R v White - [2014] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WHITE
[2014] SADC 33
Reasons for Ruling of His Honour Judge Barrett
3 March 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
The accused was stopped by police while walking towards a house whose occupants police suspected of being associated with drugs. No suspicion attached to the accused. Police sought to "bona fide" him by asking him if he had any ID on him and asking him, indicating a bumbag he had, if he had anything on him that he should not have. The accused opened the bag and threw away some drugs and paraphernalia of sale. The accused sought the exclusion of the fruits of what was said to be an unlawful search.
Held: The questioning of the accused was in the circumstances the beginning of an unlawful search. Public policy discretion exercised to exclude the evidence.
District Court Rules 2013 r 15; Summary Offences Act 1953 s 74A, s 68; Controlled Substances Act 1984 s 52(9), referred to.
The Police v Moukachar (2010) 107 SASR 450 and [2010] SASC 199; The Queen v Fazio (1997) 69 SASR 54; Bain v The Police (2011) 112 SASR 10 and [2011] SASC 228; R v Rogers (2011) 109 SASR 307 and [2011] SASC 40; George v Rocket (1990) 170 CLR 115; Hussien v Chong Fook Kam (1966) 115 CLR 303; Coleman v Zanker (1992) 58 SASR 7; R v Chapman (2001) 79 SASR 342; R v Armstrong (1989) 53 SASR 25; R v Nguyen (2013) 11 SASR 532 and [2013] SASCFC 91, considered.

R v WHITE
[2014] SADC 33

The accused is charged with trafficking in a controlled drug. On 23 November 2011 the accused was found to be in possession of a small tub containing 5.71 grams of methylamphetamine together with a number of zip-lock bags, a set of digital scales and $615 in cash.
The accused made application pursuant to r 15 of the District Court Rules for the exclusion of the evidence of the drugs and paraphernalia. The accused’s contention is that the drugs and paraphernalia were detected pursuant to an unlawful search. Accordingly the fruits of that search should be excluded in the exercise of the public policy discretion.
A voir dire to determine that question was held on 30 September 2013 and continuing on 1, 2, 3 and 4 October 2013. I reserved my decision on the application and set the matter for trial on 3 February 2014. On the adjourned date I excluded the evidence of the fruits of the search, whereupon the prosecutor entered a nolle prosequi. I now produce the reasons for that ruling.
At about 11.40 am on Wednesday 23 November 2011, uniformed police officers, Constables Bretag and Walton, were in a police car in Gladstone Road, Mile End. The officers were from Netley Patrols. The officers suspected that people either living at or visiting number 35B Gladstone Road Mile End were associated in one way or another with drugs. As a result, patrols paid attention to that address. Constable Bretag provided an addendum statement dated 28 September 2013 in which he set out the police intelligence which supported the suspicions which attached to the house. Police believed that three women who lived at the house were known drug users. Two of them had been charged in the past with trafficking in a controlled drug. One of them had previously been charged with manufacturing a controlled drug. In his statement Bretag referred to a number of occasions in October and November 2011 when one of the three women had been stopped and found to be in possession of a small quantity of drugs.
Constable Bretag said in his statement, and in his evidence on the voir dire, that, as a consequence of the police suspicions relating to that house, patrols would stop at the house. He and other police officers would seek to speak with any person coming or going from the house. Bretag described that as “bona fiding” people who came and went. Constable Bretag agreed in cross-examination that the purpose of stopping people heading for the address was to get their details and thus create an opportunity to consider whether he would be able to search them or not. He said “That’s policing in general”.[1] Constable Bretag acknowledged that he had no power to stop people if they chose to ignore him and walk on, and that he had no power to question them if they declined to answer.[2]
[1] T19.
[2] T20.
At about 11.40 on 23 November 2011 the officers noticed a car pull up near the boundary of numbers 35B and 33 of Gladstone Road. Constable Walton went to speak to one of the occupants of the car. Constable Bretag was at the back of the car. He noticed a man and a woman walking towards him along the footpath heading in the direction of number 35B. The man was the accused. Constable Bretag decided to “bona fide” the accused. There is a dispute about what happened then. Both Constable Bretag and the accused gave evidence on the voir dire. Constable Walton was busy speaking to the occupant of the car and did not notice the critical parts of the events that are in dispute.
Constable Bretag said that as the accused approached him on the footpath this exchange took part between them:
QG’day mate, have you got any ID on you?
ANo, I don’t have any.
QYou got anything you shouldn’t have in your possession ... do you mind showing me.
Constable Bretag says that while asking that last question he indicated towards a bumbag around the accused’s waist. Constable Bretag said the accused said “no” whereupon the accused opened the bumbag, reached in and threw something towards the fence of number 35B. When Bretag located the item thrown, he found it was the small tub containing the drug. Constable Bretag then motioned the accused to the back of the police car where he videoed the search of the bumbag. He found the paraphernalia consisting of the J-bags, the scales, the cash and some capped needles.
The accused’s account is different. He says he was walking along the footpath intending to go into number 35B. He noticed the police out the front. He turned into the driveway and got to the front door of 35B. As he got to the front door and knocked on it Constable Bretag said “Come here”. The accused said he did not really register that he had been asked to go back, but Bretag repeated his request. The accused said that, reluctantly, bearing in mind what he knew was in the bumbag, he walked back to the footpath. When he got to the footpath Bretag asked him if he had any ID on him. The accused said “No”. Bretag asked him if he had anything in his bag that he should not have. The accused said he did not answer. The accused was then asked what happened next. The accused replied:
I can’t exactly remember, so long ago. I think he asked me to empty my bag out on the boot of the car, so I did and that’s when I threw, threw the barrel out.
The accused then added that Bretag had told him to empty his bag on to the boot of the car. The accused said he had walked back from the front door to the back of the police car because he believed he had to.
There is, first, a factual question to be resolved. Mr Barklay for the accused acknowledges that, because the accused is seeking the discretionary exclusion of the fruits of the search, the accused bears the onus of establishing, on the balance of probabilities, the facts upon which the exclusionary discretion should be exercised. There is no question but that if the facts are as the accused’s says they were, then Constable Bretag had embarked upon an illegal search. On the accused’s version the accused had walked on to private property and been called back. The terms of his being called back were more in the form of an order than a request. Although the accused’s evidence is imprecise about precisely what Constable Bretag said at the back of the police car, the import of it is that after he failed to produce identification, Constable Bretag began the process of the search of the bumbag. The accused threw the drug away because the search had begun.
The accused was an unsatisfactory witness. He gave his evidence in an unconvincing way and was imprecise about the critical event, that is, how the search began. He began his answer by saying that he could not exactly remember. I do not necessarily find that he was being untruthful but I do find that he was unreliable.
Constable Bretag gave his evidence in a way that experienced police officers might. There was a degree of precision about how he spoke and his demeanour did not damage his credit. His credit was damaged in another way however. He was cross-examined about whether he had discussed the evidence he gave with Constable Walton, the witness who was to follow him on the voir dire. From the questioning I infer that Mr Barklay had been told that the two had been observed speaking outside of the court room. Constable Bretag denied discussing his evidence with Constable Walton outside the court. However, when Constable Walton was cross-examined about that same question, he agreed that Bretag had spoken to him about the evidence to some extent.
I will not canvas the details but I prefer the account given by Constable Walton.
That said, it is not clear to me that the dispute about what happened at the time of the finding of the drugs in Mile End is resolved by assessing the truthfulness of the respective witnesses. I think it is instead a question of reliability. There was, I thought, a degree of candour about Constable Bretag’s evidence about how he was going about “bona fiding” people approaching the house in Mile End. He conceded he knew the limits of his powers and effectively conceded that he was intercepting people in the vicinity of the house in the hope of being able to form a suspicion sufficient to search them.
The accused has not persuaded me that the facts of the search are as he says they were. I will determine the question of the exclusion of the fruits of the search on the factual basis given by Constable Bretag.
Mr Barklay submits that there are two bases upon which the exclusory discretion should be exercised. The first is that Constable Bretag’s approach to the accused was a de facto arrest and in the absence of a caution the accused was being unlawfully detained. The second basis is that the words uttered and indications given by Constable Bretag amounted to an illegal search, ie the process of “bona fiding” the accused and indicating the bumbag amounted to a search. In the circumstances the search was illegal because Constable Bretag did not have the requisite suspicion about the accused that would give him the power to search the accused.
I set out the facts upon which a claim for exclusory discretion is made.
Constable Bretag concedes that there was no suspicion attaching to the accused himself. Bretag knew he had no power to detain or search the accused.[3]
[3] T15-16.
The officer’s reason for speaking to the accused was that he wanted to “bona fide” anyone approaching the address. It was partly for intelligence purposes.[4] The reason for stopping comes from this exchange in cross-examination.
[4] T8.
QThe reasons you were stopping them to ask for their details is because you were suspicious of them.
ANo, the reasons that I was stopping to speak to them was to ascertain if a suspicion could be built or not, so I would be stopping them to speak to them to find out more about them and then see whether there was a suspicion after that time.
QIsn’t what you are really saying is that you were stopping them to see if there was some basis to search them.
AYes. Well, if you look – say I spoke to someone who attended the address and that they did provide me with details. They seemed lucid, there was no red eyes, there was nothing about them that gave me a suspicion with regards to their intoxication by drugs or no smell of, say, cannabis coming from them, they had no history with regard to drugs, then I wouldn’t be searching them because I would have no authority to.
QNo, but what I am getting at is your sole purpose for stopping people that were heading into 35B was to get their details and create an opportunity for you to consider whether you would be able to search them or not.
AYes.
QAnd that’s because you were suspicious generally of anyone that arrived there.
ANot until I had spoken to them.
The critical words or actions are therefore these:
·Bretag’s effectively stopping the accused and engaging him in conversation by asking for ID. The accused said he had none.
·Bretag’s further question “You got anything you shouldn’t have in your possession?”
·Receiving no reply, Bretag indicated the bumbag and said, “Do you mind showing me?”.
·The accused replied “No” and opened the bumbag. He took out the drug and threw it away.
The Crown case is that police officers may lawfully and without impropriety question anyone. In Police v Moukachar (2010) 107 SASR 450 and [2010] SASC 199 at [13]-[15] her Honour Justice Vanstone observed:
A police officer is entitled to ask questions of an individual. He does not need statutory authority to do so. The purpose of sections 74A, 74AB SOA and s 96(1) Motor Vehicles Act 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 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.
Like almost all of the cases dealing with this issue, that case arose out of a breach, or suspected breach, of the road traffic laws. In that case the accused had been stopped because he had his arm extended out of his car window. In those circumstances the police officer had power to require the accused to state his personal details.[5] The accused was asked whether he had his driver’s licence on him. He said he did not. The accused went on to say that it had been cancelled. He was then asked to produce ID. He set about looking for some. The police officer asked him whether there was any ID in the bumbag the accused had. The accused became nervous and produced a football membership card which the police officer said was not acceptable. The police officer asked if there was any further ID in the bumbag. The accused demurred. The police officer told him if they could not establish his identification he might be arrested. The police officer then noticed a bundle of cash which turned out to be $30,000. The defence challenged the admissibility of the finding of the cash.
[5] s 74A of the Summary Offences Act.
Her Honour said that even if there was technically an impropriety, the discretion to exclude the cash should not have been exercised. That is because, inter alia, if the accused had failed to produce identification he could have been arrested and then the money would have been found anyway.
Before looking at other authorities cited on this topic I note that in Moukachar, and in the other cases, there has been some authorised purpose for the police speaking to an accused.
In The Queen v Fazio (1997) 69 SASR 54 police went to a house with search warrants pursuant to the Controlled Substances Act. The warrants were issued because the police had reason to suspect that the occupiers of the house were dealing in drugs and that they were holding drugs on the premises. Police had no reason to suspect the appellant particularly, but they had both reason and authority to enter the house. Once in the house, police found five occupants. They started asking the occupants if they had any drugs. Two other occupants produced drugs. The police then asked the accused if he had any drugs. He became nervous, his speech was shaky and he began to sweat. In those circumstances the police formed a suspicion that he was in possession of drugs. In admitting the fruits of the search Bleby J, with whom the other members of the Court of Criminal Appeal agreed, found that at that point the officer had a reasonable belief that the accused had drugs in his possession.
In Bain v The Police (2011) 112 SASR 10 and [2011] SASC 228, police pulled over a car whose registration had expired. The appellant was the driver. The appellant produced his licence. Police checked the licence on the Police Information Management System and found both that the licence had expired and that the appellant was described as a “drug user dependent”. The police officer then went back to the appellant and asked him if there was anything in the vehicle that should not be. The appellant said there was not but he admitted using drugs. The police officer asked him to get out of the car and he searched the car. The police found jewellery which was suspected of being stolen.
White J held that the information the police officer had found on the Police Information system was sufficient to give rise to a suspicion, which in turn made the search and presumably the questioning which preceded, it lawful.[6]
[6] See [26]-[30].
White J further held that even if the search was unlawful the exclusory discretion should not be exercised 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.[7]
[7] See [31].
In R v Rogers (2011) 109 SASR 307 and [2011] SASC 40 Duggan J declined to exclude the fruits of the search of a car. Police had pulled over the car on an outback highway because it was speeding. When the police officer spoke to the driver he noticed that he was sweating and appeared very nervous. He made a check over the police radio and was told that the driver had been associated with drugs and possibly bikies. The police officer did not then stop the driver but arranged for him to be stopped further along the highway. Duggan J held that in the circumstances the officer entertained the relevant suspicion under the Controlled Substances Act. His Honour canvassed the authorities which explained the meaning of suspicion. In particular his Honour quoted the High Court in George v Rocket (1990) 170 CLR at 115 where the High Court quoted with approval the statement of Lord Devlin in Hussien v Chong Fook Kam to this effect:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect, but I cannot prove”.
The High Court went on to draw a further distinction between suspicion and belief in these terms:
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.[8]
[8] See [18].
In the circumstances Duggan J held that the searching officer had formed the requisite suspicion. His Honour went on to say that even if the suspicion did not provide grounds for a reasonable suspicion, his Honour would not have excluded the search because the police officer did not act upon “trite information and his actions were not of a wilful or malicious nature”.[9]
[9] [33].
In all of these cases then there existed either an express power to ask questions[10] or the formation of the requisite suspicion giving power to search.[11]
[10] Moukachar.
[11] Fazio, Bain and Rogers.
There have however been cases where evidence of fruits of searches has been excluded. In Coleman v Zanker (1992) 58 SASR 7 Olssen J excluded the evidence of a search of a car which revealed a knife. In that case police approached two cars at night. The officers conceded they had no reason to suspect that the accused, who was one of the occupants of the cars, had committed or was committing any offence. The interest of the police had been aroused simply because of the time of the night and the locality. One officer had asked the appellant to get out of the car. Olssen J held that that request was unlawful. Once the appellant was out of the car police shone a torch into it and noticed the knife. Olssen J described the request by the police officer for the appellant to get out of the car as an edict. His Honour said:
... that edict was the first active step in the ongoing process of an unlawful search of his vehicle which then ensued, portion of which was the shining of Constable Mensforth’s torch into the interior of the vehicle and the finding and seizure by her of the knife. That total process clearly occurred in circumstances other than a situation of falling within s 68 of the Summary Offences Act.[12]
[12] p 15.

Olssen J went on:
If police officers exceed their authority by embarking on unlawful and unauthorised conduct which impinges upon the normal rights of a citizen then they cannot be heard to complain if the courts in conformity with the approach enunciated in Bunning v Cross and R v Ireland exclude evidence obtained in the course of such activity.
His Honour said that the public policy interest clearly demanded the exercise of the discretion to exclude the evidence unlawfully obtained by the search.
In R v Chapman (2001) 79 SASR 342 and [2001] SASC 43 police pulled over a car driven by the accused because, earlier the accused had been seen in conversation with someone they suspected of growing cannabis. The police purported to be exercising power under s 42 of the Road Traffic Act to determine the driver of the car. The defendant produced evidence of both his being the driver and evidence of identity. The police then asked the accused about an esky. Williams J found that the motivation for the further enquiry by the police was part of a process of “turning over” the vehicle and its occupants. His Honour described the process as the police “using their powers so as to create an opportunity to pursue an examination of the vehicle” Williams J described the constable’s actions in enquiring about the esky as a deliberate step to seek information. His Honour accepted that the accused did not regard himself as at liberty to go on his way. The police officer agreed on the voir dire that “turning over” a vehicle was something they did from time to time.
His Honour held that the police had exceeded their powers and that the practice they had adopted should be discouraged.[13] His Honour excluded the evidence of the search of the esky. His Honour cited with approval the remarks of Olssen J in Coleman v Zanker and King CJ in R v Armstrong (1989) 53 SASR 25.
[13] [34] and [35].
Finally in the case of R v Nguyen (2013) 117 SASR 432 and [2013] SASCFC 91 the court, on appeal, would exclude the fruits of the search of a car. In that case police were maintaining surveillance on a house where they suspected drug activity was taking place. Somewhat analogously with the present case, police stopped a car which was approaching the premises. The police had no suspicion about the car or its occupants. Their suspicions centred on the house to which the car appeared to be going. The court held that because the suspicion did not attach to the car, or its occupant, the police did not have a “reasonable suspicion” authorising a search pursuant to s 52(9) of the Controlled Substances Act. The court found that the subsequent search of the appellant and his car was unlawful. The court then balanced up the factors militating for and against the exercise of the exclusory discretion. The court held that the infringement of the appellant’s civil liberties was moderate.[14]
[14] [37].
However the court held that the exclusory discretion should be exercised:
... because it is necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the Controlled Substances Act.[15]
[15] [42].
As can be seen from the authorities I have referred to, the court has only admitted evidence of the search where it has been able to find power to conduct a search. Judges have at times said that if the unlawfulness or impropriety of the police officers is minor, then the exclusory discretion should not be exercised. The very recent authority of Nugyen is to the effect that the court should exercise the discretion where it is necessary to encourage police compliance with statutory limits to power.
I am persuaded that Constable Bretag’s words and actions in seeking the “bona fides” of the accused in this case were to use the words of Olssen J in Coleman v Zanker, the first step in a search that was unlawful because no suspicion attached to the accused at the time.
While I appreciate that it must often be difficult for police to apprehend drug offenders, the provisions of the Controlled Substances Act impose limits on the powers to stop and search citizens. I find that in this case the police exceeded their powers and what was in effect a search, was unlawful. I find the balance tips in favour of the exclusion of the fruits of the search in the exercise of the public policy discretion. In Nguyen the court held that the discretion should be exercised in favour of exclusion even though the infringement of the appellant’s civil liberties was moderate. The court was nevertheless concerned that the practice of stopping and searching people without the requisite suspicion could “readily be used as instruments of harassment”.[16] The court noted that there was no evidence that the police officer’s mistaken view about the breadth of their powers was “peculiar or isolated”. The court said:
41 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. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.
42 The court exercises its discretion to exclude the evidence of the appellant's possession of heroin and methylamphetamine on 30 July 2011. We do so because it is necessary to censure the excesses of power by which the evidence was procured in order to better secure compliance with the statutory limitations on the exercise of the powers of detention and search conferred by the CSA.
[16] [46].
In this case it appears it was the practice of police to “bona fide” people coming or going from the suspect house. In my view that practice is analogous to the practice censured in Nguyen.
That is why I exercised the discretion to exclude the fruits of the search.
On the facts I have assumed, I do not find that the accused was unlawfully detained by the police.