R v Uthmann - [2021] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v UTHMANN
[2021] SADC 108
Reasons for Rulings of her Honour Judge Davison
17 September 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
The applicant seeks orders (1) that the evidence obtained as a result of a search of a motor vehicle at Birkenhead on 6 January 2020 be excluded; and (2) that count 1 be severed from counts 2 and 3.
Application dismissed.
Controlled Substances Act 1984 (SA) ss 32(3), 52(9); Firearms Act 2015 (SA) ss 6(3), 9(1), 31(1), referred to.
Police v Williams (2014) SASC 177; Gollan v Nugent (1988) 166 CLR 18; Emery v The Queen [2021] SASCA 62; Bunning v Cross (1978) 141 CLR 54; R v Nguyen (2013) 117 SASR 432; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; R v Perfilli (2006) 95 SASR 560, discussed.

R v UTHMANN
[2021] SADC 108
Criminal

Kodi Alexander Uthmann is charged with trafficking in a controlled drug, namely methylamphetamine; aggravated possession of a firearm without a licence; and possessing ammunition. It is alleged that the offences occurred on 6 January 2020 at Birkenhead.
On that day, Mr Uthmann was arrested on a parole board warrant in the pokies room of the Birkenhead Tavern. A mobile phone was located in his pocket. When Mr Uthmann was asked where the keys for his car were, he responded to the effect that there were no keys. The car was unlocked by the police using the Maven App. The vehicle was subsequently searched. Police located a black Armani bag with a red zipped hard case inside, a mobile phone and keys on the front passenger seat. Inside the red zipped hard case, the police found a number of plastic resealable bags. Methylamphetamine was found in these bags. A handgun was discovered under the driver’s seat and ammunition was located in the Armani bag.
Mr Uthmann seeks an order that the evidence obtained as a result of the search of the motor vehicle at Birkenhead on 6 January 2020 be excluded as the police did not have an ‘…objectively reasonable suspension [sic] (suspicion) that a controlled drug was in the vehicle’.[1]
[1] Application for Directions, 18 March 2021.
A voir dire was conducted in relation to the application. The prosecution called Detectives Orford, Childs, Butler and Watkins and Ms Fewster. The applicant called no evidence.
The applicant’s position, broadly, was that the police did not conduct the search of the car lawfully as they did not have the consent of the applicant or the hirer of the vehicle, nor did the relevant police officers have the requisite suspicion pursuant to the Controlled Substances Act to search the vehicle.
The respondent’s position was that South Australia Police (‘SAPOL’) ostensibly acted as Maven’s agents. There was therefore no need for a warrant nor any specific power to search the motor vehicle. In the alternative, that the vehicle was lawfully searched pursuant to s 52(9) of the Controlled Substances Act and if not, the evidence ought not be excluded in my discretion.
Background Material
The evidence given by the police officers in this matter was to this effect. The address at 26 Merle Marten Drive North Haven was well known to the police. It was associated with drug use and drug dealing. The police had attended that address on 23 April 2019 with information that the occupant was dealing in drugs and had possession of a firearm. They searched and located cannabis plants, prescribed equipment and searched a mobile phone that indicated drug dealing.[2]
[2] T6-10.
On 4 January 2020, information was received by the supervisor of the SAPOL Western District Volume Crime Team, that two individuals had been arrested with a quantity of what was suspected to be recently manufactured methylamphetamine. One of these individuals was Aleisha McGrath who resided at 26 Merle Marten Drive North Haven or 50 Yongala Street Taperoo. This information was received during the afternoon shift that occurred between 3:00pm and 11:30pm.
As a consequence, members of the Volume Crime Team coordinated a search of 26 Merle Marten Drive, that was to occur later that evening. The team who were attending were briefed. A general search warrant was executed to conduct the search.[3]
[3] T11.
One of the members of the team was Detective Childs. On that occasion he was working with Constable Stewart. He travelled to the Merle Marten address via Osborne Road. Whilst on Osborne Road, he made observations of a grey Commodore in the vicinity. It was very late at night and this was a residential area. Constable Stewart parked the police vehicle in Bollen Street, that is adjacent to Merle Marten Drive and has lane access through to Merle Marten Drive. The grey Commodore, registration number S276 BXU, passed the police vehicle travelling one way and then returned travelling the other. It appeared to be doing laps.
Detective Childs became suspicious that the driver of the vehicle was intending to go to 26 Merle Marten Drive as he was aware of the premises and the occupants from other investigations. He was also aware that it was common for people to park in Bollen Street and walk through to 26 Merle Marten Drive. In addition, it was late at night and the car appeared to be circling.[4]
[4] T33.
A registration check was conducted on the vehicle. It was registered to General Motors Holden (‘GMH’) at Rose Park. Detective Childs then directed Constable Stewart to conduct a traffic stop of the vehicle with the intention of ascertaining whether the driver held a valid driver’s licence and whether he was attending at 26 Merle Marten Drive.[5] They then followed the vehicle onto Lady Gowrie Drive. The emergency lights were activated, the vehicle continued to accelerate and sped off doing approximately 200 km/h in a 60 km/h zone.[6] Detective Childs desisted from his plan to stop the vehicle and reported the incident to the State Shift Manager. He received a direction that he was cleared to attend at 26 Merle Marten Drive.
[5] Ibid.
[6] T35.
Police officers had already commenced the search at that address. A video camera had been utilised for the initial part of the search. The occupant had been cautioned. Detective Orford gave evidence that the occupant had provided his PIN to a mobile phone that was located in the house.[7]
[7] T14.
When Detective Childs arrived, he was handed this mobile phone. He looked through the mobile phone. He observed a number of messages between the occupant and a person named ‘Allishia’. He assumed ‘Allishia’ was Aleisha McGrath. One message was sent from the occupant to ‘Allishia’ about 45 minutes prior to the police attendance that read, ‘Yo can you get Hb [sic] at all and I replace it later or tomorrow? Just got perso [sic], Kodi still fluffing’.[8] There was also a transaction recorded on the phone where it appeared that the occupant had transferred $350 to a person identified as Mr Kodi Uthmann on 31 December 2019 at 4:55pm.
[8] Exhibit VDP2.
Detective Childs gave evidence that he associated the message that had been sent 45 minutes before the police arrival with the Commodore because of the timing and content of the message. He suspected the applicant was the driver of that vehicle and was intending to go to 26 Merle Marten Drive with a ‘HB’ (half‑ball) of methylamphetamine for the occupant.
He was cross-examined about other explanations for the messages but maintained his position that although there were other possible explanations, this was the explanation he thought was most likely.
After he resumed his shift, he contacted Maven and obtained details in relation to the vehicle. Amongst the details he received was that the vehicle had GPS tracking. As a consequence, surveillance was called in to assist.[9]
[9] T42.
Detective Childs gave evidence that he formed a suspicion that the driver was the applicant on the basis of the messages on the phone with the occupant of 26 Merle Marten Drive in relation to Kodi, the images on the mobile phone that showed a bank transfer to a Kodi Uthmann, his inquiries on the police system that indicated that Kodi Uthmann had a current parole board warrant, and that Kodi Uthmann was on parole for drug trafficking matters. He also considered that the manner of driving of the vehicle after the police tried to stop the car was consistent with a person who had a reason not to be stopped by the police.[10]
[10] T43.
Detective Childs gave evidence that he briefed the incoming Volume Crime Team of his suspicions. During that time, surveillance was being conducted of Mr Uthmann and a vehicle at Mawson Lakes. Information was received, at a time that may have been after the briefing, that a male with long hair had been observed to get into the rear seat of the vehicle for a very short time, consistent with a drug deal. The next shift then took over.
Detectives Butler and Watkins were appraised of the information that the police had in respect of Mr Uthmann and the motor vehicle. Detective Butler was involved in receiving the Maven App from Ms Fewster and using it to open the motor vehicle when it was parked in the Birkenhead Tavern carpark. Detective Watkins then searched the vehicle locating the drugs, firearm and ammunition.
Maven motor vehicle
Ms Fewster gave evidence that in January 2020, GMH operated a business in South Australia known as ‘Maven’. Maven is no longer operating in Australia, having closed its business when GMH ceased trading in this State in April 2020.
In January 2020, Maven provided a multitude of services including long and short-term rentals with car sharing options. There were 350 vehicles available from various locations around the State. Of those, about 20 were car sharing arrangements and the remainder were long-term rentals or Uber vehicles.[11]
[11] T78.
In order to hire a short-term rental, it was necessary to download an App and follow the prompts through the App. The recipient would then receive an email from Maven asking them to provide a photo of their driver’s licence alongside their own face to enable a comparison. The request could then be approved and if successful, the recipient would be asked to get in contact to arrange the rental. Keys were not required as the car was opened and operated from the App. It was necessary for the hirer to accept the terms and conditions before a reservation was accepted. After a reservation had been made and a deposit paid, the phone upon which the App was downloaded became the key that connected to the car via a Bluetooth transmitter located under the steering wheel.
During the hiring process, the hirer nominated the time for which the car was to be hired. That time could be extended as long as this was done within an hour of the reservation concluding. If the hirer did not apply to extend, then the hire period came to an end. Maven staff would usually try to contact the hirer and reserved the right to repossess the vehicle.
Each vehicle had a GPS tracker that provided real time information that was recorded by Maven and capable of being downloaded.[12] In addition to the GPS tracker, the vehicle could be disabled by Maven, such that the code that had been utilised from the App would no longer operate the vehicle. In this way, Maven could repossess the vehicle if required. On some occasions, they utilised the assistance of the police, in particular, if a dangerous incident was anticipated.[13]
[12] T80.
[13] T81.
The vehicle in question that had been hired from Maven was a grey Holden Calais with SA registration, S276 BXU. This vehicle had been hired by a person giving the name ‘Jonathan Jay Pegler’ on 3 January 2020. A driver’s licence was provided along with a photo said to be of Mr Pegler.[14] In order to hire the car, Mr Pegler needed to download the App and complete all of the steps required including agreeing to the terms and conditions.
[14] Exhibit VDP3.
During the term of the hire, Ms Fewster, who was responsible for the motor vehicles became suspicious of the activity of the car. As a result, she checked on the car. She went to a petrol station in the Port Adelaide area and saw the motor vehicle. She saw the driver and having compared that person to the image provided by Mr Pegler, determined that Mr Pegler was not the driver. At that time, she spoke to her management in relation to it and a decision was made not to do anything further at that stage. Ms Fewster produced to the court the user profile that had been created in respect of Mr Pegler; this was tendered.[15] Included in the user profile is a mobile telephone number and an email address.
[15] Exhibit VDP7.
Ms Fewster said that she was approached by the police in relation to this vehicle. The police telephoned and also saw her in person. She was spoken to about the hire agreement in respect of the vehicle S276 BXU. She gave evidence that it was company policy to cooperate with the police. As a result of her conversation with the police, she printed a record of the movements of the vehicle and this document was tendered.[16] This document is a journey report that shows the movements of the vehicle and the time at which the various movements were made.
[16] Exhibit VDP5.
Exhibit VDP4 was also produced by Ms Fewster. This is a document that shows the location data of the vehicle, showing the streets it travelled and the speed of the vehicle at 12:11am on 5 January 2020. The tracking device enables the vehicle’s speed to be monitored. It shows a speed at that time of 170 km/h in an urban area. Ms Fewster gave evidence that speeding was a breach of the contract entered into by the hirer and she satisfied herself in relation to this.
A Driver Agreement for Maven long-term car rentals was tendered.[17] It contains a number of conditions and information in relation to the hiring of a vehicle, including a responsibility for complying with the rules of use. These rules include a prohibition on the use of the vehicle by an unauthorised driver and a requirement to obey all traffic laws, including all applicable motor vehicle laws, speed limits, codes and regulations. The rules of use specifically exclude the operation of the vehicle by any person other than the hirer unless that person is named on an acceptance sheet and fulfils a number of conditions. The agreement under the heading ‘Recovery of Vehicle’ reserves to Maven the right to recover the vehicle from the hirer at any time that the vehicle is found to be illegally parked, or is being used to violate the law or the Agreement, or appears to have been abandoned. It states that any of these circumstances will result in an immediate end to the rental term, and that Maven does not need to notify the hirer in advance of recovery in the above circumstances. Permission is also given for Maven or its vehicle repossession agent to enter private property, if required, to recover the vehicle.[18]
[17] Exhibit VDP6.
[18] Ibid Clause 11.
Ms Fewster was contacted by the police in respect of the vehicle due to the speeding observed by the police and confirmed by the GPS tracker. On behalf of Maven, she determined to repossess the vehicle immediately. She was then called a little later, she thought, by Detective Childs, who said the police would like to apprehend the vehicle, to which she said in evidence, Maven consented. She then provided a link to the GPS tracking information to the police whilst she was talking to them. She gave evidence that the decision was made by Maven to repossess the vehicle once they came into possession of the information that the vehicle had been travelling at high speed in a built-up area as that constituted an immediate breach for which they would terminate the contract. It was explained to her by a police officer that they were looking for the vehicle. She gave consent on behalf of Maven for the police to stop and gain entry to the vehicle as the agreement between the original hirer, Mr Pegler and Maven had been terminated at that point. To this end, she provided a link that was the portal to the GPS tracking, enabling the police to track the vehicle. She explained to the police how this operated.
After the police located the vehicle, she was then contacted so that she could disable the vehicle, which she did. The police then asked to gain entry to the vehicle. Ms Fewster gave evidence that she consented to this occurring and created a reservation for the police under their name so that they could gain entry to the vehicle from the App without the need for a key. To facilitate this, she had to enter the reservation made for the original hirer on her computer and cancel that reservation thereby terminating the Bluetooth link. The vehicle was then disabled from use by the original hirer. A further reservation was created with a Bluetooth link for the police on the App that enabled them to gain access to the vehicle.
In cross-examination, Ms Fewster denied that a police officer had said to her that if she did not provide the details they required, they could use a search warrant. She said that that was not necessary as they were cooperating with the police. She agreed that she had assisted the police by live tracking the car and the police had told her that they planned to search the car and take it into their possession. Ms Fewster agreed in cross-examination that provided the terms and conditions are followed by the hirer, they have exclusive possession of the vehicle. She also said that she had the power to terminate the agreement once the vehicle had been shown to be speeding but decided to err on the side of caution and speak with management before doing that. She said she had authorisation to terminate a contract if a reservation or a user breached any part of the contract.
In relation to this particular vehicle, she said she had spoken with the Australia-wide supervisor and the owner/operator of Maven, who agreed that the contract had been breached and they had the power to terminate immediately. Further, she gave evidence that she tried to telephone the mobile telephone number that had been provided by the hirer on two occasions, prior to terminating the contract. She had no recollection of sending an email to the email address that had been provided. She agreed that there was nothing stopping her sending an email and giving notice that the contract had been terminated but added that they did make a phone call and left messages.[19]
[19] T102.
Ms Fewster denied that she had interpreted the police saying they would take the car into their possession, irrespective of her consent or not, and maintained that she had given consent to the police to search the vehicle, saying that the company would have searched it in any event. She said she was aware the police would search the vehicle, and this had been discussed beforehand. She said that although they were not using the police specifically as an agent to recover the vehicle, in a sense that was what was happening, because the police had contacted them saying that the vehicle had been speeding and the police were going to take control of the vehicle.[20]
[20] T105.
Submissions
No submission was made that Mr Uthmann had not been the driver of the vehicle immediately prior to it being parked in the hotel carpark. Mr Graham submitted that the police did not have the lawful consent of the owner to search the vehicle. He submitted that although Mr Uthmann was not the initial hirer of the vehicle, it could be inferred that he had permission from the person who had hired the vehicle to be using the vehicle because in order to use the vehicle, Mr Uthmann needed to have the App that connected by Bluetooth to the car.

Whilst Mr Graham conceded that the contract for the hire of the vehicle was between the hirer and the hire company, he submitted that the hirer had exclusive possession of the car for the time that it was hired and exclusive use of it in that time. That period of time had not expired when the car was immobilised and then searched at the Birkenhead Tavern. His submission was that the contract was for exclusive use and possession, against anyone who was not using the car or possessing the car, with the permission of the person who hired it and that included Maven or any employees of Maven. Therefore, Maven could not give consent to a third party including the police to use or search the vehicle.
Mr Graham submitted that Maven had the right to terminate the contract if there was a breach of contract but there is a distinction between the right and the actual termination of the contract and the recovery of the motor vehicle. He submitted that clause 17 of the contract, VDP6, deals with the termination of the contract and reserves the right to Maven to immediately terminate the contract in the event of any breach of the agreement including but not limited to, non‑payment of charges, abandoning the vehicle or upon occurrence of any loss or damage to the vehicle, by providing notice via email. He submitted that there was no evidence that an email had been sent, and in those circumstances, the agreement or the contract was not terminated and the hirer was entitled to continue to have the exclusive use and possession of the vehicle. Further, the hirer could permit other people to use the vehicle and importantly, to exclude people from the vehicle. In this regard, he relied upon Police v Williams[21] where Peek J considered the powers of arrest of police officers on private property and explored the history of the powers that a police officer has to arrest with or without a warrant. Mr Graham made a submission that the judgment ‘… deals with police searching a backyard with a police dog, and there was no implied licence there even though the owner of the property didn’t come out and specifically object to them going in the backyard and having a look. I say that’s analogous to going into a car. They are excluded until they are invited in’.[22]
[21] (2014) SASC 177, 272.
[22] T157 Lines 10-6.
His submission was that the person who hired the car had not given the police permission to enter or search the car and therefore, the search was unlawful. Despite a submission that was made by Mr Graham that the contract could not be terminated without notification to the hiring party, upon reading clause 11 of the contract, Mr Graham conceded that Maven had the right to recover the vehicle at any time in certain circumstances without notifying the hirer, and it could therefore be repossessed.
A suggestion was made by Mr Graham that Ms Fewster acted at the direction of the police rather than of her own volition. I reject that submission. At all times, Ms Fewster was very clear that she was the one who gave permission and consent to the police to conduct their own inquiries.
Mr Graham also argued that even if the police were lawfully searching the vehicle, they did not have permission to search items within the vehicle. He submitted that Maven did not have the capacity to consent to the search of items within the car. He submitted that anything that involved opening a closed container, that is not part of the car, goes beyond what Maven could consent to. He submitted that if property was left in a rental car, it went back to the rental car company ‘and a bailment was created’.[23] Maven would have lawful possession of what was left in the car but ‘they can’t do with it what they would’.[24] They must return it to the owner. He suggested that it was analogous to a restaurant taking coats from people as they enter the restaurant. They have lawful possession of them, but they cannot consent to people searching those coats and could not consent to police searching those coats, notwithstanding that they could consent to police searching the premises. He submitted that the question of whether the gun and the drugs should be excluded would need to be considered separately because the drugs had been found in a bag and the gun underneath the car seat. This is because, on his argument, the gun would be covered by a search of the car but not the drugs.
[23] T166 Line 9.
[24] Ibid Lines 11-2.
Mr Graham submitted that the police officer who searched the vehicle did not have reasonable cause to suspect pursuant to s 52(9) of the Controlled Substances Act. This was primarily because I should not accept that Detective Childs had been able to reasonably, or perhaps at all, draw a link between the driver of the vehicle S276 BXU and any drug dealing at 26 Merle Marten Drive. Although it was not suggested that he had deliberately misled other officers, it was submitted that he was too hasty in drawing a conclusion and that upon reflection should have interpreted the messages differently. It was submitted that Detective Childs had been obtuse in his evidence and was not to be accepted as a witness of truth. The result of this is that other police officers relied upon a misunderstanding by Detective Childs and any suspicion they held was not objectively reasonable.
It was also submitted that as the conversation between Detective Orford and the occupant of 26 Merle Marten Drive was not being recorded when the PIN was provided, it was therefore not in compliance with the legislation and this was a relevant factor in determining whether to exercise my discretion.
A further submission was made by Mr Graham in respect to the exercise of my discretion to the effect that I could take into account that the accused has now been in custody since the time of his arrest. No authority was relied upon for this submission nor have I been able to find one.
Mr Hinton QC addressed on behalf of the prosecution. He submitted that in relation to the question of consent by Maven, the right of the hirer to exclude any other person from the vehicle depends upon the content of the source of that right, in this case, it is the contract or agreement. There is no material before me as to how a person other than the person who purported to hire the car was in possession of it at that time.
Ms Fewster, he submitted, relied upon clause 11 to recover the vehicle as she was satisfied that the vehicle had been used to violate the law when it was driven at 170 km/h on 5 January. When Maven decides to recover the vehicle, that effectively brings the rental agreement to an end. The rights in relation to who can therefore enter or use the vehicle once again vest in Maven. Exactly what occurred between the police officers and Ms Fewster is really beside the point if the vehicle has been lawfully recovered. In this case, the evidence is that the agreement between Mr Pegler and Maven was terminated by Maven, and Maven then granted a new reservation to the police with the knowledge that the car would be searched and possibly seized as an exhibit.
Mr Hinton submitted that as there was clear consent by Maven to grant the police access, even if the police thought they were exercising a power pursuant to s 52(9) of the Controlled Substances Act, it is an unnecessary consideration because they did not need to exercise a coercive power.
In respect of the bailment argument, Mr Hinton submitted that once the car returns to Maven’s control, they control everything in the vehicle. It may have an obligation to the lawful owner of any property but that is a right to be exercised by that third party.
In respect of the argument in relation to s 52(9), Mr Hinton relied upon Emery v The Queen.[25] He argued that the belief of Detective Watkins is set out in VDP8. In part, it is based upon the suspicions of Detective Childs and later investigations but absent the information in relation to the surveillance of the alleged drug deal in Mawson Lakes. Further, there can be no doubt that Detective Watkins was within his rights to rely upon information from other police offers to inform his suspicion.
[25] [2021] SASCA 62.
Detective Butler who opened the car with the use of the App, had an even stronger suspicion, he argued, as he was aware of the surveillance observations as well. In relation to Detective Childs, Mr Hinton submitted that he may have been a little pedantic but that was simply his manner. His interpretation of the text messages at 26 Merle Marten Drive must be seen in light of the context at that time. This included having observed a vehicle that seemed to be circling the address after midnight, it was also close to the laneway through which access to the address could be gained and it was not a natural thoroughfare. When the police attempted to stop the vehicle, it sped off at what Detective Childs thought was about 200 km/h. This puts the information on the phone in a different light and it is reasonable to think that this vehicle was attempting to access the address but was thwarted. Thereafter, the information in relation to Kodi Uthmann, the name on the phone, becomes clearer with the subsequent searches and investigations that revealed he had a parole board warrant and was involved in drug trafficking on an earlier occasion.
He submitted that the police officers had a reasonable suspicion when securing and searching the vehicle.
In respect of my discretion, Mr Hinton referred me to Bunning v Cross,[26] in particular the judgment of Stephen and Aickin JJ. He submitted that this was a fast‑moving investigation with separate teams of police involved, including STAR and surveillance operatives with information being fed back from different sources culminating in a large body of information. There was not a deliberate flouting of the law by any one of the police officers. The cogency of the evidence is not affected by the police conduct.
[26] (1978) 141 CLR 54.
In relation to the ease of compliance aspect, he suggested that this could have been overcome with a separate briefing just before the search to get the searching officers fully cognisant with all the information that had been amassed, but this was a fluid situation. Finally, the offending is serious, and the clear intention of the legislature was to limit police powers, but that here, if the primary officer had been available, all the information would have been in one repository.
In relation to the argument in respect of s 74D, Mr Hinton submitted that Detective Orford and his team went to 26 Merle Marten Drive in relation to Aleisha McGrath and the person to whom they were speaking was the male occupant. Even if the conversation should have been recorded in relation to the PIN, the consequence is that the evidence could not be admitted against that male occupant.
Discussion
The vehicle that was searched by the police on 6 January 2020 was in a carpark of the Birkenhead Tavern. The driver had been the applicant who was arrested on a parole board warrant in the pokies room of the tavern. He had been seen driving the vehicle and a photo had been taken of him at a service station. The police had tried unsuccessfully to stop the vehicle earlier in the day. The vehicle was registered to GMH, who at that time had a car leasing business, Maven. Cars were hired via an App. It was necessary for the hirer to accept and agree to all conditions in the Driver Agreement. An example of the Agreement is VDP6. The difference between this Agreement and the one entered into by the hirer, Mr Pegler, is the rental term. The Agreement entered into by Mr Pegler included a condition whereby the obligations were not assignable or transferable. The Agreement includes ‘Rules of Use’, one of which is that no other person is permitted to operate the vehicle unless named on an acceptance sheet and for incidental personal use only.[27] No other person had been nominated to operate this vehicle. Traffic laws had to be obeyed and any improper use of the vehicle including illegal activity permitted Maven to immediately terminate the rental term and the Agreement.[28] The Agreement also included acceptance of GPS tracking, including vehicle location services by the hirer.[29] Maven was not responsible for loss of or damage to personal property or goods in the vehicle.[30]
[27] Exhibit VDP6, Clauses 19‑20.
[28] Ibid.
[29] Ibid Clause 5.
[30] Ibid Clause 16.
I accept the evidence of Ms Fewster. Indeed, she was a very impressive witness. She was well informed as to her obligations and the systems that were in place. She could articulate her reasoning and gave explanations for her conduct that I accept. She appeared to have a very good memory of the events relating to this vehicle.
I accept that Ms Fewster, who was authorised to act on behalf of Maven, became aware that the vehicle had been driven well in excess of the speed limit on 5 January. This was confirmed by the Location Data that showed the vehicle travelling at 170 km/h at 12:11am on 5 January 2020.[31] Further, Ms Fewster conducted her own enquiries and ascertained that someone other than Mr Pegler was driving the vehicle. I accept that Ms Fewster was contacted by the police in relation to the vehicle. I accept that she, in accordance with company policy, cooperated with police enquiries. I do not find that any police officer compelled or coerced any cooperation by Maven or Ms Fewster.
[31] Exhibit VDP4.
I accept that Maven, in accordance with the terms of the Driver Agreement, terminated the agreement with Mr Pegler. That termination was within Maven’s rights as the car was being used by an unauthorised driver and being driven in violation of the road traffic laws. I am satisfied that Maven recovered the car from Mr Pegler by terminating his access to the vehicle via the App. Maven then consented to the police search both explicitly and impliedly by providing access to the car via the App.
The search was therefore carried out by the police lawfully with the consent of the owner, Maven.
Any property that had been left in the vehicle at the time of the termination of the agreement could also be searched. The property in question here are the bags that were located on the front seat that contained methylamphetamine and indicia of sale or use, and the ammunition. A real question of who is the owner of this property arises in this case. There is no evidence that it belongs to Mr Pegler. There is an inference that can be drawn that if the applicant had been driving the car, he had possession of it at the relevant time.
There is no issue of ‘bailment’ in this case and I reject that submission. The essence of bailment is that possession, either actual or constructive, is transferred from the bailor and is voluntarily accepted by the bailee but ownership is not. There could not be an obligation upon Maven to return goods that are inherently unlawful to possess to the owner, even if an owner was willing to take responsibility for the goods. This is not a situation where there is any evidence the property had been lawfully left in the possession of another.[32] Any property that had been left in the vehicle could, if it were lawful to do so, be returned by Maven to the hirer, although under the terms of the Agreement it was not obliged to do so. There was nothing improper about the police searching this vehicle with the consent of the owner and that included any property in the vehicle.
[32] Gollan v Nugent (1988) 166 CLR 18.
The search of the vehicle was therefore lawfully conducted by the police and the evidence of the items located in the vehicle can be admitted in evidence.
In the event that the search was not lawfully conducted with the consent of Maven, I will consider the issue of s 52(9) of the Controlled Substances Act.
I accept the evidence of Detective Childs. I reject the criticisms made of him by Mr Graham. I find that Detective Childs took his responsibility of giving evidence very seriously. He is naturally a very particular person as he said in his evidence when being cross examined.
QAnd you’re a very thorough person, aren’t you.
AAt times.
QYou like to be meticulous, don’t you.
AI would love to be more meticulous. However, there are reasons for not necessarily being able to complete everything to the standard that I wish to complete it to.
QWe have seen you give evidence and, for example, you were concerned to make sure that exhibits were marked. You are a thorough person, aren’t you.
HER HONOUR: I think he has answered that question, Mr Graham.[33]
[33] T69-70.
I accept that Detective Childs tried to be accurate when giving evidence, and at times, this resulted in his answers being confined to the actual question that was asked. Some of these questions were not as crisp as they could have been. I do not accept that he was disingenuous or dishonest when giving evidence.
I accept that on the evening of 4 January and the early hours of 5 January 2020, the police went to 26 Merle Marten Drive North Haven, in response to the arrest of Aleisha McGrath that day. She was allegedly, in possession of a large quantity of what appeared to be recently manufactured methylamphetamine. I accept that the premises was well known to a number of police officers in the Western Region.
I accept that Detective Childs and Constable Stewart were a part of the group of police officers assigned to attend. When approaching the residence, Detective Childs noticed another car in the area. This car’s registration was S276 BXU. His attention was drawn to it because this area is not a natural thoroughfare and it was late at night. The car then passed the police car that was parked in an adjacent street from which pedestrian access can be gained to 26 Merle Marten Drive. Having passed them, the same car then doubled back doing a loop. A registration check was conducted, and the car was found to be registered to GMH at Rose Park.
A decision was made by Detective Childs to stop the vehicle and ascertain whether the driver was licenced and thereby determine his identity. I accept that Detective Childs had power to do this. After following the vehicle and activating the emergency lights as a signal to the driver to pull over, the vehicle sped away from the police vehicle, doing an estimated speed of 200 km/h in a 60 km/h zone in the middle of the night.
I accept that Detective Childs then attended at 26 Merle Marten Drive and looked at a phone upon which he saw some text messages and a banking transaction. The text messages appeared to be between the occupant of 26 Merle Marten Drive and ‘Allishia’. I accept that Detective Childs thought the person referred to as ‘Allishia’ could be Aleisha McGrath who had been arrested shortly before and was connected to that address. These messages appeared to be discussing drug transactions. Also mentioned in the messages was a person referred to as ‘Kodi’ or ‘Kody’, ‘Are you sure hes (Kodis) telln the truth? Cuz hes loaded i rekn’ [sic].[34] Another message sent about 45 minutes before the police arrival; ‘Yo can u get Hb at all and I replace it later or tomorrow just got perso [sic], Kody still fluffing’.[35]
[34] Exhibit VDP2.
[35] Ibid.
In addition to this, a banking transaction on the phone indicated that Kodi Uthmann had dealings with the occupant about 4 days before when the occupant transferred $350 to him.
I accept that the combination of messages on the phone, and in particular, that last one, gave rise to a suspicion in Detective Childs that the driver of the vehicle he had seen speeding away was intending to supply drugs to the occupant and that it was Kodi. Those matters on their own would not suffice for a reasonable suspicion to search the vehicle. However, from that point further investigations revealed that the vehicle was a hire car, Kodi Uthmann was on a parole board warrant and he had previously been dealt with for trafficking in drugs.

Although there was a change of teams involved, this information was handed on to the subsequent shifts until finally Detectives Butler and Watkins were involved in opening and searching the vehicle. It is not necessary that the subsequent police officers see the messages on the phone. They are entitled to be able to rely upon information that they received from other officers.[36]
[36] R v Emery [2021] SASCA 62.
I accept the evidence of Detective Watkins who searched the vehicle that he was aware of the messages and the opinion of Detective Childs that there were suspected drug dealing messages;[37] he was aware that there was an active parole board warrant; and that Detective Childs was investigating his involvement in suspected drug dealing in relation to the attendance at 26 Merle Marten Drive, and that subsequent investigations had identified the applicant as being in possession of the car.
[37] T138.
Did Detective Watkins have a reasonable suspicion? Whether or not a suspicion held by the police for the purpose of s 52(9) is reasonable is a question of fact. The test has been expressed as follows in R v Nguyen.[38]
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
Importantly, s 52(6) and s 52(9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
[footnotes omitted]
[38] (2013) 117 SASR 432, [21]‑[22].
The information that Detective Watkins had in his possession was current and cogent. He was aware of the views of Detective Childs. He was aware of the events as they had unfolded at 26 Merle Marten Drive. He knew the vehicle had sped off at a very high speed when police had tried to stop it. He was aware of the suspected link between the applicant, the car and the phone messages. He was aware of information in relation to firearms and the parole board warrant. He was aware of the email that had been sent to him by Detective Butler outlining most of the relevant features of the police information prior to the search.[39]
[39] Exhibit VDP8.
Detective Watkins’ considerations were as follows:
QCan you tell her Honour what your suspicion was based on.
AAt that time my suspicion was based on, I suppose, the events of the facts presented to me, allowed me to form a state of mind in myself that something that’s purported to be true but short of a belief, in other words something perceived by my own senses.
QYou say the facts presented to you.
AYes.
QWhat do you mean by that.
AThe information provided in that initial briefing in relation to Detective Childs interrogating a phone at a previous search relating to drugs, the information provided by Detective Childs through Detective Butler that the vehicle left that scene that was being searched, believed or conducting any surveillance and left that scene at high speed and then the information that the vehicle was actively being tracked and then subsequently the location of Mr Uthmann in close vicinity of that vehicle, the description of the clothing that I overheard from surveillance matched Mr Uthmann on his arrest and then further, that Detective Butler opened that vehicle using the app which confirmed that was the vehicle that was suspected left the initial search address from 26 Merle Marten Drive.[40]
[40] T145-6.
I consider that the suspicions formed by Detective Childs after reading the text messages were reasonable. He was investigating suspected drug dealing at 26 Merle Marten Drive. He is an experienced investigator. He was familiar with the area in which the premises was and the police intelligence in relation to it. A car speeding away from the police at such an extreme speed just after midnight in a suburban area could only be a deliberate act by the driver to avoid apprehension. Why the driver wished to avoid apprehension may only be a matter of speculation at that stage. However, when the information is available that just 45 minutes earlier, the occupant of the house was trying to source a ‘Hb’ [sic] and ‘believes Kody is still fluffing’ and the ‘Kody’ is probably the same Kodi that completed a transaction 4 days before, the inference that the car and the drug transaction are related becomes stronger. While I accept that there may be other inferences that are open, that does not detract from the view that Detective Childs took about the circumstances. It was open to him to form that view and open to other police officers to act on his suspicions.
I am satisfied that both Detectives Butler and Watkins had a reasonable suspicion as to the presence of drugs or equipment in the vehicle when the vehicle was searched. The search was therefore not unlawful.
Discretion
As was explained by Doyle CJ in Question of Law Reserved (No 1 of 1998).[41]
A court conducting a criminal trial has a discretion to exclude evidence, tendered by the prosecution, on grounds based upon a consideration of public policy. The existence of that discretion has been recognised for some time. It is often traced back to the High Court decision in R v Ireland (1970) 126 CLR 321 at 334-335 especially. The judgment of Stephen and Aickin JJ in Bunning v Cross has been regarded as stating the relevant principles authoritatively.
…
It is equally clear, in my opinion, that the discretion permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct. The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining “curial advantage” by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case. When the court exercises the discretion, it declines to allow the prosecution to make use of evidence obtained through illegality or impropriety, because to do so would be to allow it to benefit by its own wrongdoing, and would give the appearance of approving of the relevant illegality or impropriety. Of course, as the cases make quite clear, the court has to put into the scales as well the importance of securing the conviction of those who commit criminal offences.
…
If the evidence in question was not obtained by unlawful or improper means, this discretion does not arise. It does not arise simply because the discretion is directed to preventing the curial advantage that would be gained from the use of the evidence, and from avoiding the appearance of approval by allowing the use of the evidence.
[41] (1998) 70 SASR 281, 287‑8.
Therefore, the discretion to exclude in these circumstances only arises in the event Maven did not or could not give consent to search the vehicle and the police did not have the requisite suspicion to search.
In Bunning v Cross,[42] Stephen and Aickin JJ outlined a number of factors that arose for consideration in exercising the discretion.
[42] (1978) 141 CLR 54.
The suggested unlawfulness here is that the police did not have the requisite suspicion because it was not open to Detective Childs to have drawn a connection between the applicant and drug dealing at 26 Merle Marten Drive. This connection was the genesis of the investigation that followed. Can this be regarded as a deliberate disregard of the law? I regard this as merely the commencement of a larger investigation that enabled the police to gather further information. I do not, as I said earlier, regard Detective Childs as a dishonest witness or even an overzealous one. As a result of his connection, there was an ongoing operation with multiple police teams involved. There was, as a result, a breakdown in communications between those tasked to brief Detective Watkins and his understanding. This I accept was due to a combination of circumstances but was not a blatant disregard of the law.
The use by the police of the assistance of Maven in gaining access was not unlawful. Any errors made by the police in relation to this investigation are obviously not to be encouraged but are remote from the real evil; a deliberate and reckless disregard of the law by those whose duty it is to enforce it.
The nature of any illegality has not affected the cogency of the evidence. If the illegality has been intentional or reckless, then the aspect of cogency will have little role to play as that may foster an attitude that evidence that is damming enough will be admitted despite the illegality. Here, the illegality is not deliberate, but it does bear upon the competing public policy considerations of bringing the wrongdoer to justice.
Has there been a deliberate cutting of corners which would tend against the admissibility of the evidence? Here the police engaged in an operation that was really designed to execute the parole board warrant in a safe and effective manner. This was especially so, given that they had information about firearms. The car once recovered by Maven would have been searched in any event, and the drugs and firearm would undoubtedly have been provided to the police. There was ample admissible evidence of a close connection to the car by the applicant given the surveillance that had been conducted. I do not regard the police conduct as a deliberate cutting of corners.
The offence is a serious offence. Just because all major indictable offences may be characterised in this way, does not militate against this consideration. What is important is a balancing exercise between the nature of the offence and the unlawful conduct of the authorities.
Favouring rejection of the evidence is the requirement that if the police exercise powers pursuant to s 52(9) of the Controlled Substances Act, they have the requisite state of mind. The law clearly seeks to discourage random and ill‑informed searches by the police or chancing their arm.
A further consideration was said to be the length of time the applicant has now been in custody. The applicant was arrested on a parole board warrant. I assume he was therefore on parole at the time of the arrest. I have not received any material nor has there been any evidence about this. As a consequence, I do not know how long he has been on remand in relation to this matter alone. I do not however consider it to be a relevant consideration in respect of my discretion for the obvious reason that the applicant is presumed to be innocent unless and until his guilt is proven. The submission was not supported by any authority.
I have considered whether the evidence should be excluded on the basis of ‘high public policy’,[43] which involves weighing up the competing considerations of protection against the abuse of police powers and the public interest in seeing the guilty convicted.[44] I regard the police conduct, if unlawful, as not a deliberate disregard of the law by any one of the police officers involved. The evidence is vital to the prosecution of serious offences. Having given due consideration to all the relevant factors, I decline to exclude the evidence located during the search of the vehicle.
[43] Ibid 74.
[44] R v Emery [2021] SASCA 62, [56].
Severance
The applicant submits that it would be unfair to try count 1 together with counts 2 and 3, and that I should exercise my discretion to sever counts 2 and 3.
First Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984)
Particulars of Offence
Kodi Alexander Uthmann on the 6th day of January 2020 at Birkenhead, trafficked in a controlled drug, namely methylamphetamine (135.3 grams mixed), knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence. (Section 9(1) of the Firearms Act, 2015)
Particulars of Offence
Kodi Alexander Uthmann on the 6th day of January 2020 at Birkenhead, possessed a category H firearm, namely a Vostok Margolin self-loading pistol, without holding a firearms licence authorising possession of that firearm.
It is further alleged that Kodi Alexander Uthmann committed the offence in connection with or at the same time as, an act or omission that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984.
Third Count
Statement of Offence
Possessing Ammunition. (Section 31(1) of the Firearms Act, 2015).
Particulars of Offence
Kodi Alexander Uthmann on the 6th day of January 2020 at Birkenhead, possessed ammunition whilst not being the holder of a firearms licence authorising possession of a firearm of a category designed to fire that ammunition and without holding a permit granted by the Registrar authorising possession of ammunition of that kind.
Count 1 requires the prosecution to prove beyond reasonable doubt that the accused was in possession of the methylamphetamine. If so, then the presumption applies as the quantity of the drug alleged is more than a trafficable quantity.
Count 2 relates to possession of a Vostok Margolin pistol allegedly located under the driver’s seat containing nine rounds of ammunition.
Count 3 relates to ammunition allegedly located in the same bag as the methylamphetamine that was on the front seat of the vehicle.
It is conceded by the applicant that it is inevitable that he will be found to be ‘in control of the motor vehicle’.[45] If that is so, s 6 of the Firearms Act 2015 will have application. By virtue of this section, he will be deemed to be in possession of the ammunition and the firearm unless he can prove that he did not know and could not reasonably be expected to have known that the item was in the vehicle; or the item was in the lawful possession of another, or he believed on reasonable grounds the item was in the lawful possession of another.[46]
[45] Applicant’s Outline of Argument, 26 March 2021.
[46] Firearms Act 2015 (SA) s 6(3).
It is submitted that as a result, the process of reasoning is unnecessarily complicated and that the applicant’s right to silence is undermined in respect of count 1 because of the necessity for him to displace the presumption in respect of counts 2 and 3 on the balance of probabilities.
The applicant placed reliance upon R v Perfilli,[47] in which the applicant was charged with possessing cannabis for sale and two counts of unlawful possession of money. The first ground of appeal was that the drug and unlawful possession charges should have been severed as the ‘reverse onus of proof’ on the unlawful possession charges rendered the trial unfair. The second ground was that the effect of the joinder deprived the applicant of his right not to give evidence.
[47] (2006) 95 SASR 560.
Sulan J with whom Duggan and David JJ agreed, considered that the nature of the charge being unlawful possession with the inclusion of the necessity to prove the ‘reasonable suspicion’ of the police officer and the onus of proof rendered the charge unusual. Sulan J said,
The authorities indicate the importance of ensuring that a correct process of reasoning has been followed in convicting a person under s 41 and indicate that the process of reasoning required can be complex. The nature of the reverse onus and the existence of a reasonable suspicion are difficult concepts. The process of reasoning becomes more difficult where the charge of unlawful possession is included on the same information as other offences. In such cases, the process of reasoning is complicated by the juxtaposition of the elements of unlawful possession against the elements of another offence. A finder of fact in such cases may be required, as was the case in the applicant’s trial, to apply different onuses of proof in evaluating each element of the separate charges, as well as applying different standards of proof between elements. As a consequence, it is highly undesirable for a charge of unlawful possession to be joined with other charges, particularly in a trial by jury.[48]
[48] Ibid [45].
There can be no doubt of the necessity for clear directions in respect of the reasoning that a jury will need to undertake in this case. Nor do I have any doubt that the charges are properly joined with the evidence of each being cross‑admissible in respect of the other offences.
The element of possession in relation to the ammunition that was located in the same bag as the drugs adds a further dimension of complexity but is still capable of consideration as a separate counts direction requires.
Much of the consideration in Perfilli related to the reasonable suspicion aspect of unlawful possession, that is not a consideration in this case. The joinder of the charges with different onuses did not in Perfilli result in a miscarriage of justice given the clear directions that had been given.
In this case, the bag containing the drugs and the ammunition are said to have been located on the front passenger seat, in plain view of the person who was driving. The applicant’s fingerprints were located on the firearm that was under the driver’s seat. The ammunition that fitted the weapon was in the same bag as the drugs (although the drugs were in a red hard case container within the bag).
Given the proximity of the ammunition to the drugs, it may be a difficult forensic decision for an accused person to make as to whether to give evidence however, the circumstances of this case are such that it is not unfair to require it to be made.
This case, is in fact, no different to a case where an accused is charged with multiple offences of trafficking and on some counts possession is not in issue, but commerciality is and on some counts they dispute possession. They will need to prove that the drugs were not for sale on those charges where they do not dispute possession. Whether the accused does this by giving evidence is a matter for them to determine. Giving evidence is not the only way in which the accused can displace the presumption.
One of the objects of the Firearms Act 2015 is to prevent or restrict persons possessing or using firearms for criminal purposes. Drugs and firearms are commonly associated. In this case, one of the circumstances of aggravation of count 2 is the connection to the trafficking of the methylamphetamine. In order to properly consider this aspect, it is desirable that the same jury consider all offences. Charges that are properly joined where the evidence is cross‑admissible should remained joined and be heard by the same trier of fact unless it gives rise to unfairness that cannot otherwise be overcome.

I am not satisfied that I should exercise my discretion to sever counts 2 and 3 from count 1.