R v Vester - [2013] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VESTER
[2013] SADC 71
Reasons for Ruling of His Honour Judge Chivell
24 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
Accused charged with possession of a class H firearm without a licence and possession of an unregistered firearm. Motor vehicle stopped by police for random breath-testing of driver. Vehicle searched. Application for exclusion of the evidence of the search - whether there was a relevant reasonable suspicion at the time of the search pursuant to s 52(9) of the Controlled Substances Act 1984.
Search found to be illegal and discretion exercised against admitting the evidence.
Controlled Substances Act 1984 s 32, s 52(6), s 52(9); Serious and Organised Crime (Control) Act 2008 s 35(1), s 35(3), s 35(6)(b), referred to.
R v Moukachar [2010] SASC 199; Bain v Police [2011] SASC 228; Wilson and Morrison v R [1994] SASC s4554.1; R v Rogers (2011) 109 SASR 307; R v Lobban (2000) 77 SASR 24; Bunning v Cross (1977-8) 141 CLR 54, considered.

R v VESTER
[2013] SADC 71
Introduction

This is an application by Mr Vester pursuant to Rule 9 of the former District Court Criminal Rules for the exclusion of the following evidence:
(1)evidence of conversations and other matters arising from dealings between police and the witness Michael Rieck;
(2)evidence arising from the search of the vehicle driven by the accused;
(3)evidence of an interview between the accused and police officers.
The applications are based upon the suggestion that the approach by Sergeant Murphy to Rieck, and the subsequent search of the vehicle in which Murphy discovered the firearm and ammunition the subject of the charge, were illegal. It was accepted by Ms Sprod, for the Director of Public Prosecutions, that if the defence succeeded on those points, the record of interview should also be excluded.
The charges arise from an incident on 29 July 2011 at about 10:55 p.m., when Murphy and Senior Constable Hocking stopped a Ford Territory vehicle on Guilford Avenue, Prospect for a random breath test. Vester was the driver of the vehicle and Rieck was the front-seat passenger.
Hocking administered an alcotest to Vester, which was positive. Checks revealed that Vester’s driver’s licence had expired. Hocking directed Vester that he should accompany police to Holden Hill Police Station for a breath analysis. Vester complied and accompanied Hocking to the police vehicle.
Murphy approached Rieck, the passenger. He then searched the vehicle. He saw a black attaché case on the rear passenger seat. On inspection, he saw that the case contained the firearm in question, and some documents relating to Vester. He seized the bag and it was secured in the rear of the police vehicle.
Murphy said that in searching the vehicle, he was exercising his powers in s 52(9) of the Controlled Substances Act 1984 (‘CSA’). That section authorises a police officer to detain and search a vehicle if he or she ‘reasonably suspects that (it contains) any substance or equipment that would afford evidence of an offence against this Act’. Murphy said that Rieck had a small quantity of methylamphetamine in his possession, and it was this fact which gave rise to his suspicion that there might be other drugs or evidence relevant to drug offending in the vehicle.
Defence Version
- Vester
Vester said that he had driven from his then-residence on Henley Beach Road, taking Rieck to his (Vester’s) father’s business premises on Main North Road. They intended to collect a vehicle for Rieck to drive home to Hindmarsh Island.
Vester gave an elaborate and not very convincing explanation for the presence of the bag in the rear of the vehicle, which he said was not on the back seat but in the foot well behind the driver’s seat.
Vester said that the bag was his but he rarely used it. True, it had papers of his in it, but they were old, including expired credit cards and driver’s licence. He was moving house. He could not find a second set of keys. He grabbed the bag and some boxes from work, thinking he would look for the keys at home. He found the keys in one of the boxes. The bag remained in the vehicle. All the zips were done up. He did not look in the bag. He had no idea the gun was in there.
During the interview, Vester identified the firearm as belonging to his father. However, in evidence before me, he said he later saw his father’s handgun in a locked box in his father’s new house at Semaphore. Clearly, this is intended to convey that this was a different weapon from the one in the car. It is remarkable that the guns were so similar, and that an unknown person might put such a weapon in his bag, at his and his father’s workplace, without his knowledge.
In any event, Vester said that an officer approached his vehicle and spoke to him through the driver’s window. He was unable to produce his driver’s licence on request. He was unaware it had expired. He gave the police officer his name and address.
Vester said the police officer asked him to get out of the car. He took the alcotest while standing on the footpath. The police officer did not tell him the result. He walked off to the police car. When he returned, he told him the reading was positive, and directed him to accompany him to the police car, where he was detained in the back seat. He did not see what happened in relation to his vehicle after that. He saw that all the doors of the vehicle were open. Rieck was sitting on the front wall of a nearby house by the time he left.
- Rieck
Rieck said that Vester was still in the car when the police officer administered the alcotest. To this extent he contradicted Vester. When it was positive, the police officer asked Vester to step out of the car and accompany him to the police vehicle. The same police officer then returned and spoke to him through the driver’s window.
Rieck said that the police officer asked him for identification. He did not have his wallet with him. The police officer asked him about his association with Vester, and he told him he was an employee.
The police officer then asked Rieck to step out of the car. He asked Rieck if there was anything illegal in the car and he said ‘No’. He then proceeded to search the car. He found the bag on the rear seat. He found a handgun inside. He asked Rieck if it was his, and he replied ‘No’. He asked him whose it was and he said he did not know.
On Rieck’s evidence, then, it was Hocking who found the handgun in the rear of the vehicle. That contradicts the evidence of all the other witnesses present at the time, including Vester.
Rieck said that after the police officer found the firearm, he then searched Rieck’s bag. He called it a ‘laptop bag’. He said the police officer searched the bag and found a laptop with his name on it, some money, small tools, and papers.
Rieck said he also had a small amount of methylamphetamine and associated equipment in the bag, but the police officer did not find that. This seems remarkable.
In the meantime, another police unit arrived and, on Rieck’s evidence, searched the vehicle again. One of those officers searched the laptop bag and this time he discovered the methylamphetamine and pipe. He then called a ‘drug unit’, which consisted of two female police officers. One of them gave him ‘drug diversion forms’ and then told him he could go. He told the officers he was not sure he had a current driver’s licence, but they told him he could drive home. Again, if this was true it would be quite remarkable.
Rieck denied he was wearing a ‘bumbag’ or that he had any resealable ‘J’ bags in his possession.
For reasons which I will expand upon later, Rieck’s evidence about all this cannot be true. Firstly, on everyone else’s evidence, Hocking was sitting in the police vehicle with Vester rather than talking to him or finding the firearm. Secondly, the objective evidence in the form of patrol logs establishes that the two later patrols he referred to arrived at the scene within two minutes or so of each other, so it cannot be that the second patrol (Tessari and Wilson) arrived, searched the vehicle, found the methylamphetamine and pipe, then called the third patrol, Lim (nee Katakasi) and Crouch (nee Fairney).
Police Version
- Murphy
Murphy said that when they stopped the Ford Territory in Guilford Avenue, Hocking alighted from the police car and walked towards the driver’s side of the other car. At about the same time, Vester alighted from his car and approached Hocking. They met in the space between the two vehicles. He said he thought this was unusual – most drivers remain seated in their vehicles in that situation.[1]
[1] T73
Hocking returned to the police vehicle and gave Vester’s personal details to Murphy. Murphy checked the computer system, and noted that Vester had a ‘conviction of a prescribed kind’ (‘CPK’), as described in s 35(3)(a) of the Serious and Organised Crime (Control) Act 2008 (‘SOCCA’). He decided to approach Rieck and obtain his personal details. If Rieck also had a CPK, then it would be necessary to file an ‘ancillary report’, because s 35(3) of the SOOCA makes it an offence if a person with a CPK associates with another person with a CPK on not less than six occasions during a 12‑month period.[2]
[2] T74
In any event, Murphy spoke to Rieck through the front passenger door, which was open. He requested Rieck’s name and address, which were provided. He asked Rieck for proof of identification. By this time, Rieck had alighted and was standing in the ‘door well’ between the door and the car.
Murphy said that Rieck was wearing a black vinyl bumbag around his waist. He began ‘fossicking’ in the bumbag looking for proof of identification. Murphy shone his torch into the bumbag. He saw ‘several’ (in cross-examination he said between five and 10) small plastic resealable ‘J’ bags of the type used for selling drugs.[3]
[3] T76
He said that Rieck was cooperative but appeared nervous and ‘fidgety’. He appeared reluctant to move away from the door well of the car. He suspected that Rieck was trying to prevent him from seeing what was inside the vehicle.
Murphy said he then searched Rieck’s bumbag. He saw that one bag had a small amount of crystalline substance in it. He described it as a ‘personal use’ amount. He also found a ‘couple of ice pipes’ in the bumbag.[4]
[4] T77
As stated earlier, Murphy then decided to search the rest of the car. He saw the black bag, which he described as a ‘satchel type briefcase’, on the rear seat. It was not zipped up. He spread the two sides apart with his hands and saw the firearm.
Murphy said he secured the bag and its contents in the rear of the police vehicle. By this time, Rieck was already standing on the footpath and Vester was in the police vehicle with Hocking.[5]
[5] T79-80
Murphy said that at this point he called for assistance from other patrols. As a result, Tessari/Wilson and Lim/Crouch attended. He instructed Lim to execute the drug diversion for Rieck. He was vague about what happened to the drug and the bumbag. Certainly, they were neither seized nor photographed as evidence in these proceedings.
Hocking and Vester transferred to another police vehicle and, with Wilson, drove to the Holden Hill Police Station. Murphy said he left Lim and Crouch with Rieck and drove to Holden Hill as well. On arrival, he checked the firearms records and established that the handgun was unregistered and Vester unlicensed. He then proceeded to interview Vester.
- Hocking
Hocking said that Vester was still sitting in the car when he approached the driver’s door and conducted the alcotest.[6] To this extent, he contradicted Murphy (and Vester). He said he could not remember whether Vester produced his licence, but a check revealed that it had expired.[7]
[6] T138
[7] T140
Hocking obtained Vester’s personal details and then directed him to accompany him to Holden Hill Police Station for a breath test. Vester complied and sat in the rear of the police vehicle with Hocking.
Hocking said that Murphy spoke to Rieck for a ‘short time’ on the passenger side of the Ford Territory and then searched inside the vehicle. He then saw Murphy return with the bag to the police vehicle. He was out of the vehicle by then. Murphy showed Hocking the firearm in the bag. Hocking secured the bag in the rear of the police vehicle.[8]
[8] T143
Hocking made the call for other patrols on his mobile phone. He said he told them that they were being called to assist with searching the vehicle.[9] Murphy denied that he told Hocking to give that reason. Senior Constable First Class Lim could not remember what reason she was given, if any.[10]
[9] T162
[10] T179
Hocking said that he and Vester transferred to Wilson’s vehicle and drove to Holden Hill Police Station. Wilson was a qualified breath analysis operator, and he conducted the test. The result was negative. Vester received an expiation notice for driving unlicensed.[11]
[11] T149
- Lim
Senior Constable First Class Lim said that she and Constable Crouch arrived at Guilford Avenue at shortly before 11:20:57 p.m. (using the patrol history document, Exhibit VD P6).[12] She spoke to Murphy, and noted what he told her about what had occurred in an ‘ancillary report’ (Exhibit VD P7). Included in that is:
About 2 gms meth and 2 x ice pipes located in a bag owned by RIECK.
[12] T178-9
Lim said that the statement ‘about 2 gms meth’ was her estimate of the quantity of the drug.[13]
[13] T187
Murphy had asked her to execute the ‘drug diversion’ with Rieck. She said he told her he found them in a ‘black bag’ but he did not describe it. She did not see the bag.[14] She saw the ‘drugs’ in a plastic bag, and the two ‘ice pipes’. She did not see a bumbag, even though she was standing for some time near Rieck as she talked.[15] She did not see a laptop bag in the vehicle either.[16]
[14] T182
[15] T200
[16] T185
In her notes, Lim has recorded that she said to Rieck:
A plastic bag containing what appears to be drugs was located in a black bag in the vehicle you were a passenger in. Does the plastic bag belong to you?[17]
(my emphasis)
[17] T199
In cross-examination, Lim said that she did not recall that she was told that the drug was found in the vehicle, but I found that answer unconvincing. That information must have come from Murphy.
If Murphy found the drug in a bumbag worn on Rieck’s person, he would not have told Lim that it was found in a black bag in the vehicle, and Lim would not have put the question to Rieck in those terms.
Lim asked Rieck how much methylamphetamine he thought was in the plastic bag, and he said ‘under 2’, meaning under 2 grams. This answer is perhaps not surprising, since 2 grams is a ‘trafficable quantity’ in accordance with s 32 of the CSA. Rieck told her he paid $800 for it.[18]
[18] T202
I must say I find this whole process quite peculiar. When Murphy was describing his reasons for searching the car, and his calling in aid the CSA, he said:
In fact I actually thought that they might be on their way to do a deal of some description or having just left a deal of some description. That was my impression.[19]
[19] T105
Murphy minimised the amount of methylamphetamine Rieck had, calling it a small amount. When asked how many ‘J’ bags were in the bumbag, he said:
Less than 10, more likely around five, because if it had been the amount that you suggested, I might have had suspicions that there would have been the possibility of dealing and I might have been more inclined to take more action, but I never considered anymore than a drug diversion.[20]
[20] T106
It seems odd to me, given Murphy’s evidence that he found Rieck in possession of cash and multiple ‘J’ bags, there was a loaded handgun in the vehicle, combined with Lim’s evidence that there was in the vicinity of 2 grams of methylamphetamine in Rieck’s possession, all well-known indicia of drug dealing, that Murphy was so keen to deal with the drug issue by using drug diversion.
In doing so, none of the evidence which, on his evidence, might have been utilised in this voir dire hearing to justify the search, has been preserved or even photographed.
It could all have been left in situ until someone with a camera could attend and photograph the car, the bumbag, if it existed, and if not, the laptop bag, the ‘J’ bags, the methylamphetamine, the black bag containing the firearm, where it was found, how visible the gun was, whether the documents in the bag were out of date, as Vester asserts, and anything else of interest.
Defence Submissions
Mr Tremaine, counsel for Vester, conceded that if I find that Murphy’s evidence that he saw the ‘J’ bags in a bumbag in Rieck’s person is true (on the balance of probabilities), then the subsequent search of the car is ‘permitted’ by s 52(6) of the CSA.
Somewhat inconsistently with that position, Mr Tremaine submitted that Murphy had no right to ask Rieck for his personal details pursuant to the SOCCA. I reject that argument, for the following reasons:
1.Murphy clearly had reasonable cause to suspect that Vester and Rieck were associating with each other. They were in a vehicle, late in the evening, and Vester had been drinking. Knowing that Vester had a CPK, Murphy was entitled to ask both of them for their details pursuant to s 35(1) of SOCCA. The fact that Rieck worked in Vester’s father’s business does not render that reasonable suspicion irrelevant because of s 35(6)(b).
2.I agree with Ms Sprod’s submission that Murphy did not need statutory authority to ask for Rieck’s details in any event (R v Moukachar[21] and Bain v Police[22]).
[21] [2010] SASC 199 per Vanstone J
[22] [2011] SASC 228 per White J
Mr Tremaine submitted that I should be satisfied that Murphy did not see a bumbag. No one else who was present that night saw one. Murphy did not give the bumbag or the ‘J’ bags to Lim so that she could corroborate his evidence.
Murphy’s other reason for being suspicious about the contents of the vehicle, namely, Vester’s actions in getting out of the car unbidden, was directly contradicted by Hocking. It was only mentioned by Murphy on 16 September 2012, when Murphy said he became aware that the search was ‘contested’.[23]
[23] T89, T91
I am inclined to prefer Hocking’s evidence about that – he was the one who administered the alcotest, after all.
Having regard to all these issues, the probability arises that Murphy, becoming aware much later that the search was contested, has reconstructed in his mind the evidence of Vester’s movements, and the evidence of Rieck’s bumbag.
I conclude that it is more likely than not that the methylamphetamine and pipes were found in a black bag in the vehicle, as described by Rieck, although Rieck is clearly wrong about who found them.
It follows, then, that the drug was probably not found until after Murphy commenced his search of the vehicle. Murphy did not have a relevant reasonable suspicion at the time he commenced the search.
I have carefully considered Ms Sprod’s very capable submissions, but I am not persuaded to rely on Murphy’s evidence on the balance of probabilities.
The search, then, was contrary to law.
It is therefore not necessary to deal with Mr Tremaine’s other rather valiant attempts to persuade me that Lim’s evidence is wrong, and that there was a search after she arrived which located the drug.
The Exercise of Discretion
In Wilson and Morrison v R,[24] King CJ, at page 10, said that it was appropriate in that case to exercise the discretion to admit the evidence even if the search was illegal because the police officers were acting reasonably and sensibly, and if there was an illegality, it would only have been of a ‘technical and not of a wilful or malicious nature’. His Honour also observed that the evidence obtained was important in the context of a serious criminal charge.
[24] [1994] SASC S4554.1

The reasoning of Duggan J in R v Rogers[25] at [34] is to the same effect (see also R v Lobban[26]).
[25] (2011) 109 SASR 307
[26] (2000) 77 SASR 24 per Martin J
This case is different from those cases, in my view. In this case, I am satisfied that Murphy’s evidence as to his reason for searching the vehicle is probably untrue. The accused must only demonstrate illegality on the balance of probabilities.
He has done that. The illegality is not of a merely technical nature. I do not say that it was wilful or malicious, but there is nothing before me to excuse it.
As Martin J said in Lobban (supra) at 31:
But the foundation of the discretion (to exclude evidence on public policy grounds) and its object, do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law … (T)he exclusion of evidence is not the means by which wrongdoing is to be punished by the courts …
In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence.
The relevant principle was stated in Bunning v Cross:[27]
There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired.
[27] (1977-8) 141 CLR 54 at 75
In the circumstances, I consider that the appropriate course is to exercise my discretion against admitting the evidence.
The objections to the admission of the evidence about the finding of the firearm, and the subsequent interview with Vester, are upheld.