R v Watt - [2018] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WATT
[2018] SADC 27
Reasons for Ruling of His Honour Judge Muscat
9 March 2018
CRIMINAL LAW - EVIDENCE
UNAUTHORISED CONDUCT BY POLICE - JUDICIAL DISCRETION TO EXCLUDE EVIDENCE OF SEARCH
The defendant is charged with offences arising out of the discovery of drugs and cash. The police removed an item from within a vehicle without lawful authority leading to the discovery of drugs and cash. A subsequent search of the vehicle and a residence located substantial quantities of methylamphehtamine and cash. Prosecution accept police removed item without lawful authority. Application to exclude the evidence in the exercise of the judicial discretion.
Held: Evidence not excluded.
Road Traffic Act 1961 ; Controlled Substances Act 1984 ; Summary Offences Act 1953 , referred to.
Bunning v Cross (1978) 141 CLR 54; R v Swaffield;Pavic v R (1988) 192 CLR 159; Cleland v The Queen (1982) 151 CLR 1; Pollard v The Queen (1992) 176 CLR 177; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; R v Rockford (2015) 122 SASR 391; R v Pandeli (1999) 204 LSJS 111; R v Benchik (1994) 175 LSJS 306; R v Nguyen (2013) 117 SASR 432; R v Nguyen (2015) 248 A Crim R 398, considered.

R v WATT
[2018] SADC 27
Introduction

The defendant is charged with three counts of trafficking in methylamphetamine, one count of trafficking in a commercial quantity of methylamphetamine, one count of trafficking in a large commercial quantity of methyamphetamine and two counts of unlawful possession (involving large sums of cash).
The charges involve a substantial amount of methylamphetamine weighing approximately 1.9 kg and cash totalling $51 700.
The defendant has sought exclusion of the evidence relating to these offences which was found during two searches conducted by the police on 1 and 2 September 2015.
The prosecution concedes that the police acted without lawful authority before the initial search was conducted during which some of the cash and drugs were discovered but contends that the court should decline to exclude the evidence in the exercise of its discretion.
Factual background leading to the discovery of drugs and cash
At 7.15 pm on 1 September 2015 Senior Constable Haring and Constable Walker were on patrol driving towards an address to investigate a matter. As they were travelling south along Spruance Road, Elizabeth East a Nissan Maxima pulled out in front of the police vehicle from Chillingworth Road without giving way. Constable Walker, who was driving the police vehicle, was required to take evasive action to avoid a collision with the Nissan.
The police signalled to the driver of the Nissan to stop so they could investigate the manner of driving for a breach of the Road Traffic Act 1961.[1]
[1] Pursuant to s 40H of the Road Traffic Act 1961.
Peta Walters was the driver of the Nissan and the defendant was the front passenger. There were no other occupants in the vehicle. At the time the female driver and the defendant were in a relationship and living in a nearby apartment at 19A Waldron Street, Elizabeth East.
After stopping the vehicle, the female driver alighted from the Nissan and approached Senior Constable Haring as he was making his way to the Nissan. He invited her to step off the road and onto the footpath next to where the Nissan was parked, so that he could speak with her about her manner of driving.
He asked her to produce her driver’s licence to ascertain her identity.[2] She stated that she did not have her driver’s licence to produce. Senior Constable Haring then asked her for her personal particulars.[3] She stated that her name was Jamie Walters of Unit 5/160 Trimmer Parade, Seaton.
[2] Under authority of s 74A of the Road Traffic Act1961.
[3] Ibid.
Senior Constable Haring then returned to the police vehicle to conduct some checks on the name he had been given by the female driver. Those checks revealed that Jamie Walters was a suspect in an investigation involving an offence of deception. However, the checks further revealed that the name Jamie Walters had also been used as an alias by Peta Walters. A check of Peta Walters name also revealed that she was being investigated for the same offence of deception. Senior Constable Haring was able to confirm that the Police Incident Report concerning the deception only related to Peta Walters but because she had previously used the name Jamie Walters, the report also cross-referenced that name. The checks also revealed that Peta Walters was also currently disqualified from driving.
Senior Constable Haring stated that given what the checks had revealed he became unsure about the true identity of the female driver of the Nissan. He then approached the driver and again requested that she produce some identification to confirm her identity. She stated that she did not have any identification on her.
Senior Constable Haring observed that the female driver was wearing a pendant necklace bearing the name ‘Peta’ on it. He then asked her why she was wearing a pendant with the name ‘Peta’ on it if she was Jamie Walters. The female driver told him that the reason for this was because she wears her sister’s pendant necklace and her sister wears her pendant necklace.
Not surprisingly in the circumstances, Senior Constable Haring stated that he suspected the female driver had not given him her true name. As Peta Walters was disqualified from driving, he considered that if the female was Peta Walters, then she would have a clear reason to want to conceal her true identity.
He stated that if the female driver was Peta Walters he would have likely arrested her in relation to the deception investigation and for driving whilst disqualified. However, if she was actually Jamie Walters then he would have considered it unnecessary to arrest her in relation to the minor traffic offence which the driver of the Nissan had just committed.[4] He said that he would have considered either cautioning her or issuing her with a traffic infringement notice as being the most appropriate course of action.
[4] Either driving without due care or failing to give right of way.
There has been no challenge to Senior Constable Haring’s evidence that he genuinely did not know the identity of the female driver he was speaking to.
Senior Constable Haring stated that he then observed, through the open front passenger window of the Nissan, a handbag on the front passenger seat, inside of which was a purse. He formed the view that because there were no other females in the vehicle the handbag and purse likely belonged to the female driver. He considered that notwithstanding what he had just been told by the female driver about her not having her driver’s licence or any other form of identification to produce, that the purse might contain some identification which would lead him to ascertain her identity.
Senior Constable Haring then removed the purse from within the handbag. He was uncertain whether he reached in through the open passenger side window or opened the front passenger door to do so. When he removed the purse from within the handbag he observed that underneath the purse was a large sum of cash, on top of which was a small plastic tub which he suspected contained an illicit substance.[5]
[5] There was a total of $5050 in cash inside the handbag, which is not the subject of any charge. The crystals in the small plastic tub weighed 0.77 grams and contained methylamphetamine which is the subject of Count 1 of trafficking in methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984, for which the maximum penalty is a fine of $50 000 or imprisonment for 10 years, or both.
Upon looking inside the purse, Senior Constable Haring located some photographic identification which confirmed that the female driver of the Nissan was Peta Walters. When he asked her directly whether she was Peta Walters she replied that she was.
Throughout Senior Constable Haring’s dealings with the female driver Constable Walker was speaking to the defendant nearby. Constable Walker had requested the defendant to alight from the Nissan after it was stopped. He did so not as part of any investigation into the manner of driving just witnessed but rather, as he stated, for ‘operational safety reasons’.[6]
[6] Evidence of Constable Walker at Transcript 78.
It has not been suggested by the defendant that the police, under the guise of a road traffic stop, were intending to investigate offences against the Controlled Substances Act 1984.
As a result of observing the cash and the small plastic tub inside the handbag, Senior Constable Haring stated that he formed a suspicion that evidence of an offence against the Controlled Substances Act would be found inside the Nissan and decided to conduct a search of the Nissan. There has been no challenge to Senior Constable Haring’s evidence that upon seeing the cash and the small plastic tub inside the handbag he held a reasonable suspicion enabling him to conduct a search of the Nissan. Senior Constable Haring requested the assistance of other police officers in conducting the search of the Nissan, and this assistance included the use of a police sniffer dog.
The search of the Nissan led police to discover a hidden compartment in an area where the front passenger side airbag was positioned, inside of which was a shopping bag containing $20 000 in cash[7] and an Adidas sports bag containing various quantities of a crystalline substance totalling 45.14 grams containing methylamphetamine.[8] Also inside the sports bag were a set of digital scales upon which methlyamphetamine was detected, and three ‘ice pipes.’
[7] Count 3: Unlawful Possession, contrary to s 41(1) of the Summary Offences Act 1953, the maximum penalty for which is a fine of $10 000 or imprisonment for 2 years.
[8] Count 2: Trafficking in methlyamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984, the maximum penalty for which is a fine of $50 000 or imprisonment for 10 years, or both.
Senior Constable Haring said he telephoned his supervising officer, Detective O’Malley, and advised him of the discovery of the large sum of cash and the drugs in the Nissan.
Both Peta Walters and the defendant were then arrested and conveyed to the Elizabeth Police Station where they were charged with trafficking in methylampetamine and unlawful possession.
Thereafter, acting upon the information provided to him by Senior Constable Haring in relation to the discovery of the drugs and cash in the Nissan, Detective O’Malley utilised his general search warrant to conduct a search of 19A Waldron Street, Elizabeth East shortly after 1.00am on 2 September 2015, which he suspected was the residence shared by Peta Walters and the defendant.[9]
[9] After being advised by Detective Sergeant White of the discovery of text messages found on Peta Walters’ mobile telephone that she and the defendant may be residing at that address.
A search of the residence resulted in the discovery of the following items:
1.      Above the fridge in the kitchen was a Pyrex jug containing crystals weighing 156 grams of which 116 grams was methylamphetamine. Inside the fridge was a container of crystals weighing 46.8 grams of which 33.6 grams was methylamphetamine and a plastic bottle containing liquid weighing 338 grams of which 229 grams was methylamphetamine. Together this quantity of methylamphetamine (378.6 grams out of a total weight of 540.8 grams) is the subject of Count 4, being trafficking in a commercial quantity of methylamphetamine.[10]
[10] Contrary to s 32(2) of the Controlled Substances Act 1984, the maximum penalty for which is a fine of $200 000 or imprisonment for 25 years, or both.
2.      Inside the roof space in the garage accessed through the manhole was a bag containing two glass condensers. Inside a second bag were four plastic bottles each containing liquid. The liquid inside the first bottle weighed 479 grams of which 354 grams was methylamphetamine. The second bottle contained 333 grams of liquid of which 249 grams was methylamphetamine. The third bottle contained 137 grams of liquid of which 100 grams was methlyamphetamine. Finally the fourth bottle contained 126 grams of liquid of which 89 grams was methylamphetamine. Together this quantity of methylamphetamine (792 grams out of a total amount of liquid weighing 1075 grams) forms the subject of Count 5, being trafficking in a large commercial quantity of methylamphetamine.[11]
[11] Contrary to s 32(1) of the Controlled Substances Act 1984, the maximum penalty for which is a fine of $500 000 or imprisonment for life, or both.
3.      A safe was found inside the lounge room. It contained the following:
i.A resealable plastic bag containing crystals weighing 203 grams of which 162 grams was methylamphetamine.
ii.A container of crystals weighing 19.9 grams of which 15.7 grams was methlyamphetamine.
iii.A tub containing crystals weighing 0.18 grams which contained an undisclosed quantity of methylamphetamine.
iv.A resealable plastic bag containing 2.6 grams of crystals of which 2.07 grams was methylamphetamine.
v.A resealable plastic bag containing 1.25 grams of crystals of which 1 gram was methylamphetamine.
vi.Three plastic tubs containing 0.05 grams, 0.11 grams and 0.04 grams of crystals, each containing an undisclosed quantity of methylamphetamine.
vii.Cash totalling $31 700 in cash.
viii.Various items of drug using paraphernalia, including a spatula, three spoons, five damaged “ice pipes”, and a saliva drug testing kit.
The various quantities of crystals totalling 227.13 grams of which 180.77 grams was methylamphetamine is the subject of Count 6, being trafficking in methylamphetamine.[12]
The cash totalling $31 700 is the subject of Count 7, being the offence of unlawful possession.[13]
Other incriminating evidence was also found in the house including digital scales and more “ice pipes”.
[12] Contrary to s 32(3) of the Controlled Substances Act 1984, the maximum penalty for which is a fine of $50 000 or imprisonment for 10 years, or both.
[13] Contrary to s 41(1) of the Summary Offences Act 1953, the maximum penalty for which is a fine of $10 000 or imprisonment for 2 years.
There has been no challenge to the evidence given by Detective O’Malley that based on the information provided to him by Senior Constable Haring (and later by Detective Sergeant White), he had reasonable cause to suspect that there might be evidence of the commission of a drug offence at 19A Waldron Street, Elizabeth East, which thereby enlivened the use of the general search warrant which he was then in possession of and issued to him pursuant to section 67 of the Summary Offences Act 1953.
The evidence of Senior Constable Haring
The defendant contends that because Senior Constable Haring had no statutory authority to remove the purse from the Nissan to ascertain the identity of the female driver, which then resulted in him observing the cash and drugs in the handbag, he had acted unlawfully, and the evidence located as a result of the search of the Nissan and the subsequent search of the premises at 19A Waldron Street, Elizabeth East should be excluded in the exercise of the court’s discretion.[14]
[14] Applying the well know principles enunciated in Bunning v Cross (1978) 141 CLR 54 and the many subsequent authorities.
In his evidence, Senior Constable Haring frankly acknowledged that he did not have any statutory authority to remove Peta Walters’ purse from her handbag to ascertain her identity. His evidence on this important issue is as follows:
HIS HONOUR
Q.Under what authority did you consider that you were entitled to remove the purse from the vehicle.
A.In hindsight, I don't think I had one.
…
XXN
Q.You said, in answer to his Honour's question, in hindsight you accept that you didn't have any lawful authority to take the purse, that's right.
A.    That's correct.
Q.    What authority did you think you had at the time to take that purse.
A.At the time I was faced with a decision, I had a lady in front of me possibly wanted in relation to some deception offences, driving without due care, driving while disqualified and possibly a fake name for which I considered an arrest. If it was Jaimie and it was just simply a driving without due care matter or fail to stop or attend, I suppose faced with the situation 'Do I arrest the person standing before me or not?', I didn't want to make the wrong decision and arrest the wrong person.
HIS HONOUR
Q.Well, do you know your powers under s.74A of the Summary Offences Act.
A.    Yes, I do, probably not as well as your Honour.
Q.    What did you understand at that time were your powers under that section.
A.So I had the right to ask for a person's particulars when investigating an offence and if I doubt any details which they have given me, I can ask them to produce evidence.
Q.    Did you ask the female to produce evidence of her identification.
A.    I asked several times if she had her driver's licence or identification.
Q.Well, did you ask her to remove, for example, the purse from within the car, so that she could produce identification.
A.I didn't ask her specifically to remove the purse from the car, I asked if there was any ID present or if she had any ID present.
Q.    But you didn't ask her to produce any evidence of her identification.
A.I asked her to produce identification, I didn't ask her to produce the purse from the vehicle.
Q.Did you think about speaking to the male defendant and asking him who the driver of the vehicle was.
A.    I didn't, I didn't have that conversation.
Q.    Do you know you have that power.
A.    To ask the passenger?
Q.    Yes.
A.    Yep, I do.
Q.    You knew that at the time.
A.Not at the time, I wasn't thinking about it, but now that I think about it, I do have that power.
Q.You didn't think about asking the passenger to provide you with information that might lead to the identification of the driver.
A.    No, I didn't.
XXN
Q.I asked you a moment ago what authority you thought you had to remove the purse from the vehicle, didn't I.
A.    Yes.
Q.You answered that question by explaining why you took the purse out of the vehicle. What authority did you think you had to take the purse from the vehicle.
A.At the time I thought I was just making reasonable inquiries, but in relation to whether I actually have a power, in hindsight, I did not have a power to remove that purse from the vehicle.
…
Q     I believe the statement of February went on to clarify my reasons to search.
Q.    12 February.
A.    This year, yes.
Q.You do clarify your reasons to search. Why does that statement come into existence.
A.    I was requested by the DPP.
Q.    Do you remember when you were asked to produce this further statement.
A.    I don't recall.
Q.    It was obviously some time prior to 12 February.
A.    Yes.
Q.    Was it prior to 5 February, for instance.
A.    I don't have those details recorded on me.
Q.In your statement you indicate that you commence the statement on 9 February 2017. That's a typographical error, isn't it.
A.    Yes.
Q.    You commence it on 9 February 2018.
A.    Yes.
Q.That, you say, is in response to a request from the Director of Public Prosecutions to supply some information.
A.    That's correct.
Q.Amongst that information that you were requested to provide, I imagine what powers you were exercising when you searched the Nissan was one of those things that you needed to cover.
A.    Yes.
Q.Did you have any concerns in relation to what power you were exercising when you searched the Nissan prior to receiving the request from the Office of the Director of Public Prosecutions.
A.    I didn't have any concerns, I've known for quite some time -
Q.    Sorry, I missed that last bit.
A.I didn't have any actual concerns. I always knew, to a certain degree, that I didn't have the authority to remove the purse from the vehicle.
Q.    You have always known that you didn't have the authority to remove the purse.
A.    No, in hindsight I did.
Q.    When did you come to that realisation.
A.    Post the search.
Q.    Post the search on 1 September 2015.
A.    Yes.
Q.    On that day.
A.No, once the dust settles and we have conducted arrests and the paperwork and that sort of stuff, as I'm writing notes, the next day when I'm writing my notes, I'll be sitting there considering my authorities and found that I didn't have an authority to remove the purse from the vehicle.
Q.So as of 2 October (sic) 2015 you were well aware that you did not have any power to remove the purse from the handbag in the vehicle.
A.    Yes.
Q.    Do you mention that in any of the declarations you filed.
A.    No.
Q.    Why.
A.Because I thought at the time I was acting reasonably.
Q.So does that mean provided you're acting reasonably within your own mind, it matters not whether you have a power to do so.
A.At the time I was faced with the very real possibility that I could be arresting somebody who had committed the most minor of offences –
…
Q.We'll return to those presently. Returning now to my earlier questions, and I was asking you about whether or not the fact that you knew, very soon after the search, in fact the next day, that you didn't have lawful authority, I was asking you why that didn't make it into any of your statements. Why.
A.Because I believed - well, I didn't - the facts are in my statements about what I did and I believed at the time that I was acting reasonably.
Q.So is it the case that you're hopeful it's for the DPP or the defence to pick up when you've broken the rules. Is that your attitude.
A.That's not my attitude. My - I guess the best way to frame it is I had two decisions in front of me, I could arrest somebody based on my suspicions that they were Peta Walters, or I could remove the purse from the handbag and confirm the ID and make certain. I don't want to arrest somebody for offences if they are not that person.
…
Q.Is it your position that provided you're acting in a manner that you think is reasonable, that you can act beyond your statutory powers. Is that your position.
A.At the time I was not personally aware that I was going beyond my statutory powers. At the time I believed that to do the right thing here was to confirm the identity of the person before me, and I hadn't considered his Honour's 74AB.
Q.Does that mean prior to 1 September, you didn't have an appropriate understanding of your statutory powers.
A.    I had an understanding of my statutory powers, but this was a unique situation.
Q.So you have not, at any other point during your time as a police officer, acted beyond your statutory powers, is that what you say.
A.    I don't believe so.
Q.    This was a unique occasion.
A.    It was unique.
…
HIS HONOUR
Q.What would you have done if you were unable to locate any evidence proving the identity of the female.
A.    I would have arrested them.
…
XXN
Q.You gave some evidence earlier today in relation to your statutory powers to recover the purse from the vehicle. You remember that.
A.    Yes, I do.
Q.You remember giving evidence to the effect that you realised shortly after the search, that is in the days after, that you didn't have statutory authority to do so.
A.    Yes.
Q.You recall giving evidence that discussions were had between you and your team members in that regard. Do you remember giving that evidence.
A.    Yes.
Q.I want to try and break that down a little bit. How did you come to realise that you didn't have any statutory authority in the days following the search.
A.I guess upon making my notes and then thinking about the usual powers to search, being 68 and 52, I come to the realisation that I didn't have any authority to do, to remove the purse from the vehicle.
Q.    So that's a reaction that you came to on your own.
A.It would have been on my own and then I probably sought clarification from others.
…
Q.It must have been reasonably embarrassing for you to come to that realisation, that you'd conducted an unlawful search that had uncovered such a significant amount of drugs and cash. Were you embarrassed.
A.I wasn't embarrassed as such but I wasn't - I felt that I'd done the right thing because again, I didn't want to arrest somebody who didn't need to be arrested, but then I was also aware that I didn't have the authority to do what I considered to be the right thing. Embarrassed is probably the wrong word, but I was perplexed, maybe confused would be the word.
Q.As part of your training, were you ever told at any point that the court has a discretion to exclude evidence of unlawful searches.
A.    Yeah, the court can exclude what it sees fit.
Q.    Did you have that concern in relation to this search.
A.    Well, I do, yes.
Q.    Did you at the time -
A.    No.
Q.    - that is 2 September 2015.
A.It was started to build in my mind that perhaps, yeah, this could get thrown out of court as an illegal search, yes.
Q.    What did you do about that.
A.I didn't do anything, I just scanned my notes and put my version of events in the statement.
The discretion to exclude evidence procured through illegality or unlawfulness on the part of the police

I now turn to the consideration of whether, given the unauthorised removal of the purse from the Nissan by Senior Constable Haring, the public policy discretion articulated in Bunning v Cross[15] should be exercised to exclude evidence of the drugs, cash and other items located by the police in the searches of the Nissan vehicle and the premises at 19A Waldron Street, Elizabeth East.
[15] (1978) 141 CLR 54.
In Bunning v Cross the Court listed a number of considerations relevant to the exercise of the public policy discretion to exclude evidence obtained unlawfully. These were neatly summarised by Kirby J in R v Swaffield; Pavic v R[16] as follows:
[16] (1988) 192 CLR 159.
In Bunning v Cross, Stephen and Aickin JJ outlined some of the relevant considerations. One of them was the nature of the offence charged. Also commonly mentioned has been the probative value of the evidence, and its importance in the proceedings. The remaining considerations which Stephen and Aickin JJ listed were:
(i)Whether the conduct was deliberate, or resulted from a mistake;
(ii)Whether the nature of the conduct affected the cogency of the evidence so obtained;
(iii)The ease with which those responsible might have complied with the law in procuring the evidence in question; and
(iv)The legislative intention (if any) in relation to the law that is said to have been infringed.
To the foregoing, Mason CJ, Deane and Dawson JJ in Ridgeway added an additional consideration:
(v)whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.
As Stephen and Aickin JJ stated in Bunning v Cross:
What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that [it is] concerned with broader questions of higher public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
…
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.
Similar views have been consistently expressed by the High Court and State Courts of Appeal. In Cleland v The Queen[17] Deane J extended the field of operation of the public policy discretion to include impropriety in addition to unlawfulness. He stressed the balance which had to be struck by the Court in exercising the discretion in the following terms:
The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law.
[17] (1982) 151 CLR 1.
In Pollard v The Queen[18] Deane J further explained the application of the Bunning v Cross discretion in the following way:
[T]he principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
[18] (1992) 176 CLR 177.
In Question of Law Reserved (No 1 of 1998)[19] Doyle CJ reiterated the underlying purpose of the public policy discretion, stating:
The rationale underlying the exercise of the discretion to exclude evidence, if the discretion is so exercised, is that considerations of public policy may require the court to prevent the prosecution from gaining ‘curial advantage’ by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case. When the court exercises the discretion, it declines to allow the prosecution to make use of evidence obtained through illegality or impropriety, because to do so would be to allow it to benefit by its own wrongdoing, and would give the appearance of approving of the relevant illegality or impropriety. Of course, as the cases make quite clear, the court has to put into the scales as well the importance of securing the conviction of those who commit criminal offences.
[19] (1998) 70 SASR 281.
The defendant contends that the court should exercise its discretion to exclude the evidence relying on the above statements of principle as reinforced recently by Stanley J in R v Rockford[20] where he stated:
[The trial judge] failed to have regard to what Deane J describes in Pollard as the principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of the investigating police, namely, the threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. As his Honour observed, it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of police is not encouraged by an appearance of judicial acquiescence. The exclusion of evidence obtained in this way is in the public interest because it is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct and to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.
The right of a citizen to be protected from unlawful search and entry is an important civil right in our society. As this Court said in R v Nguyen it is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends.
[20] (2015) 122 SASR 391.
Of particular relevance to the application before this court, Stephen and Aickin JJ in Bunning v Cross stated:
Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.
…
Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction.
Consideration
I have carefully weighed the competing considerations as enunciated above.
The offences charged against the defendant represent serious offending of their kind. The distribution of such a harmful drug as methylamphetamine within the community is a matter of serious concern. There is a substantial amount of methylampetamine involved in the offences, which, together with the large sums of cash found, reveals that the trafficking involved in this case was at a major level and would lead to a significant sentence of imprisonment should the offences be proved.
If the evidence is excluded then the prosecution case would have to be discontinued. Plainly it is in the public interest that such serious criminal conduct be detected and offenders prosecuted and punished for such serious crimes if convicted.
It is also of importance when considering the exercise of the discretion that the actions of Senior Constable Haring in removing the purse from the Nissan without authority did not bear in any way upon the cogency of the evidence found. There can be no dispute over the nature and quantity of the drugs located nor the amount of cash plainly associated with those drugs. Of course, as the High Court observed in Bunning v Cross and subsequent judgments one must guard against placing too much weight upon this consideration where the illegality in obtaining the evidence has been deliberate or reckless, lest a view be taken that the end can justify the means.
The defendant submitted that the conduct of the police, after realising that there was an issue involving the lawfulness of the search, reveals an attitude described as ‘an ex post facto treasure hunt that may turn up a statutory power to justify a search’, which should not be tolerated by the courts.[21]
[21] Submissions Transcript 230.
Senior Constable Haring gave evidence that in the lead up to the trial he received correspondence from the Office of the Director of Public Prosecutions advising him that there was to be a challenge to the lawfulness of the search of the Nissan. In response to that correspondence he e-mailed his then supervising sergeant at the time of the arrest of the defendant and Peta Walters,[22] seeking advice as to whether, unknown to him, his former supervising sergeant was aware of any lawful authority which existed to allow him to remove the purse from within the Nissan.[23]
[22] Detective Sergeant White.
[23] See e-mail correspondence: Exhibit VD – P4. If there was a lawful authority unknown to Senior Constable Haring then his conduct in removing the purse could not have been unlawful, which is what Detective Sergeant White alluded to in his evidence when he explained why he had referred Senior Constable Haring to review the Road Traffic Act for a power: R v Romeo (1982) 30 SASR 243.
Despite the defendant’s contentions, I do not consider that there was anything sinister or improper in the e-mail correspondence. A proper assessment of that correspondence and the evidence given by Senior Constable Haring and Detective Sergeant White reveals, in my view, that neither police officer was attempting to cover up the unauthorised removal of the purse from the Nissan.
The evidence plainly reveals that Senior Constable Haring was aware after the fact that he did not have any statutory authority to have removed the purse and this realisation was discussed by and well known amongst members of his tactical team, including his supervising sergeant.
What Senior Constable Haring stated to Detective Sergeant White about his reasons for removing the purse from the Nissan is consistent with what he has recorded in his witness statements and in his evidence.
I do not accept the defendant’s contention that Senior Constable Haring’s unauthorised removal of the purse from the vehicle to ascertain the identity of the driver was conduct which was either encouraged or tolerated by senior officers within the Police Department. Indeed Detective Sergeant White’s evidence could not have been any clearer that he would never condone or tolerate any deliberate unlawfulness on the part of any police officer in conducting a search.
In the circumstances there was little point in Senior Constable Haring’s supervisors reminding or disciplining him about his unauthorised removal of the purse from the vehicle, because Senior Constable Haring was already acutely aware of the fact that he lacked the statutory power to do so.
As Senior Constable Haring repeatedly stated in his evidence, he removed the purse in response to the situation he was confronted with in an attempt to avoid an unnecessary arrest.
Senior Constable Haring clearly did not want to take the wrong person into custody if that could be avoided. This is entirely understandable when one considers that if the police did that then they would be depriving a person of their liberty and subjecting them to the undesirable experience of being arrested and processed at a police station.
There has been no suggestion, nor could there have been, that Senior Constable Haring removed the purse for an ulterior motive associated with searching the Nissan for evidence indicative of drug trafficking.
The defendant has submitted that in removing the purse from the vehicle when he did Senior Constable Haring was acting out of expediency. It has been submitted that Senior Constable Haring’s actions represent a ‘cutting of corners’ with respect to ascertaining the identity of the female driver. As submitted by the defendant this militates against the admission of the evidence on the grounds of public policy.
It can readily be accepted that persons spoken to by the police will sometimes provide false particulars in an attempt to avoid arrest and that is what happened in this case. A police officer’s dissatisfaction with someone’s response, even if such a dissatisfaction is reasonable, does not warrant the unauthorised interference with that person’s civil liberties in an attempt to ascertain the person’s identity.
Senior Constable Haring has acknowledged that he was not authorised under any legislative or common law power to remove the purse from the Nissan in order to identify the female driver, absent her consent. He has explained his reasons for doing so in the circumstances of this case. It cannot be said in my view that his actions were motivated by any mischief other than convenience and a desire to avoid making an unnecessary arrest.
In R v Pandeli[24] the Court of Criminal Appeal considered the trial judge’s ruling against exclusion of evidence derived from a search which took place following the unlawful detention of the appellant. Bleby J found that the appellant was not in lawful custody at the time he was searched but notwithstanding this exercised the discretion not to exclude the evidence, stating:
It cannot be said that the nature of the illegality affected the cogency of the evidence of the prosecution in any way. There was no suggestion of cutting corners by the police in order to make their task easier. The offence charged was serious, and one must be wary of being too reluctant to exclude evidence obtained illegally simply because it bears significant probative value. However, it cannot be said that the public interest in the proper administration of the criminal law would be prejudiced by the admission of the evidence in this case. It was evidence about which there could be no dispute. In the absence of any countervailing considerations, the public interest in the need to bring to conviction those who commit an offence where the offence could not otherwise be proved justifies the admission of the evidence.
In all those circumstances it seems to me inevitable that the proper exercise of the discretion would not result in exclusion of the evidence of the search, even if the detention was unlawful.
[24] (1999) 204 LSJS 111.
In R v Benchik[25] the Court of Criminal Appeal considered an argument that the trial judge had erred in not exercising the public policy discretion to exclude evidence in the face of the unlawful arrest of the appellant and the subsequent use of his keys to search his house in relation to a firearm.
[25] (1994) 175 LSJS 306.
The police had received a call from the appellant’s brother who told them that the appellant was drunk, that his wife had left him and that he had a firearm, and intended to kill his wife. Acting on this information the police went to the appellant’s home and there arrested him under the Public Intoxication Act which the trial judge determined was unlawful.
The appellant was taken to a police station and his property was removed from him, which included a set of keys to his home. The police subsequently contacted the appellant’s wife who confirmed that he had a firearm in their home. A police check revealed that the firearm which the appellant possessed was unregistered.
The police searched the appellant’s home under the authority of s 32 of the Firearms Act 1977 in an attempt to locate the firearm. They used the keys they had taken from the appellant upon his arrest to gain entry. In the course of the search for the firearm the police discovered 41 cannabis seedlings, 141 money bags of cannabis and numerous empty press-sealed money bags, some of which were located in a concealed room in the house.
In upholding the trial judge’s ruling against exclusion of the evidence, King CJ stated :
I think that the situation as it presented itself to the police has to be considered. There may have been an illegality in the apprehension of the appellant. I think it is unlikely that it was a deliberate illegality but even it if was, I think that the situation does not greatly change.
They were in the position of being faced with the presence of a firearm in the house, and of having in their custody a man who was drunk, and who had threatened to use that firearm to kill his wife. It was clear that the duration of his detention would not be long. The provisions of the Public Intoxication Act would ensure that. There was therefore a real danger that when he was discharged, he might use the firearm in the way in which he had threatened to use it in his telephone conversation with his brother. Not only, therefore, was there lawful justification for the police to enter the premises to locate the firearm, but there was a degree of urgency about their doing so.
…
The whole exercise was totally unrelated to the finding of cannabis. In those circumstances, even accepting that the apprehension of the appellant and the use of the keys was not legally warranted, I can find little in the way of public policy consideration, which would incline the court to exclude evidence of finding of cannabis.
There was nothing in the police conduct which called for the censure of the court. Even if the original apprehension of the appellant was deliberately unlawful, it was obviously an act that was carried out for the purpose of protecting the appellant’s wife against what the police apprehended was a danger to her. It should not be viewed as a grave infringement of the appellant’s rights carried out for some ulterior purpose.
There is no suggestion that the police made use of their powers under the Public Intoxication Act or the Firearms Act, to gain access to the house for the purpose of investigating possible cannabis offences. The officers who went into the house knew nothing of the appellant’s involvement in cannabis.
The exercise in which the learned trial judge was required to engage, was a balancing of the public interest in deterring police officers from engaging in illegal conduct on the one hand, against the public interest ensuring that criminal conduct is detected and punished. In this case, the criminal conduct which was detected was totally unrelated to the illegality, and the illegality was not being used by the police as a means of gaining evidence of the cannabis offences. In those circumstances, I am unable to discern any consideration of public policy which would lead a court to exclude evidence of the commission of a criminal offence which was quite unrelated to the illegalities of which complaint was made.

Senior Constable Haring stated that he had asked the female driver several times if she could produce some evidence of her identification and she said that she could not. He could have asked her whether the handbag and purse inside the vehicle belonged to her and if so whether there was any identification in them. He or Constable Walker could also have asked the defendant questions for the purpose of identifying the identity of the driver utilising their authority under s 74AB(1) of the Summary Offences Act. Finally, it could be argued that in the circumstances Senior Constable Haring had sufficient suspicion to justify arresting the female driver for providing him with a false name, and upon taking her into custody there are powers available to enable the police to identify the person arrested utilising s 81(4) of the Summary Offences Act.
However, all of this needs to be considered in context. The intention of Senior Constable Haring in removing the purse from the handbag in an attempt to identify the driver is a relevant consideration, as King CJ observed in R v Benchik.
Notwithstanding the fact that Senior Constable Haring had no lawful authority to remove the purse from the Nissan he did so with the sole intention of determining the correct identity of the driver. He had valid reasons to doubt that the female driver was who she was claiming to be.
There has been no suggestion, and indeed there is no basis for making any such suggestion, that Senior Constable Haring conducted himself in the manner in which he did because he suspected there was more substantive offending taking place and that he and Constable Walker were targeting the occupants of the vehicle, motivated by any such pre-determined frame of mind. The police were simply dealing with what they understood to be a road traffic infringement, and a potential case of a person driving whilst she was disqualified and who was also wanted in relation to an allegation of deception.
Senior Constable Haring was merely wanting to avoid making an unnecessary arrest and in those circumstances removed the purse from the handbag for the sole reason of ascertaining the true identity of the person driving the Nissan. Had some identification been provided to Senior Constable Haring when he requested it, then it is unlikely that the police would have come across the cash and drugs which were ultimately discovered in the handbag in the Nissan.
In my view, the unauthorised removal of the purse from the vehicle in the circumstances which confronted Senior Constable Haring was not so egregious that the public interest demands the exclusion of the evidence.
Senior Constable Haring’s actions can be described as an instinctive, perhaps misguided, response to the situation he was confronted with, rather than any considered and deliberate flouting of the law on his part. Further, this was not a deliberate act done in blatant defiance of the scope of his powers of search to see if he could detect offences against the Controlled Substances Act. Rather, it was an error of judgement on his part, in an effort to address offending of an entirely different nature and level of seriousness.
The court should of course be on its guard against giving curial approval to deliberate or reckless acts of disregard for the law. However, there is no evidence that what Senior Constable Haring did is reflective of any wilful and systemic abuse of police powers, such that it is necessary to censure the excesses of police powers to prevent abuse of a person’s civil liberties in order to ensure better compliance with the law.[26]
[26] Cf R v Nguyen (2013) 117 SASR 432; R v Nguyen (2015) 248 A Crim R 398. None of the police officers who gave evidence stated that they had exceeded their statutory powers on other occasions or misunderstood the scope of their powers: Senior Constable Haring Transcript 31; Constable Walker Transcript 86; Detective Sergeant White Transcript 194.
I have considered the important issue of whether the administration of criminal justice would be brought into disrepute if the unauthorised removal of the purse from within the Nissan, which led to the cash and drugs inside the handbag being discovered, does not receive judicial disapproval, in the form of exclusion of the evidence.
Having done so, I am satisfied that exercising the court’s discretion not to exclude the evidence would not undermine public confidence in the administration of criminal justice given the circumstances of this case.
I do not consider that a conviction, if that is the ultimate result of these criminal proceedings, would be obtained at too high a price given the circumstances which led to the unauthorised removal of the purse by Senior Constable Haring and the cogent evidence of very serious drug trafficking which was discovered as a result of the searches.
Weighing up all of the relevant considerations, as already discussed, I decline to exercise my discretion to exclude the evidence.
The application to exclude the evidence is refused.