Smith v The Queen
[2022] SASCA 48
•2 June 2022
Supreme Court of South Australia
(Court of Appeal: Criminal)
SMITH v THE QUEEN
[2022] SASCA 48
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
2 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - UNLAWFUL ARREST AND DETENTION - GENERALLY
Application for permission to appeal against conviction.
The appellant was convicted by majority verdict of one count of trafficking in a controlled drug, contrary to s 32(3) of the Criminal Law Consolidation Act 1935 (SA). The complaint is that the judge erred, at the voir dire stage, in admitting evidence obtained from the search of the appellant’s person and car following a traffic stop.
The issues on appeal are whether there was any basis for an unlawful detention, on the basis that the police officers held the appellant’s licence for longer than necessary beyond the time taken for a licence check, and whether the judge erred in failing to exercise his discretion to exclude the evidence.
Held (by the Court), granting permission to appeal but dismissing the appeal:
1.The primary judge did not err in concluding that any continuing detention of the appellant, beyond that which was necessary to conduct a licence check, was unlawful.
2.Having found that the police had placed the appellant under de facto arrest prior to conducting an intimate search and had failed to comply with s 81(3)(f) of the Summary Offences Act 1953 (SA), the judge gave proper consideration to the policy underpinning the discretion to exclude the evidence. He brought to account the matters informing the application of the policy in the present case. It was open to the judge to conclude that it was in the public interest to admit the evidence.
Controlled Substances Act 1984 (SA) s 32(3); Road Traffic Act 1961 (SA) ss 40H, 40V; Motor Vehicles Act 1959 (SA) s 96; Summary Offences Act 1953 (SA) ss 79A, 81, referred to.
Bunning v Cross (1978) 141 CLR 54; R v Kola (2002) 83 SASR 477; R v Conley (1982) 30 SASR 226; R v Neal (2017) SASR 20; Police v Prinse (1998) 196 LSJS 267; R v Swaffield (1998) 192 CLR 159; Coco v The Queen (1994) 179 CLR 427; Kuru v New South Wales (2008) 236 CLR 1; R v Nguyen (2013) 117 SASR 432; R v Frantzis (1996) 66 SASR 558, considered.
SMITH v THE QUEEN
[2022] SASCA 48Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA
THE COURT: Following a trial by jury, the appellant was convicted by majority verdict of one count of trafficking in a controlled drug, contrary to s 32(3) of the ControlledSubstancesAct1984 (SA). This appeal against conviction complains only that the judge at the voir dire erred in admitting evidence obtained from a search of the appellant’s person and car.
Background
At approximately 12:45 am on 5 June 2019, Senior Constable Brewer and Senior Constable Boyd were on uniformed patrol in an unmarked police vehicle. They were members of the Western Response Patrol Unit, operating under a tactical order codenamed ‘Operation Trident (Serious Criminal Trespass)’. The expressed ‘mission’ of the operation was ‘[to] proactively detect and prevent Serious Criminal Trespass offending within the Western District during nightshift’.
The police officers observed a white Holden Commodore, bearing New South Wales registration plates, travelling on Grange Road, Allenby Gardens. Police patrols are not able to check interstate vehicle registrations or licences directly. They must request the Police Communications Operator to conduct those checks.
The officers decided to conduct a traffic stop. The primary judge accepted the evidence of SC Brewer that they did so because vehicles with interstate plates are commonly used to commit offences as the plates cannot be checked easily, and to conduct a licence check.
The Holden continued for about four blocks after being signalled, and then stopped. The appellant was the driver and sole occupant. SC Boyd remained in the police car while SC Brewer spoke to the appellant. The appellant produced a Queensland driver’s licence to SC Brewer. SC Boyd joined SC Brewer at the appellant’s vehicle. SC Brewer handed the licence to SC Boyd, who returned to the police vehicle to conduct ‘personal checks’ on the appellant, using the Police Shield System located in the police car. He did this by putting the appellant’s name and date of birth into the Police Shield System. He was looking to see if the appellant had a South Australian driver’s licence (and any issues with any such licence) and to see if there were any ‘flags’ against the appellant’s name.
The Police Shield System had the capacity to display personal information of an identified person, including any ‘intel submission’ or intelligence reports posted relating to that person. These comprise information received from police officers, Crime Stoppers or various other sources.
Meanwhile, SC Brewer returned to the police vehicle and retrieved the licence from SC Boyd. He stepped away and contacted Police Communications, requesting an interstate licence check. This happened while SC Boyd was conducting the ‘personal checks’ through the Police Shield System.
SC Boyd’s interrogation of the Police Shield System revealed an intelligence report which recorded that on 28 May 2019 (that is, just over a week earlier), information had been received that a person named ‘Erik Smith, is dealing 1 to 2 kilos of meth each week. Smith also deals fantasy and is know [sic] to use hire cars to deal from’. The report also said that as at 20 May 2019, a person named Erik Smith with the same details as the appellant was wanted for theft of a hired vehicle, and that the hired vehicle had been seen in the driveway of the appellant’s address on 27 May 2019. It continued that the appellant, when previously stopped by the police, had run when spoken to and was located nearby at a known drug address in possession of a controlled substance.
While SC Boyd was conducting the checks on the Police Shield System, Police Communications confirmed to SC Brewer that the appellant’s licence was ‘all clear’. It also identified that the Holden was recorded as registered to an interstate rental company.
SC Boyd then called SC Brewer back to the police vehicle and showed him the information in the intelligence report.
It appears, then, that there was likely a very short period of time between receipt of the information that the licence was ‘all clear’, and receipt, or at least digestion, of the intelligence report. The primary judge found that the two pieces of information were received ‘at about the same time’.
SC Brewer gave evidence that based on the information in the intelligence report, he decided to search the appellant and his vehicle. They requested the assistance of another patrol. This arrived, comprising Constable Lawrence and Probationary Constable Smith.
SC Brewer returned to the Holden, activated his body-worn video recorder and asked the appellant to get out of the vehicle. When the second patrol arrived, SC Boyd got out of the police vehicle and activated his body-worn video recorder. The video recording records the search of the appellant.
SC Brewer conducted a search over the appellant’s clothing and felt a hard object situated at the appellant’s buttock region. Constable Lawrence then conducted a search over the appellant’s clothing at SC Brewer’s request and confirmed that he could feel an object lodged in the appellant’s underwear. The appellant declined to answer questions about the item or produce it. Despite being advised that he could be arrested and strip searched back at the cells if he failed to produce the item, the appellant continued to refuse to answer any questions in relation to the object or remove it from his track pants.
SC Brewer then contacted the patrol sergeant, Brevet Sergeant Partington. SC Brewer’s evidence was that Brevet Sergeant Partington advised him to ‘proceed with caution’.
At the request of SC Brewer, Constable Lawrence retrieved the object from the appellant’s track pants. The object was a Sistema branded container holding approximately 35.8 grams of crystalline substance. It was later found to contain approximately 28.2 grams of methamphetamine.
The police officers then searched the vehicle, locating a number of items. The appellant was arrested and charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the ControlledSubstancesAct1984 (SA).
The appellant applied, pursuant to rule 49(1)(h) of the District Court Criminal Rules 2014 (SA), to exclude the evidence obtained as a result of the search. That application was dismissed. The judge held that SC Brewer and SC Boyd were entitled to stop the Holden and conduct the licence check pursuant to s 40H of the Road Traffic Act1961 (SA) and s 96 of the Motor Vehicles Act 1959 (SA). On the complaint that the officers had exceeded their power under s 40V of the Road Traffic Act to direct a person to give their details, he found that they did not do so, given the duty in s 96 of the Motor Vehicles Act to produce a licence on request.[1]
[1] Referring to R v Neal (2017) SASR 20 at [25] (Kourakis CJ).
Sections 40H and 40V of the Road Traffic Act provide, relevantly:
40H—Direction to stop vehicle to enable exercise of other powers
(1) An authorised 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; or
…
40V—Direction to give name and other personal details
(1) In this section—
personal details, in relation to a person, means—
(a) the person’s full name; and
(b) the person’s date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person’s business address.
(2) If an authorised officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a) is or may be a responsible person; or
…
the officer may direct the person to give the officer then and there any or all of the person's personal details.
(3) If an authorised officer suspects on reasonable grounds that a personal detail given by a person in response to a direction is false or misleading, the officer may direct the person to produce evidence then and there of the correctness of the detail.
Section 96(1) of the Motor Vehicles Act provides:
96—Duty to produce licence or permit
(1) The driver of a motor vehicle, if requested by a police officer to produce the driver's licence or learner's permit, must produce the licence or learner’s permit either—
(a) forthwith to the police officer who made the request; or
(b)within 48 hours after the making of the request, at a police station conveniently located for the driver, specified by the police officer at the time of making the request.
Maximum penalty: $1 250.
The judge also rejected a contention that the appellant had been unlawfully detained once SC Boyd heard on the radio that the appellant’s licence was ‘all clear’. He found that the results of SC Brewer’s inquiries as to the appellant’s interstate licence with Police Communications were received ‘at about the same time’ as SC Boyd received the intelligence report on the Police Shield System. He concluded that in ‘all the circumstances’ he did not consider that the continuing detention was unlawful.
Next, the judge rejected a submission that neither SC Brewer nor SC Boyd held a reasonable suspicion such as to authorise a search of the appellant, on the basis of the information contained in the intelligence report. The appellant does not challenge that conclusion on appeal.
The appellant also challenged the search of his person on the basis that this was an intimate search that was conducted contrary to the requirements of s 81 of the Summary Offences Act 1953 (SA). Relevantly, this section provides:
81—Power to search, examine and take particulars of persons
(1) A person who is taken into lawful custody may be searched in accordance with this section and anything found as a result of the search may be removed.
(2) The following provisions apply to a search under this section:
…
(3) The following further provisions apply to an intimate search:
…
(d)except where it is not reasonably practicable to do so, an intimate search must be carried out by a person of the same sex or gender identity as the detainee (unless the detainee requests otherwise);
(e)except where it is not reasonably practicable to do so, an audio visual record of an intimate search must be made (but that part of an intimate search that consists of an intimate intrusive search will not be recorded if the detainee objects);
(f)if, apart from the question of whether or not the detainee objects to the recording, it is otherwise reasonably practicable to make an audio visual record of an intimate search, the police officer supervising the search must, before the search is carried out—
(i)give the detainee a written statement in a form approved by the Minister outlining—
(A)the value of making an audio visual record of the search; and
(B)that the detainee may object to the search being so recorded; and
(C)where relevant, that if the detainee objects to an intimate intrusive search being recorded, the intimate intrusive search will not be recorded; and
(ii)read the statement to the detainee (with the assistance of an interpreter if one is to be present during the search);
…
(6) In this section –
…
intimate search means a search of the body that involves exposure of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts, and includes an intimate intrusive search;
As to this challenge, the judge found:
·the appellant had not at that stage been formally placed under arrest; but
·he was under de facto arrest. This finding was based, in particular, on the observation from the body-worn camera footage that the police officers were holding the appellant’s arm and the judge’s finding that the police would not have allowed the appellant to leave until the search was completed;
·the appellant therefore came within the definition in s 81(1), such that the search of his person was governed by s 81; and
·the officers did not comply with the requirements of s 81(3)(f)(i)(A) and (B) and (ii), such that the search was conducted unlawfully.
The judge then held that the search of the vehicle was not affected by the unlawful detention of the appellant and the unlawful search of his person. In the event, he declined to exercise his discretion under Bunning v Cross[2] to exclude the evidence obtained from the search of the appellant and the vehicle. Finally, he declined to exercise his general discretion to exclude that evidence.
[2] (1978) 141 CLR 54.
The appeal
On appeal, the appellant advances two primary contentions, namely that:
·once SC Brewer had been informed that the appellant’s licence was ‘all clear’, there was no basis for the police officers to continue to hold the licence, effectively detaining the appellant, while interrogating the Police Shield System; and
·the judge having found that the appellant was subject to de facto arrest and that the police did not comply with their obligations under s 81, he erred in failing to exclude the evidence of the search in the exercise of his discretion.
The appellant also complains that on his de facto arrest, he was not given his arrest rights as required by s 79A of the Summary Offences Act. This complaint requires consideration in the context that it was not in issue at the voir dire hearing.
The holding of the appellant’s licence and check of the Police Shield System
There were really two strands to this complaint. The first was that the power to stop the appellant’s vehicle, derived from the combination of s 40H of the Road Traffic Act and s 96 of the Motor Vehicles Act, was limited to stopping it for the purpose of having the appellant produce his driver’s licence and otherwise give his personal details. To this end, the appellant referred to R v Kola,[3] in which a driver had been stopped at a random breath-testing station. Cannabis had been discovered in the vehicle and no breath test conducted. The Court accepted that it was possible that the establishment of a breath testing station for a purpose extraneous to the legislatively authorised purpose could invalidate the establishment of the station.[4] Doyle CJ continued:[5]
I also accept the general submission by Mr Wells that s 47DA(1) is an intrusion on the common law rights of people to go about their lawful business undisturbed. Statutory powers that authorise intrusions upon such common law rights are to be read narrowly: Coco v The Queen (1994) 179 CLR 427; Pearce and Geddes “Statutory Interpretation Australia” (4th Ed, 1996) Ch 5, paras 5.16 and 5.17. The emphasis in s 47DA on minimising the delay and inconvenience to persons who are stopped confirms that Parliament recognised that the provision constitutes an intrusion on common law rights.
[3] (2002) 83 SASR 477.
[4] R v Kola (2002) 83 SASR 477 at [38] (Doyle CJ, Lander and Perry JJ agreeing).
[5] R v Kola (2002) 83 SASR 477 at [39] (Doyle CJ, Lander and Perry JJ agreeing).
In Kola, the establishment of the breath-testing station was ultimately found not to have been invalid. In the present case, the appellant invoked the remarks quoted above to support a submission that once SC Brewer passed the licence to SC Boyd to conduct ‘person checks’, he was acting outside the scope of the powers that he had pursuant to the two Acts. Those powers represent an ‘intrusion into the common law rights of people to go about their lawful business undisturbed’ and are therefore to be interpreted narrowly.
In Police v Prinse,[6] Bleby J discussed s 42 of the Road Traffic Act as in force at that time. This was the predecessor section to s 40V, but also contained the power to stop a vehicle, which is now in s 40H. He observed that capricious exercises of the power may be unlawful, such as stopping a vehicle in order to ask the driver out on a date. He continued:[7]
Responsible policing does not necessarily require in all circumstances the disclosure of the immediate or ultimate purpose of an inquiry. Indeed, in some circumstances, such disclosure may well be contra-indicated… However, if it is quite apparent from the nature of the inquiry made or directions given that the stopping and questioning has no connection whatever with proper policing inquiries but is merely a capricious exercise of the power or an abuse of the power for a purpose irrelevant to law enforcement, then it may well fall into the unlawful category.
[6] (1998) 196 LSJS 267.
[7] Police v Prinse (1998) 196 LSJS 267 at 270, 272.
In support of his submission that to search the Police Shield System was not a permissible purpose of stopping his car, the appellant pointed to the following instruction in the tactical order:
Members with PROACTIVELY ENGAGE with people located. Using their observation/communication skills to create their suspicions/belief to use the appropriate searching authority (SOA/CSA/RTA) to detect offences.
(Emphasis in original)
He submitted that the police should not be using anything to ‘create’ a belief. The wording of this instruction is problematic, in that it carries an overtone of encouraging the formation of suspicions in bad faith. However, the appellant accepted that, as badly written as the instruction is, it should not be interpreted in this way. He relied more on the tenor of the instruction. The difficulty with this is that the relevant analysis depends on the evidence of what occurred at the time the police stopped the appellant’s car. As unfortunate as the wording of the instruction is, we do not think that it assists the appellant’s argument.
There is no evidence that the police officers’ purpose in stopping the car was unconnected with proper policing enquiries. Moreover, there was nothing unlawful about the police officers making the inquiry of the Police Shield System. As the appellant accepted, the police could have returned the licence to him immediately on receiving the ‘all clear’, interrogated the Police Shield System and then stopped him again, further up the road.
Accepting that the practical effect of taking the appellant’s licence back to the police car was to communicate to the appellant that he was not free to depart, it was not unlawful for the police to interrogate the Police Shield System. Neither was it an unlawful purpose in stopping him that they did so with that intent, in addition to that of checking his licence. The complaint therefore devolved to one of unlawful detention, by reason of holding on to the appellant’s licence, for whatever moments were necessary beyond the time taken for the licence check, while the interrogation of the Police Shield System was completed.
As to this, the police were not cross-examined on any intention to detain the appellant for as long as that further inquiry lasted. Neither did the evidence rise higher than that any delay caused by the Police Shield System search was anything more than trifling.
For these reasons, the appellant has failed to demonstrate that the primary judge erred in concluding that any continuing detention of the appellant, beyond that which was necessary to conduct the licence check, was unlawful.
Whether the judge erred in failing to exclude the evidence of the search in the exercise of his discretion
As set out above, the primary judge found that by the time the police conducted the search of the appellant’s person, they had placed the appellant under de facto arrest. He reached that conclusion applying the observations of King CJ in R v Conley.[8] The Director does not challenge this conclusion. Neither does the Director challenge the conclusion that the police did not comply with the requirements of s 81(3)(f) of the Summary Offences Act.
[8] (1982) 30 SASR 226 at 239-240 (King CJ).
The appellant’s challenge is directed to the conducting of an intimate search (to the effect of retrieving the container from the appellant’s underwear) within the meaning of s 81(6) of the Summary Offences Act, without complying with s 81(3)(f). Specifically, as the primary judge noted, the unlawfulness comprised the failure by the police:
to provide a written statement in a form approved by the Minster prior to the intimate search outlining:
(A) The value of making an audio-visual record of the search; and
(B) That the detainee may object to the search being recorded; and
…
(ii)Read the statement to the detainee (with the assistance of an interpreter if one is to be present during the search).
The primary judge set out the accepted considerations relevant to the exercise of the Bunning v Cross discretion, as discussed by Kirby J in R v Swaffield[9] and Stanley J in R v Rockford.[10] He observed that the argument before him was expressed at the level that the ‘obvious’ failure of the police to comply with s 81 warranted the conclusion that the evidence should be excluded. He concluded that the failure to comply did not amount to an excess of power in the circumstances, but continued:
… Even if I am wrong in that conclusion, the action of the Police performing the intimate search are not such as to give rise to the need to censure an excess of police powers in order to better secure compliance with the exercise of powers, or to give the appearance of curial approval or sanctioning of an abuse of police powers.
Any unlawfulness resulted from the exercise by Senior Constable Brewer of his judgment based on a discussion with his patrol sergeant and based on a genuine attempt to locate an object he had detected during the course of an external search of the applicant. The presence of that object was corroborated by a further external search of the applicant by Constable Lawrence.
The search occurred as the result of a reasonably held suspicion that the applicant had in his possession a substance in contravention of the CSA.
The evidence obtained as a result of the search of the applicant is cogent evidence of the commission of a serious offence and its quality was not affected by the conduct of Senior Constable Brewer, Senior Constable Boyd, or Constable Lawrence.
Further, the provision which was breached is in the nature of an administrative provision.
I do not consider the Senior Constable Brewer, Senior Constable Boyd or Constable Lawrence deliberately flouted the law or police obligations.
(Footnotes omitted)
[9] (1998) 192 CLR 159 at [135].
[10] (2015) 122 SASR 391 at [39]-[41].
As counsel for the Director conceded, to describe the procedure in s 81(3)(f) as ‘in the nature of an administrative provision’ and rely on that description as one factor in favour of concluding that it was not in the public interest to exclude the evidence, is problematic. A better description might be ‘procedural’ rather than ‘administrative’. It remains a protection for a suspect, a breach of which must be considered in the context of all other considerations.
In R v Rockford,[11] Stanley J said:
However, in my view, the 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 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.[12] As this Court said in R v Nguyen,[13] 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. From the moment of their entry on to the property the police were engaged in a search. Recourse to euphemisms by the police does not alter that fact. The erroneous views of Detectives Hanssen and Moore of the scope of their powers of entry represent a view which, if tolerated by the courts, is calculated to lead to widespread and arbitrary infringements on civil liberties. It is those limitations on police powers of search and entry which constitute a fundamental safeguard of those civil liberties.
(Footnotes in original)
[11] (2015) 122 SASR 391 at [39], [41].
[12] Kuru v New South Wales (2008) 236 CLR 1 at [37].
[13] R v Nguyen (2013) 117 SASR 432 at [41].
Notwithstanding its inappositeness, the description of the protection in s 81(3)(f) as ‘administrative’ does not, in our view, warrant inferring a failure by the judge to exercise the necessary vigilance. We accept that, in context, his Honour was concluding that little by way of practical unfairness arose from the failure to comply with the sub-section. He gave proper consideration to the policy underpinning the discretion and brought to account the matters informing the application of the policy in the instant case. Chief amongst these were the manifest existence of the object in the appellant’s pants, the overwhelming cogency of the evidence of the appellant’s possession of the drugs and SC Brewer having contacted his patrol sergeant to ascertain the steps he should take in the circumstances.
It was open to the primary judge to conclude that the police officers did not deliberately flout the law or their obligations. The judge’s ultimate conclusion that it was in the public interest to admit the evidence was also open.
The relevance of the appellant’s admission at trial
At the trial, the appellant gave evidence and admitted possession of the drugs. This Court sought submissions from the parties as to the impact on the appeal of this admission, having regard to R v Romeo[14] and other cases where a plea of guilty was entered after evidence had been ruled admissible on a voir dire.[15] However, as both parties submitted, the present case is different in that there arises no question of an appeal following a guilty plea.
[14] (1987) 45 SASR 212.
[15] See R v Frantzis (1996) 66 SASR 558.
Further, the appellant framed his challenge on the voir dire and on appeal by reference to the conduct of the police, not the cogency of the evidence obtained. It was necessary for him to give evidence at trial to rebut the presumption of commerciality that arose by reason of the quantity of drugs found. His concession at trial that he had possessed the drugs was, in the circumstances, inconsequential to the arguments raised on the voir dire.
It is not necessary to consider the appropriate approach where an appellant gives evidence at trial conceding the existence of a fact, and where the relevant evidence previously admitted on the voir dire was less cogent and/or where there existed stronger public policy grounds for exercising the discretion not to admit the evidence. In this case, the appellant’s subsequent admission of possession at trial cast no material complexion upon the factors to which the primary judge was required to have regard on the voir dire. It does not, in our view, take the matter any further.
The failure to give s 79A arrest rights on the de facto arrest of the appellant
The primary judge having concluded that the appellant was under de facto arrest just prior to the search, it follows that the police were also obliged to advise the appellant of his rights under s 79A of the Summary Offences Act. This was not raised as an issue on the voir dire, no doubt because the appellant made no admission to the police. The evidence comprised the results of the search. No criticism can be made of the judge in those circumstances for not addressing s 79A. However, it is appropriate that this Court record that, on his de facto arrest, the appellant should have been advised of those rights.
This was done once the appellant was formally arrested after the search. Had there been a challenge to the admission of evidence based on the initial failure to comply with s 79A, it may be that the primary judge’s analysis of the application of the competing public policy considerations would have led to a similar result as his consideration of the search. However, given that s 79A was not in issue, it is unnecessary to decide how the judge should have approached the non-compliance with that section. Insofar as the challenge based on that failure was maintained at the hearing of the appeal, it should fail.
Conclusion
We would grant permission to appeal. We would dismiss the appeal.
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