R v KENNEDY [2026] SADC 65

Prosecution: R Counsel: MR B LIAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: SAMANTHA SUE KENNEDY Counsel: MR B ARMSTRONG - Solicitor: DANNI STEPHENS LEGAL Hearing Date/s: 22/04/2026 to 23/04/2026 File No/s: DCCRM-25-000801 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v KENNEDY [2026] SADC 65 Reasons for Ruling of her Honour Judge Fuller 3 June 2026 CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES Accused charged with one count of trafficking in a controlled drug – alleged offence detected when police officer performed random stop of accused’s vehicle on Sturt Highway, Truro in June 2022 – negative alcotest – licence produced by accused – police officer conducted checks on licence which revealed nothing suspicious – then conducted checks on SHIELD – accused had two prior drug cautions, one sometime from 2020 onwards and the other prior to 2015. Police officer decided to search vehicle pursuant to s52(9) Controlled Substances Act – police officer gave evidence that his suspicion was that there may be drugs or associated items in the vehicle – that suspicion was formed only after the SHIELD checks. Accused challenged legality of search at voir dire hearing – argued that police officer’s suspicion fell short of statutory test in s 52(9) CSA – in the alternative, the suspicion was not reasonable – in the further alternative, the accused was under de facto arrest but had not been given her rights pursuant to s 79A Summary Offences Act. Held: Search unlawful. Suspicion held by police officer that there may be drugs or associated items in the car did not meet threshold in s 52 (9) CSA and was, in any event, not a reasonable suspicion. Accused under de facto arrest for brief period but this was a technical breach and of no moment. Discretion exercised to exclude evidence located as a result of unlawful search. Controlled Substances Act 1984 (SA) s 32 (3), s 52, s 52 (6), s 52 (9); Summary Offences Act 1953 (SA) s 79A; Road Traffic Act 1961 (SA), referred to. Bunning v Cross (1978) 131 CLR 54; R v Rockford (2015) 122 SASR 391; R v Swaffield (1988) 192 CLR 159; Ridgeway v The Queen (1995) 184 CLR 19; R v Nguyen (2013) 117 SASR 432; Smith v R [2022] SASC 48; Police v Pocius [2018] SASC 38; BAE v The Queen (2020) 135 SASR 522; Marafioti v The Queen (2014) 118 SASR 511; R v Dam and Nguyen (2015) 123 SASR 511; Koo v The Queen (2020) 135 SASR 522; Pollard v The Queen (1992) 176 CLR 177; Cleland v The Queen (1982) 151 CLR 1; R v Lobban (2000) 77 SASR 24; Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, applied. -- 1 of 29 -- -- 2 of 29 -- R v KENNEDY [2026] SADC 65 The Charge 1 The accused was charged on Information with the following offence: Count 1: Offence Details: Trafficking in a Controlled Drug. (Section 32 (3) of the Controlled Substances Act, 1984). Particulars Samantha Sue Kennedy on the 26th day of June 2022 at Truro, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug. Overview of the prosecution case 2 Around midnight on 26 June 2022 the accused was driving a two-door utility vehicle with one female passenger on the Sturt Highway at Truro when she was stopped by Brevet Sergeant McGurgan. 3 Upon speaking with the accused, Brevet Sergeant McGurgan determined that the accused was not the registered owner of the vehicle. She was unable to provide full particulars of the registered owner. All of Brevet Sergeant McGurgan’s interaction and conversation with the accused was captured on his body worn video camera. Brevet Sergeant McGurgan searched the accused’s vehicle and located a magnetic storage box under the driver’s seat which contained the drugs the subject of the charge and used resealable plastic bags. Behind the driver’s seat, he found a large brown handbag. Inside that handbag he found an ice pipe and a set of digital scales, which were analysed and found to have on them traces of methylamphetamine. The Voir Dire 4 The accused pleaded not guilty to this offence and made an application for a voir dire hearing. The orders sought in that application and the grounds for them were as follows: That the Crown be prohibited from leading all evidence obtained during, and as a consequence of, the search of a white Mitsubishi Triton motor vehicle (S223BJC) and its occupants on 26 June 2022. Grounds 1.1 The evidence was illegally obtained by South Australia Police in that: 1.1.1 The search of the accused, the vehicle she was driving, the other occupant of the vehicle and/or any mobile telephone or electronic device was not authorised by the Controlled Substances Act 1984 (SA); and -- 3 of 29 -- [2026] SADC 65 2 1.1.2 Therefore, the act of searching of the accused, the other occupant, the vehicle and electronic devices (and the associated seizure of items) was unlawful and the evidence obtained therefrom ought to be excluded; see Bunning v Cross (1978) 141 CLR 54; R v Rockford (2015) 122 SASR 391; R v Swaffield (1988) 192 CLR 159; and Ridgeway v The Queen (1995) 184 CLR 19. 1. In addition, and in the alternative, to the application advanced (above) the applicant seeks exclusion of the evidence obtained from a purported search of S223BJC as being unlawfully or improperly obtained. (a) The applicant and her vehicle were unlawfully/improperly detained. (b) The applicant was questioned in circumstances where she was apprehended, such as to engage s 79A of the Summary Offences Act 1953 (SA). (c) In addition, and in the alternative to (b) the applicant was questioned in circumstances which required a caution to be administered. The evidence 5 The only witness on the voir dire was Brevet Sergeant Timothy John Patrick McGurgan. 6 Brevet Sergeant McGurgan had been a police officer since 2013. He was currently stationed at the Blanchetown Police Station which serviced the Murraylands, including Waikerie, Morgan, Cadell, Truro, Sedan, Cambrai, Swan Reach and Blanchetown. He was officer in charge of the station and the only one manning the station. 1 7 Brevet Sergeant McGurgan has been stationed at the Blanchetown Police Station since August 2018. He had lived in Cadell from 1997-2010. He considered himself a local. He said that the Riverland and Murray River were tourist attractions, and he had often seen tourists and locals out on the river for recreation. That generally involved water-sport related activities, usually skiing, wakeboarding, knee boarding and tubing. Stand up paddle boards were also used. This was usually in the warmer months of the year, October to Easter. In addition, there were fishing vessels, including dinghies.2 8 Brevet Sergeant McGurgan said that many tourists drive along the Sturt Highway. Most tourist traffic was on Friday afternoon between 4.30pm and 7.30pm for eastbound traffic and on Sunday afternoon there was a lot of heavy westbound traffic. There was always a flow of traffic at night but later in the evenings it was usually dominated by heavy vehicles.3 9 On 26 June 2022 Brevet Sergeant McGurgan started his shift around 2-3pm. His rostered shift was due to finish at 11.30pm on Saturday 25 June 2022. It was cold and dry in the early hours of the morning, below 10 degrees. At this time, he 1 T 9. 2 T 10-12. 3 T 13. -- 4 of 29 -- [2026] SADC 65 3 was travelling on the Sturt Highway towards Truro. He was in a marked police fleet, a four-wheel drive Toyota Hilux with a cage. At around 12.40am he saw a car travelling past in the opposite direction. He did a U-turn and followed the vehicle east on the highway for the purpose of driver testing. It was a random vehicle stop. The vehicle stopped and he noticed it was a Triton Mitsubishi utility. Once he obtained the registration number, he ran checks on the mobile computer program in his police vehicle. The registered owner was a female. He did these checks before he approached the vehicle he had stopped. They only took a matter of seconds.4 10 After the registration checks were completed, Brevet Sergeant McGurgan got out of his police car and approached the Triton. He activated his body-worn camera. He noticed there were two 44-gallon drums strapped down in the tray of the Triton. As he approached the driver’s side, he saw there was a passenger in the passenger seat. He did not recognise the driver or passenger.5 11 Brevet Sergeant McGurgan could not recall if he asked the driver for her licence but said that was standard and the way in which he identified a person. He administered a breath test which came back with a zero result. He asked the driver where she was going and she said to the Riverland to test out a jet-ski. His questions were not for a policing purpose but was just general small talk he would usually have with people.6 He thought her answer was unusual because of the time of the year, and the time of the day she was travelling. In June, the daily temperatures are quite low, and jet skiing is not an overly popular activity at that time of the year.7 12 Brevet Sergeant McGurgan asked the driver to whom the car belonged and she said Pedro. That was not the name of or similar to the name of the recorded registered owner according to his checks. He told the driver that the name did not match and she was not able to provide any more detail or explanation regarding the owner of the car.8 13 While he was speaking with the driver, he could see into the cabin of the car. A mobile phone was mounted to the dashboard and on the screen, he could see google maps or something similar with a blue line to indicate that a path had been set with directions taken from the application. He could not see any landmarks, towns or identifying features on the map. He had the impression that the driver did not know the directions to the destination.9 14 Brevet Sergeant McGurgan noticed that the driver was softly spoken and appeared to be nervous. Her answers were relatively short and there was a lack of 4 T 16-18. 5 T 18. 6 T 19. 7 T 20. 8 T 21. 9 T 21-22. -- 5 of 29 -- [2026] SADC 65 4 eye contact.10 Whilst he had encountered nervousness on previous traffic stops, it had not been to that level.11 15 Brevet Sergeant McGurgan said the passenger did not appear to be able to sit still. She was fidgeting with her hands quite a lot. From his brief observation of that behaviour, he said it was similar to that of a person under the influence of some form of drug.12 16 Having obtained the driver’s licence and made these observations Brevet Sergeant McGurgan formed the view that there were some unusual circumstances that he found to be slightly odd or inconsistent. He explained: Yes, the driver wasn’t aware of who the vehicle belonged to or was registered to and only offered a first name or a single name for the person she thought the vehicle belonged to or received the vehicle from. Further, it’s the time of night and time of year, again with the version of events, they were travelling to use a jet ski in Berri, just I find that unusual that you would travel at that time of night given that the phone’s indicating a path via Google, what I believe was a Google app that would indicate to me that neither of the persons in the people in the vehicle would frequent either Berri or the Riverland. In my opinion that’s a relatively simple trip to make, you enter the Sturt Highway and you stay on the Sturt Highway, takes you directly to Berri. Further was the passenger appearing potentially to be affected by a substance just with the inability to sit still, the fidgeting behaviour.13 17 Brevet Sergeant McGurgan returned to the police car with the driver’s licence and conducted a licence check. There were no suspensions or disqualifications attached to the licence. He then used the SHIELD system to enter the name on the licence. He explained that SHIELD was the program that records all interactions with police. He noticed there was a DRU caution for the accused which stands for drugs. He investigated further and discovered that the accused had two DRU cautions. The most recent one related to a glass or ice pipe and was in the 2020s.14 The older one predated SHIELD, so it was prior to 2015. The checks he conducted took about two minutes. He then returned to the accused’s vehicle.15 18 Brevet Sergeant McGurgan said he had had a variety of interactions with drivers on the Sturt Highway regarding possession of controlled substances or equipment related to controlled substances.16 19 Brevet Sergeant McGurgan said by this time he had formed a suspicion. He was asked to describe that in detail and he said: A Going back to the initial – from the details I’d gathered from the initial traffic intercept again comes down to the time of night and the reason for travel. I found that, like I said earlier, I found that unusual. There was the driver’s behaviour 10 T 22. 11 T 23. 12 T 23. 13 T 24, 30-38; T 25, 1-8. 14 T 25-27. 15 T 28. 16 T 29. -- 6 of 29 -- [2026] SADC 65 5 appearing, appearing to be nervous in the way she spoke and the inability to tell me who the vehicle did or did not belong to. And also again, further with the phone, indicating this was not a common – most likely not a common place that these people travelled to and also in addition was the fact that I believed one of the persons in the vehicle, the passenger, did appear to be affected by some sort of controlled substance or some sort of substance and then from the Shield checks that I conducted, observing two relatively recent at that time, interactions with police, that related to possession of paraphernalia or items that constitute an offence under the Controlled Substances Act. Q Did you decide to conduct a search. A Yes. HER HONOUR Q Sorry, what was the suspicion that you formed. A That there may be controlled substances or related items in the vehicle or on the persons.17 20 Brevet Sergeant McGurgan then advised the accused that he would be searching the vehicle and asked her to turn it off. He asked the accused if there was anything in the car that should not be there and she said no. He directed her to get out of the car and stand in a particular place. He directed the passenger to stay in the passenger seat. He first searched the driver’s seat area. He found a handbag behind the seat which the accused said belonged to her. Inside the handbag was a glass pipe and digital scales. The accused said the pipe was in her bag from the last time she had interactions with police and she had the scales because she was a cook. Underneath the driver’s seat he found a black magnetic box which had inside it a variety of small click seal bags and a Tupperware container and a small glass bottle. The clip seal bags had a crystalline substance in them. He then told the accused and her passenger that he believed there were items which constituted an offence and administered a caution to both of them.18 21 Brevet Sergeant McGurgan estimated that the search commenced about five minutes after the initial traffic stop.19 He did not arrest the accused or the passenger because he did not think it was necessary. When he administered a caution to the passenger, she was on a phone call. He asked her to hang up the phone and give it to him. She identified herself as Zoe Drechsler.20 22 Brevet Sergeant McGurgan then called for back up to assist with managing exhibits and the accused and her passenger. He then searched the passenger and 17 T 30, 6-29. 18 T 30-34. 19 T 32. 20 T 34-35. -- 7 of 29 -- [2026] SADC 65 6 the backpacks he found jammed between the two 44-gallon drums on the tray of the Triton.21 23 Subsequently both the accused and Ms Dreschler were arrested, and the accused was interviewed on camera.22 24 The video footage from Brevet Sergeant McGurgan’s body worn camera was tendered: Exhibit P1. The transcript of the conversations recorded on that footage was also tendered: VDP1A. It was then played in court. Cross-examination 25 Brevet Sergeant McGurgan agreed that as part of his training at the police academy he learnt about s 52 of the Controlled Substances Act 1984 (CSA), how to treat people who are apprehended and how to administer cautions and arrest rights.23 26 After leaving the academy he undertook probationary training in Port Pirie and was supervised by various officers senior to him. He saw those police officers engage with motorists using the powers under s 52 CSA. He also did that under supervision. However, in the early stages, that was in the context of the suspicion being entertained by the senior officer.24 27 Since leaving the academy and completing his probationary period, he had exercised powers of search under the CSA including those which did not require a warrant. Brevet Sergeant McGurgan understood that his conduct as a police officer was governed by statute and common law but did not necessarily know the difference. He said that, in his view, he complied with his statutory and common law obligations when he was dealing with the accused after he stopped her car.25 28 In 2022, Brevet Sergeant McGurgan understood he was required to administer a caution when he was asking questions in relation to a suspected offence for any investigation. He agreed that when he located the drug paraphernalia in the handbag he did not administer a caution but asked questions of the accused about that item.26 When asked whether he should have administered a caution at that stage, he said it was ‘probably an unfortunate oversight or habit…in terms of the relaxed process’.27 He went on to explain: Just the way, just like the way I conduct myself at times is that, I’ll, that’s just an oversight in terms of when you do or don’t caution someone, so at times there are conversations like 21 T 36. 22 T 37. 23 T 41. 24 T 43-44. 25 T 44. 26 T 42. 27 T 45. -- 8 of 29 -- [2026] SADC 65 7 that that would be considered inadmissible, I guess you could say, because I haven’t issued that caution.28 29 He agreed that he should have administered a caution because he was questioning the accused about a potential offence.29 30 Brevet Sergeant McGurgan confirmed that the suspicion that he relied upon to search the vehicle was that there may be controlled substances in the vehicle or on the person. He then gave this evidence: Q And to your understanding, that was a sufficient suspicion to enliven your power to search pursuant to s.52 of the Controlled Substances Act. A Yes. Q And that was in accordance with what those who supervised you in your probationary period had taught you. A In combination, no doubt, of what I was taught on probation, yes, but also my own understanding and my own experience. Q And from what you were taught at the academy. A Yes. Q When you say your own understanding and experiences, that is of you using those search powers pursuant to s.52. A Yes. Q And observing others using those powers pursuant to s.52. A Yes. HER HONOUR Q Brevet Sergeant, after the academy and after your probation period, is there any ongoing education or training in relation to search powers under the Controlled Substances Act, for example, when cases are decided in the Supreme Court or other things like that, do you get ongoing education like that. A No, not structured, not put out there for us, no. There is discussions, general discussions in the workplace regarding certain decisions. Q I see. A But overall, no, it’s not put out there, not a refreshment, not a reminder anything like that. Q But is there some informal way in which you learn about case law relating to – 28 T 45, 14-19. 29 T 45. -- 9 of 29 -- [2026] SADC 65 8 A Informal yes, again, that is discussion amongst colleagues from various matters. MR ARMSTRONG Q So the suspicion you describe, there may be controlled substances in the vehicle, or on the person, would be consistent with those, the understanding you already have and consistent with those discussions that you have during the course of your work. A Yes.30 31 Brevet Sergeant McGurgan agreed that the Murray River was used all year round for recreational water sports and there were periods during the cooler months when people used jet skis on the river.31 He agreed that the timing of the accused’s trip was consistent in a general sense with the pattern of traffic over the weekend. The usual route to Berri was the Sturt Highway.32 32 As at June 2022, Brevet Sergeant McGurgan said he would average fifteen traffic stops on a Saturday night. If he pulled a driver over for a random test and it was negative and there was nothing suspicious, he would not make a note of it. He agreed that at the time he pulled over the accused, he was experienced in performing this activity and part and parcel of it was to go to the driver’s side window, talk to the driver and make observations of what is in the car.33 He agreed it was not unusual for drivers to have a GPS system of some sort fixed in the car. In his personal view, the use of a GPS system suggested the driver was not familiar with the area.34 He could not recall whether he had ever pulled someone over who had a GPS system operating but was a local to the area.35 33 Brevet Sergeant McGurgan was asked what it was about the accused’s nervousness that set her apart from other traffic stops where he had noticed nervousness. He said it was a combination of the accused’s unwillingness to make eye contact, her short and softly spoken answers. He did not know if she was naturally softly spoken.36 However, he agreed that the accused answered all of his questions before he went back to the police car.37 34 Brevet Sergeant McGurgan said that he parked his car behind the accused’s car and his headlights were on. His right head light was to the right of the driver’s door.38 He agreed that a person in the driver’s seat might have light shining on their face if they turned around. He agreed his headlights would be reflected in the rearview and wing mirrors. He agreed that for the duration of the alcotest the 30 T 46, 31-38; T 47, 1-35. 31 T 47-48. 32 T 49. 33 T 50. 34 T 51. 35 T 52. 36 T 53-54. 37 T 55. 38 T 55. -- 10 of 29 -- [2026] SADC 65 9 accused would have been looking forward, and he would not expect her to make eye contact with him.39 35 P1 was then played at 00:40:09 and Brevet Sergeant McGurgan agreed that after he asked the accused for her driver’s licence, she was looking away, consistent with searching for her driver’s licence.40 At 00:40:30 Brevet Sergeant McGurgan agreed he was looking away from the accused and at 00:40:39 he was looking at her again. The footage was paused at 00:40:57 and he was asked if he agreed that for the majority of that portion of the footage, the accused was looking at him and answering questions and he said no.41 36 The footage was then played between 00:40:57 and 00:41:06. Brevet Sergeant McGurgan said that when he asked, ‘what have you got in there’ and reached up and shook one of the 44-gallon drums, he could not say what power he was exercising. He said he was potentially not exercising any power but had an interest in the drums and wanted to see if they had fuel or chemicals in them and were secured to the back of the utility properly.42 If they had appeared to be very full and heavy he would have been a bit more thorough in his inspection; if there was any wriggle room that was probably sufficient for an insecure load.43 37 Brevet Sergeant McGurgan said he did make observations of the passenger during his initial interaction with the accused but could not recall whether she was on the phone at that time. He agreed that in the footage he watched during evidence the passenger was largely sitting still and behaving in a calm manner. He agreed that she did not display fidgety behaviour. However, he said she was moving around a reasonable amount and explained that she was ‘just on and off the phone’ and putting on sunglasses. 44 38 Brevet Sergeant McGurgan was played P1, and he agreed that it recorded the following conversation between him and the accused: BS McGurgan: Where are you off to tonight. Accused: Just heading to the Riverland, Berri, mates have a few jet skis. BS McGurgan: No dramas, whose car is this one. Accused: It belongs to my mate, well my mate’s mate, his name is Pedro. BS McGurgan: Pedro. Accused: I’m not sure, that’s his nickname. 39 T 56. 40 T 57. 41 T 57-58. 42 T 59. 43 T 60. 44 T 61-62. -- 11 of 29 -- [2026] SADC 65 10 BS McGurgan: Where’s he live, like what suburb because it is coming out to a female. Accused: Pardon. BS McGurgan: The ute is coming out to a female. Accused: I don’t know he’s driving it. BS McGurgan: What you got in here. Accused: I have no idea, they were on the ute when… BS McGurgan: Full. Ah, just give us a couple of minutes. 39 Brevet Sergeant McGurgan said he heard very similar words or words to that effect at the time, with the exception of ‘I’m not sure’ and ‘I have no idea, they were on the ute when…’ He said the audio on P1 was not fantastic but at the time it was relatively easy for him to hear in comparison to listening to P1 and trying to decipher what can be heard.45 40 Brevet Sergeant McGurgan said that even if he used a body worn video camera, he would still make notes. However, the notes would not be a record of the entire conversation because he could rarely recall verbatim and he did not want to be inaccurate. He was aware of the fact that the general orders provide that the use of body worn cameras did not relieve the officer of the obligation to make notes.46 41 Brevet Sergeant McGurgan said that when he returned to his police car with the accused’s licence to perform checks, she was not free to leave the area. He was asked if he understood the concept of de facto arrest/apprehension and he said not clearly. He understood it to be the situation where he has given someone the impression that they are required to remain or that they are under arrest even though he had not placed them under arrest. He said that if someone was under his de facto arrest, he was not required to administer a caution or administer the rights pursuant to s 79A of the Summary Offences Act 1953 (SOA). That was his understanding in June 2022. He understood that the s 79A rights were required to be administered when a person is formally arrested.47 Brevet Sergeant McGurgan then gave this evidence: HER HONOUR Q Brevet Sergeant, just so I’m clear, in a hypothetical situation where you’ve explained your understanding of de facto arrest or de facto apprehension is that you’ve given the impression that the person is required to remain, as I understand it, that’s your understanding of the concept. 45 T 65-67. 46 T 67-68. 47 T 69-70. -- 12 of 29 -- [2026] SADC 65 11 A Yes. Q Right. And in terms of giving somebody an impression that they’re required to remain, what circumstances, if any, in your mind will create that impression; that is, in your duty or in your policing. A Majority of the time it would be conducting licence checks or further checks on people involved or vehicles involved or clarifying certain facts. Q And so in that situation, if you’ve stopped someone, asked them for their licence and then gone back to the police car to conduct the checks, do I understand you to have the view that the person will be under the impression they’re required to remain. A Yes. Q Right. And that’s your understanding of a de facto apprehension or de facto arrest from what you’ve been told or learnt. A Yes. Q Okay, thank you. Sorry, one more question. In that hypothetical scenario, as far as you’re concerned are you exercising a police power at the time. A Yes.48 42 Brevet Sergeant McGurgan then agreed that at the time he returned to the police car, the accused could have formed the impression she was not free to leave and would have been under de facto arrest, based on his understanding of the concept, even if he was exercising a police power.49 43 Brevet Sergeant McGurgan agreed that after the licence checks revealed nothing of interest, he had exhausted his reasons under the Road Traffic Act for pulling her car over. At this time, he had some suspicions, based on driver behaviour, time of the day, weather conditions, version of events provided by the accused and the fact that she did not know who the registered owner was. However, they were not sufficient to exercise the power of search under the CSA. The results of the SHIELD system check tipped the balance for him.50 44 Brevet Sergeant McGurgan agreed that before he returned to conduct the licence checks, the passenger could have been engaged in a phone call with the phone to her ear. He said that he recalled at least one of her hands moving around a lot. She was just reaching in general, moving, there were drinks in the centre console, and she moved her hand around a lot and one of her legs had a fidgeting style of motion.51 45 Brevet Sergeant McGurgan said it was not unusual for a person to be driving a car not registered to that person but in his experience, it was unusual for the 48 T 70, 37-38; T 71, 1-26. 49 T 71-72. 50 T 72-73. 51 T 74-75. -- 13 of 29 -- [2026] SADC 65 12 person not to know who the registered owner was. However, he agreed he did not ask the accused who the registered owner was. Submissions of counsel Defence 46 The issues on the voir dire were articulated by Mr Armstrong as follows: 1. Was the suspicion formed by Brevet Sergeant McGurgan reasonable? 2. The degree to which any suspicion formed by Brevet Sergeant McGurgan met the statutory test in s 52 (9) CSA. 3. Whether the accused was under de facto arrest prior to the location of the drugs the subject of the charge. 47 Mr Armstrong said that the evidence of Brevet Sergeant McGurgan clearly established that his suspicion fell short of satisfying the statutory preconditions in s 52 (9) CSA. That section sets out the suspicion that must be entertained, before any search of and seizure from inter alia a vehicle is authorised: If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft… 48 The suspicion formed by Brevet Sergeant McGurgan was that there may be controlled substances or related items in the vehicle or on the persons in the vehicle. The power to search a vehicle is conditioned on a reasonable suspicion that it contains material which is evidence of an offence against the CSA: R v Nguyen (2013) 117 SASR 432.52 The authorities establish that 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 offending are, respectively, on the person or in a vehicle.53 49 In other words, Brevet Sergeant McGurgan’s suspicion failed the statutory test in s 52 (9) and (6) CSA because he did not suspect that there would be controlled substances or related items in the vehicle or its occupants but suspected that there may be. Accordingly, the search was unlawful. 50 The evidence established that the understanding that Brevet Sergeant McGurgan had of the statutory preconditions to the exercise of the search power pursuant to s 52 (9) was not idiosyncratic or isolated. Indeed, his evidence was that this is how he had been taught, both at the academy and during his probationary period. Further, his understanding was fortified by later informal discussions among colleagues. Accordingly, the evidence established that there was a practice, 52 [17]. 53 R v Nguyen (2013) 117 SASR 432, (41). -- 14 of 29 -- [2026] SADC 65 13 not isolated to Brevet Sergeant McGurgan, of exercising the power of search and seizure based on a suspicion which did not meet the statutory preconditions. Such matters auger in favour of the exclusion of the evidence. In those circumstances, exclusion is the mechanism by which to censure the excesses of power through 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.54 51 Further, but also in the alternative, the suspicion itself was not a reasonable suspicion. The factors listed by Brevet Sergeant as forming the basis of his suspicion were: 1. The time of the day at which the vehicle was travelling. 2. The accused’s explanation for her journey, namely because her mates in Berri had jet skis. 3. The fact that the accused had a GPS system operating in the vehicle. 4. The fact that the accused did not know who the registered owner of the vehicle was. 5. The accused was softly spoken, avoided making eye contact and was nervous to a level that exceeded a normal traffic stop. 6. The passenger appeared to be affected by a substance or controlled substance and was fidgeting and moving her leg and at least one hand. 7. The SHIELD checks revealing to cautions for drug related matters. 52 Mr Armstrong argued that, when considered against the body worn video footage, the factors listed by Brevet Sergeant McGurgan as giving rise to his suspicion were, in combination, an insufficient basis for a reasonable suspicion (leaving aside the fact that his suspicion did not meet the statutory preconditions set out in s 52(9) CSA). Mr Armstrong made the following submissions: 1. There was nothing suspicious about the vehicle. 2. The vehicle was travelling on a weekend, a period during which Brevet Sergeant McGurgan said a greater volume of traffic was encountered. 3. The vehicle was travelling on the main transit route between Adelaide and the stated destination, Berri. 4. Brevet Sergeant McGurgan did not rule out the use of jet skis on the river in winter. 5. The use of GPS system, per se, is not suspicious. 54 R v Nguyen (2013) 117 SASR 432, [42]. -- 15 of 29 -- [2026] SADC 65 14 6. The fact that a driver does not know who the vehicle being driven belongs to is not, per se, suspicious. 7. The observation that the accused was softly spoken, gave short answers and was not making constant eye contact was unremarkable and not entirely reliable having regard to the best evidence of this as contained in P1 and the fact that the entire encounter with Brevet Sergeant McGurgan lasts around one minute and thirty-five seconds. P1 reveals that the accused did make eye contact with Brevet Sergeant McGurgan from time to time, gave responsible answers and did not appear to be unduly nervous. 8. Brevet Sergeant McGurgan did not suggest that the fidgeting movements of the passenger were similar to a person affected by a controlled substance, but instead by a substance. His observations of her hand movement and leg movement were equivocal and the reliability of those observations was undermined by his concession in cross- examination that the passenger may have been holding a phone with one hand and omitted to mention any leg movement in examination in chief. 9. The information from SHIELD was stale, particularly the caution pre-dating 2015. In relation to the caution for a glass pipe in the ‘2020’s’ the information was limited to a caution for possession of a glass pipe. 53 If the suspicion itself was not reasonable, then even if Brevet Sergeant McGurgan had applied the correct test, the search would not have been authorised by s 52 (9) CSA. A finding that the suspicion was not reasonable, would be an additional factor in favour of exercising the discretion to exclude. A finding that the suspicion was reasonable would be a relevant matter, as it would demonstrate that there was a lawful means by which the evidence could have been obtained. 54 Finally, the accused was under de facto arrest from the time that Brevet Sergeant McGurgan had completed his inquiries in relation to her licence. At that point, he should have advised her that she was free to go. Instead, he determined to interrogate SHIELD and discovered the information that, together with the other matters, gave rise to a suspicion that there may be controlled substances or evidence of an offence against the CSA in the vehicle. Brevet Sergeant McGurgan wrongly considered that the accused was under de facto arrest whilst he was conducting the licence checks. He was of the view that there was no obligation to administer the s 79A SOA rights to a person who was under de facto arrest. At no time when he believed the accused was under de facto arrest or when the accused was in facto under de facto arrest were the s 79 SOA rights administered. 55 This was both a separate basis for the exclusion of the drugs found in the vehicle and a factor in favour of exercising the discretion to exclude based on the other established illegalities. Prosecution 56 Mr Lian argued that the accused was not unlawfully detained at any point in time. As the test is an objective one, it did not matter that Brevet Sergeant McGurgan said that the accused was under de facto arrest from the time he took her licence back to the police vehicle to perform checks. Mr Lian argued that there was in fact nothing about Brevet Sergeant McGurgan’s words or conduct which -- 16 of 29 -- [2026] SADC 65 15 would have left the accused with the impression that she was not free to leave. Mr Lian illustrated that by inviting a comparison of the way in which Brevet Sergeant McGurgan dealt with the accused once he had made the decision to search her car. 57 Relying on the authority of Smith v R [2022] SASC 48, Mr Lian said that it was not unlawful to interrogate SHIELD after obtaining a person’s driver’s licence. In that case, the Court held that, whilst there was a detention, it was brief and of no moment and the police could have stopped the vehicle after it had departed once they had information justifying a search. 58 With respect to the argument that Brevet Sergeant McGurgan’s articulation of the suspicion he held justifying the search of the car established that he did not have a reasonable suspicion (because he suspected there ‘may’ be drugs or associated items in the car) Mr Lian argued that allowance should be made for his use of language. In other words, simply because he said he suspected there ‘may’ be drugs or associated items in the car that was explicable on the basis that his understanding and use of the word ‘may’ was equivalent to ‘is’. 59 Mr Lian conceded that if I made a finding of fact that Brevet Sergeant McGurgan’s suspicion was that there may be drugs and associated items in the car, then the search was not authorised by the CSA. 60 Mr Lian argued, however, that the information in Brevet Sergeant McGurgan’s possession was sufficient for the formation of a reasonable suspicion that there were drugs or associated items in the car and therefore the search was lawful. 61 Mr Lian then addressed the failure to caution the accused following the location of the ice pipe. Mr Lian urged me to find that this was an oversight and not symptomatic of a casual approach to his statutory obligations. 62 In the alternative, if the search was found to be unlawful, the discretion to exclude the evidence should not be exercised. Brevet Sergeant McGurgan acted in good faith and there was no evidence of mala fides. Although there was evidence that his misapprehension of the test to be applied before a search could be conducted under s 52 (9) CSA was not isolated or idiosyncratic, Mr Lian said I should conclude that the implementation by others in the police force of the incorrect test was limited to the period of his training and time as a probationary constable. Legal framework for consideration of issues on voir dire 63 The relevant legislation providing the power to search the vehicle is s 52 (9) Controlled Substances Act 1984. 64 Section 52 Controlled Substances Act 1984 provides: -- 17 of 29 -- [2026] SADC 65 16 52—Power to search, seize etc (1) Subject to this section, an authorised officer may— (a) enter at any time any premises for the purposes of ascertaining whether the provisions of this Act, or of a licence, authority or permit granted under this Act, are being complied with or have been contravened; and (b) if reasonably necessary for that purpose, break into or open any part of the premises, or anything in or on the premises; and (c) for the purposes of paragraph (a) or (b), require the driver of any vehicle, the master of any vessel or the pilot of any aircraft to stop that vehicle, vessel or aircraft. … (6) An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act. … (9) If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may— (a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and (b) detain and search the vehicle, vessel or aircraft; and (c) seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act. 65 The relevant test to be applied was articulated in R v Nguyen,55 where the Court said: A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists. Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which 55 (2013) 117 SASR 432 at [21]-[22] per Kourakis CJ, Blue and Stanley JJ. -- 18 of 29 -- [2026] SADC 65 17 the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts. 66 The decision of R v Nguyen has been followed and applied in numerous cases since.56 67 The question of whether the accused was under de facto arrest and in the de facto custody of Brevet Sergeant McGurgan is governed by the common law. Findings of fact 68 Based on the unchallenged evidence led on the voir dire, including what I could see and hear on P1, I make the following findings of fact: 1. Brevet Sergeant McGurgan was on duty on 26 June 2022 and was the officer in charge of the Blanchetown Police Station which serviced the Murraylands, including Truro. 2. BS McGurgan had been the officer in charge of the Blanchetown Police Station since 2018 and had lived in Cadell between 1997-2000. 3. In BS McGurgan’s experience, the Riverland was a tourist destination, and tourists often used the Murray River for fishing and recreational purposes, including water sports. This was predominantly during the warmer months of the year. 4. In BS McGurgan’s experience, most of the tourist traffic was on Friday afternoon between 4.30pm and 7.30pm for eastbound traffic and on Sunday afternoon for west bound traffic. There was always a flow of traffic at night, but later in the evenings it was mostly heavy vehicles. 5. On 26 June 2022, shortly before 12.40am, BS McGurgan was travelling on the Sturt Highway towards Truro in a marked police four-wheel drive Toyota Hilux with a cage. He saw a Triton Mitsubishi utility (‘the Triton’) travelling in the opposite direction and executed a U-turn for the purpose performing a random vehicle stop to breath test the driver. 6. The Triton stopped as directed. BS McGurgan performed registration checks on the Triton whilst still seated in his police vehicle. The checks revealed that the registered owner of the Triton was a female. The checks were completed within seconds. 7. BS McGurgan then got out of the police vehicle and activated his body worn video recorder at 12.39am as he was approaching the Triton. He explained to the driver (the accused) that she had been stopped for a random breath test and asked if she 56 See for example, R v Dam and Nguyen (2015) 123 SASR 511; R v Nguyen (2015) 248 A Crim R 398; Bae v The Queen; Koo v The Queen (2020) 135 SASR 522 at [63]-[69]. -- 19 of 29 -- [2026] SADC 65 18 had consumed any alcohol. She said no. He asked for her licence which she produced to him at 12.40.05am. There was one passenger in the Triton, a female. 8. BS McGurgan then directed the accused to submit to an alcotest, which she did. At 12.40.29am the test produced a zero result. BS McGurgan then asked the accused, ‘where are you off to tonight’. The accused said ‘just heading off to the Riverland, Berri my mates got some jet skis’. BS McGurgan asked the accused, ‘No dramas, whose car is this one’. She replied, ‘belongs to my mate, well my mate’s mate his name is Pedro, not sure of his full name’. BS McGurgan then asked the accused where Pedro lived and told her that the utility was coming out to a female. The accused said she did not know and that Pedro was driving the car. BS McGurgan then asked what was in the tray of the utility and looked at two 44-gallon drums which were strapped to the tray. The accused said she did not know and that they were already on the car. 9. At 12.41.06 BS McGurgan said ‘just give us a couple of minutes’ and returned to the police vehicle. The engine of the Triton was still on. 10. BS McGurgan conducted a licence check on the mobile police computer. That check revealed that there were no suspensions or disqualifications attached to the accused’s licence. He then entered the accused’s name on the SHIELD system. Those checks revealed that the accused had a caution for drugs and upon further checking, he discovered that the accused had two drug cautions. The most recent one related to a glass or ice pipe in the 2020’s. The older caution predated SHIELD and was therefore prior to 2015. 11. At 12.43.38am BS McGurgan returned to the Triton. By this time, he had formed a suspicion that ‘there may be controlled substances or related items in the vehicle or on the persons’. 12. BS McGurgan directed the accused to turn off the Triton. She told him the Triton was registered in Pedro’s mother’s name. BS McGurgan then directed the accused to get out of the Triton. He then started searching the Triton. 13. At 12.48.41am BS McGurgan located a glass pipe. At 12.52.41 BS McGurgan located a set of scales. 14. BS McGurgan questioned the accused about the pipe and scales without administering a caution. 15. BS McGurgan then found a black magnetic box under the driver’s seat which contained snap seal bags he suspected had controlled substances in them. He then administered a caution to the accused and the passenger. 16. The accused was subsequently arrested and interviewed. Evaluation of evidence of Brevet Sergeant McGurgan 69 I formed a favourable impression of Brevet Sergeant McGurgan’s credibility and a generally favourable impression of his reliability. I detected no guile or obfuscation, particularly under cross-examination. He frankly conceded that his failure to administer a caution was the result of the way he conducted himself and -- 20 of 29 -- [2026] SADC 65 19 the relaxed approach he had a habit of taking. He also accepted that when he asked what was in the 44-gallon drums he could not say what power he was exercising. 70 It was apparent from a consideration of P1 that Brevet Sergeant McGurgan did not (and for obvious reasons could not) have a verbatim recollection of the conversation with the accused. Whilst I accept his evidence that his ability to hear the accused was likely to be much better than the audio recording on P1 (which had a lot of background noise and feedback) there were aspects of the conversation that I could hear on P1 which differed from Brevet Sergeant McGurgan’s recollection. That is, of course, to be expected given he did not make verbatim notes and was relying upon his memory. I have preferred what I can hear on P 1 over the evidence of Brevet Sergeant McGurgan where it differs. 71 I also accept that Brevet Sergeant McGurgan had a much clearer vantage point and view of the driver and passenger than can be seen from the perspective of the video footage in P1. P1 suffers from the angle at which the footage is taken and the flashing lights and movement of Brevet Sergeant McGurgan, rendering it incapable of replicating what he could see and hear. Accordingly, while I prefer what I can hear on P1 over any evidence of Brevet Sergeant McGurgan to the contrary, P1 does not provide a basis upon which I could reject as unreliable his evidence of his observations of the movement of the passenger or his own impression of the accused as being softly spoken and avoiding eye contact. 72 Given my findings regarding P1, Brevet Sergeant McGurgan’s concession that in P1 the passenger appears to be mostly sitting still, behaving calmly and not displaying fidgety behaviour is not inconsistent with his evidence that he could see that the passenger was moving at least one of her hands around a lot and one of her legs was fidgeting. Was the accused under de facto arrest at any stage? 73 A person is under de facto arrest where a person has been detained, or there has otherwise been an interference with, or deprivation of, their liberty, in circumstances sufficient to warrant a conclusion that they have been apprehended or arrested despite the absence of any words to that affect. De facto apprehension may occur without any intention on the part of the police officer to make an arrest. Not every detention or interference with a person’s liberty by a police officer involves a de facto apprehension: Police v Pocius [2018] SASC 3857. 74 I am satisfied and find that following the stopping of the Triton, a person in the position of the accused would not have felt free to leave. The accused had been stopped and directed to submit to an alcotest. She had then been told by Brevet Sergeant McGurgan ‘just give us a couple of minutes’ which would have signalled to the accused that she was required to wait. In addition, Brevet Sergeant McGurgan had taken the accused’s licence. However, I am satisfied and find that this detention and interference with the liberty of the accused was lawful and did 57 [41], [44]. -- 21 of 29 -- [2026] SADC 65 20 not constitute a de facto arrest, as it was a necessary incident of the exercise of the power to request the accused provide her driver’s licence. I am satisfied that it was not unlawful for Brevet Sergeant McGurgan to conduct SHIELD checks. However, after the licence checks had been completed, there was no lawful basis to further detain the accused in order to perform those SHIELD checks. However, the period of this unlawful detention was brief; the checking of the licence and the interrogation of SHIELD took no more than two minutes and were consecutive. In my view, this was a technical or trifling de facto detention. 75 Brevet Sergeant McGurgan was under the misapprehension that the accused was under his de facto arrest when he returned to his police vehicle to conduct licence checks. The authorities make it clear, and I have found, that the accused was not under de facto arrest at that time. Whilst Brevet Sergeant McGurgan had a correct understanding of what is required for a person to be under de facto arrest, he was under the further misapprehension that if a person was under his de facto arrest he was not obliged to administer the s.79A SOA rights. Did BS McGurgan have a reasonable suspicion pursuant to s 52 (9) CSA? 76 I accept Brevet Sergeant McGurgan’s evidence that after his licence checks had been completed, he genuinely believed that the suspicions that he held were insufficient to exercise the power of search under the CSA. I further accept his evidence that it was the results of the SHIELD checks, in combination with his other suspicions, which led him to form a genuine suspicion that there may be controlled substances or associated items in the accused’s vehicle or on her person or her passenger. 77 I reject the submission of the prosecution that the language used by Brevet Sergeant McGurgan in describing his state of suspicion was loose or intended to mean something other than what he said. ‘May’ was the word he used when asked by me what the suspicion was that he had formed. In cross-examination, Mr Armstrong was careful to ensure that he accurately quoted back to Brevet Sergeant McGurgan his evidence on this topic. Brevet Sergeant McGurgan confirmed that that was his suspicion. He further confirmed that he understood this was sufficient to enliven his power to search pursuant to s 52 CSA. He was not re-examined on his use of the word may and whether it meant something different to him than its meaning in ordinary parlance. 78 I am satisfied and find that Brevet Sergeant McGurgan’s state of mind that there may be controlled substances or related items in the vehicle or on the persons in the vehicle fails the statutory test in section 52 (9) CSA because it falls short of the suspicion required by that section. At the material time, Brevet Sergeant McGurgan did not suspect that ‘any substance or equipment that would afford evidence of an offence against the CSA is (was) in the vehicle’. It was not in fact a suspicion, but was something short of that, akin to speculation or wondering. 79 It follows that the search was unlawful. -- 22 of 29 -- [2026] SADC 65 21 80 This is not a case of the formation of an actual suspicion meeting the statutory test and then an adjudication of whether that suspicion was reasonable. If the state of mind of the officer fails to meet the statutory test, any search purporting to be pursuant to s 52 (9) CSA is necessarily unlawful. Was there a basis for a reasonable suspicion justifying the search? 81 If I am wrong about that, I have considered whether objectively viewed, the suspicions I have found Brevet Sergeant McGurgan genuinely held before the SHIELD checks were a proper basis to form the reasonable suspicion necessary to enliven the power to search pursuant to s 52 CSA. If that is the case, then the search will be lawful: BAE v The Queen (2020) 135 SASR 522.58 82 In R v Nguyen the Court observed: The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.59 83 I have accepted the evidence of Brevet Sergeant McGurgan regarding the matters he took into account in forming the suspicion which led him to search the vehicle. Those matters were: 1. The time of night and the accused’s stated reason for travel. 2. The accused’s behaviour (nervous, softly spoken, avoiding eye contact). 3. The driver did not know to whom the vehicle was registered. 4. The use of the GPS indicating that the accused was not familiar with her surroundings. 5. The passenger appeared to be affected by some sort of substance. 6. The results of the SHIELD checks showing two interactions with police relating to possession of items that constituted an offence against the CSA. 84 I am not satisfied that any of these matters, standing alone, or in combination could give rise to a reasonable suspicion that there was any substance or equipment that would afford evidence of an offence against the CSA in the accused’s vehicle or on her or her passenger. Indeed, I am satisfied that this is precisely why Brevet Sergeant McGurgan articulated his suspicion as a suspicion that there may be substances or equipment affording evidence of an offence against the CSA in the vehicle or on the persons in it. 58 [77] – [78] Kelly J. 59 Ibid at [20]. -- 23 of 29 -- [2026] SADC 65 22 85 The observations of the accused’s behaviour, the time of and reason for travel, the use of a GPS and inability to identify the registered owner of a vehicle, even if unusual or odd should not too quickly be associated with illegality. Eccentricities should not be magnets for the exercise of police powers: Marafioti v The Queen (2014) 118 SASR 51160. The drawing of any link between any of these matters and the existence of controlled substances or evidence of an offence against the CSA would be an exercise in speculation based on tenuous material. 86 I have considered carefully the observations made by Brevet Sergeant McGurgan of the passenger. In doing so, I have been mindful of the following passage from Marafioti v The Queen: The presence of a person apparently intoxicated by an illicit substance in a motor vehicle is a reasonable basis on which to suspect that an illicit substance, or an instrument for its administration, will be found in the vehicle. Persons who take drugs commonly take them in vehicles and when they do so they do not always exhaust their supply of the drug. True it is that a drug user may also take the drug before getting in a car, and that he or she may have consumed all of his or her supply. However, a suspicion is still a reasonable one even if there remains a possibility, or even a probability, that the thing suspected will not be discovered. 61 87 Brevet Sergeant McGurgan’s evidence was that the passenger appeared to be affected by some sort of substance. He described her as fidgety and unable to sit still. He was not asked whether, in his experience, her behaviour was consistent with that of a person affected by an illicit or controlled substance as opposed to a legally available substance. He specifically referred to both possibilities as accounting for her appearance. In those circumstances, I am not satisfied that there was a reasonable basis on which to suspect that an illicit substance or an instrument for its administration would be found in the vehicle. 88 I have also considered carefully the information obtained by Brevet Sergeant McGurgan from the SHIELD checks. In my view, the drug caution prior to 2015 was not a reasonable basis to suspect that an illicit substance or an instrument for its administration would be in the vehicle. The information was stale and lacked any detail. The relatively more recent drug caution related to the possession of a glass pipe, but Brevet Sergeant McGurgan could not recall the date or any more detail. The best he could say was that it was in the 2020s. Given these deficiencies I am unable to conclude that the information was of sufficient recency or specificity to give rise to a reasonable suspicion that an illicit substance or an instrument for its administration would be in the vehicle driven by the accused on 26 June 2022. 89 It follows that none of the information available to Brevet Sergeant McGurgan was a reasonable basis to form the necessary suspicion pursuant to s 52 (9). As I have already found that the search was unlawful, this becomes a matter 60 [13] Kourakis CJ. 61 Ibid at [9] Kourakis CJ. -- 24 of 29 -- [2026] SADC 65 23 relevant to the exercise of the discretion to exclude the evidence obtained as a consequence of the unlawful search. The exercise of the Bunning v Cross discretion 90 The applicable principles are well known. 91 Having found the search unlawful, the rule in Bunning v Cross62 confers upon me a discretion to exclude relevant and admissible evidence based on public policy considerations. I set out the helpful summary of the history of the Bunning v Cross discretion in the judgment of Stanley J in R v Rockford (2015) 122 SASR 391: The so-called rule in Bunning v Cross63 confers upon a court a discretion to exclude relevant and admissible evidence based on public policy considerations which arise where the evidence has been obtained unfairly or illegally. The Bunning v Cross discretion has its roots in R v Ireland64 where Barwick CJ considered that a trial judge had a discretion to reject real evidence that was unlawfully obtained. He said:65 Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand, there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. In Bunning v Cross66 Stephen and Aickin JJ, delivering the leading judgment for the court, said:67 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… [T]he discretionary process called for by Ireland … [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. Their Honours explained the considerations underpinning the competing principles which inform the exercise of the discretion as follows:68 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 62 (1978) 141 CLR 54. 63 (1978) 141 CLR 54. 64 [1970] HCA 21, (1970) 126 CLR 321. 65 [1970] HCA 21, (1970) 126 CLR 321 at 335. 66 (1978) 141 CLR 54. 67 (1978) 141 CLR 54 at 74 - 75. 68 (1978) 141 CLR 54 at 77 - 78. -- 25 of 29 -- [2026] SADC 65 24 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.… [T]he 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 … [I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to admissibility 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. In Cleland v The Queen69 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 in exercising the discretion in the following terms:70 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. In Pollard v The Queen71 Deane J further explained the application of the Bunning v Cross discretion in the following way:72 [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. Ridgeway v The Queen73 was a further extension of the public policy discretion. The unlawfulness in Ridgeway was not in the conduct of police in obtaining evidence of a crime committed but in the conduct of law enforcement officers who themselves committed a crime in order to establish an element of a further offence which they anticipated would be 69 [1982] HCA 67, (1982) 151 CLR 1. 70 [1982] HCA 67, (1982) 151 CLR 1 at 20. 71 [1992] HCA 69, (1992) 176 CLR 177. 72 (1992) 176 CLR 177 at 202 – 203. 73 [1995] HCA 66, (1995) 184 CLR 19. -- 26 of 29 -- [2026] SADC 65 25 committed by the accused. Ridgeway is a case of entrapment. The exclusion of the evidence obtained by way of the sting in Ridgeway reflected the court’s duty to ensure that it did not, by the failure to exercise its discretionary powers, achieve an objective which flagrant and deliberate breaches of the law by law enforcement officers was designed to achieve. Mason CJ, Deane and Dawson JJ said:74 [T]he considerations of “high public policy” which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime. In both categories, the objective of the unlawful conduct is the obtaining of curial advantage: the use of the unlawfully procured evidence in one category; the obtaining of a conviction for the unlawfully procured offence in the other. In both, the reception of the evidence by the courts is a critical step in the obtaining of that objective. If, in relation to either category, no judicial discretion existed to prevent the curial advantage being derived from the unlawful conduct, statements of judicial disapproval would be likely to be hollow and unavailing and the administration of justice would be likely to be “demeaned by the uncontrolled use of the fruits of illegality in the judicial process”. Indeed, there is much to be said for the view that the considerations favouring the exclusion of unlawfully procured evidence of a crime which had already been committed are likely to be less compelling than those favouring the exclusion of evidence of a crime which would never have been committed but for such unlawful conduct on the part of law enforcement officers designed to bring about its commission. [Citations omitted]. In R v Swaffield75 Kirby J identified the considerations relevant to the exercise of the public policy discretion in Bunning v Cross as follows:76 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 74 (1995) 184 CLR 19 at 31 – 32. 75 [1998] HCA 1, (1998) 192 CLR 159. 76 [1998] HCA 1 at [135], (1998) 192 CLR 159 at 212 – 213. -- 27 of 29 -- [2026] SADC 65 26 (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 11 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.” … [Citations omitted]. In R v Lobban77 this Court held that the public policy discretion in Bunning v Cross is enlivened only when the evidence sought to be excluded is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. The Bunning v Cross discretion does not operate to punish unlawful, improper or unfair conduct on the part of law enforcement authorities. That is a matter for police disciplinary procedures or the invocation of separate criminal proceedings. It is only when such conduct results in the obtaining of relevant and admissible evidence that the Court is required to exercise its discretion whether to exclude such evidence obtained by such means. The discretion to exclude does not extend to subsequent conduct on the part of law enforcement authorities, unless the subsequent conduct is closely connected with the earlier conduct. For example, the discretion does not apply where police officers give false evidence as to how material was obtained, where the material itself was not illegally or improperly obtained.78 The unlawful or improper conduct must be the means by which the evidence was obtained or where the obtaining of the evidence involved the unlawful or improper conduct.79 92 As noted, my finding that none of facts upon which Brevet Sergeant McGurgan relied in order to search the vehicle could rationally engender a suspicion in the mind of a reasonable person justifying a search under s 52 (9) is a matter relevant to the exercise of the discretion. 93 The alleged offending is undoubtedly serious. The illegality does not affect the cogency of the evidence. 94 The authorities establish that 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 unlawfulness in this case was not deliberate or reckless. It was based upon a genuine misunderstanding of the statutory test in s 52 (9). That misunderstanding was longstanding and appeared to have been the product of Brevet Sergeant McGurgan’s training and on the job experience. The evidence establishes that his misunderstanding of the statutory test was not idiosyncratic or isolated. It was not corrected by discussion or further education but perpetuated. 77 [2000] SASC 48, (2000) 77 SASR 24. 78 Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 at 288 – 289. 79 Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90 at [55], (2003) 6 VR 430 at 454. -- 28 of 29 -- [2026] SADC 65 27 95 If Brevet Sergeant McGurgan had applied the correct statutory test, he would not have had the power to search the vehicle because his state of mind fell short of the requisite threshold. 96 It is the duty of the Court to be vigilant to ensure that unlawful conduct (whether deliberate, mistaken or some other variant) 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.80 97 In these circumstances, balancing all relevant factors, exclusion of the unlawfully obtained evidence is the appropriate and necessary mechanism by which to censure the excess of power and ensure compliance with the stringency of the statutory limitations upon the exercise of powers of search conferred by the CSA. Order 98 I exercise my discretion to exclude the evidence obtained as a consequence of the search of a white Mitsubishi Triton motor vehicle (S223BJC) and its occupants on 26 June 2022. 80 R v Rockford (supra) at [39] per Stanley J. -- 29 of 29 --