Van Houten v The King

Case [2023] SASCA 57

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

VAN HOUTEN v THE KING

[2023] SASCA 57

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)

1 June 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - GENERALLY

The day before the 'Schoolies' festival, the appellant was driving toward Victor Harbor when police, having established a Drug Transit Route on Hindmarsh Road, directed him to stop and get out of his vehicle. A drug detection dog, PD Taco, indicated the presence of a controlled drug by sitting next to the appellant. Officer Parish led PD Taco to the appellant's vehicle whereupon he partially entered the cabin area and again gave a positive indication for drugs. Police entered the vehicle locating methylamphetamine and fantasy.

The appellant was convicted of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA).

The appellant appeals his convictions on the ground that the trial judge erred in failing to exclude the evidence arising from the search. The principal issue on appeal is whether the trial judge was correct in finding that the police had a 'reasonable suspicion' that a controlled drug was present in the vehicle.

Held, per the Court, dismissing the appeal:

1.The suspicion held by Officer Parish was reasonable. In accordance with s 52D(5) of the CSA, PD Taco gave a positive indication that controlled drugs were present on the appellant and/or in the immediate vicinity of the appellant including his vehicle.

2.As Officer Parish held the 'reasonable suspicion' required by s 52(9) of the CSA, the police's search of the vehicle was lawful.

3.Had it been necessary to exercise the 'Bunning v Cross discretion' afresh, the evidence would not have been excluded.

Controlled Substances Act 1984 (SA) ss 50(1), 52(9), 52B, 52D, 52D(5); Controlled Substances (Drug Detection Powers) Amendment Act 2008 (SA), referred to.
Bunning v Cross (1978) 141 CLR 54; R v Colenso [2016] SASCFC 128; R v Golja [2017] SASCFC 61; R v Nguyen [2013] SASCFC 91; R v Nguyen [2016] SASCFC 96; Wheare v Police (SA) [2008] SASC 13; Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223, considered.

VAN HOUTEN v THE KING
[2023] SASCA 57

Court of Appeal – Criminal:  Lovell, David JJA and Mazza AJA

  1. THE COURT: The appellant was convicted after a trial by judge alone of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA).  The offences were alleged to have occurred on 21 November 2019 at McCracken, at a location within a Drug Transit Route.  Count…

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Van Houten v The King [2023] SASCA 57
Case
[2023] SASCA 57
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CaseChat Overview and Summary

The appeal concerned a conviction recorded on a guilty plea by the appellant, Van Houten, following a search of his vehicle. The search was conducted as part of a Drug Transit Route established by police on the outskirts of Victor Harbor during the lead-up to Schoolies festivities. The appellant challenged the validity of the authorisation for the Drug Transit Route, arguing that police lacked the necessary reasonable suspicion to conduct the search. The matter was heard by Lovell and David JJ and Mazza AJ.

The central legal issue before the court was whether the evidence obtained from the search of the appellant's vehicle should have been excluded. This required the court to consider the validity of the Drug Transit Route authorisation and, if the search was unlawful, whether the discretion under *Bunning v Cross* should have been exercised to exclude the illegally obtained evidence. The appellant's challenge to the authorisation itself was not pursued on appeal.

The court found that the trial judge had correctly determined that any non-compliance with general orders regarding the authorisation of the Drug Transit Route was minor and did not invalidate the authorisation. Furthermore, the court indicated that even if it were required to exercise the discretion under *Bunning v Cross* afresh, it would not have excluded the evidence. Consequently, the court concluded that the ground of appeal had not been made out.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Thus, the fundamental power to search a vehicle remains within s 52(9). In particular, the ability of police to search a vehicle and to remove from it anything that would afford evidence of an offence under the CSA is to be found in s 52(9). Section 52D(5) is a statutory aid for the purpose of establishing a reasonable suspicion for the purposes of s 52(9) of the CSA.The background to the search Schoolies festivities have, for a number of years, occurred on an annual basis in Victor Harbor. For some years prior to 21 November 2019 police have authorised a Drug Transit Route, pursuant to s 52B of the CSA, in areas outside Victor Harbor. In essence, the establishment of a Drug Transit Route enables police to stop vehicles at random to enable drug detection dogs to check drivers and vehicles for the presence of controlled drugs. At about 11.00 am on Thursday 15 November 2019 Superintendent Fairney authorised the establishment of a Drug Transit Route through a designated area on the outskirts of the Victor Harbor townsite which included Hindmarsh Road, McCracken. The period of the authorisation was between 5.00 pm and 8.00 pm on Thursday, 21 November 2019 which was the day before the Schoolies festivities commenced. Superintendent Fairney, who gave evidence at the voir dire, said that the population of Victor Harbor swells during Schoolies, by anywhere between 5,000 to 10,000 young people. He said that he was satisfied of a high likelihood of substances being moved into the town during that time. Superintendent Fairney said that he suspected that illicit drugs were more likely to be moved on the Thursday afternoon prior to the event commencing. The primary source of information in regard to the application for the Drug Transit Route was provided by Senior Sergeant Massey. She also testified in the voir dire. She gave evidence, based on her experience and as a result of intelligence which had been provided to her, that the main movement of drugs into Victor Harbor for Schoolies was by civilian vehicle. Hindmarsh Road was chosen because it is a major arterial road into Victor Harbor. She believed that it was more likely that there would be drugs being transported to Victor Harbor on the afternoon before Schoolies began because there was generally an increase of people arriving in Victor Harbor at that time. In the voir dire, the appellant challenged the validity of the authorisation for the Drug Transit Route granted by Superintendent Fairney. Although Superintendent Fairney did not make notes of any additional information not included in the application for the Drug Transit Route in accordance with the relevant SAPOL general orders which in turn contravened s 52B(2)(a) of the CSA, the trial judge held that the extent of the unlawfulness for non-compliance with the general orders was ‘very minor’. His Honour held that, in the circumstances, the authorisation was valid. On appeal to this court, the appellant does not challenge Superintendent Fairney’s authorisation of the Drug Transit Route.The search

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, had it been necessary for us to exercise the Bunning v Cross discretion afresh, we would not have excluded the evidence.Conclusion and orders In our opinion, the ground of appeal relied upon by the appellant has not been made out. We would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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