R v W, N P - [2019] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, N P
[2019] SADC 143
Reasons for Ruling of His Honour Judge Beazley
30 September 2019
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Application to exclude evidence of the fruits of the search of a motor vehicle at Mansfield Park - police had directed that the vehicle be stopped for a licence check - while those officers were undertaking those checks other police officers arrived - one of those latter police officers opened the passenger door of the vehicle - they subsequently searched the vehicle and located methylamphetamine - whether suspicions of latter police officers were reasonable - whether search was lawful - whether evidence obtained by the police ought to be excluded.
Held: The direction of the police officer that the vehicle stop for a licence check was entirely proper pursuant to s 40H of the Road Traffic Act 1961 (SA); the opening of the passenger side door prior to forming a reasonable suspicion that the vehicle contained drugs was unlawful - however at the time of the subsequent search of the vehicle the police officer did have reasonable suspicion that drugs were in the vehicle such as to justify the search of the vehicle and the accused. In the proper exercise of the Bunning v Cross discretion the evidence of the fruits of the search will not be excluded in the trial - the application for the accused to exclude that evidence is refused.
District Court Criminal Rules 2014 r 49(1)(h); Controlled Substances Act 1984 (SA) s 52; Road Traffic Act 1961 (SA) s 40H; Summary Offences Act 1953 (SA) s 68, referred to.
Coco v The Queen (1994) 179 CLR 427; Halliday v Nevill (1984) 155 CLR 1; Kuru v State of New South Wales (2008) 236 CLR 1; Bennett v Police [2016] SASC 139; R v Golja [2017] SASCFC 61; Pollard v The Queen (1992) 176 CLR 177; R v Rockford [2015] SASCFC 51; R v Nguyen (2013) 117 SASR 432; Bunning v Cross (1978) 141 CLR 54; R v Turner & Williams (1987) unreported; R v Armistead [2019] SASCFC 85; BCM v R [2013] HCA 48; Filippou v R [2015] HCA 29; Police v Pocius [2018] SASC 38; R v Nguyen [2015] SASCFC 7; R v Marafioti [2014] 118 SASR 511; R v Ireland (1970) 126 CLR 321; R v Bainbridge [1999] NZCA 180; R v Webb & Hay (1992) 59 SASR 563; New South Wales v Riley [2003] NSWCA 208; Coleman v Zanker (1991) 58 SASR 7; Police v Williams [2014] SASC 177; R v Willingham (No 2) [2012] SASCFC 104; George v Rockett (1990) 170 CLR 104; R v Rogers (2011) 109 SASR 307; R v Frantzis (1996) 66 SASR 558; Ridgeway v The Queen [1995] HCA 66; Christie v Leachinsky [1947] AC 573; Police v Dafov (2008) 102 SASR 8; Police v Moukachar (2010) 107 SASR 540; R v Fazio (1997) 69 SASR 54; Bain v The Police (2011) 112 SASR 10; Ercegovic v Higgins (1987) 45 SASR 189; R v Nguyen [2016] SASCFC 96; Police v Edwards [2007] SASC 289; R v Dolan (1992) 58 SASR 501; R v Rondo [2001] NSWCCA 540; R v Hunt [2014] NTSC 19; R v Chapman (2001) 79 SASR 342; R v White [2016] SASC 33; R v Eggen & Eggen-Zeytoun [2016] SADC 26; Michaelis v Police [1999] SASC 102; Wilson & Morrison v The Queen [1994] SASC 4554; R v Neal [2017] SASCFC 44; R v Daka [2019] SASCFC 80; Ghamrawi v R [2019] SASCFC 108; R v Nguyen [2016] SASCFC 7; The Queen v Bainbridge (Unreported decision of the Court of Appeal (No 2) CA 258/99 delivered 9/9/99); R v Ioannidis [2015] SASCFC 158; R v Nguyen [2013] SASCFC 91; R v Dam & Nguyen [2015] SASCFC 131, considered.

R v W, N P
[2019] SADC 143
Voir Dire
Introduction

The accused is charged on Information dated 16 November 2018 with one count of Trafficking in a Controlled Drug contrary to s 32(3) of the Controlled Substances Act, 1984 (the Act).
The prosecution alleges that, on 23 January 2018, the accused trafficked in 53.6gms of a substance containing methamphetamine at Athol Park, knowing or being reckless as to the fact that the substance was a controlled drug.
The subject charge arises out of a search by police officers of a motor vehicle which was driven by ‘PB’, at about 1.30am on 23 January 2018. The accused was seated in the front passenger seat, and was the sole passenger.
The motor vehicle, a white Holden Commodore wagon with Victorian registration, IJH9CX (the Holden), had been hired by the accused from a vehicle hire company in Victoria on 8 January 2018. The drugs were located by the police in a black case in close proximity to the accused’s position in the front passenger seat.
Upon opening the black case, the police located, inter alia, two plastic bags, one of which contained 26.2gms of a crystalline substance, of which 12.8gms was later analysed to be pure methylamphetamine; while the other contained 27.4gms of a similar substance of which 15.2gms was pure methylamphetamine.
The accused asserts that the police acted unlawfully, initially by opening the passenger door of the Holden prior to forming any view as to whether drugs were in the Holden, and subsequently when deciding to conduct a search of the Holden. He submits that in the event that the Court concludes that there was any unlawful conduct by the police, all of the evidence obtained from the search of the Holden ought to be excluded from the trial. See R v Rondo [2001] NSWCCA 540; and R v Eggen & Eggen-Zeytoun [2016] SADC 26.
The trial of the charge on the Information is listed to commence on 22 October 2019.
Application by the accused
The accused filed an application, dated 16 January 2019, pursuant to the provisions of Rule 49(1)(h) of the District Court Criminal Rules 2014, seeking orders:
1That the question of the admissibility of evidence obtained from the subject motor vehicle search be determined at a voir dire hearing prior to the commencement of the trial on the subject charge.
2That an order be made that all of the items and evidence in consequence of the police search of the motor vehicle be excluded on the grounds that there was no reasonable cause for any of the police officers to suspect any of the preconditions to a lawful search pursuant to s 68 of the Summary Offences Act 1953, and that accordingly the search was illegal and the evidence was unlawfully obtained.
I granted the application for a voir dire to be heard prior to the date for trial.
Mr Cunningham appeared for the prosecution. Mr Edwardson QC with Mr S. McDonough appeared for the accused.
Prosecution case in overview
On the evening of 22 January 2018 Senior Constable Hibbert and Senior Community Constable Lovegrove had been on plain clothes patrol duties as part of a police operation to locate a male suspected of criminal offences in the western suburbs. That person was not the accused nor ‘PB’. Indeed, the police officers did not know either of them at the time.
They had been tasked in the early morning of 23 January 2018 to leave the other officers, and to monitor a house at Athol Park (the monitored house); which had been identified in police intelligence reports as a place visited by that male suspect, and others involved in criminal activity, including illicit drug purchasing and selling.
At about 1.30am, they observed the Holden travel south on ‘G’ street Athol Park. They decided to follow that vehicle when it turned left onto ‘P’ street. They were aware that the monitored address was located on the second street on the left-hand side of ‘P’ street.
The Holden did not enter the street on which the monitored house was situated. The Holden was ultimately stopped by a direction of those officers after they activated warning lights and sirens at Hanson Road at Mansfield Park.
While following the Holden, the police officers had informed other members of the western suburbs operation, inter alia, that the Holden had been in close proximity to the monitored house, and other observations to which I will refer.
It is not in dispute that Senior Community Constable Lovegrove walked to the driver’s window of the Holden and requested to see the driver’s licence.
The driver did not have his licence with him, but identified himself as ‘PB’. Senior Constable Lovegrove noted that there was a passenger, sitting in the front passenger seat, whom he now knows to be the accused. While checks were being undertaken to confirm the driver’s identity, and the ownership of the Holden, the other police officers from the western suburbs operation arrived. They were respectively Detective Brevet Sergeant Rigano; Senior Constable Emmanuel and Senior Constable Hintz.
The enquires as to the identity of the driver and the ownership of the Holden had not been completed prior to the arrival of those other police vehicle.
After speaking to Senior Community Constable Lovegrove, and to Detective Brevet Sergeant Rigano, Senior Constable Emmanuel walked to the front passenger door of the Holden and opened it. He spoke to the accused. None of the police officers had known of the accused or the driver previously. They were not mentioned in any intelligence reports to have links with the male suspect, nor had they been observed at the monitored house. Subsequently a decision was made to search the Holden.
That search was principally conducted by Senior Constable Emmanuel.
The accused alighted from the Holden when directed by Senior Constable Emmanuel to do so.
Senior Constable Emmanuel located the black case containing the abovementioned bags of clear crystalline substance. He suspected it to be methamphetamine, and accordingly the accused was arrested and charged with the subject offence.
The voir dire
The accused was arraigned and pleaded not guilty to that charge. Counsel for the prosecution informed the Court that he intended to call, as oral witnesses, Senior Community Constable Lovegrove; Detective Brevet Sergeant Rigano; and Senior Constable Emmanuel.
Senior counsel for the accused consented to the prosecution tendering the declarations of each of the witnesses as their evidence in chief, supplemented by such additional evidence as sought to be led by the prosecution.[1]
[1] T2.
Among the questions to be determined on the voir dire were:
·The identity of the police officer who made the decision to search the Holden;
·Whether that police officer held a reasonable suspicion that the vehicle contained drugs, as opposed to ‘might have’ drugs;[2]
·Whether the opening of the passenger door of the Holden prior to the decision to search was unlawful;
·Whether the subsequent search of the Holden was unlawful because the relevant police officer either did not hold a reasonable suspicion or because the earlier opening of the door was unlawful;
·Whether, in the event, that the search of the Holden was unlawful, the evidence of the fruits of the search ought to be excluded in the evidence of the discretion.[3]
[2] George v Rockett (1990) 170 CLR 104; R v Nguyen [2013] 117 SASR 342; R v Rogers (2011) 109 SASR 307; Ghamrawi v The Queen [2019] SASCFC 108 and R v Nguyen [2016] SASCFC 96.
[3] Bunning v Cross (1978) 141 CLR 54; R v Golsa [2017] SASCFC 61; Pollard v R (1972) 176 CLR 177; R v Rockford (2015) SASCFC 51; R v Rondo [2001] NSWCCA 540 and R v Eggen & Eggen-Zeytoun [2016] SADC 26.
The evidence
The prosecution tendered the declaration of Senior Community Constable Lovegrove dated 28 May 2018; those of Senior Constable Emmanuel dated 5 March 2018 and 3 June 2019; and that of Detective Brevet Sergeant Rigano dated 27 February 2018.[4]
[4] Exhibit VDP1.
An exhibits log was also tendered,[5] as was a map of Athol Park, identifying the route taken by the Holden.[6] Documents entitled ‘Police Shield Intelligence Reports’, relating to suspected drug trafficking at the monitored address were tendered without objection.[7] Neither the accused nor ‘PB’ were mentioned in those reports.
[5]    Exhibit VDP2.
[6]    Exhibit VDP3.
[7]    Exhibit VDP4 and VDP5.
A bundle of 11 photographs detailing various cards in the name of the accused, some cash, mobile phones and the subject bags of crystals were tendered without objection,[8] together with a disc.[9]
[8] Exhibit VDP6.
[9] Exhibit VDP7.
The evidence of the police witnesses
When giving evidence on the voir dire a number of questions were directed to the police officers on occasions as to their ‘knowledge’; on other occasions, as to what they ‘believed’; and what they ‘suspected’. In my opinion, the various witnesses were, at times, confused about those different states of mind’ and whether the cross-examiner was instead referring to ‘proof’ or a ‘belief’.[10]
[10] See R v Rogers [2011] 100 SASR 307 at [18]-[22].
It is convenient to set out the nature ascribed to those states of mind by the High Court in George v Rockett.[11] The Court said:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. ‘I suspect but I can’t prove’ … The facts which can reasonably ground a suspicion may be quite insufficient to ground a belief, yet some factual basis for the suspicion must be shown. ‘Suspicion’ is a less onerous state of mind to establish than ‘belief’.
[11] [1990] HCA 26.
It is therefore necessary to detail some of the respective evidence of the police officers. It is not intended to be a comprehensive record of their evidence.
There are two relevant events. The first involves the direction given by the police officers, Hibbert and Lovegrove, to the driver of the Holden to stop. The second involves the decision to search the Holden. As to the latter it is trite that the relevant time for the police officer’s suspicion is at the time of the decision to search.
Senior Community Constable Lovegrove
In chief
Officer Lovegrove explained that he and Senior Constable Hibbert were on plain clothes patrol duties to assist an investigation into a number of crimes which had been committed in the western suburbs. Together with three other officers, who were in a separate vehicle, they had attended at Taperoo. They were seeking a specific suspect in connection with those offences. After some time they were directed to attend the vicinity of the monitored house at Athol Park.
He deposed that the monitored house had been identified as one at which drugs were known to be dealt; stolen items found; and was of interest to officers involved in Operation Mandrake. He was aware that that male suspect had attended the monitored house from time to time, however his task was not restricted to that suspect, but to ‘locate undesirable persons or suspects in that area’.
He deposed that at about 1.30am on 23 January 2018, he observed the Holden travel south on ‘G’ Street then left onto ‘P’ Street before travelling north. He was aware that the monitored house was located on the second street to the north off ‘P’ Street. The general area was of an industrial zone containing warehouses, vacant allotments and some residences. Rather than continue to the monitored street, the Holden immediately turned left at the first street.
They followed the Holden down that street because it had vacant land which provided rear access to the monitored address. The Holden did not stop but continued to a junction between the street containing the monitored house on the right, and another street on the left.
The Holden was observed to stop, facing eastbound at that junction. It remained stationary for approximately 5 seconds without indicating. He deposed that he noticed that the sun visors were down on the Holden. He thought that this was odd given the time of night. He saw that it was a Victorian registered vehicle.
He attempted to conduct a registration check, but received no response from police communications. The driver of the Holden then indicated and turned left to travel in a northerly direction at a low speed, in the direction away from the monitored house.
Senior Constable Lovegrove deposed in his declaration that he spoke to members of Operation Mandrake ‘advising them of the Holden, its suspicious manner of driving and its close proximity to the monitored house’.
By this time the Holden had turned right onto Millicent Street, before again turning right onto Hanson Road. He activated the emergency lights and about 150 metres later the Holden pulled over to the left‑hand side of Hanson Road at Mansfield Park.
In his declaration, he said that it had appeared to him initially that the driver was ‘not obeying our direction to pull over’.
He explained that he approached the driver for the sole purpose of undertaking a licence and registration check of the Holden. He did so because it was an interstate registered vehicle and a hire car. He was plainly entitled to do so.[12] He spoke to the driver who had no identification on his person, but identified himself as ‘PB’, which was subsequently confirmed as his identity.
[12] See Police v Moukachar (2010) 107 SASR 450, R v Dam [2015] 123 SASR 511 and R v Armistead [2019] SASCFC 85. See also Road Traffic Act 1961 s 40H (to stop the vehicle) and 40V (to require name and person detail).
When he asked the driver as to the ownership of the Holden, it was the accused who answered, ‘it is a hire car’.
The accused produced his own interstate licence. Mr Lovegrove said that he observed a yellow box similar to a police taser box, in the vehicle. He deposed to having the impression that the accused was trying to conceal it. He deposed that both the driver and the accused appeared nervous. He thought that it was odd that the accused answered the questions which he had directed to the driver.
He deposed that he observed the accused ‘place his right arm around the rear of his seat as if he was going to reach for something. He saw him slide a black bag over that yellow box which was in the foot well directly behind his seat’.
He said that he remained with the driver while Senior Constable Hibbert conducted checks on both the driver and the accused.[13]
[13] T9.
The other police patrol vehicle then arrived containing the other three officers.
He said that while he was conversing with the driver, he observed Senior Constable Emmanuel approach the front passenger door, open it and speak to the accused.
He did not hear what passed between Officer Emmanuel and the accused. He said that he observed the accused alight from the Holden, walk to the rear of it; remove items from his pocket and place them on the police vehicle.
It was unclear from his evidence as to what, if anything, had occurred between the initial opening of the door, and the accused alighting from the Holden. He observed Officer Emmanuel search the passenger side of the Holden, while another officer, Brevet Sergeant Rigano, remained with the accused. Officer Lovegrove took no part in the search.
Cross examination
Officer Lovegrove conceded that he did not know anything about the driver or the accused before he stopped the Holden. He had no information at that time that the Holden was in any way connected to the monitored house, save for its proximity on that night. He conceded that ‘he had no information the Holden was likely to have drugs in it, or that the two men who occupied the Holden were in possession of drugs.[14]
[14] T12.
He repeated that he stopped the Holden to do a licence check, and did so because it had interstate licence plates and, was a hire vehicle.
He conceded that when he noticed the accused attempting to conceal a container in the footwell, he could not see any drugs or drug paraphernalia.
He was not asked whether he suspected that the accused was hiding drugs in the Holden. He said that at that time he had had no opportunity ‘to conduct checks on our systems to link them to drug dealing’.

He repeated that any intelligence which he had about drug dealing activities inside the monitored address, did not refer to the occupants of the Holden. He conceded that he did not ask the accused any questions about what he was doing with the black bag.
He simply asked for ‘the accused’s ID and he obliged’. He conceded that his intention was solely to speak to the driver to see if he had a licence. He took no other part in the process that followed upon the arrival of the three officers.
Senior Constable Emmanuel
In chief
Senior Constable Emmanuel explained that he was on duty at the relevant time as part of Operation Mandrake and was focussing on an address in another suburb. He was aware that Officers Lovegrove and Hibbert had been earlier despatched to the monitored house in Athol Park. He was aware that occupants of that monitored house were suspected of dealing in quantities of amphetamines. He was aware that drug suppliers attended the monitored house at all hours. He was advised by police communications that the Holden was in close proximity to the subject address.
He deposed to speaking to Officer Lovegrove via police communications about the driver attempting to get away from Officer Lovegrove, and was told that the front visors on the Holden were down. He was immediately ‘suspicious’ as to why the driver of the Holden had chosen to drive down a road in an industrial area at that time of night with the visors down in the poor lighting. He suspected from what he had heard over the police communications about the driver attempting to get away from Officer Lovegrove, that the driver was aware of the police vehicle, and had deliberately moved away from the direction of the monitored house.
He deposed that his suspicion was elevated when he was told it was a hired vehicle from interstate. He said that he was told by Officer Lovegrove that it took some time for the Holden to pull over, after the police warning lights had been activated.
He deposed that his suspicion that there were drugs in the Holden was based upon information he had obtained both before he arrived at Hanson Road, as well as his observations upon arrival.
Prior to his arrival he had the following information:
·Intelligence reports of drug dealing at the monitored house, during all hours of the day and night.
·The route taken by the Holden, through an industrial area at that time of night, and which was in close proximity to the monitored house.
·The manner of driving including stopping at the junction of roads including that on which the monitored house was located, before turning to the left after a delay. He did not decide to go to Hanson Road on mere speculation. He was not engaged in ‘turning over’ the vehicle.
·The sun visors being down.
·The failure of the driver to bring the Holden to a stop for about 150 metres.
He deposed that upon arrival at Hanson Road he had approached the passenger side of the Holden to speak to the accused. He opened the door to have chat with him.[15] He did not think that he was prohibited from doing so. He denied that he did so to inspect the vehicle. He wanted to ensure that Officer Lovegrove could obtain answers from the driver without the accused providing the answers.
[15] T38.
He then observed that the accused had a mobile phone in his hand and another mobile phone on his lap. One of them was a ‘Blackberry’ which he knew was highly encrypted and often used by criminals. He observed a shroud from the middle console had been dislodged and was hanging downwards. It was in plain view and was obvious.
He deposed that he suspected that the accused was trying to conceal drugs in the Holden. He explained that in addition to the above matters giving rise to his suspicion, he was aware that hire cars are often used to mask a driver’s identity; that some criminals conceal illicit drugs within the body panels of such vehicles; and that illicit drugs such as methamphetamine are small in size but high in value.
He explained that the vehicle was a new Holden and ought not to have had panels unclipped. He had discussions about his observations with Detective Brevet Sergeant Rigano, who discussed his own suspicions and observations.
He said that he formed a reasonable suspicion that there were drugs and drug paraphernalia within the Holden, and, after having discussed that question with Detective Brevet Sergeant Rigano, he proceeded to search the Holden. Both officers made the decision to search the Holden.[16]
Cross examination
[16] T49-55. Contrast R v Nguyen [2015] SASCFC 7.
Officer Emmanuel conceded that the intelligence reports VDP4 and VDP5 were specifically directed to the occupants or known visitors to the monitored house. He said that the reports did not refer to either the accused or the driver.
He conceded that he had no intelligence linking the Holden with any criminal activity or connecting the two occupants to any criminal activity, save for his suspicions.
He conceded there was no evidence that either man had ever attended the monitored house. He also conceded that he did not see any drugs or drug paraphernalia before the search commenced.
He said that he did open the passenger door with the intention simply to speak to the accused. He was concerned to divert him from interfering with questions being asked by Officer Lovegrove of the driver.
He specifically denied opening the door so that he could see inside the Holden. He repeated that the fact that sun visors were down at 1.30am was of itself suspicious when coupled with ‘the Blackberry’, and the other matters to which he had referred. He conceded that a ‘Blackberry’ is also used by law abiding citizens, as are hire cars, but it was the combination of those factors which led him to reasonably suspect illicit drugs in the Holden.
Detective Brevet Sergeant Rigano
In chief
Mr Rigano explained that the role of Operation Mandrake was to target and monitor the activities of a group of ‘criminal recidivists around the Port Adelaide Peninsular area in early 2018’.
He explained that on the subject night he had arranged for two vehicles containing police officers to undertake an operation in the western suburbs. In his group were Officers Emmanuel and Hintz; while Officers Hibbert and Lovegrove were in the other vehicle.
He explained that their activities on that evening centred around Taperoo; and Gilles Plains. They were not related to the accused, but to the male suspect who had a main residence in Taperoo but was known to frequent the monitored house in Athol Park. He had intelligence reports containing information about visitors to the monitored house which involved, inter alia, drug dealing, including the delivery of drugs to it. He tasked Officers Lovegrove and Hibbert to monitor the vicinity of the monitored house.
He recalled that at about 1.30am on 23 January 2018 he was aware via radio transmissions that Officers Lovegrove and Hibbert had followed the Holden which had been in the vicinity of the monitored house.
He made the decision to attend at Hanson Road. He arrived shortly after the Holden had been pulled over.
He deposed that he was told over the radio, that the driver of the Holden had attempted to avoid being stopped. When he arrived, he observed that the accused appeared excessively nervous for a routine stop; and was told by Officer Lovegrove that the accused had answered questions which he had directed to the driver.
He said that accordingly, he was anxious to ensure that the two occupants of the Holden were kept separate.
He said that it was Senior Constable Emmanuel who walked over to the passenger side of the vehicle to speak to the accused while Officer Lovegrove spoke to the driver.
He was also informed by Senior Constable Emmanuel that the plastic interior panel abutting the front passenger seat of what was a new Holden appeared to be unclipped. He later observed that where the gear lever was positioned between the driver and the passenger, a plastic panel was not sitting flush. It appeared to have been recently manipulated and not plugged back in properly. It was next to the accused’s right knee.
He said that Senior Constable Emmanuel told him that he believed that there were drugs in the Holden which the accused was trying to hide. He said that there were a number of matters considered by him. He knew that there were numerous persons who dealt in drugs at the monitored house. He knew that the Holden had been driven in close proximity to that house. It was being driven in an industrial area with its visors down at about 1.30am. It was a Victorian registered hire vehicle.
He said that he spoke to the accused. He noted that one of the mobile phones in the accused’s possession was a ‘Blackberry’.
He reflected with Senior Constable Emmanuel as to whether they had a reasonable suspicion, that drugs were in the Holden, and whether they should conduct a search. They decided that they did have a reasonable suspicion.
Brevet Sergeant Rigano said that Senior Constable Emmanuel searched the Holden. He deposed that in contrast to Senior Constable Emmanuel, he searched part only of the cabin, but found nothing.
He was asked what he knew about the occupants as opposed to what he suspected. He conceded that he had no intelligence at the time about either of them.
He deposed that he took on the role as the relevant exhibits officer and took photographs of those exhibits.[17] He explained that he was made aware that Officer Emmanuel had located a black case behind the dislodged plastic shroud in the centre console of the vehicle, and that he suspected it to contain methylamphetamine.
Cross examination
[17] EX VDP6.
Mr Rigano was cross examined extensively about his knowledge of the accused at the time that the Holden was searched. He agreed that he knew nothing of the accused or the driver save for the fact that they were in close proximity of the monitored house at the time of night in a Victorian hire vehicle, and what he had been told by Mr Lovegrove and Senior Constable Emmanuel.
He conceded that the police intelligence reports on the subject address made no mention of the accused or the driver ‘PB’.
Detective Brevet Sergeant Rigano confirmed his observations detailed in his declaration dated 27 February 2018, that the accused appeared to him to be excessively nervous for a routine traffic stop.
He conceded that he did not create a contemporaneous record of his conversations with the accused. He did not ask any questions of the accused as to whether he had any connection with the monitored house.
He said that he may have spoken to the accused about his nervous condition, but again had no contemporary note. He accepted that Officer Emmanuel had directed the accused to get out of the Holden. He repeated that Officer Emmanuel had reported to him the observations which he had made and that they discussed whether they had a reasonable suspicion to search the vehicle. He said that based upon what he knew at the time, they both decided that there was a reasonable suspicion.[18]
[18] Contrast R v Nguyen [2015] SASCFC 7 where it was only the Senior Officer who made the decision to search.
He was asked about his basis for reaching that conclusion. He repeated that he had been told over the radio that those occupants of the Holden had attempted to avoid being stopped.[19]
[19] T28-29.
He conceded that the accused must still have been in the passenger seat of the Holden at the time he arrived.[20]
[20] T30.
He repeated that the accused ‘appeared excessively nervous for a routine traffic stop, and avoided answering why they were in Athol Park’.[21]
[21] T30-31.
He conceded that he had made no note in his declaration to that effect. He was asked whether it was appropriate for him to ask questions of the accused and the driver. He explained his understanding of the law was that a police officer could ask questions of a member of the public, and it was a matter for that member of the public to decide whether to answer.[22]
[22] See Police v Moukacher (2010) SASC 199, and R v Armistead [2019] SASCFC 85.
He conceded that he had no information about the Holden itself apart from it being a hire vehicle. He also conceded that at that time he had no information directly connecting the occupants to the monitored premises.
He was asked:[23]
[23] T32.
QWhat evidence or information did you have that gave rise to a suspicion that either one of these men were in possession of drugs or that there were drugs in the car.
ASo, you are aware of the Shield Intelligence Summaries pertaining to occupants of the address using and dealing in drugs.
QYes.
AThere is information about drugs being delivered to that address at all times. We have these gentlemen in a hire car. In my experience hire cars are often used by people trading in methamphetamine as a means of avoiding detection…
QDrug dealers often use other cars, not just hire cars.
AYes, which is why, when I pull over a hire car, I don’t automatically search them for drugs.
QYou had no evidence at all to connect this particular hire car with drug dealing or at that address, did you. (my emphasis)
AMay I have that again. Only that it was seen in the vicinity of [the monitored premises].
He was again asked why he had not included in his notes that the ‘accused appeared excessively nervous for a routine traffic stop and was plainly avoiding answering some very simple questions about their business at Athol Park at that time of night’. While he could not say specifically why, he did remember it at the time he prepared the declaration.
Brevet Sergeant Rigano deposed that after speaking to Senior Constable Emmanuel they both decided they he had a reasonable suspicion to search the Holden.
It was suggested to him that it was a ‘speculative’ investigation because he had no evidence that either man had committed an offence. He answered saying ‘my suspicions were formed on further things than what [counsel for the accused] mentioned’. He repeated that the monitored address had been used for delivery of drugs; hire cars are used by drug dealers, as were Blackberrys.
He had no memory of anyone asking the accused about the interior panel having been dislodged.
The accused
The accused did not give evidence and no evidence was called on his behalf on the voir dire.
Submissions of counsel
The accused
Mr Edwardson QC submitted that Officer Emmanuel had undoubtedly acted unlawfully in opening the first passenger door.[24] He submitted that both Officers Emmanuel and Rigano had engaged in ‘nothing more than a speculative search’, and that neither held the requisite ‘reasonable suspicion’.
[24] Coleman v Zanker (1991) 58 SASR 7.
He referred to the concession by each officer that they had no evidence of any connection between the drug activity at the monitored house, and the two occupants of the Holden. He contrasted those facts with the facts in R v Nguyen[25] where the police had entered a private property blocking the accused’s vehicle. The police had acted on historical information connecting the premises and the accused’s vehicle to drug trading activity.
[25] [2013] SASCFC 91.
He submitted that the Court of Criminal Appeal had held that the historical information was insufficient to support a reasonable suspicion of current drug trading, and the evidence of drugs found in the vehicle ought to have been excluded. Mr Edwardson submitted that, a fortiori, it ought to be excluded in the subject case where there was no information at all connecting the Holden or the accused to the monitored house.
In the Nguyen case, the Court of Criminal Appeal however was also concerned that the stopping of the vehicle was not for a proper purpose under the Road Traffic Act, but a means employed by them to check the vehicle for drugs.[26]
[26] See also R v Neal [2017] SASCFC 44 at [28]-[40].
He submitted that the route taken by the accused in the subject case, if of any relevance, assisted a finding that there was no connection with the monitored house.
He referred to the dicta in R v Marafioti.[27] In that case Kourakis CJ had concluded that the presence of a person apparently intoxicated in a motor vehicle ‘is a reasonable basis upon which to suspect that an illicit substance or an instrument for its administration will be found in the vehicle … however a suspicion is still a reasonable one, even if there remains a possibility or even a probability that the thing suspected will not be discovered’.
[27] [2014] 118 SASR 511.
Mr Edwardson however noted that the Court had held that other factors also referred to in the subject case namely:
The driving of a hire car which is a common modus operandi for drug dealers; the driver was evasive, agitated and in a hurry to go, and gave an account as to where he was going which was inconsistent with his passenger’s, were doubtful of themselves to constitute reasonableness.
Mr Edwardson referred to a number of other authorities which he distinguished from the facts of the subject case. He submitted that at its highest the facts fall directly within those identified in Marafioti as being insufficient to constitute reasonableness.
He turned to the question of the discretion to exclude or admit the evidence in the event of a finding of an unlawful search.
He submitted that the police officers did not at any time hold a reasonable suspicion. This was, he submitted, a speculative search, and the Court ought to find that the officers had ‘attempted to retrospectively justify the unjustifiable’.
He submitted that the Court should exercise its discretion to exclude the unlawfully obtained evidence. He referred to the cases of Pollard v The Queen[28] and R v Rockford.[29]
[28] (1992) 176 CLR 177.
[29] [2015] SASCFC 51.
The prosecution
Mr Cunningham submitted that this was not a speculative search nor some harassment of a suspect. The police did not know the two occupants of the Holden. He stressed that the monitored house was just one of the factors giving rise to their suspicion of drugs, and was therefore different to cases such as R v Nguyen [2013] SASCFC 91. The subject case involved an interstate registered hire car being driven in an industrial area at 1.30am. The monitored house was not the scene of historical offences but one currently being monitored for drug dealing, including the delivery of drugs. In addition to the other matters which had been referred to as of limited relevance in Marafioti, namely the mobile phones, the demeanour of the occupants, the police had observed the accused attempt to hide something in the vehicle, and the displaced shroud.
Mr Cunningham submitted that the decision of Constable Lovegrove to direct the Holden to stop was uncontroversial. Constable Lovegrove was entitled to do so for the purpose of a licence check. It was not done for any improper purpose.[30] He noted that the driver did not have his licence on him. The decision to cause checks to be made was not just proper but inevitable.
[30] R v Nguyen and R v Neal, supra.
He submitted that the Holden was not detained for any other purpose. There was no delayed detention as the checks had not been completed before the other officers arrived.
As to Constable Emmanuel opening the front passenger door he submitted that it was not unreasonable to do so in order to speak with the accused. He submitted that I should accept him as an honest and reliable witness who did not open the door to inspect the interior.
He submitted that the decision to search was not made until later. Even prior to arriving at Hanson Road, Officer Emmanuel had been made aware of the route taken by the Holden; that the driver was attempting to avoid being stopped (even if it was incorrect information),[31] and the visors being down. He submitted that by the time of the decision to search, both Officers Emmanuel and Rigano had the evidence of the demeanour of the occupants; the mobile phones; the position of the plastic shroud; and the proximity of the monitored house.
[31] R v Rogers [2011] SASC 60.

Mr Cunningham submitted that those officers were not simply checking vehicles in the area. They were investigating quite separate serious crimes. He submitted that the Court ought to infer that the officers attended Hanson Road because they genuinely believed that the occupants of the Holden were involved in drug trading.
They carefully addressed the question whether they had enough to constitute ‘reasonable suspicion’.
He submitted that if the Court concluded that the search was unlawful as falling short of the test for ‘reasonable suspicion’ the Court ought to exercise the discretion in favour of the admission of the evidence of the drugs at the trial.
He submitted that there was no conscious impropriety by any of the police officers – they did not act impulsively nor did they fail to consider whether they had reasonable cause. At its highest they made a mistake.
Findings as to the facts
I turn first to the evidence of Constable Lovegrove. He was plainly a witness of truth. He took no part in the decision to search the Holden. His evidence was principally directed to the decision to direct the driver of the Holden to pull over. He also gave evidence as to the information which he had provided to the other police officers over the police transmissions.
I did not understand Mr Edwardson to challenge the lawfulness of the decision to pull over the Holden. Constable Lovegrove made it clear that he did so because it was an interstate licenced vehicle being driven at 1.30 am through an industrial area with its visors down. He was plainly entitled to do so pursuant to s 40H of the Road Traffic Act. It was not done for any improper purpose.
In R v Neal [2017] SASCFC 44, Kourakis CJ said at [25]:
It is not improper for a police officer to make a request of a person [to stop] in circumstances in which a duty to comply with the request will arise and at the same time be alert to other policing objectives. It is different if the power or authority is exercised for illegitimate reasons like personal vindictiveness or in an attempt to obtain a personal benefit.
I do not accept that there is any inconsistency between the respective accounts of Senior Constable Lovegrove and Senior Constable Emmanuel. I accept the evidence of Mr Emmanuel that he was told that the Holden was being driven in close proximity to the monitored house; that it was being driven in a suspicious manner; that it had its front visors down; and that the driver had attempted to avoid being stopped. I also find that there was some time between Senior Constable Emmanuel opening the front passenger door of the Holden and speaking to the accused, and the time when the decision was made to search of the Holden. I find that it was during that discussion between Senior Constable Emmanuel and Detective Brevet Sergeant Rigano that they addressed whether they had a reasonable suspicion that drugs were in the Holden. The time lapse was consistent with the declaration of Senior Constable Lovegrove in EX VDP1.
I have no doubt that Senior Constable Lovegrove did observe the accused move, with his right arm, something behind his seat and that he formed the opinion that the accused was trying to conceal a box with a black bag. I also accept the truth of Senior Constable Lovegrove’s account of the accused’s demeanour. In his declaration, he described ‘both males appearing to be nervous with police presence and any questions I asked of [the driver], the accused would answer on his behalf’.
I turn next to the evidence of Senior Constable Emmanuel. I do not accept the submission of the accused that the declaration and evidence of the police witnesses ‘smack of retrospective reconstruction and retrospective justification for what they must have known was unlawful’.
In my opinion Mr Emmanuel was both an honest and reliable witness. I accept that he knew either from information given to him by Senior Constable Lovegrove or from Detective Brevet Sergeant Rigano at the time the decision was made to conduct the search that the Holden, an interstate registered vehicle had been driven at 1.30 am in an industrial area at Athol Park; it had driven down the vacant street which ran parallel to that on which the monitored house was positioned; had its visors down; the accused had attempted to hide something in the Holden when Senior Constable Lovegrove had approached the vehicle; the accused appeared excessively nervous for a routine traffic stop; the accused was in possession of one mobile phone in his hand and another on his lap being a Blackberry; and there was a dislodged plastic shroud in the centre console of the Holden close to the accused’s knee.
I also find that he was told by Senior Constable Lovegrove that the driver had attempted to avoid being stopped. It is not to the point that the latter information was inaccurate as it came from an apparently reliable source.[32] I have no doubt that he was satisfied that the Holden had illicit drugs in it. The question whether it was a reasonable suspicion will be decided by the Court. This was not a case of turning over a vehicle on ‘mere speculation’. His role and those of Operation Mandrake included current criminal activity at the monitored house. I accept that the officers in fact diverted from their intended address to attend at Hanson Road.[33]
[32] See R v Rogers (2011) 109 SASR 307.
[33] T37.
I accept that Senior Constable Emmanuel had no lawful authority to open the front passenger door at the time he did. I accept that he did not turn his mind to whether he had a lawful authority. I accept that he only did so in order to speak to the accused while Senior Constable Lovegrove spoke to the driver.
I turn finally to the evidence of Detective Brevet Sergeant Rigano. I do not accept the submission of the accused that Detective Brevet Sergeant Rigano was an unimpressive witness, nor do I accept that he ‘constantly tried not to grapple with questions or volunteer information to advance the argument for reasonable suspicion’.
In my opinion Detective Brevet Sergeant Rigano did no more than attempt to answer questions as to the factors relevant to his suspicion. He was genuinely confused about whether he was being asked about the basis of his suspicion or what information he had. I repeat, as an example, the questions at p32:
Q.The information you had was that the car was seen in the vicinity of that address, but that was the limit of the information which you had.
A.My suspicions were formed on further things than what you mentioned.
QThat's not my question. Please grapple with it. I'll ask it again. At that stage, you had no further information beyond the fact that the car occupied by these two men had been seen in the vicinity of [the monitored house], as you told us.
AYes.
He was then asked a series of questions about what evidence he had:
Q.Nor did you have any evidence that the car was likely to have drugs in it.
AI'm not sure I understand that point.
I have no doubt that at the time the decision was made jointly by Detective Brevet Sergeant Rigano and Senior Constable Emmanuel to conduct the search they each had the ‘information’ deposed to by Senior Constable Emmanuel, to which I have just referred.
The statutory powers to stop and to search a vehicle
Section 40H of the Road Traffic Act, 1961 (SA) relevantly provides:
(1)    [A police officer] may, for the purpose of or in connection with exercising other powers under a road law, direct –
a.   The driver of a vehicle to stop the vehicle;
…
(2)    A direction to stop a vehicle may require that it be stopped without delay or that it be stopped at the nearest place for it to be safely stopped as indicated by the [police officer]
The statutory powers to search
I turn to the powers of the police to conduct a search of an individual and a vehicle.
Section 68 of the Summary Offences Act 1953 (SA) provides:
(1)A police officer may do any or all of the following things, namely, stop, search and detain—
(a)     a vehicle or vessel in or upon which there is reasonable cause to suspect that—
(i)    there are stolen goods; or
(ii)     there is an object, possession of which constitutes an offence; or
(iii)    there is evidence of the commission of an indictable offence;
(b)     a person who is reasonably suspected of having, on or about his or her person—
(i)    stolen goods; or
(ii)     an object, possession of which constitutes an offence; or
(iii)    evidence of the commission of an indictable offence. (my emphasis)
(2)     In this section—
stolen goods includes goods obtained by the commission of an offence.
Section 52(6) of the Controlled Substances Act 1984 (SA) provides:
An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act.
Discussion
There have been numerous recent decisions of the Court of Criminal Appeal dealing with the relevant principles of law with respect to the lawfulness of searches by police.
I readily accept that there is little utility in attempting to reconcile different views as to the respective questions of what does constitute ‘reasonable suspicion’, and the proper exercise of the Bunning v Cross discretion.
The differences merely reflect the different factual circumstances in each case.
Some of them deal with searches conducted on private property, where different principles apply;[34] others involved historical drug trading on private property which concentrate upon the private property rather than the conduct of the accused at the current time;[35] others touch upon the question whether the police had correctly turned their minds to their authority to search, or a question was raised as to which police officer had made the decision to search;[36] and others upon the exercise of the Bunning v Cross discretion.[37]
[34] See R v Armistead [2019] SASCFC 85.
[35] See R v Nguyen [2013] SASCFC 91.
[36] R v Nguyen [2016] SASCFC 96.
[37] See Ghamrawi v The Queen [2019] SASCFC 108.
There are however a number of decisions referred to by both counsel which involve a somewhat similar factual matrix, to which I refer.
·The direction to stop
I do not understand Mr Edwardson to challenge the authority of Constable Lovegrove to direct the driver of the Holden to pull over on Hanson Road. In my opinion Constable Lovegrove was plainly authorised to do so under s 40H of the Road Traffic Act.
He was concerned with an interstate licensed motor vehicle being driven at about 1.30am in an industrial area.
I accept that his direction was given to undertake a licence check for the purposes of the road laws.
·The opening of the passenger side door by Constable Emmanuel.
At the time that he opened the door, Mr Emmanuel intended to speak to the accused. He had not attempted to search the Holden. It occurred before he had discussions with Detective Sergeant Rigano whether a search of the vehicle ought to take place. However, in speaking to the accused, he did observe the mobile phones, and the plastic shroud.
Constable Emmanuel had no authority to open the door at that time. He had no reasonable suspicion at that time which could have justified a search.
Recently the Court of Criminal Appeal in Ghamrawi v The Queen [2019] SASCFC 108 considered the circumstances where a police officer had opened the door of a taxi, and directed the accused to get out, while having no reasonable suspicion.
The Court, which ultimately did not exclude evidence of the subsequent search, held that the detention ‘could be best described as a technical unlawful detention’. The evidence was not excluded at the trial.
In the subject case, Constable Emmanuel could have tapped on the window and asked that it be wound down. He would then have been able to speak to the accused and would have seen the same items.
In R v Armistead [2019] SASCFC 85, the police officer had observed the accused’s vehicle parked on private land. They had formed no reasonable suspicion about the driver, save that, the vehicle was parked at premises where ‘there had been a lot of trouble previously’.
The officer asked the accused for his licence.
While he checked the licence, another officer observed the accused attempt to ‘hide something’. He opened the driver’s door and directed the accused to get out of the vehicle. The search of the vehicle located a small quantity of methylamphetamine.
The evidence was not excluded at the trial, nor on the appeal.
Mr Edwardson referred to the case of Coleman v Zanker (1991) 58 SASR 7 in which the police officers had observed two motor vehicles stationery on the road verge. The police officers had no reasonable belief that the occupants were engaging in unlawful activity. The police officer directed the accused to ‘step out of the vehicle’.
Olsson J held that the police had no lawful authority to require the accused to get out of the vehicle. His Honour held that the subsequent discovery of the knife was the ‘direct product of the unlawful conduct of the police’.
There were a number of other difficulties in that case, including whether the accused was in ‘possession’ of the knife. His Honour set aside the conviction in the Magistrates Court.
In my opinion, the opening of the passenger side door by Mr Emmanuel, well before he had held a reasonable suspicion, was made without lawful authority, however it was of a ‘technical nature’.
I have no doubt that Constable Emmanuel did not open the door for any improper purpose. He simply did so to enable him to talk to the accused, and keep him separate from the conversation between the driver and Constable Lovegrove. I will consider this again however in the context of the Bunning v Cross discretion to exclude the evidence of the subsequent search.
·Questions asked of the accused
In my opinion, the respective police officers were entitled to ask questions of the accused and the driver.
As Vanstone J noted in Police v Moukacher (2010) 107 SASR 540 at [13]-[15] and affirmed by the Court of Criminal Appeal in R v Dam & Nguyen [2015] SASCFC 131 at [25]:
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of ss 74A and 74AB is to provide sanctions in the circumstances prescribed against the failure of an individual to provide the relevant information. A police officer does not need to bring himself within the circumstances addressed by any one of those sections in order to ask the designated questions or any other questions. However there is no obligation to answer such questions unless one of those sections or some other statutory provision obliges the individual to answer. In my opinion this is so even if there was technically an impropriety or a failure to comply with s 74A of the Act.
Further as explained in R v Armistead, supra at [94]-[99], the accused was not unlawfully detained when he was questioned.
·Was the search of the Holden unlawful?
I have already referred to the authority in s 68 of the Summary Offences Act.
Mr Edwardson referred to the dicta of Kourakis CJ in R v Marafioti (2014) 118 SASR 511; and to that of the Court of Appeal (No 2) in The Queen v Bainbridge (unreported decision CA 258/99, delivered 9/9/99). The latter decision is of little assistance as it concerned a search of a vehicle following a direction to stop, when the only justification for the ‘search’ was said to be to check the spare tyre in the boot.
The Court concluded that the search of the boot was not for the purpose of the Transport Act and was in breach of the New Zealand Bill of Rights Act.
In Marafioti, the accused’s motor vehicle was pulled over because its headlights were not illuminated.
The police officer deposed that both the accused and his passenger appeared nervous, agitated and evasive. He deposed that the passenger appeared intoxicated and it was for that reason that he suspected she was affected by illicit drugs.
The Court of Criminal Appeal held at [9] that the ‘presence of a person apparently intoxicated by an illicit substance in a motor vehicle is a reasonable basis on which the suspect that an illicit substance will be found in the car, and that it remains a reasonable one even if it remains a possibility or even a probability that the thing suspected will not be discovered’.
The Chief Justice explained that a suspicion is a less certain state of mind than a belief.
Mr Edwardson referred to dicta of his Honour at [11]-[13]. It is appropriate to set it out:
[11]Constable Boyd also relied on a number of other grounds for his suspicion including that Marafioti:
·    Was driving a hire car which is a common modus operandi for drug dealers.
·    Was wearing a bumbag which is a kind of bag often used by drug dealers.
·    Was evasive agitated and in a hurry to go; and
·    Gave an account as to where he was going which was inconsistent with his passengers.
[12]The Judge found, and it is not contested on appeal that Constable Boyd, subjectively suspected that there were drugs in the car for all of the reasons he gave. However, in the absence of his belief about Ms Doukas' state of intoxication I harbour doubts about the reasonableness of the other grounds. There are many law abiding members of the community who for a variety of reasons hire cars to travel in their home state, wear bumbags or become anxious in the presence of police.
[13]True it is that the other circumstances relied on by Constable Boyd may often be associated with drug dealers but they are also commonly associated with innocent persons. The suspicion associated with those circumstances is qualitatively and quantitatively very much weaker than the suspicion which attaches to a drug intoxicated person. Behaviours which might appear “odd” or “different” to some should not too quickly be associated with illegality. Eccentricities should not be magnets for the exercise of police powers.
In my opinion, his Honour did not conclude that those indicia are of no significance. It is plain that when they accompany other indicia they may give rise to a reasonable suspicion. I refer to the respective decision of the Court in R v Rogers; R v Frantzis; R v Willingham (No 2), and R v Fazio.
In R v Frantzis[38] the Court of Criminal Appeal discussed the test of reasonable suspicion under s 68, saying:
That the level of reasonable suspicion must exist at the time the member of the police force conducts the search.
It said that the power to search and detain is for the purpose of enabling a police officer to investigate the possibility that an offence has been committed.
It is not necessary that the police officers have knowledge of the commission of an offence, or the particulars of the commission of an offence. Nor does the police officer have to suspect that [an individual] need necessarily have committed any particular offence.
The section is designed to be an aid in the investigation of the commission of an offence, and hence it is enough that the police officer has reasonable cause to suspect that there is [on the person] any of the matters mentioned in s 68(1). It is dangerous to draw too close an analogy between the meaning of ‘with reasonable cause to suspect’ in s 68 and its meaning in relation to other provisions involving more significant erosions upon civil liberties, for example in relation to the power to arrest without a warrant under s 75 of the Act.
In my opinion there is no true analogy. The power to arrest in s 75 must be founded upon a suspicion of having committed, or being about to commit a specific offence, and the arrested person must be told the offence for which he is being arrested … Power to search stands differently. It is designed to enable a police officer to investigate the possibility that an offence has been committed. Its purpose is quite different from s 75. There may be many circumstances in which a police officer will reasonably suspect that the search of a person will disclose stolen goods … without having any information as to the existence of any specific property or the commission of a specific offence.
If the power to search did not apply to persons who were acting suspiciously unless the police officer already knew or suspected the presence of specific goods or the commission of a specific offence, police work would be considerably, and I think unreasonably, constrained. Mrs Shaw was unable to cite any authority to suspect her proposition that s 68 should be interpreted in such a restricted manner. I think that the words in s 68 embrace a non-specific suspicion as to the matters mentioned in that section. I see no reason for restricting the natural meaning of the words, and to do so, would in my opinion unreasonably hamper the police in their work of criminal investigation.
[38] (1996) 66 SASR 558.

The Court concluded by saying that if the search was otherwise found to be illegal, it would have been within the proper exercise of the court’s discretion to refuse to exclude the evidence. It said ‘the police officers were acting reasonably and sensibly.
In Bain v The Police [2011] 112 SASR 10, it was sufficient that a licence check had described the appellant as a ‘drug user dependent’, to justify a search of a motor vehicle which in turn produced jewellery rather than drugs. Not only was it sufficient to justify a reasonable suspicion, but also the search and questioning while it proceeded was held to be lawful. The Court held that the discretion should not be exercised to exclude the evidence because if there was any unlawfulness by the police it was not deliberate and the quality of the evidence found was not affected by the officer’s conduct.
In R v Rogers, Duggan J dealt with the question of reasonableness of a police officer’s suspicion for the purpose of a search saying at [6]-[27] that:
The police officer walked over to the Falcon and had a conversation with the accused. He said in evidence that the accused appeared erratic. He was sweating and appeared very nervous. The police officer said in evidence that the accused’s nervous agitation was “totally out of the ordinary when compared with the usual behaviour of persons whose vehicles are stopped”. (my emphasis)
…
[8]Brevet Sergeant Allen drew two important inferences from the accused’s behaviour. He believed the behaviour may have been due to drugs and that the acute nervousness suggested the accused had something to hide. He said in evidence that he has considerable experience in assessing whether persons are affected by drugs.
[9]When the police officer went back to his vehicle at the time of this stop, he was given information about the accused over the police radio. The conversations were recorded. It is apparent that the police officer from the Port Augusta Police Station to whom he spoke was consulting police records at the time of the discussion over the radio …
[13]Bryce, I’ve just stopped a car I’m west of Olary it’s a member of the Gypsy Jokers, he’s an older fella though but he’s very, very nervous and sweating about something when he probably shouldn’t be. He’s going directly to Adelaide on the Barrier Highway that’s what I’ve ascertained off him, I’m just wondering whether you could start making your way north and I’m still behind him heading towards Mannahill and we’ll stop and do a vehicle search … I’ve got a reasonable suspicion with this chap, he’s sweating like it’s a million degrees, he’s raving his head off there’s something up, he’s very nervous about something so I’m going to go with what I, with my suspicion and just wait for Sergeant Anderson to meet me…
[18]In George v Rockett,[39] the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam:[40]
[39] (1990) 170 CLR 104 at 115.
[40] [1970] AC 942 at 948.
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”
The Court went on to draw a distinction between suspicion and belief:[41]
[41] (1990) 170 CLR 104 at 115.
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
Their Honours also referred to the definition in Chambers Dictionary quoted by Kitto J in Queensland Bacon Pty Ltd v Rees:[42]
[42] (1966) 115 CLR 266 at 303.
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”.
[19]The distinction between suspicion and belief was explored further by McHugh J in Ruddock v Taylor.[43] His Honour referred to the statement of Angas Parsons J in Homes v Thorpe:[44]
According to the plain meaning of the words there is therefore a clear distinction between things that are “suspected” of having a certain quality or characteristic, namely, in this case, of having been stolen or unlawfully obtained, and things which are believed to have this peculiarity. The gradation in mental assent is “suspicion” which falls short of belief, “belief” which approaches to conviction, and knowledge which excludes doubt.
[20]McHugh J also quoted from the judgment of the Full Court of the Supreme Court of South Australia in Henderson v Surfield and Carter[45] where their Honours said:[46]
Suspicion lives in the consciousness of uncertainty…
In Manley v Tucs:[47]
[21]Not only does “suspicion” carry less conviction than “belief”, but to say that a suspicion is “reasonable” does not necessarily imply that it is well-founded, or that the grounds for the suspicion must be factually correct.
[22]The suspicion may be grounded upon matters which the police officer has observed and circumstances which have been reported. That is not to say that every matter reported as a fact may be legitimately taken into account in forming a suspicion. The requirement of reasonableness may require the police officer to assess the reliability of the informer or the hearsay information which has been communicated…
[25]A suspicion may be based upon a number of considerations, some of which are more significant than others. In my view, the information which the witness received in relation to the accused’s possible involvement with a motorcycle gang was not an irrelevant factor for the witness to take into account. Obviously, it would be insufficient, by itself, to ground a relevant suspicion.
[26]As to the previous drug matter, it was revealed during the hearing of this application that the accused had been charged with possessing cannabis, but that the charge had been withdrawn. The information which was relayed over the police radio was open to the interpretation that the accused had committed a drug offence. In my view, it was reasonable for the police officer to assume that the information was coming from a reliable source while a check of police records was being made. I am of the opinion that he acted reasonably in giving the information some weight in forming his opinion.
[27]As I have said, however, the major factors in forming the suspicion arose out of the accused’s behaviour and demeanour. In my view, these matters were sufficient in themselves to give rise to a reasonable suspicion within the meaning of s 52(9) of the Act. The accused’s appearance was consistent with the effects of a drug and the extremely nervous appearance of the accused suggested to the police that the accused had something to hide. (my emphasis)
[43] (2005) 222 CLR 612 at [75].
[44] [1925] SASR 286 at 291.
[45] [1927] SASR 192.
[46] [1927] SASR 192 at 196.
[47] (1985) 40 SASR 1 at [9].
In R v Fazio[48] the Court of Criminal Appeal concluded that the observations by a police officer of the accused being ‘nervous’; wishing to leave; with his speech, shaky and him ‘starting to sweat’, was sufficient to give rise to a reasonable suspicion. The subsequent search was accordingly lawful.
[48] (1997) 69 SASR 54. See also Police v Edwards [2007] SASC 289.
In R v Willingham (No 2), supra, the Court of Criminal Appeal said that the questions to be asked are first, whether the police officers held a genuine suspicion, and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer.
Conclusions on whether the search was lawful
In my opinion, the combination of the matters known to the police officers and to which I have referred was sufficient to establish a reasonable suspicion was held by both Detective Brevet Sergeant Rigano and Senior Constable Emmanuel.
I repeat that the fact that some of the information given to them by Mr Lovegrove was overstated or in error, does not adversely affect the basis for their reasonable suspicion.
I refer again to the facts in the case of Frantzis[49], which appear remarkably similar, supra at p23.
The police officers evidence was consistent and it was a number of matters … it was late at night or to be more precise, it was very early in the morning; 12.40am. Secondly the location is basically a farming area and very few vehicles use that road, especially at night. Thirdly the police had had experience of numerous reports of theft and breakings in that area. Fourthly the vehicle whilst registered to a Port Pirie address, was until immediately before the vehicle was stopped, travelling away from that address. Fifthly the manner in which the vehicle was being driven apparently so as to avoid the police car.
[49] (1996) 66 SASR 558.
The Court concluded that the police ‘did enjoy the requisite reasonable, albeit non-specific, suspicion as to the matters in s 68(1) of the Act … to search the vehicle, and also by reason of s 52 of the Controlled Substances Act.
The Court added that even if the search which disclosed four bags of cannabis in the boot of the vehicle was attended by illegality, then it would have been within the proper exercise of the Bunning v Cross discretion to refuse to exclude the evidence.
It said that:
if there was any illegality it could only have been of a technical and not of a wilful or a malicious nature. Such illegality would not have affected the cogency of the evidence obtained. Further the evidence obtained was important and the fact-finder must be permitted to have access to it in its inquiry into the truth of a serious criminal charge.
In R v Armistead, supra, the Court reached a similar conclusion.
I repeat that I find the search of the Holden to be lawful.
The Bunning v Cross discretion to exclude the evidence of the drugs found in the Holden
The relevant act of unlawfulness in the subject case enlivening the public policy discretion to exclude the evidence of the search is Officer Emmanuel’s opening of the passenger side door. I have already concluded that he had no lawful authority to open that door.
He had no reasonable suspicion at that time that there were any drugs in the Holden. Indeed, the only information which he had was that given to him by Officer Lovegrove over the police transmission and at the scene.
I accept that he did not open the door for an improper purpose. He did so to ensure that the accused and the driver were kept separate. Officer Lovegrove had complained that the accused would volunteer answers for the driver.
In opening the door he did however make observations of the mobile phones and the unhinged shroud. See R v Neale, supra.
In Ghamrawi v The Queen, supra, a similar situation arose. The police officer had detained the accused in that case after opening a taxi door. He had no authority to open that door. In so opening the door to remove the accused the police officer observed cash monies, cannabis and a knife. That all occurred in a very short time. Up until that time he had no reasonable suspicion about the accused. The Court of Criminal Appeal, with respect, properly described the unlawful act of opening the taxi, as a ‘technical unlawful detention’.
In a similar matter in R v Armistead, supra, Hinton J detailed the rationale underpinning the public policy discretion, as follows at [102]-[106]:
The rationale underpinning the public policy discretion is that convictions obtained relying on illegally or improperly obtained evidence “may be obtained at too high a price”. In Bunning v Cross Stephen and Aickin JJ, with whom Barwick CJ agreed, explained:
The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be “a less evil that some criminals should escape than that the Government should play an ignoble part” — per Holmes J. in Olmstead v. United States. Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.

[footnote omitted]
In Ridgeway v The Queen Mason CJ, Deane and Dawson JJ said:
In its exercise, a trial judge must engage in a balancing process to resolve “the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task is to enforce the law”.

[footnote omitted]
In Bunning v Cross Stephen and Aickin JJ identified five factors to be weighed in the exercise of the discretion:
The police attended the premises for a legitimate purpose. What occurred in relation to Mr Armistead occurred by chance and not design. Any detention or apprehension was more notional than real, bearing in mind Mr Armistead’s own intent to remain sitting in his car waiting for Mr Sutton. That said, the Court should be vigilant to protect the liberty of the subject from unlawful interference by the executive. The evidence does not establish that either Constable Forbes or Senior Constable Davey considered that they had exercised any statutory power. It cannot be said that either officer deliberately or knowingly acted unlawfully. It cannot be said that either officer was using a power to create or orchestrate a situation that allowed them to search Mr Armistead and his car. If there were a trespass, the occupant took no exception to it. In fact, it may be said that implicitly she extended the implied licence to enter to include what unfolded at Mr Armistead’s car. The unlawfulness did not affect the cogency of the evidence. No search was conducted in the absence of a reasonable suspicion enlivening the power to search. If the search were excluded the prosecution case would fail. The police car not being parked in a position preventing Mr Armistead from leaving, it is difficult to see what compliance with the law would have actually required beyond Senior Constable Davey taking up a position away from Mr Armistead’s vehicle so that he was in no obvious position to retard Mr Armistead thereby avoiding any appearance of Mr Armistead being detained. There is no suggestion that the officers involved have a practice of detaining people unlawfully.
Having regard to these considerations, in my view balancing the competing public interests to which I have referred above, the evidence was rightly admitted. A conviction obtained on the strength of the evidence of the search is not one, having regard to the premium that the community places upon the liberty of the individual, obtained at too high a price.
I accept that the high public policy which was further identified by the High Court in Pollard v R, supra, and affirmed in R v Rockford [2015] 122 SASR 391 and R v Ioannidis [2015] SASCFC 138 undoubtedly favours the exclusion of evidence unlawfully obtained by police. However, it remains a discretion to be exercised judicially.
In Ioannidis, the Court of Criminal Appeal said that:
It appears that the Detectives assigned to drug related investigations do not receive comprehensive training identifying the requisite reasonable suspicion required to be held before the powers of detention and search conferred by the Act are enlivened or about matters capable of comprising reasonable grounds to found such a suspicion.
In Rockford the Court said that at [41]:
The right of the citizen to be protected from an unlawful search and entry is an important civil right in our society.
Various Courts have stressed that anything short of the exclusion of evidence would appear ‘hollow and insincere’ in a context where curial advantage would be seen to be obtained from unlawful conduct and that the admission of the evidence would tend to demean the Courts by uncontrolled use of the fruits of illegality in the judicial process’.[50]
[50] Pollard v The Queen (1992) 176 CLR 177.
Recently in R v Golja[51] the Court of Criminal Appeal detailed various factors relevant to the judge’s discretion:
·The nature of the offence charged.
·The probative value of the evidence sought to be excluded.
·Whether the conduct of the police was deliberate or resulted from a mistake or misunderstanding of their obligations.
·The ease with which the police might have complied with the law.
·The legislative intention if any in relation to the law that is said to have been infringed.
·Whether the conduct was encouraged or tolerated by those in higher authority in the Police Force.
[51] [2017] SASCFC 61 at [33]-[35].
While I have concentrated to this point solely on the unlawful opening of the door, what follows also applies in the event that the search itself were found to be unlawful also.
On the facts of the subject case, the offence the subject of the charge on the Information is a serious offence. The evidence sought to be excluded is of high probative value.
I have no doubt that Senior Constable Emmanuel did not open the car door to conduct a search. He sole purpose was to separate the accused from the driver who was being questioned by Senior Constable Lovegrove as was expressed in that case of Armistead. What occurred was by chance and not design.
I am also satisfied that both Officers Emmanuel and Rigano undertook the search in the belief that they had a reasonable suspicion that there were drugs in the Holden. If they were wrong it is not because they acted improperly nor without considering their authority to do so.
I am satisfied that Senior Constable Emmanuel did not deliberately or even knowingly act unlawfully. It is not a case where he was attempting to use a power to create a situation which would allow him to search the accused and the Holden.

The unlawfulness did not affect the cogency of the evidence.
No search was conducted in the absence of a reasonable suspicion enlivening the power to search.
If the fruits of the search were excluded the prosecution case would fail. There is no suggestion that Detective Brevet Sergeant Rigano or Senior Constable Emmanuel had any practice of acting unlawfully. There can be no suggestion that in some way the breach was encouraged by those in higher authority or that there was some erroneous understanding of their authority.
In my opinion, the behaviour of the officers in this case was not one of defiance of the legislation nor calculated to disregard their obligations as referred to in Bunning v Cross. The subject case is far removed from those considered in R v Rockford, supra. In my opinion, the police acted reasonably and sensibly as discussed in the case of R v Rogers, supra.
The overwhelming balance as referred to in Bunning v Cross lies in favour of admitting the evidence of fruits of the search. The application for exclusion of the evidence is accordingly refused.