End on 28 July 2018 he was present when Senior Constable Charles and Constable Nicholson had a conversation with the defendant. His evidence would be that the defendant stated that he had run from police because his licence was disqualified.[190]
[190] VDD8; T 206-207.
Prosecution submissions
The prosecution filed extensive written submissions and supplemented those submissions with oral argument. The prosecution argued that the suspicion held by Senior Constable Charles that the vehicle was stolen was held on reasonable grounds. Accordingly, that suspicion justified the opening of the door of the Honda when Senior Constable Charles first located it, and subsequently, after locating the male who had decamped from it. The additional information received by Senior Constable Charles between the first time he opened the door of the Honda and the second time, was that the vehicle was registered to a female. Senior Constable Charles relied upon s 68 of the Summary Offences Act to search the car. The prosecution argued that, bearing in mind that a suspicion is ‘a state of conjecture or surmise where proof is lacking’, the circumstances as they were known to Senior Constable Charles at the time he entered the car were such that a reasonable person in his position would have suspected the car to have been stolen. It being reasonable to suspect that the car was stolen, it was reasonable for him to think that there would be evidence of an indictable offence in the car.
In relation to the ‘article’ search performed by PD Ruger at Senior Constable Charles’ direction, this was justified by the following facts: the accused had hidden in the front yard of another person’s house, the accused had lied about there being a second person in the car who told him to run, the accused had a large amount of cash on him and there was an ice pipe in the car. The prosecution argued that although property placed in a council bin in the common area of a unit complex has not been abandoned, such property was something no longer of value and which the disposer did not want to keep private. Accordingly, it was argued the opening of the bin by Senior Constable Charles did not interfere with the occupier’s right of possession, nor did it cause injury in the sense explained by Kiefel CJ in Roy v O’Neill [2020] HCA 45.[191]The prosecution submitted that the question was whether opening the bin in the circumstances was a ‘legitimate purpose’ for which to remain in the unit complex common area. It was argued that:
‘in the unique circumstances of the present case, Charles had an implied licence to be present in the common area of the unit complex for the purpose of opening a bin which Ruger had indicated contained an item which had recently been touched by a human’.[192]
[191] (2020) 95 ALJR 64.
[192] Prosecution Written Submissions, filed 1 June 2021, paragraph [20].
It was conceded in oral submissions that the actions of Senior Constable Charles constituted a search. However, it was argued that the search of a bin in a common area in the unit complex did not have attached to it the same privacy concerns, because bins were used to dispose of things that the occupier no longer wanted. Even if it was a trespass, it was at the lower end of the scale of seriousness because no rights of the accused had been infringed and he had himself trespassed when depositing the methylamphetamine in the bin.
The prosecution accepted that, from the time Constable Nicholson removed the accused from the front yard of 21 Charles Loader Drive, he had been apprehended. However, the prosecution argued that Constable Nicholson had the power to arrest the accused because he suspected that the accused was on the premises for an unlawful purpose contrary to s 17 (1) (a) Summary Offences Act. Thus, Constable Nicholson’s power to apprehend under s 75 Summary Offences Act was enlivened, even if he did not purport to exercise it. However, the prosecution accepted that the failure to communicate to the accused that he was under arrest and the reason for his arrest rendered the ‘arrest’ unlawful. It was argued that nothing turned on the failure of Nicholson to comply with the formalities of arrest because no evidence was obtained as a result of the failure to comply.
The prosecution argued that the search of the accused by Constable Nicholson was authorised under s 52 (6) Controlled Substances Act. Constable Nicholson had information that ‘deal bags’ were found in the vehicle from which the accused had run. That information would engender in the mind of a person thinking reasonably about the information a suspicion that the accused had evidence on him that would afford evidence of an offence under the Controlled Substances Act. Accordingly, the search of the accused’s person was lawful. It mattered not that the police had acted unlawfully in detaining the accused without complying with the requirements to inform him that he was under arrest and the reasons for arrest. This was because Constable Nicholson had an implied power under s 52 (6) Controlled Substances Act to detain the accused for the purpose of searching him. Reliance was placed on the decision in State of NSW v Le [2017] NSWCA 290.
The prosecution argued that the search of the vehicle by Constable Sibbons was justified under s 52 (9) Controlled Substances Act and the search by Brevet Sergeant Yan was justified under s 68 Summary Offences Act.
Brevet Sergeant Yan had information (albeit inaccurate) that Senior Constable Charles had attempted to stop the vehicle using flashing lights and sirens, the vehicle had failed to stop, and the driver had subsequently decamped. Acting on that information, it was reasonable for Brevet Sergeant Yan to suspect that the vehicle had been stolen.
Constable Sibbons searched the vehicle because he had been told an ice pipe was in the car. As it is an offence under the Controlled Substances Act to possess an ice pipe, the power to search the vehicle under s 52 (9) was enlivened.
In oral submissions, Mr Lodge argued that the public policy discretion to exclude was only enlivened where evidence is obtained by unlawful or improper conduct of police. In this case, the alleged trespass onto 21 Charles Loader Drive, the initial opening of the car door by Senior Constable Charles and the placing of the accused in the cage car did not result in the obtaining of any evidence. The only questions that required resolution on the voir dire were whether the search by Constable Nicholson, the looking in the bin by Senior Constable Charles and the searches of the car by Senior Constable Charles, Constable Sibbons and Brevet Sergeant Yan were all lawful. Mr Lodge said that even though the sighting of the mobile phone on the seat contributed to Senior Constable Charles’ suspicion that the car was stolen, I should not make a finding that, but for the sighting of the phone, Senior Constable Charles would not have determined to locate the accused.
Mr Lodge contended that any finding that the initial ‘search’ of the vehicle was unlawful did not mandate the exclusion of any evidence located in the course of a subsequent lawful search of the vehicle.
Mr Lodge argued that the entry of Senior Constable Charles onto the premises at 21 Charles Loader Drive was authorised by the common law implied licence to enter a person’s property. He relied upon Halliday v Nevill (1984) 155 CLR 1 and Roy v O’Neill as authority for the proposition that the purpose of entry by Senior Constable Charles was a legitimate one because the accused was trespassing, and therefore it was within the implied licence at common law to attend on that property to remove that person.
Mr Lodge argued that the same approach should be taken to the attendance upon the private property of the unit complex in order to search the bin. In other words, the implied licence extended to authorising a search of the property where it is reasonable for a police officer to suspect that there is an item which would afford evidence of the commission of an offence on private property. Mr Lodge accepted that the effect of his submission was to extend the ambit of the implied licence to permit a search of the front yard of a premises. Alternatively, if this conduct did constitute a trespass, the degree of illegality was minor as no rights of the accused were infringed and there could be no privacy concerns of the individual who owned the bin, given it was a receptacle into which unwanted items were placed.
Defence submissions
Detailed written submissions were filed by counsel for the accused, Mr Allen. They were also supplemented by oral submissions. The primary contentions of the accused were:
·The power to search a motor vehicle is predicated upon the searching officer holding the requisite reasonable suspicion.
·The matters known or believed by Senior Constable Charles when he conducted each of the two searches of the Honda were incapable of amounting to reasonable grounds to justify the search of the vehicle.
·The matters known or believed by Brevet Sergeant Yan and Constable Sibbons when they conducted a search of the Honda were incapable of amounting to reasonable grounds to justify the search of the vehicle.
·The search conducted by Constable Nicolson of the accused took place after he had been unlawfully detained and prior to his arrest. The matters known to Constable Nicholson when he searched the accused were incapable of amounting to reasonable grounds to justify the search.
·There is no power for a police officer to detain a person for the purpose of interrogation or to enable police inquiries to continue.
·The detention of the accused constituted a de facto arrest and was unlawful.
·In the absence of an express power, police do not have the right to enter private property to search for a person.
·Senior Constable Charles repeatedly entered onto private property and conducted searches without lawful authority before locating the accused on private property. He continued to search private property during which he located controlled drugs.
·The evidence obtained as a consequence of the searches should be excluded. Exclusion is necessary in order to avoid the administration of justice being brought into disrepute by statements of judicial approval which appear hollow and insincere. To admit the evidence would be to give curial approval to the police exceeding their lawful powers.[193]
[193] Outline of Submissions on behalf of Jordan Trandafilov, paragraphs 1-10.
Mr Allen argued that the actions of Senior Constable Charles in shining his torch into the vehicle and then opening the door each constituted a search. There was no lawful basis for either search. At that time, the information available to him did not indicate anything untoward with respect to the vehicle, the driver had not committed any traffic offences and there was nothing to suggest to the driver that the police were pursuing him. There was no basis for a reasonable suspicion that the vehicle was stolen.
In respect of the subsequent search of the vehicle by Senior Constable Charles, the additional information received was that the vehicle was registered to a female. It was argued that this additional information did not support a reasonable suspicion that the Honda was stolen. The fact that the accused had left the vehicle was consistent with his claim to have been disqualified from driving. No attempt had been made to contact the registered owner of the Honda. The initial inspection of the vehicle did not suggest any ignition or other damage, consistent with it being stolen.
In relation to the search of the Honda by Brevet Sergeant Yan, that search was not authorised under s 68. Reliance was placed on Brevet Sergeant Yan’s evidence that he ‘wasn’t aware whether the vehicle was stolen or who it belonged to’. Accordingly, the search that resulted in the location of the ‘deal bags’ was unlawful.
In relation to the search of the vehicle by Constable Sibbons, it was accepted that I may find that at the time he searched the Honda he held the requisite suspicion under s 52 (9) Controlled Substances Act as he believed that Senior Constable Charles had located an ice pipe in the vehicle. However, if I were to find that the search that resulted in the location of the ice pipe was unlawful, I could take that into account in determining whether to exercise the discretion to exclude the evidence obtained in the lawful search by Constable Sibbons.
It was submitted that the accused was under de facto arrest when he was physically escorted away from 21 Charles Loader Drive. He was not told that he was under arrest and nor was he told the reason for his arrest. He was placed in a cage car and driven to Flaherty Lane. He was not allowed out of the cage car until he complained about feeling claustrophobic.
After being removed from 21 Charles Loader Drive, the accused was searched by Constable Nicholson after he received information that ‘deal bags’ had been located inside the Honda. It was accepted that I may find that at the time of the search of the accused, Constable Nicholson held the requisite suspicion under s 52 (6) Controlled Substances Act to justify that search. However, as the search of the vehicle which resulted in the location of the deal bags was unlawful, the evidence obtained from the search of the accused should be excluded.
Mr Allen contended that I could find that the properties at 26 Railway Terrace, Mile End and 21 Charles Loader Drive, Mile End were all private properties. He argued that Senior Constable Charles trespassed onto each of the premises he traversed with PD Ruger. In its simplest form, Mr Allen’s submission was that this was neither a case of a police officer using his tacit licence to attend on a driveway to conduct an inquiry of an occupant, nor entry onto property for the purpose of effecting an arrest. This was simply a police officer trespassing onto private property for the sole purpose of conducting a search without any statutory power or common law exception that would permit such an action.
In relation to the ‘article search’ at 26 Railway Terrace, that was unlawful because no permission had been sought of the occupants to search the property. A search of the property required the use of a duly authorised warrant.
In respect of the exercise of the discretion, it was argued there was a deliberate cutting of the corners by police. It was relevant that senior and experienced police officers had a mistaken understanding of their legal duties and obligations in undertaking the important work of criminal investigation. This suggests that this mistaken understanding of the breadth of police powers, and the nature of the limits upon them, is not idiosyncratic or isolated to these offences.
In the circumstances of this case, not only was there a lack of understanding of the ability of police to intrude upon private property, but there was also an unwillingness to do even the most basic of things to ensure compliance with the laws that those members were sworn to uphold.
Mr Allen argued that I should apply the principle of exclusion based upon the ‘fruits of the poisoned tree’ reasoning. He said that the information was obtained by police officers as a consequence of unlawful searches and then passed onto other officers. He cited a number of District Court decisions in support of this contention and R v Bainbridge [1999] NZCA 180.
In oral submissions, Mr Allen said there was a cascading effect of a series of unlawful acts. Some were more significant than others. Mr Allen confirmed that the credibility of the witnesses was not under challenge, but asked me to note Senior Constable Charles’ evidence regarding when he decided to perform an article search. Mr Allen said that Senior Constable Charles initially distanced himself from the suggestion that he had this in mind when he was returning to Flaherty Lane after locating the accused. However, when taken to the communications in VDP3 he agreed that he had decided to perform an article search as he was returning to Flaherty Lane. Mr Allen also referred to the diverging evidence on the topic of the source of the information regarding the location of the ice pipe. However, ultimately the conversation recorded on VDP7 in which Constable Sibbons said to Senior Constable Charles, ‘where did you find the icy’ established that it was indeed located by Senior Constable Charles prior to the searches undertaken by Brevet Sergeant Yan and Constable Sibbons. Because Senior Constable Charles could not recall finding the ice pipe, it was not possible to determine in which of his searches of the vehicle he found it, but it was likely to be on the third occasion when he opened the door a second time to look for damage.
Mr Allen accepted that the accused was trespassing on the premises at 21 Charles Loader Drive and there was a basis for police to suspect this offence but said this did not justify the entry onto the premises by Senior Constable Charles. Mr Allen accepted that police could have entered the property to speak to him but said that this suspicion could not have been entertained by Senior Constable Charles until he had seen him. Senior Constable Charles did not know where the accused was on the property until he trespassed onto the property. He also did not know whether the accused had a connection to the property.
Mr Allen said that the evidence was clear that Senior Constable Charles did not attend upon 21 Charles Loader Drive to arrest the accused.
Mr Allen agreed that I could find that Senior Constable Charles had a reasonable suspicion that there would be evidence, or items that would afford evidence of the commission of an offence, on the property at 26 Railway Terrace, but in order to search for that evidence, he needed a search warrant or the permission of the occupier. Mr Allen said that the illegality was compounded by the first illegal entry onto that premises when Senior Constable Charles trespassed for the purpose of tracking the accused.
The applicable principles are well known.
Having found that two of the searches of the Honda and the search of the bin were unlawful, and that the accused was unlawfully detained, the rule in Bunning v Cross[213]confers upon me a discretion to exclude relevant and admissible evidence based on public policy considerations. I set out the helpful summary of the history of the Bunning v Cross discretion in the judgment of Stanley J in R v Rockford (2015) 122 SASR 391:
[213] (1978) 141 CLR 54.
The so-called rule in Bunning v Cross[214] confers upon a court a discretion to exclude relevant and admissible evidence based on public policy considerations which arise where the evidence has been obtained unfairly or illegally. The Bunning v Cross discretion has its roots in R v Ireland[215] where Barwick CJ considered that a trial judge had a discretion to reject real evidence that was unlawfully obtained. He said:[216]
[214] (1978) 141 CLR 54.
[215] [1970] HCA 21, (1970) 126 CLR 321.
[216] [1970] HCA 21, (1970) 126 CLR 321 at 335.
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, 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.
In Bunning v Cross[217] Stephen and Aickin JJ, delivering the leading judgment for the court, said:[218]
[217] (1978) 141 CLR 54.
[218] (1978) 141 CLR 54 at 74 - 75.
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law… [T]he discretionary process called for by Ireland … [is] concerned with broader questions of higher public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
Their Honours explained the considerations underpinning the competing principles which inform the exercise of the discretion as follows:[219]
[219] (1978) 141 CLR 54 at 77 - 78.
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.… [T]he 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 … [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to admissibility 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.
In Cleland v The Queen[220] Deane J extended the field of operation of the public policy discretion to include impropriety in addition to unlawfulness. He stressed the balance which had to be struck in exercising the discretion in the following terms:[221]
[220] [1982] HCA 67, (1982) 151 CLR 1.
[221] [1982] HCA 67, (1982) 151 CLR 1 at 20.
The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves 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.
In Pollard v The Queen[222] Deane J further explained the application of the Bunning v Cross discretion in the following way:[223]
[222] [1992] HCA 69, (1992) 176 CLR 177.
[223] (1992) 176 CLR 177 at 202 – 203.
[T]he principal considerations of “high public policy” which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
Ridgeway v The Queen[224] was a further extension of the public policy discretion. The unlawfulness in Ridgeway was not in the conduct of police in obtaining evidence of a crime committed but in the conduct of law enforcement officers who themselves committed a crime in order to establish an element of a further offence which they anticipated would be committed by the accused. Ridgeway is a case of entrapment. The exclusion of the evidence obtained by way of the sting in Ridgeway reflected the court’s duty to ensure that it did not, by the failure to exercise its discretionary powers, achieve an objective which flagrant and deliberate breaches of the law by law enforcement officers was designed to achieve. Mason CJ, Deane and Dawson JJ said:[225]
[224] [1995] HCA 66, (1995) 184 CLR 19.
[225] (1995) 184 CLR 19 at 31 – 32.
[T]he considerations of “high public policy” which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission.
[Citations omitted].
In R v Swaffield[226] Kirby J identified the considerations relevant to the exercise of the public policy discretion in Bunning v Cross as follows:[227]
[226] [1998] HCA 1, (1998) 192 CLR 159.
[227] [1998] HCA 1 at [135], (1998) 192 CLR 159 at 212 – 213.
In Bunning v Cross, Stephen and Aickin JJ outlined some of the relevant considerations. One of them was the nature of the offence charged. Also commonly mentioned has been the probative value of the evidence, and its importance in the proceedings. The remaining considerations which Stephen and Aickin JJ listed were:
(i) whether the conduct was deliberate, or resulted from a mistake;
(ii) whether the nature of the conduct affected the cogency of the evidence so obtained;
(iii) the ease with which those responsible might have complied with the law in procuring the evidence in question; and
(iv) the legislative intention (if any) in relation to the law that is said to have been infringed.
To the foregoing, Mason CJ, Deane and Dawson 11 in Ridgeway added an additional consideration:
(v) “whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.”
…
[Citations omitted].
In R v Lobban[228] this Court held that the public policy discretion in Bunning v Cross is enlivened only when the evidence sought to be excluded is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. The Bunning v Cross discretion does not operate to punish unlawful, improper or unfair conduct on the part of law enforcement authorities. That is a matter for police disciplinary procedures or the invocation of separate criminal proceedings. It is only when such conduct results in the obtaining of relevant and admissible evidence that the Court is required to exercise its discretion whether to exclude such evidence obtained by such means. The discretion to exclude does not extend to subsequent conduct on the part of law enforcement authorities, unless the subsequent conduct is closely connected with the earlier conduct. For example, the discretion does not apply where police officers give false evidence as to how material was obtained, where the material itself was not illegally or improperly obtained.[229] The unlawful or improper conduct must be the means by which the evidence was obtained or where the obtaining of the evidence involved the unlawful or improper conduct.[230]
[228] [2000] SASC 48, (2000) 77 SASR 24.
[229] Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 at 288 – 289.
[230] Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90 at [55], (2003) 6 VR 430 at 454.
In my view, the unlawful search of the Honda by Senior Constable Charles was the start of a number of unlawful acts by police. Based on the findings I have made, it would be artificial to isolate the initial search of the Honda from what then followed. The search of the Honda led to the decision to track the accused. The decision to track the accused led to his unlawful arrest and detention. What the accused told Senior Constable Charles during his unlawful arrest and detention in part led him to search the Honda a second time. That search was unlawful. In the course of that unlawful search an ice pipe was located, information about which triggered the search by Constable Sibbons and transformed the search by Brevet Sergeant Yan from a search under s 68 Summary Offences Act to a search under s 52 (9) Controlled Substances Act. The evidentiary items relied upon in proof of the charge were found after those police officers were told about the ice-pipe.
Whilst the search of the vehicle by Brevet Sergeant Yan and Constable Sibbons was lawful, I find that it would not have occurred but for the initial unlawful search by Senior Constable Charles.
The search of the accused was lawful. However, the decision to track him down and detain him, thereby enabling a search, was the result of the initial unlawful search of the Honda by Senior Constable Charles. Before and after the search the accused was being unlawfully detained.
The search of the bin in which the methylamphetamine was found was the final unlawful act in this series. I find that this search would not have occurred but for the lawful and unlawful actions of police which preceded it. However, the illegality attending that search is independent of the earlier unlawful actions of police.
The discretion to exclude is enlivened upon the findings of illegality. The exercise of the discretion in this case is complicated because of the findings I have made that some activities of the police were lawful, and some were unlawful.
I have had regard to the decisions of R v Rondo (2001) 126 A Crim R 562, Amad (1962) VR 545, R v Rogers (unreported decision of Simpson DCJ 11 February 2013), R v Trotter (unreported decision of Duggan J 28 February 1990). All of these decisions are examples of cases where evidence obtained in the exercise of a police power which was not itself unlawful, but which would not have been exercised but for some preceding illegality, has been excluded.
I agree with counsel that I should consider each of the established unlawful acts and assess the seriousness of each illegality and the consequences of the illegality. Where the illegality results in the obtaining of evidence, the factors relevant to the discretion will need to be considered.
However, in determining whether the impugned evidence should be excluded in the exercise of the discretion, the authorities to which I have referred suggest that it is permissible for me to determine whether lawfully obtained evidence has been tainted by preceding unlawful conduct. The question becomes whether that lawfully obtained evidence should be regarded as deriving from the earlier illegality. In other words, is the nature of that earlier unlawful conduct sufficiently linked to the circumstances in which evidence was subsequently lawfully obtained that this evidence should be excluded in the exercise of the discretion.
I must also have regard to the combined or cumulative effect of the illegalities.[231] In the circumstances of this case, it would be artificial and wrong to simply determine that the evidence found during the search of the accused by Constable Nicholson and the Honda by Constable Sibbons and Brevet Sergeant Yan should be admitted because those individual searches were lawful.
[231] R v Rondo (2001) 126 A Crim R 562, at [25] per Spigelman CJ; [57], [60], [62] per Smart AJ with whom Simpson J generally agreed.
The alleged offending is undoubtedly serious. The illegality does not affect the cogency of the evidence. An important matter in the exercise of the discretion is that, on the facts I have found and the absence of a reasonable suspicion, there was no lawful statutory or common law power that would have otherwise justified the first or second search of the Honda by Senior Constable Charles.
The unlawful conduct was not deliberate, but it was not mistaken. Rather, it was the result of the failure by Senior Constable Charles to turn his mind to the power he was exercising when he first searched the Honda and his failure to apply sufficient rigour to the question of whether the second search of the Honda and the bin were authorised at law.
I consider this to be a product of Senior Constable Charles’ specialist training kicking in, leading him to focus on the tracking and location of a person he believed had run away from a vehicle after seeing police to the exclusion of a rigorous assessment of the information available to him. In many ways, Senior Constable Charles behaved in the manner I would expect him to behave if he had been tasked to track and locate a suspected offender, an activity in which he was highly skilled and proficient. The difficulty is that this was not a tasking to track and locate. The circumstances known to Senior Constable Charles at the time he located the Honda were not such as to justify the search of the Honda even though his suspicions were genuinely aroused by the apparent rapid departure of its driver.
The second search of the Honda occurred in circumstances where the information then available to Senior Constable Charles should have weakened his original suspicion. However, for reasons that are not clear, he did not take account of the accused’s explanation that he left the Honda because he was disqualified, an explanation that he said was a plausible one. In that way, the illegality attending the first search was compounded by the illegality attending the second.
Further, the description of the initial sequence of events given by Senior Constable Charles was unwittingly misleading because it suggested to other police officers that he had attempted to stop the Honda, but the driver had disobeyed him by failing to stop and had then ‘dumped’ the vehicle and run away. This misleading description formed the basis of Brevet Sergeant Yan’s suspicion leading him to search the Honda. Whilst that did not affect the reasonableness of Brevet Sergeant Yan’s suspicion, it illustrates the importance of the provision of accurate information from one police officer to another when powers of search are being exercised.
The finding of the ice pipe by Senior Constable Charles during the course of the second unlawful search was inextricably linked to the search conducted by Constable Sibbons and the continuation of the search by Brevet Sergeant Yan.
In my view, the entry onto the private premises at 26 Railway Terrace for the sole purpose of performing a search is the most serious of the unlawful searches that occurred. Although I have described it as being independently unlawful, it is nevertheless sufficiently linked to the initial unlawful searches to also consider that earlier illegality in the exercise of the discretion.
Before commencing the article search, PD Ruger had already given Senior Constable Charles an indication that there was something connected with the accused in the area of the bins. Senior Constable Charles knew that this was on private property. Although not deliberate, this was a clear case of cutting of the corners, and it occurred because this was Senior Charles’ normal mode of operation and part of his specialist training. The search could have been performed pursuant to a general search warrant. No evidence was led as to whether any of the attending police officers held a general search warrant. Alternatively, permission could have been sought from the occupier to whom the bin belonged to search it. The law could have been complied with, with ease. The accused had been located and the article search was not pressing or urgent. Senior Constable Charles had broadcast his intention to perform an article search along the original tracking route. This should have alerted the other officers, particularly those senior to him, to the need to ensure that any search was performed pursuant to a lawful authority.
The unlawful detention of the accused was not momentary. Shortly after being located, he was faced with a number of police officers, and a police dog and then physically moved from the premises. The improper and ongoing detention of the accused, without notifying him of his rights, was exacerbated by the decision to put him in the back of the cage car and then not let him out until he requested to be let out. This conduct led a junior officer to assume the accused had been arrested.
The evidence reveals this was not an isolated occurrence but was conduct that a senior police officer had engaged in before and witnessed other officers engaging in. The unlawful conduct was not deliberate, but it was a serious departure from the appropriate method of dealing with a person who was not under arrest. This unlawful conduct did not result in the obtaining of any evidence. Had it done so, I would have excluded the evidence so obtained.
I take into account, in my consideration of the cumulative effect of the illegalities, the fact that the unlawful detention of the accused commenced with Senior Constable Charles directing him to come out from his hiding spot and show him that he had nothing in his hands. The presence of PD Ruger would have been an additional incentive for the accused to comply with these directions and would have signalled to a reasonable person in the accused’s position that he was not free to leave.
In other words, in considering the exercise of my discretion in relation to the unlawful searches performed by Senior Constable Charles, I have had regard to this aspect of his conduct as another example of his focus upon tracking and locating the accused, resulting in a failure to apply sufficient rigour and thought to the lawfulness of his actions. I have also had regard to the fact that the unlawful detention of the accused provided the opportunity for the search of his person. That opportunity may not have existed if the accused had been told he was free to leave.
It is the duty of the Court to be vigilant to ensure that unlawful conduct (whether deliberate, mistaken or some other variant) is not encouraged by an appearance of judicial acquiescence:
The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.[232]
[232] R v Rockford (supra) at [39] per Stanley J.
Orders
In the exercise of my discretion and taking into account the cumulative effect of the unlawful conduct, I exclude the evidence obtained by police during all of the searches of the Honda WGT 777, the search of the accused and the search of the bin at 26 Railway Terrace, Mile End on 28 July 2018. I do so having balanced the factors referred to above and because I consider it necessary to mark judicial disapproval of the excess of police power in this case and to promote compliance with the limitations on the exercise by police of the powers of search and entry.
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