R v Van Houten - [2022] SADC 23

District Court of South Australia
(Criminal)
R v VAN HOUTEN
[2022] SADC 23
Reasons for Ruling of his Honour Judge Heffernan
28 February 2022
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – WHETHER EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
In the lead up to the 2019 Schoolies Week festivities in Victor Harbor, police obtained approval to set up a Drug Transit Route, pursuant to s 52B of the Controlled Substances Act. This empowered them to stop random vehicles within an approved area for the purpose of performing ‘general drug detection’ which involved the use of a drug detection dog. The reason for so doing was to inhibit the transport of illicit substances into Victor Harbor during the period of the festivities and to ensure the safety and wellbeing of school leavers. Police claimed to have a reasonable suspicion, based on intelligence, first-hand experience and organisational knowledge of past Schoolies events that drugs were likely to be transported into Victor Harbor via main arterial roads.
On 21 November 2019, whilst a Drug Transit Route was in operation, the accused, who was the driver and sole occupant of the vehicle in which he was travelling, was directed by police to stop on the outskirts of Victor Harbor. The accused acceded to the request of police to get out of the vehicle. A drug detection dog was taken to his vicinity and after taking a scent, gave an indication for the presence of illicit drugs on the accused. The accused was then searched and no drugs were found on his person. Before that search was completed, the dog handler had walked over to the accused's vehicle, opened the passenger door and permitted the drug detection dog to partially enter the passenger side. The dog gave a positive indication for the presence of drugs and the vehicle was searched. The dog handler saw a sunglasses case in the console and concluded that this is what the dog was indicating. Other officers, who were aware of the indication given with respect to the vehicle, searched the interior. They located a tick list, a mobile phone, a sandwich bag containing cannabis, two small press seal bags containing a total of 1.52 grams of methylamphetamine and a quantity of 1,4-butanediol in a shampoo bottle. The accused was given a general caution and asked to enter a police van so that a drug screen could be performed on him.
Whilst the accused was in the police van, one of the officers approached him and asked him to disclose the PIN for his mobile phone. The accused was not told that he did not have to do anything which might incriminate him or that he was not obliged to disclose the PIN. He gave the PIN to police who then searched the phone and located text messages consistent with trafficking in illicit substances. The accused was charged with trafficking.
The accused applied to have the evidence of the search excluded. This was on the basis that police did not have the requisite suspicion to search the vehicle, that s 52B did not permit the search of the interior of a vehicle and that the authorisation for the Drug Transit Route was in any event invalid. He also applied to have the evidence obtained from the mobile phone excluded on the basis that the accused was under de-facto arrest and should have been given his full arrest rights and in the alternative that he was not warned that he did not have to do anything which might incriminate him or that he was not obliged to disclose the PIN.
Application dismissed.
Controlled Substances Act 1984 (SA) ss 4, 52, 52A, 52B, 52C, 52D; Summary Offences Act 1953 (SA) ss 68 and 74D, referred to.
Bunning v Cross (1978) 141 CLR 54; Middlin-Hannah v The Queen (2020) 137 SASR 366; Pollard v The Queen (1992) 176 CLR 177; Police v Pocius [2018] SASC 38; R v Ireland (1970) 126 CLR 321; R v Swaffield (1998) 192 CLR 159; Question of Law (No 3 of 1998) 71 SASR 223, considered.

R v VAN HOUTEN
[2022] SADC 23

The accused is charged with:
1. Trafficking in a controlled drug namely methylamphetamine, and
2. Trafficking in a controlled drug namely 1,4-butanediol.
Both offences are alleged to have occurred on Thursday 21 November 2019. That day was one day before the commencement of the ‘Schoolies’ festival at Victor Harbor. The accused was arrested at McCracken after he and his vehicle were searched by police, who had set up a ‘Drug Transit Route’ pursuant to s 52B of the Controlled Substances Act 1984 (SA).
The drugs in question were located in the accused’s vehicle. He was the driver and sole occupant of it. After his vehicle was stopped by police, the accused was requested to get out, which he did. A drug detection dog gave an indication for the presence of an illicit substance after having been directed to the accused’s vicinity. The indication was given by the dog, PD Taco ‘Taco’, sitting down next to the accused. Once Taco had given the indication, his handler then took him to the accused’s vehicle and opened the passenger side door. Taco was then invited by his handler to take the scent from inside the passenger side of the vehicle. Body worn video footage tendered during the voir dire shows the handler doing this, but it is not entirely clear how far into the vehicle Taco went. As best he could recall, the handler Brevet Sergeant Gavin Parish believed that Taco might have entered the vehicle with the front half of his body.
The accused was searched by other police, it seems, after the handler had performed the inspection of the inside of the vehicle with Taco. No drugs were found on the accused. For the purpose of the defence argument on the voir dire, one relevant matter is that the handler did not wait until the accused himself had been searched before directing the attention of Taco to the vehicle. Taco gave an indication for the presence of an illicit substance inside the vehicle. The vehicle was searched by police and the drugs, the subject of count one, were found in a black sunglasses case in the driver’s footwell. The drug the subject of count two, was located in a shampoo bottle in the driver’s side door of the vehicle. A measuring syringe was also found on the driver’s side as well as a tick list in the centre console of the vehicle. The tick list contained nine names with cash amounts written next to them. The accused’s mobile phone was located on the driver’s seat and was seized by police. The accused was then given a simple caution by Senior Constable Courtney Gray.
After the drugs were located, police requested the accused to get into a police van which was located nearby, where some presumptive tests were performed on him. Whilst that process was occurring, Detective Brevet Sergeant Paul Simmonds approached the accused with the mobile phone and said, ‘Can you unlock the phone for us mate?’ The accused agreed. The phone was a Samsung A20 model, secured by a pattern lock[1] which required the user to trace a particular pattern on the touchscreen in order to unlock it. The accused demonstrated that pattern to police. He was not told that he did not have to do anything which might incriminate him nor that he was not required to provide the PIN for the phone. He was not told by the detective why it was that police wanted him to provide his PIN. Once the phone was unlocked, police made a search of the text messages, at one stage comparing them to the contents of the tick list, and they located what they believed to be texts associated with illicit drug trafficking.
[1] For the sake of convenience, I will refer to this as the ‘PIN’ for the phone.
The accused now challenges the legality of the vehicle search, the lawfulness of the authorisation obtained for setting up the Drug Transit Route and the admissibility of the evidence obtained from his phone by the use of his PIN. The grounds of application dated 27 January 2021 are as follows:
1.To exclude evidence of items found as a result of a search of a motor vehicle at Victor Harbor on 21 November 2019.
Grounds
a)the police officers did not have an objectively reasonable suspicion to search the car pursuant to s 52(9) of the Controlled Substances Act.
b)The searching of the car using the police dog was beyond the powers authorised pursuant to s 52B of the Controlled Substances Act.
c)The authorisation pursuant to s 52B of the Controlled Substances Act was invalid.
2.To exclude evidence of all material obtained as a result of the examination of the mobile telephone seized on 21 November 2019.
Grounds
a)public policy discretion.
b)fairness discretion.
c)voluntariness.
Particulars
The accused was placed under de facto arrest and was not cautioned prior to providing a PIN code to his phone to police. His arrest rights should have been administered prior to the request for a PIN code. The provision of the PIN code should have been recorded pursuant to s 74D of the Summary Offences Act 1953 (SA).
Ground 1(c): Drug Transit Route authorisation
I will deal first with the foundational issue of the authorisation for the Drug Transit Route. Section 52B of the Controlled Substances Act provides as follows:
52B—Special powers relating to drug transit routes
(1)A senior police officer may, if he or she reasonably suspects that an area is being, or is likely to be, used for the transport of controlled drugs, controlled precursors or controlled plants in contravention of this Act, authorise the exercise of powers under this section in relation to the area.
(2)An authorisation granted by a senior police officer under subsection (1)—
(a)must be granted in accordance with any guidelines issued by the Commissioner in relation to such authorisations; and
(b)must define the area to which the authorisation relates; and
(c)may be subject to conditions specified by the officer granting the authorisation; and
(d)operates for an initial period (not exceeding 14 days) specified by the officer granting the authorisation; and
(e)may be renewed from time to time by a senior police officer for a further period (not exceeding 14 days).
(3)An authorisation granted under subsection (1) may be varied or revoked by a senior police officer at any time.
(4)An area may only be subject to an authorisation under this section if—
(a)the whole of the area is situated more than 30 kilometres from the General Post Office at Adelaide; and
(b)the total size of the area is not more than 5 square kilometres.
(5)If the exercise of powers under this section in relation to an area is authorised, a police officer may—
(a)require the driver of a vehicle within the area to stop the vehicle (whether at a drug detection point established in accordance with subsection (7) or at any other location); and
(b)detain the vehicle and carry out general drug detection in relation to the vehicle and any persons or property in or on the vehicle; and
(c)allow a drug detection dog to enter any part of the vehicle not designed for the purpose of carrying passengers while the vehicle is moving; and
(d)direct a person to open any part of the vehicle and give such other directions as are reasonably necessary for, or incidental to, the effective exercise of powers under this section.
(6)A police officer may only detain a person who is in a vehicle, by directions given under this section, for so long as is reasonably necessary to carry out general drug detection in relation to the vehicle and any persons or property in the vehicle.
(7)A drug detection point may be established by police officers at any time on or in the vicinity of any road within an area in relation to which the exercise of powers under this section is authorised for the purpose of exercising those powers in relation to persons driving motor vehicles on the road.
(8)A drug detection point must be established in such a way, and consist of such facilities and warning and other devices, as the Commissioner of Police considers necessary in order to enable vehicles to be stopped in a safe and orderly manner.
(9)The Commissioner of Police must—
(a)establish procedures to be followed by police officers in the exercise of powers under this section, being procedures designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons being subjected to the powers; and
(b)establish procedures to ensure that the exercise of powers under this section is not authorised in relation to more than 3 areas at any one time.
The definition of ‘general drug detection’ is found in s 4 of the Controlled Substances Act:
general drug detection means—
(a)walking or otherwise placing a drug detection dog in the vicinity of a person or property; or
(b)using an electronic drug detection system in relation to a person or property in a manner prescribed by regulation,
for the purpose of determining whether the dog or system (as the case may be) detects the presence of a controlled drug, controlled precursor or controlled plant (but does not include any other conduct by a person that would constitute a search);
Section 52D provides the following with respect to the use of drug detection dogs:
52D—General provisions relating to exercise of powers
(5)For the avoidance of doubt, an indication—
(a)by a drug detection dog that the dog has detected the presence of a controlled drug, controlled precursor or controlled plant; or
(b)by an electronic drug detection system that the system has detected the presence of a controlled drug, controlled precursor or controlled plant,
constitutes reasonable grounds to suspect that a controlled drug, controlled precursor or controlled plant is present.
When the aid to proof of the suspicion is enlivened, that suspicion can be used to satisfy the precondition for a search pursuant to s 52(9) of the Controlled Substances Act.
As will be seen from the above, s 52B requires an authorisation to be in accordance with any guidelines issued by the Commissioner of Police.
An extract from the SAPOL General Order relating to general drug detection is attached to these reasons as Annexure A. The procedures covering an application for and authorisation of a Drug Transit Route are set out.
The Commissioner of Police is required to provide a report to the Attorney General each year before 30 September specifying how frequently and when and where authorisations were granted for the previous financial year.[2] Police are also required to complete statistical returns for each occasion on which a drug detection dog has been used.
[2] Controlled Substances Act, s 52C.
An application for a Drug Transit Route is made using an internal police document PD 474. A copy of the PD 474 used to establish the Drug Transit Route relevant to this matter is attached to these reasons and marked ‘Annexure B’. PD 474 is a single document designed to facilitate both the application process[3] and the approval process.[4] The decision-maker with respect to an application must be a senior police officer who is an officer of or above the rank of Inspector.[5] In this case, the decision-maker was Superintendent Mark Fairney, who was at all relevant times the officer in charge of the Hills Fleurieu Local Service Area and who had ultimate oversight of police activity relating to ‘Schoolies Week’. The applicant for the Drug Transit Route was Senior Sergeant Samantha Massey, who performed the role of Planning and Audit Officer in relation to ‘Schoolies Week’. She performed that role between 2012 and 2019.
[3]     Exhibit VD P1, p 1.
[4]     Ibid, p 2.
[5]     Controlled Substances Act, s 4.
Defence counsel argued that firstly, the decision-maker did not hold the requisite suspicion in order to authorise the application and secondly, that he had not complied with the legislation, which required him to make any authorisation in accordance with the requirements of the General Order.[6]
[6] Controlled Substances Act, s 52B(2)(a).
Both Massey and Fairney gave evidence before me as to the basis of the suspicion each of them held. As the applicant, Senior Sergeant Massey’s suspicions were the basis for the grounds of the application which were set out in the PD 474 as follows:
1.Intelligence gathered indicates that Victor Harbor is well known for transporting illicit drugs;
2.Information suggests that these drugs are moved through the Fleurieu district usually undetected;
3.The main method of movement of illicit drugs is via vehicles from the metropolitan area;
4.Information received also indicates regular offending against the Controlled Substances Act.[7]
[7] Exhibit VD P1, p 1.
The PD 474 also included a section which required Senior Sergeant Massey to set out the reasons for which authorisation was required. That was completed as follows:
1.To reduce the distribution of cannabis and illicit drugs transported to the Fleurieu region;
2.Detect offences against the Controlled Substances Act;
3.To deter people from committing offences against the Controlled Substances Act;
4.To reduce social harm as a result of drug use;
5.To detect drugs being transported to and from the Fleurieu region.[8]
[8] Ibid.
The period of authorisation sought was between 5 pm and 8 pm on 21 November 2019, in other words, in the late afternoon and early evening of the day before the Schoolies festivities commenced. The application was made at 10:30 am on 15 November 2019 at Mount Barker police station. It was approved by Superintendent Fairney at 11 am on that day.
Whilst it was ultimately Superintendent Fairney as the decision-maker who was required by s 52B to hold the requisite suspicion, the primary source of information in that regard was Senior Sergeant Massey, who had been preparing for the police response to the Schoolies festivities for some months prior to the application. She had attended a number of meetings with stakeholders and relevant SAPOL members, including discussions with police intelligence. She was also aware of strategies employed by police in the lead up to and during previous Schoolies events, including with respect to the prevention of drug use, harm minimisation and most relevantly, previous use of Drug Transit Routes and the suspicions which underpinned previous applications for Drug Transit Routes for the event. She had been the applicant on previous applications.
The intent of cross examination was to establish that considerations relevant to the forming of a suspicion had not been properly attended to and that, in effect, the application made by her and approved by Superintendent Fairney, was a ‘rubber stamp’ procedure, not based on a current reasonable suspicion. It was submitted that authorisation had been given simply because a Drug Transit Route was one of the strategies routinely employed by SAPOL in the lead up to and during Schoolies Week every year.
Both Senior Sergeant Massey and Superintendent Fairney gave evidence.
Senior Sergeant Massey told me with respect to her suspicions leading to the application, that she was aware of anecdotal evidence of 36 ecstasy tablets having been seized during Schoolies week in 2018. She based her suspicions on intelligence that was in turn based on evidence of drugs having been brought into Schoolies in the past.[9] Her belief based on her experience was that the main movement of drugs into Victor Harbor was by civilian vehicle.[10] She was aware of drugs being seized and overdoses having occurred during Schoolies, and that trafficking had occurred and people had been arrested during past Schoolie periods.[11] She was also aware that past sewage analysis had indicated an increase of drugs being used in the Victor Harbor area during Schoolies. She told me that her suspicion arose from anecdotal evidence, previous evidence about Schoolies of which she was aware and her own involvement with the event over a number of years.[12] Senior Sergeant Massey told me that in the lead up to Schoolies, she attends meetings with relevant stakeholders including consulting intelligence officers prior to making the application. She said that it was well known that drugs moved into Victor Harbor in passenger vehicles. The road was chosen because it was a major arterial road. She was also aware that some school leavers typically arrived at Victor Harbor on or before the day on which festivities commenced. She believed that it was more likely that there would be drugs being transported to Victor Harbor on the afternoon before Schoolies because there was generally an increase of people coming down to Victor Harbor at that time.
[9]     T13.
[10]   T13-14.
[11]   T14-17.
[12]   T24-25.

Superintendent Fairney told me that he had had a discussion with Senior Sergeant Massey about previous Schoolies events with respect to arrests and reports relating to drug offending prior to making the application. He was aware that in 2018 a person had been arrested in a ute with ecstasy pills. His suspicion was that people were likely to head down to Victor Harbor during the four days of Schoolies. He said that the population swells by anywhere between 5,000 to 10,000 young people and that typically some of them experiment with drugs. His experience was that there was a higher concentration of illicit substances being moved during or in the lead up to the event. He told the court that he was satisfied of a high likelihood of substances being moved during that time. He said that his suspicion was based on experience, his belief, and suspicion that drugs were transported to the area during Schoolies. He also suspected the drugs were more likely to be moved on the Thursday afternoon prior to the event commencing. Whilst the grounds on the application were very general in their terms, he said that there was nonetheless consideration based on intelligence and information.
I am satisfied that Superintendent Fairney reasonably suspected at the time he made the authorisation that the area proposed for the Drug Transit Route was likely to be used for the transport of controlled drugs in contravention of the Controlled Substances Act. I accept that he was satisfied of the matters identified as the reasons for suspicion by Senior Sergeant Massey and shared of those suspicions based on what he had been told by her and his own past experience with Schoolies week. I accept that the reasons for which he gave the authorisation were the same as those identified by Massey. There is no basis to conclude that the Drug Transit Route was unlawful by reason of an authorisation made without the relevant suspicion.
The second limb of this ground related to the asserted failure of Superintendent Fairney to comply with the General Orders when he made the authorisation. Pursuant to the legislation an authorisation must be made in accordance with any relevant General Orders. As can be seen from the copy of the relevant General Orders annexed to these reasons, when a senior officer is deciding whether or not to issue an authorisation for a general drug detection operation that person is required to make notes of any additional information not included in the application, the issues considered and the reasons for approval or refusal of the authorisation. He did not do so. I am satisfied that he did not strictly comply with the requirements of the General Order in the sense of not being ‘in accordance’ with it. For that reason, the authorisation did not strictly comply with the legislation and the Bunning v Cross discretion arises with respect to the establishment of the Drug Transit Route and the powers exercised by police on the day the accused was apprehended.
The balancing process required by the Bunning v Cross discretion entails balancing on one side of the scales ‘the public interest bringing criminals to justice and…(on the other side)… the public interest in protecting individuals from unfair and unlawful treatment and discouraging the use of unlawful means by excluding evidence so obtained...’.[13] I regard the alleged offending in this matter as very serious. I am satisfied that any unlawfulness or impropriety with respect to a non-compliance with the General Orders was a matter of oversight. The Superintendent completed the authorisation using the SAPOL form designed to facilitate applications for Drug Transit Routes. He did not make any note of the issues considered, his reasons for approval or additional matters he considered. Given that the PD 474 contained no space for him to record those matters, I do not regard it as reckless for him, having satisfied himself of the relevant suspicion, to have simply completed the form approved under the General Orders. There was no ‘conscious impropriety’ or ‘deliberate disregard’ for his obligations as authorising officer. To the contrary, he held a positive belief that completing the form as he did was sufficient to comply with his obligations. Whilst s 52B required him to make the authorisation in accordance with the General Orders, the extent of the ‘unlawfulness’ was very minor. As Superintendent Fairney said in evidence, he made the authorisation for the reasons identified by Senior Sergeant Massey and these were recorded by her on the application. In other words, he agreed with and adopted the reasons that she had identified for making the application. Whilst it would have been relatively easy for Superintendent Fairney to make a note of the issues considered, any additional matters which affected his decision and his ultimate reasons for giving authorisation, I am not satisfied that the departure from what was required by the General Orders was so significant as to warrant the authorisation being invalid and the subsequent actions of police being unlawful. As established by the evidence, the failure by Superintendent Fairney to attend to those matters did not affect the ability to test on the voir dire whether he had the requisite suspicion before making the authorisation. It also did not affect the cogency of the evidence ultimately obtained by police when they searched the accused’s vehicle. I am also of the view that the failure to make a record of the matters I have referred to did not cause any unfairness to the accused, which is in any event of lesser importance than the ‘high public policy’ which underpins the discretion.
[13] Police v Pocius [2018] SASC 38 [4]; See also R v Ireland (1970) 126 CLR 326, R v Swaffield (1998) 192 CLR 159 and Pollard v The Queen (1992) 176 CLR 177.
I dismiss ground 1(c).
Whilst it is ultimately a matter for police, a consideration of the PD 474 format shows that it does run the risk of conflating the suspicion held by the applicant and the reasons for the applicant making an application with the suspicions and reasons of the authorising officer. It is ultimately the senior officer who, as the decision-maker, authorises the Drug Transit Route, and whose suspicion and reasons form the basis for the authorisation. It would be prudent for the PD 474 to specifically require the authorising officer to record their suspicions, the issues discussed, any additional information not included in the application and their reasons by providing separately designated sections for those purposes on the ‘authorisation’ page of the document. That could go some way to assuaging any concerns that an authorisation had been a mere ‘rubber stamp’ process.
Ground 1(b): The scope of the power in s 52B
Defence counsel focused his submission on the meaning of the term ‘general drug detection’ as defined in s 4 of the Act. It was submitted that the section only permits police to walk or otherwise place the dog ‘in the vicinity of the vehicle or property...’. That means that the permitted activity stops short of otherwise placing the dog inside a vehicle. As such, when Brevet Sergeant Parish opened the door and directed Taco to the interior passenger side, he was acting outside the conduct encompassed by the term general drug detection. In my view, that argument cannot succeed.
The definition must be read in the context of the Act as a whole. In that regard, it should be noted that the term is also used in s 52A. Firstly, the conduct permitted by s 52B(5) expressly empowers police to engage in an activity, for example allowing a dog to get into the boot, which is not within the more narrow definition of the term general drug detection. Secondly, s 52B(5)(b) refers specifically to performing general drug detection in relation to persons or property ‘in’ the vehicle. That subsection expands the scope of the activity permitted when using drug detection dogs. In an authorised Drug Transit Route, police are empowered to stop a vehicle (s 52B(5)(a)) and permit a drug detection dog to be placed ‘in the vicinity’ (s 4) of property ‘in the vehicle’ (s 52B(5)(b)).
Further, there is a general power to give directions to a person associated with the vehicle (s 52B(5)(d)). Pursuant to that subsection, it would have been open to police to direct the accused to open the vehicle and empty the contents of the glove box, console and any item within the vehicle onto the footpath to enable general drug detection to occur with respect to that property. This would be so as long as the activity required by the direction did not contravene s 52B(6). In these circumstances, such a direction could ‘be reasonably necessary or incidental to’ the exercise of the powers under s 52B.
In the event that I am wrong about the ambit of s 52B(5)(b), it can be seen that police could have achieved the same result by giving a direction of the kind I have indicated above under s 52B(5)(d). If I am incorrect about the ambit of s 52B(5)(b), that general power to direct is a matter highly relevant to the exercise of the discretion to exclude.
It should be noted that s 52B(6) also refers to property ‘in’ the vehicle. There can be no doubt that property within the passenger area or any interior part of the vehicle stopped as part of the exercise of powers under s 52B is not immune from the activity of a drug detection dog. In my view, s 52B permits police to engage in activity including but not limited to the activity defined as general drug detection in s 4 of the Act.
Finally, if I am wrong about the ambit of s 52B(5)(b), I would have declined to exclude the evidence in the exercise of the public policy discretion. The unlawfulness, if it was such, was not intentional. Brevet Sergeant Parish believed he had power, based on a reasonable suspicion, to open the car door and direct Taco to the interior. The dog having provided an indication with respect to the accused and no drugs being located on the accused, the contents of the car were inevitably going to be subjected to general drug detection and police had the lawful means to do this.
I dismiss ground 1(b).
Ground 1(a): The scope of the presumption in s 52D(5) and the power in s 52(9)
The next contention was that if there was no power under s 52B to open the passenger door of the accused’s car and allow Taco to assess the interior, then Senior Brevet Sergeant Parish did not have the requisite suspicion under s 52(9) to search the vehicle. Counsel submitted that it was not open to police in these circumstances to use the aid to proof of reasonable suspicion contained in s 52D(5) in order to conduct a search pursuant to s 52(9). It was submitted that this was because in these circumstances, s 52D(5) only gave a reasonable cause to suspect with respect to a s 52(9) search of the accused. Counsel submitted that the presumption applies in circumstances where the drug detection dog has detected ‘the presence of’ a controlled drug, which then constitutes a reasonable suspicion that a controlled drug ‘is present’. Taco gave an indication after having taken a scent from the accused. That indication could only create a presumption as to the presence of drugs on the accused and not in his car. The drugs in the car were not ‘present’ for the purposes of s 52D(5).
Before dealing with this argument, I note that the only action Brevet Sergeant Parish took which could be described as a search was opening the door to the car, letting Taco inside and observing the sunglasses case in the centre console. There is authority to the effect that a drug detection dog cannot be said to perform a ‘search’ and that a sensory perception such as the perception of a scent, which is a passive action, is not a search.[14] An observation is also a sensory perception. The physical search of the interior of the accused’s car was performed by other officers. However, if what Brevet Sergeant Parish did was a search, I reject the submission that he did not have reasonable cause to suspect that there were illicit drugs in the car. Whether a controlled drug ‘is present’ for the purposes of s 52D(5) will be a fact specific enquiry in each case. The suspicion provided for by s 52D(5) was not in this case logically confined to the person of the accused. The accused had exited the car only moments before the indication was given by Taco. He had not had an opportunity to go anywhere or do anything except take the few steps away from the car that he was directed by police to take. He was the only occupant of the car. Brevet Sergeant Parish took Taco to the car within seconds of the dog having given the indication as to the accused. For practical reasons, the accused had to be asked to get out of the car so that Taco could have a proper sniff of him. No one had access to the interior of the car between the accused getting out and Brevet Sergeant Parish opening the passenger door. To my mind, the suspicion provided by s 52D(5) extended to the car the accused had been driving only moments before. That conclusion does not implausibly stretch the logical ambit of the term ‘is present’.
[14] Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223.
The word ‘present’ in this context means present in the immediate vicinity of the accused at the time he was detained keeping in mind that at that time he was driving the car and unaccompanied. If Brevet Sergeant Parish performed a search then he had the relevant suspicion by virtue of s 52D(5).
In reality, I think the better view is that Constable Cook[15] performed the search with Constables Gray[16] and Doyle[17] on the basis of information given to them by Brevet Sergeant Parish, that Taco had made an indication about the inside of the car. In that event, Taco had provided an indication and the searching officer had a reasonable suspicion by virtue of s 52D(5).
[15]   Affidavit of Jake Cook (6 February 2020).
[16]   Affidavit of Courtney Gray (28 January 2020).
[17]   Affidavit of Aaron Doyle (5 February 2020).
In any event, if I am wrong about the above and the actions of Brevet Sergeant Parish and Taco were unlawful and if the actions of the officer who searched the interior and located the drugs were also unlawful, I would decline to exercise my discretion to exclude the evidence of the drugs found in the car.
In addition, whilst I am satisfied that the presumption in s 52D(5) was engaged, the officers who performed the physical search of the vehicle were not called on the voir dire and the state of mind that they held was not tested. As I have noted above, the interior was searched after the officers were aware that Taco had given an indication of both the accused and the interior of the car. They also knew at that time that no drugs were located on the accused. Whilst the issue was not tested on the voir dire, it seems plain enough that the accused having been indicated and no drugs found and the interior of the car also having been indicated, the searching officers would have held the relevant suspicion under s 52(9) to search the car.
Any unlawfulness in the search of the interior of the accused’s car, if it existed, was through inadvertence and occurred in the knowledge that both the accused and the vehicle had been given positive indications by the drug detection dog. As I have already noted, police had power to direct the accused to empty the contents of the vehicle onto the footpath, which would have achieved the same result. Once again, for that reason alone, it is difficult to see that any unfairness has been caused to the accused.
There was a significant amount of defence cross examination in this matter about the success rate of drug detection dogs. The theory explored was to the effect that if drugs were only rarely located on a person who was searched after an indication by a drug detection dog, then this suggested that the dog had either been at error or had been unsuccessful in detecting drugs. If that was the case, a positive indication by a dog with respect to a person could not of itself form the basis of a reasonable suspicion. Counsel submitted that this would be relevant if his submission as to s 52D(5) was correct. Brevet Sergeant Parish could not have held a reasonable suspicion with respect to the vehicle and nor could the officers who searched inside it. The problem with that submission is that the dogs are trained to detect various scents related to controlled drugs, not to find drugs. Success is measured by successfully detecting a relevant scent. That is a matter which is impossible for a dog handler to determine when in the field. As Brevet Sergeant Parish observed, when a scent is detected, a search performed and no drugs found, very often the person who has been searched will deny all knowledge of drugs. That may well be false. Quite often the person searched and found to have no drugs in their possession will, when asked by police, admit to having consumed or having had drugs in their possession at an earlier point in time. That is likely to be an honest admission. For that reason, a forensic dissection of statistical returns demonstrating arrests versus positive indications given by drug detection dogs, as was attempted here, is unlikely to shed much if any light on the success or otherwise of drug detection dogs. It is also unlikely to have any bearing on whether a reasonable suspicion can be formed solely on the basis of an indication from a drug detection dog. One reason for this is that what amounts to a reasonable suspicion is not susceptible to mathematical analysis. Whilst the question will be a fact specific enquiry on each occasion, I am satisfied that a positive indication by a drug detection dog is capable of providing the basis of a reasonable suspicion for the purposes of a search under s 52(9) of the Controlled Substances Act or s 68(1) of the Summary Offences Act.
I dismiss ground 1(a) of the application.
Ground two
I turn now to the application with respect to obtaining the PIN for the accused’s mobile phone. Counsel for defence submitted that I should exclude the evidence on the basis of the public policy discretion as well as the general unfairness discretion because the accused was under de facto arrest at the time the request was made of him and should have been given his full arrest rights. He also submitted that in all the circumstances, the accused was faced with a power imbalance which meant that he could not be found to have made a genuinely voluntary decision to disclose the PIN to Detective Simmonds. This was on the basis that he had been detained, searched, his vehicle searched, his phone seized and he was being submitted to various presumptive tests in a police vehicle at the time the request was made of him. He had made two requests to make phone calls and on both occasions this was not facilitated. He was not told when given a general caution that he was not required to do anything which might incriminate him, in addition to being told that he was not required to say anything. Detective Simmonds also did not tell him that he was not required to disclose his mobile phone PIN.
It was submitted that the accused had sustained a forensic disadvantage because, by use of his PIN, police had immediately opened his phone and examined his text messages, comparing them to the seized checklist, a matter which reinforced both their suspicions of him and their decision ultimately to charge him.
It was submitted that police had also obtained the forensic advantage of being able to use the PIN to open the phone for the purpose of forensic examination by Senior Constable Jennings of the electronic crime branch who performed a ‘logical extraction’ of relevant data which included the text messages. Senior Constable Jennings gave evidence on the voir dire. When data is extracted from a mobile phone to which access has been gained using the PIN, it is referred to as a ‘logical extraction’. When data is extracted from a mobile phone without recourse to the PIN, the procedure is referred to as a ‘physical extraction’. The forensic computing tool used by Senior Constable Jennings for the purpose of the ‘logical extraction’ was software called ‘Cellibrite’. That program could not be used to extract data from a mobile phone by way of ‘physical extraction’, that is, without recourse to the PIN. The effect of the submission was, that because the PIN had been used at the time of the extraction of data, using the Cellibrite program, police had obtained a forensic advantage and the accused a disadvantage by the fact that he was not told that he was not required to disclose his PIN or the reason police wanted it. I note in passing, but put aside from my consideration of this argument, that one would have thought the reason for police wanting the PIN would have been abundantly clear to an averagely intelligent person in the accused’s position.

Defence counsel relied on the decision of the Court of Appeal in Middlin-Hannah v The Queen.[18] That case involved police requesting the appellant to provide the PIN for his mobile phone. The PIN was then used to open the phone and police located messages on it suggestive of the user of the phone being involved in trafficking illicit substances. The issue in point is the privilege against self-incrimination. At [85]-[87] the Chief Justice observed:
There is a final issue which should be noticed arising out of DBS Napper's request for the PIN. On the finding I would make - that DBS Napper was entitled to seize the smartphone - there was no impropriety in giving Mr Middlin-Hannah the option of providing the PIN to allow access to his smartphone. Indeed, there is much utility in adopting that procedure. For those persons who are wrongly suspected, the option of avoiding the seizure of their property, with all the inconvenience that entails, is a useful one. The issue is now most likely to arise when seizing electronic devices, but the same principle would apply to the safe or locked filing cabinet of earlier times. An occupant may choose to avoid the potentially destructive forced opening, or removal, of a cabinet from his or her home by providing the key or code to open it. As long as the power to seize is not deliberately misrepresented, the giving of an option serves the public interest.
However, I would make one important qualification to the proposition just stated. The privilege against self-incrimination is not limited to the right to refuse to answer questions. The privilege extends to the handing over of documents which may incriminate. It may undermine that privilege if a police officer were to seek assistance from a suspect to access his or her documents, which the police officer believes may contain incriminatory evidence, without informing the suspect of his or her privilege not to facilitate the seizure of that documentary material if it may be incriminating. Of course, a failure to warn is only legally significant if the request is made at a time, and in circumstances, which would so compromise the privilege that it would cause forensic unfairness in a subsequent criminal trial.
It is well accepted that it is generally unfair to admit against an accused his or her statements in answer to a police interrogation, conducted after police have embarked on “the accusatory stage” of an investigation, unless the accused was first cautioned. The rationale for the rule is that the interrogation is so closely connected to the trial that it would be an abrogation of the privilege against self-incrimination to admit the admission on the accused's trial. However, the authorities on when the accusatory stage has been reached do not provide an easily applicable bright line delineating the phases of a police investigation between the investigatory stage in which answers made are admissible even in the absence of a caution and the accusatory stage. That is to be expected given the competing public policy considerations which must be balanced. On the one hand, it is in the public interest that police investigations of the commission of criminal offences not be unduly burdened, and on the other the privilege against self-incrimination is an important bulwark against persecution by the State.
[18] (2020) 137 SASR 366.
It is worth noting that in that case, objectively viewed, there was insufficient information on which to arrest the accused for trafficking until the text messages had been discovered.[19] That was a matter which obviously aggravated the prejudice to the accused. In this case, police had located the drugs and a tick list. Objectively speaking, they had sufficient evidence to arrest the accused for trafficking on that evidence alone.
[19] Ibid [94].
In any event, the submission of defence was that he had suffered a forensic disadvantage because of the ultimate extraction of the messages from his phone. It was submitted that at the time of requesting his PIN, police had clearly reached the accusatory stage of their enquiry. On the evidence, I accept that to have been the case. Detective Simmonds should have told the accused that he was not required to disclose his PIN and, whilst it should have been clear, out of an abundance of caution he should have explained his purpose for asking. On one view, when the exchange which was recorded on the body worn camera footage[20] is considered, the accused gave his phone to police voluntarily but unadvisedly. I cannot exclude as a possibility that, given the numerous directions from police to which he had already been subject and the fact that he had been detained for the purposes of the Drug Transit Route procedure, he thought he was obliged to do so. There are good grounds for concluding in all the circumstances that he did not understand he was not required to do so. I am so satisfied, notwithstanding the accused did not give evidence on the voir dire. Either way, the fact would remain that he should have been relevantly advised before being asked to disclose the PIN. He was deprived of the opportunity of making an informed decision. I have not concluded that the failure of Detective Simmonds was deliberate or underhanded. It was an oversight and a departure from what I accept to be his usual practice in circumstances such as these.
[20] Exhibit VD P9.
In the circumstances, the public policy and general unfairness discretions to exclude the evidence extracted from the mobile phone are enlivened.
The difficulty with the defence application for exclusion of this evidence is the question of ultimate forensic disadvantage. In Middlin-Hannah the Chief Justice had this to say:
However, it is unnecessary, and I prefer not, to express a final conclusion because Mr Middlin-Hannah did not establish that the police would not have been able to gain access to the messages even without the PIN. It follows that there has been no forensic unfairness and no basis on which to exclude the evidence of the text messages.[21]
[21] Ibid [96].
Bleby J reasoned along the same lines:
I agree with the conclusion of the Chief Justice, however, that Mr Middlin-Hannah did not establish that the police would not have been able to gain access to the messages even without the PIN and that, in consequence, no forensic unfairness has been shown. It follows that I agree that Mr Middlin-Hannah has not discharged his onus to persuade the Court to exclude the evidence of the text messages in the exercise of its discretion.[22]
[22] Ibid [178].
Defence counsel cross-examined Senior Constable Jennings with respect to the forensic examination of the phone and the tools which were available to him at the time he extracted the data which revealed the text messages. Senior Constable Jennings told me that the Samsung A20 was a common phone model. He used Cellibrite frequently and did so on this occasion, because he had access to the PIN for the phone. It was not necessary for him to perform a physical extraction of the data from the accused’s phone in this instance because he knew the PIN.
However, at the time he examined the accused’s phone, he also had available to him software called XRY made by a company called Microsystemation, which could perform a ‘physical extraction’ from a Samsung A20 mobile phone. He told the court that he had used that tool previously and successfully to perform the physical extraction of data from a phone although he could not say if he had done so with respect to a Samsung A20. He said that a physical extraction obtains the same user data from the phone as a logical extraction and in fact, probably more detail. A physical extraction takes considerably longer to perform than a logical extraction and operates in a different way. In other words, it obtains at least the same data as a logical extraction but does so by a different pathway. Senior Constable Jennings told the court that he knew that the XRY tool could perform a physical extraction from a Samsung A20 because the user manual for XRY includes a directory which lists the various models of mobile phone which it supports. The Samsung A20 is one of the supported models. The relevant extract from the XRY directory was tendered, over the objection of defence counsel. It was identified by Senior Constable Jennings as having been printed off from the XRY directory.[23] The document appears to confirm his evidence that a physical extraction can be performed using XRY on a Samsung A20, which would give the forensic examiner access to the SMS messages on the phone.
[23] Exhibit VD P15.
Whilst defence counsel did not object to any of the evidence of Senior Constable Jennings (with the exception of the above document being tendered through him), he submitted that Jennings was not qualified to express an opinion to the effect that XRY could perform a physical extraction on a Samsung A20 phone. This was because Jenings had not designed the program himself and was not an employee of Microsystemation. I reject that submission. Senior Constable Jennings had used XRY to perform physical extractions from mobile phones. His evidence as to that matter was evidence of fact and not opinion. He had access to a forensic tool with respect to which the manufacturers’ instructions indicated that a physical extraction could be performed on a Samsung A20. That evidence was also evidence of fact. I accept that this was the case.
Defence counsel submitted that given the practical and financial difficulties involved with a defendant obtaining access to and testing the XRY tool, police should bear an onus to positively prove that XRY could be used to perform the relevant extraction. I reject that submission. There was no evidence before the court that the defendant had experienced practical or financial difficulties in disproving the capabilities of the XRY tool or that he had made any attempt to do so. Further, as made clear in Middlin-Hannah, it is the accused who bears the onus on the voir dire. In this matter, the accused has not demonstrated that police would have been unable to extract the data which gave them access to the text messages from his phone without recourse to his PIN. There is every reason to believe that they would have been able to do so. Mr Van Houten has not demonstrated the relevant forensic disadvantage of which he complains. I decline to exclude the evidence obtained from the accused’s Samsung A20 mobile phone. Ground two of the application is dismissed.