[2024] SADC 31

Prosecution: R Counsel: MS H KINUTHIA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: TRI KHANG THAN Counsel: MR B ARMSTRONG - Solicitor: DADDS JANDY LAWYERS Hearing Date/s: 02/03/2023 to 03/03/2023, 18/04/2023 to 19/04/2023, 11/05/2023 to 12/05/2023, 15/05/2023 to 17/05/2023, 26/05/2023, 22/06/2023, 01/08/2023, 25/09/2023 File No/s: DCCRM-21-1216 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 THAN [2024] SADC 31 Reasons for Ruling of her Honour Judge Schammer 28 March 2024 CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION - GENERALLY CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED The accused, Tri Khang Than (Than) is charged with the one count of trafficking in a large commercial quantity of a controlled drug pursuant to s 32(1) of the Controlled Substances Act 1984 (‘the Act’). On 20 May 2020, police operatives were conducting covert surveillance of a property at 225 Torrens Road, West Croydon (the property), being a property linked to a suspected drug dealer. The surveillance was being undertaken in accordance with a Tactical Operations Order (TAC order), which listed, as a secondary or contingency plan, a plan to conduct a ‘controlled traffic stop’ on a vehicle which had attended at the property to ascertain if a drug deal had taken place. At approximately 4:49pm that day, surveillance operatives observed a black Toyota Camry sedan SA Reg: S188ADS (the vehicle) parked in the driveway of the property. Officer Hazel (Hazel) and Officer Glasson (Glasson) were parked in a ‘stop car’ in a suburban street near the property. They received advice from surveillance operatives that the vehicle was at the property. Hazel conducted checks on the vehicle and ascertained that its registered owner was a female. He conducted checks on an address connected to that female, which identified the accused. He then conducted checks on the accused, which revealed a warning flag for drugs and a history of -- 1 of 120 -- drug-related searches. Hazel and Glasson determined to stop the vehicle in accordance with the contingency plan as outlined in the TAC order. Officer Metschke (Metschke) and Officer Widdrington (Widdrington) were in another police vehicle nearby. Glasson contacted Metschke and Widdrington via police radio. He informed them that the vehicle was at the property and that ‘they’ wanted to stop the vehicle. Shortly thereafter, Glasson and Hazel became caught up in traffic and asked Metschke and Widdrington if they were able to get to the vehicle. The results of the checks conducted by Hazel were not communicated to Metschke and Widdrington at this time. Shortly prior to 5:13pm, the vehicle was stopped in Rickaby Street, West Croydon by Metschke and Widdrington. The accused was driving the vehicle. After obtaining the accused’s personal particulars, identification and having a brief conversation with him, Metschke informed the accused that police intended to search him and the vehicle under s 52 of the Act. It is alleged that Than told Metschke, on more than one occasion, that he did not consent to either search and flexed his arms in order to render the police task more difficult. Metschke then arrested Than for hindering a search under s 52D(3) of the Act and handcuffs were applied to him (the arrest). Thereafter, Widdrington spoke to Gabel via the police radio to conduct checks on Than. Gabel informed Widdrington that Than had warnings for drugs, that he may be armed and that he had been arrested on 14 February of the previous year. After the arrest, but prior to providing Than with his arrest rights, Metschke and/or Widdrington had a conversation with Than whereby he allegedly denied having been arrested on any prior occasion. Shortly thereafter, Hazel and Glasson arrived at Rickaby Street. They received a verbal briefing from Metschke and Widdrington as to the circumstances of the arrest. Thereafter, Hazel and Glasson searched the vehicle, relying on the power provided for under s 52(9) of the Act. During the search, a backpack was found in the rear passenger footwell of the vehicle behind the passenger seat. In the backpack were four bundles, including one wrapped in a paper towel. It is alleged those four bundles contained substances weighing 166 g, containing methylamphetamine. Several hours later, the backpack was further examined by Widdrington and allegedly found to also contain another much larger bundle, also containing methylamphetamine. It is alleged that in total, the backpack contained 1.041 kg of methylamphetamine. Than filed an application pursuant to r 49(1)(h) of the District Court Rules 2014 seeking to exclude the evidence of the search of the vehicle on the basis that the search was unlawful in that: 1. The vehicle was unlawfully stopped under s 52(9) of the Act, rather than under the Road Traffic Act 1959 (RTA), as claimed by Metschke. 2. The arrest was unlawful, either because there was no basis in law for it and/or it was undertaken for a collateral purpose, namely, to facilitate an unlawful search. 3. Than was improperly questioned prior to being given his arrest rights pursuant to s 79A of the Summary Offences Act 1953. 4. It was always intended for the vehicle to be stopped and searched as part of the investigation, which had another alleged offender as its focus, and/or that any search was commenced by Metschke and/or Widdrington, (not Hazel and/or Glasson), at a time when neither officer had sufficient material to form any reasonable suspicion within the meaning of s 52(9) of the Act. In addition, it was submitted that Metschke and Widdrington had together determined to falsify the sequence of events in their notes, and in their initial statements, to give the impression that Widdrington had conducted certain checks on Than, prior to the arrest, to artificially bolster the -- 2 of 120 -- foundation for any claimed reasonable suspicion held by them, or anyone, to conduct the search in accordance with s 52(9). It was further submitted that this conduct, and other improper conduct including the sharing of notes and other material by the various officers involved, was condoned and encouraged by the Serious and Organised Crime Branch (SOCB), such that the Court should exercise its discretion to exclude the evidence. Held: 1. The vehicle was stopped in accordance with the contingency plan and therefore under s 52(9)(a) of the Act, rather than under the RTA. 2. At the time the vehicle was stopped, none of the relevant officers had a reasonable suspicion that there was any substance or equipment that would afford evidence of an offence against the Act in the vehicle. 3. The search commenced at the time the vehicle was stopped. 4. The search was unlawful. 5. The notes and initial statements made by both Metschke and Widdrington contained the same error as to sequence insofar as they read as if the checks conducted by Widdrington with respect to the accused occurred prior to his arrest for hindering the search. They also contained the same error as to the time the vehicle was said to have stopped and did not include the time of the arrest. 6. Having regard to all of the evidence, the Court finds that the similarity in terms of the errors and omissions in the notes made by Metschke and Widdrington is the product of them deliberately crafting their notes to falsely give the impression that events had occurred in a certain order, in an attempt to legitimise the search. The same errors and omissions then carried over into each officer’s initial statement, and only came to light after defence counsel insisted on the production of records including those relating to Police Radio Communications on the relevant date and results of enquiries conducted on Shield by the officers on the relevant date. 7. Notwithstanding the seriousness of the offending, and that the evidence falls short of establishing that this conduct was condoned or known to those in higher positions of authority within the SOCB, the evidence of the search is excluded in the exercise of the discretion. Controlled Substances Act 1984 (SA) ss 32(1), 52, 52(6), 52(9), 52(9)(a), 52(9)(b), 52D, 52D(3), 52D(3)(a); Road Traffic Act 1961 (SA) ss 40H, 40H(1)(a), 40V, 40V(3); Summary Offences Act 1953 (SA) s 79A; Controlled Substances Act 1984 (SA) ; Motor Vehicles Act 1959 (SA) ss 96, 96(1), referred to. R v Rogers (2011) 109 SASR 307; R v Willingham (No.2) [2012] SASCFC 104; R v Nguyen (2013) 117 SASR 432; R v Nguyen [2015] SASCFC 7; McLachlan v Opie (1957) SASR 53; R v Marafioti (2014) 118 SASR 511; R v AS and Raynor (No 1) [2023] SADC 60; R v Dam & Nguyen; Case Stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131; Schatto v The King [2022] SASCA 129; Zenuni v The King [2022] SASCA 106; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Golja [2017] SASCFC 61; Ghamrawi v The Queen [2019] SASCFC 108; R v Rockford [2015] SASCFC 51, considered. -- 3 of 120 -- -- 4 of 120 -- R v THAN [2024] SADC 31 [Criminal] Introduction/Relevant Background 1 The accused, Tri Khang Than (Than) is charged with the one count of trafficking in a large commercial quantity of a controlled drug pursuant to s 32(1) of the Controlled Substances Act 1984 (‘the Act’). 2 On 15 May 2020, a briefing was conducted, attended by various police officers, relating to an investigation with respect to Quy Van Nghiem (Nghiem), (the Nghiem investigation). Nghiem was suspected of being involved in the cultivation of a large cannabis crop found at Virginia and in other drug trafficking activities. 3 During that briefing, those present were made privy to a Tactical Operations Order (the TAC Order) prepared by Officer Hazel with respect to the Nghiem investigation.1 4 The TAC Order outlined both a primary and secondary (or contingency) plan with respect to the Nghiem investigation. The goal of each plan was to generate reasonable suspicion under s 52(9) of the Act to search a property linked to Nghiem at 225 Torrens Road, West Croydon (the property). 5 The primary plan was to conduct observations of the property to detect Nghiem leaving the property and dealing in drugs away from the property. If Nghiem did not leave the property, but other vehicles or persons attended the property, the secondary plan was to conduct a ‘controlled traffic stop’ of one of those vehicles to ascertain if a drug deal had taken place. 6 On 20 May 2020, police operatives were conducting covert surveillance of the property as part of the Nghiem investigation. Other police officers were parked in ‘stop cars’ in the surrounding streets, waiting to receive advice from surveillance operatives. 7 At approximately 4:49pm that day, surveillance operatives observed a black Toyota Camry sedan SA Reg: S188ADS (the vehicle) parked in the driveway of the property. 8 Officer Hazel (Hazel) and Officer Glasson (Glasson) were parked in a ‘stop car’ in a suburban street near the property, on the northern side of Torrens Road. They received advice from surveillance operatives that the vehicle was at the property. Hazel conducted checks on the vehicle and ascertained that its registered owner was a female. He conducted checks on an address connected to that female, which identified the accused. He then conducted checks on the accused, which 1 The TAC order was not in evidence but was the subject of much oral evidence. -- 5 of 120 -- [2024] SADC 31 2 revealed a warning flag for drugs and a history of drug related searches. Hazel and Glasson determined to stop the vehicle in accordance with the contingency plan as outlined in the TAC Order. 9 Officer Metschke (Metschke) and Officer Widdrington (Widdrington) were in another police vehicle on the southern side of Torrens Road, in Brown Lane, adjacent Carnarvon Reserve. 10 Glasson contacted Metschke and Widdrington via police radio. He informed them that the vehicle was at the property and that ‘they’ wanted to stop the vehicle. Shortly thereafter, Glasson advised that he and Hazel were caught up in traffic and asked Metschke and Widdrington if they were able to get to the vehicle. 11 Shortly prior to 5:13pm, the vehicle was stopped the vehicle in Rickaby Street, West Croydon by Metschke and Widdrington. The accused was driving the vehicle. Metschke informed the accused that police intended to search him and the vehicle under s 52 of the Act. 12 It is alleged that Than told Metschke, on more than one occasion, that he did not consent to either search. Metschke then arrested Than for hindering a search under s 52D(3) of the Act and handcuffs were applied to him (the arrest). Thereafter, Widdrington spoke to Officer Gabel (Gabel) via the police radio to conduct further checks on Than. 13 Prior to providing Than with his arrest rights, Metschke and/or Widdrington had a conversation with Than whereby he allegedly denied having been arrested on any prior occasion. 14 Shortly thereafter, Hazel and Glasson arrived at Rickaby Street. They received a verbal briefing from Metschke and Widdrington as to the circumstances of the arrest. 15 Thereafter, Hazel and Glasson searched the vehicle, relying on the power provided for under s 52(9) of the Act. 16 During the search, a backpack was found in the rear passenger footwell of the vehicle behind the front passenger seat. In the backpack were four bundles, including one wrapped in a paper towel. It is alleged those four bundles contained substances weighing 166 g, containing methylamphetamine. 17 Several hours later, the backpack was further examined by Widdrington and allegedly found to also contain another much larger bundle, also containing methylamphetamine. It is alleged that in total, the backpack contained 1.041 kg of methylamphetamine. -- 6 of 120 -- [2024] SADC 31 3 Application 18 Than filed an application pursuant to r 49(1)(h) of the District Court Rules 2014 seeking to exclude the evidence of the search of the vehicle on the basis that the search was unlawful. 19 The onus rests on Than to establish on the balance of probabilities the reason or reasons for exclusion of this evidence. 20 There are four bases upon which it is submitted that the evidence of the search should be excluded, namely that: 1. The vehicle was unlawfully stopped under s 52(9) of the Act, rather than under the Road Traffic Act, as claimed by Metschke. 2. The arrest was unlawful, either because there was no basis in law for it and/or it was undertaken for a collateral purpose, namely, to facilitate an unlawful search. 3. Than was improperly questioned prior to being given his arrest rights pursuant to s 79A Summary Offences Act 1953 (SOA). 4. The search was unlawful as either it was always intended for the vehicle to be stopped and searched as part of the Nghiem investigation and/or that any search was commenced by Metschke and/or Widdrington, (not Hazel and/or Glasson), at a time when neither officer had sufficient material to form any reasonable suspicion within the meaning of s 52(9) of the Act. 21 In addition, it was submitted that Metschke and Widdrington had together determined to falsify the sequence of events in their notes, and in their initial statements, to give the impression that Widdrington had conducted certain checks on Than, prior to the arrest, to artificially bolster the foundation for any claimed reasonable suspicion held by them, or anyone, to conduct the search in accordance with s 52(9). 22 It was further submitted that this conduct, and other improper conduct including the sharing of notes and other material by the various officers involved, was condoned and encouraged by the Serious and Organised Crime Branch (SOCB), such that the Court should exercise its discretion to exclude the evidence. Voir Dire 23 The application was heard on a voir dire which was listed for one to two days but ultimately proceeded over 14 separate days, between 2 March 2023 and 25 September 2023. 24 During the voir dire, the court heard evidence from Metschke, Widdrington, Hazel and Glasson. -- 7 of 120 -- [2024] SADC 31 4 25 Numerous exhibits were received, including: • A disc (and corresponding transcript) of GRN Radio Communications P220 on 20 May 2020 between 4:55pm and 5:42pm (the Police Radio Communications).2 • NICE Inform incident distribution document which lists the time of each of the transmissions in the Police Radio Communications.3 • Facts of Charge for the offence under s 52D(3)(a) of the Act.4 The narrative for the Facts of Charge was completed by Hazel, relying in part upon information provided to him by Metschke and/or Widdrington. • Email from Glasson to Metschke, Widdrington, Hazel and Gabel dated 29 November 2022.5 The email contained a copy of a statement prepared by S/C McGreevy identifying the checks conducted by police on Shield on 20 May 2020 relevant to the vehicle and to Than. That statement was not in evidence. I will refer to that material as ‘the Shield Audit’. • Email from Gabel to Glasson, Metschke and Widdrington dated 24 February 2023 containing a copy of the transcript of the Police Radio Communications. 26 The following documents were received and admitted de bene esse: • Notebook entries made by Metschke.6 • Affidavits of Metschke affirmed on 15 June 2020 and 28 February 2023.7 • Notebook entries made by Widdrington.8 27 These documents were sought to be tendered as to the fact these documents were created, not as to the truth of their contents. I am satisfied the documents are relevant and admissible for this purpose having regard to the specific issues in dispute. 28 In addition to hearing oral submissions from the parties, the Court has also received and considered a Summary of Argument of the Prosecution dated 11 August 2023 and the various authorities contained in Lists of Authorities provided by both the prosecution and the accused. 2 Exhibit VDP1 and MFI VDP2. 3 Exhibit VDP3. 4 Exhibit VDD7. 5 Exhibit VDD6. 6 Exhibit VDD9. 7 Exhibits VDD14 and VDD15. 8 Exhibit VDD19. -- 8 of 120 -- [2024] SADC 31 5 Search Power 29 It was the prosecution case that the vehicle was lawfully searched by Hazel and Glasson pursuant to Section 52(9) of the Act, which provides: (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 is in any vehicle, vessel or aircraft, the officer may – (a) require the driver of the vehicle, 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. 30 There are numerous decisions which discuss the concept of what may be a reasonable suspicion for these purposes, as compared to a simple suspicion, or indeed a belief. 31 In R v Rogers,9 in discussing s 52(9) of the Act, Justice Duggan said: It is, of course, important to have regard to the legislative context in which the concept of reasonable suspicion applies. Section 52(9) of the Act was drafted with the competing considerations of the rights of the citizen and the importance of not unduly restricting police investigations in mind. Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment. It is relevant to note that the reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer. 32 In R v Willingham (No.2)10 (per Gray, Sulan and Stanley JJ) it was said that the test to be applied by a Judge when determining whether a police officer’s suspicion was reasonable was as follows: The questions to be asked in each case are first, whether the police officer held a genuine suspicion and second, based on the matters known to the officer, whether that suspicion was reasonable. The test of reasonableness is to be judged by the Court putting itself in the position of the officer with the knowledge of the officer and asking whether, in the circumstances, the suspicion was reasonably held. Each case will, of course, turn on its own circumstances. On the one hand, the police officer may be required to make a momentary decision and, on the other hand, the suspicion may be formed after due consideration of material and information that has become known to the police officer. 33 In R v Nguyen11 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 9 (2011) 109 SASR 307, 311-312. 10 [2012] SASCFC 104, 10. 11 (2013) 117 SASR 432, 21. -- 9 of 120 -- [2024] SADC 31 6 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. 34 And further, at [22]: Importantly, s 52(6) and s 52(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 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 (R v Davidson (1991) 54 SASR 580, 584). 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. 35 In R v Nguyen,12 the Court reiterated these principles regarding what constituted a reasonable suspicion. 36 If the search of the vehicle was unlawful, that does not render the evidence as to the fruits of the search inadmissible, however I have a discretion to exclude such evidence. 37 I will return to s 52(9) and its particular application to the facts of this matter, later in my Reasons. Issues to be Determined 38 In considering the application, the Court is required to make findings of fact on numerous issues in dispute, some of which are inter-related, namely: 1. Was the vehicle stopped under the RTA or the Act? 2. When did the search of the vehicle commence? 3. Who made the decision to search the vehicle and what information formed the basis for that decision? 4. Was that information sufficient to provide the basis for any ‘reasonable suspicion’ to search the vehicle pursuant to s 52(9) of the Act? 5. Was the arrest lawful? 12 [2015] SASCFC 7. -- 10 of 120 -- [2024] SADC 31 7 6. Should evidence of conversations between Metschke and/or Widdrington and the accused after the arrest, but prior to the accused being given his arrest rights, be excluded from the evidence? 7. Are any inaccuracies in the notes and initial statements prepared by Metschke and Widdrington the product of any improper conduct on their part or simply the result of unfortunate human error? 8. Has any improper and/or unlawful conduct on the part of any of the officers involved been condoned and/or encouraged by members of the SOCB? The Evidence Officer Metschke Preliminary Observations 39 Metschke provided two statements dated 15 June 2020 and 28 February 2023, both of which were in evidence. In addition, a copy of Metschke’s notebook entries, relevant to both the briefing on 15 May 2020 and what occurred on 20 May 2020, were in evidence. 40 Metschke was extensively cross-examined as to the contents of his statements and notebook entries and specifically as to various alleged inconsistencies in the evidence he gave, when compared to what was in his notes and his first statement, as to the time the vehicle was first stopped by him, the time of the arrest and the sequence of events which occurred on 20 May 2020. 41 Metschke gave evidence that when he wrote the entries in his notebook as to what had occurred on 20 May 2020, those entries accorded with his recollection of the events of that day. However, he said that when he made his first statement on 15 June 2020, he became confused as to the sequence of events which had occurred on the roadside on 20 May 2020.13 42 Metschke gave evidence that his notes were prepared throughout the shift on 20 May 2020. He then gave the following evidence:14 Q. So were they, for example, when we see an entry at 1733, was that entry made at that time. A. Yes. Q. And so where we see a time entry, that corresponds with the time of the event and also the time that you made the note; is that correct. A. Yes. 13 T 93.12-18. 14 T 92.36-93.4. -- 11 of 120 -- [2024] SADC 31 8 43 He acknowledged that when completing his notes, he consulted with other police officers about what had occurred. However, he denied that he had done the same when compiling his first statement and said that the statement was a product entirely of his recollection and of his notes of that evening. He denied having sought the assistance of Widdrington to prepare his first statement.15 Notebook Entries 44 It is important to reproduce certain portions of Metschke’s notebook entries to understand the evidence given by him, particularly in cross-examination and to understand the broader context of the argument as developed by defence as to why the evidence of the search should be excluded. Extracts from pages 65, 66 and 67 of that notebook are reproduced below: Page 65 20/05/20 2DOTFV61 Gabel 2DOTF616 Widdrington 1725 Rickaby Street West Croydon S188ADS Toyota Camry Black D/L CJ3… Than Tri Khang ‘John’ 23/7/93 (26) 444 Grand Junction Road Mansfield Park 0416… 1733 Video fault with first camera Video activated (new camera – working) Rights Caution Does not want to answer questions Allegations given 15 T 93.5-28. -- 12 of 120 -- [2024] SADC 31 9 1737 Video deactivated 1741 Advised of right to apply for bail 1742 Video reactivated Advised drug is suspected methamphetamine Bail right 1743 Video deactivated 1755 CWH Page 66 Hinder Police / Trafficking Refusing / preventing search On the grounds that he “does not consent” Twice explained s 52 CSA authority and that his consent was not required. Arrested + handcuffed. Searched and placed in fleet. M/V searched and approx. 4 ounces meth located. Search of M/V by Glasson/Hazel/Widdrington. 1817 Phone placed in flight mode. Black iphone locked 1825 DNA sample taken 1858 Charged CWH 4 x $100 1 x $50 2 x $20 $490 1901 Cash seized 1942 444 Grand Junction Rd Mansfield Park GSW search -- 13 of 120 -- [2024] SADC 31 10 Page 67 2055 Search complete 2130 19 Borrakola Street Pooraka GSW search (Gabel) … 2230 Base Data entry of exhibits PPMS receipt 20/A39996 0109 Drug exhibits with Glasson/Widdrington to MESU Remaining exhibits to evidence locker 3 Cash to safe evidence locker CSA suspicions for search • Intel from briefing on 15/5/20 by Hazel regarding 225 Torrens Rd West Croydon and Quy Nghiem • The brief attendance of Than • Than using a vehicle not registered to him • Police checks – drug user warning - Prior search of H/A located cannabis - Prior search of phone showed photos of cannabis crops – suspected ecstasy • Stated that he had just been to visit his mother this was known to be false. Challenged and no response • D/L photo looked quite different in appearance to Than. Checks done to verify identity. Checks showed he had been previously arrested by Than denied ever being arrested. Concerns held re identity due to this lie. 45 The notes prepared by Officer Metschke with respect to the briefing on 15 May 2020 are reproduced hereunder. 15/05/20 2DOTF611 Glasson 1550 Briefing Hazel Nghiem, Quy 225 Torrens Road West Croydon 19 Borakoola Street Pooraka -- 14 of 120 -- [2024] SADC 31 11 Re 294 Penfield Rd Virginia 6,965 plants 45 kgs 2 x fp on heat seal bags of cannabis 2009 grey Liberty S887ABT MDMA, Cocaine, Heroin Evidence – The Briefing on 15 May 46 Metschke gave evidence that he attended the briefing delivered by Hazel on 15 May 2020 with respect to the Nghiem investigation. 47 He recorded only brief notes in his notebook with respect to that briefing as other information was included in the TAC Order prepared by Hazel. 48 Metschke gave evidence that he was provided with a copy of the TAC Order at that briefing but had not kept a copy of it.16 49 Metschke was asked to what he could recall in terms of the activity he engaged in, associated with the mission set out in that TAC Order. Specifically, he was asked whether or not he was assigned a role in one of the stop cars. He said:17 I don’t remember being assigned a particular role. I remember I was supposed to be assisting Detective Glasson and Senior Constable Hazel. 50 He then agreed that his role was being in a stop car associated with observations of the property. He agreed that the role of the stop car was to stop vehicles.18 51 Metschke confirmed that the focus of the briefing was an investigation into Nghiem, whose fingerprints had been located on a heat-sealed bag discovered at an address in Virginia where there were also some 7,000 cannabis plants located. He understood that Nghiem had a significant connection to the property at 225 Torrens Road. He also understood from other intelligence holdings that Nghiem was involved in dealing other drugs, recorded in his notes as MDMA, cocaine and heroin.19 16 T 173.37-175.7. 17 T 177.5-7. 18 T 177.8-22. 19 T 276.28-277.26. -- 15 of 120 -- [2024] SADC 31 12 52 Metschke agreed with a proposition put to him in cross-examination that he knew, either as a result of having been told by Hazel or reading the TAC Order, that intelligence held by SA Police (SAPOL) as at 15 May 2020, with respect to Nghiem, was that he collected drugs from an unknown location on Wednesday night and dealt in those drugs from Thursday onwards.20 When asked whether that intelligence suggested that Nghiem was probably without a controlled substance on Wednesday 20 May 2020, Metschke said:21 No I wouldn’t agree with that. In my experience, typically people want to reload prior to selling all of their drugs. 53 He was asked if at the time of the briefing, police did not have sufficient basis to execute a general search warrant with respect to the property. Metschke gave the following evidence:22 A. That was the view of the person that was intending to use the general search warrant, if appropriate. Q. And so part of this operation was designed to generate a reasonable suspicion so that 225 Torrens Road could be searched, correct. A. Yes, that's an accurate reflection of it. 54 Metschke agreed that the overall goal or mission as outlined in the TAC Order was:23 To locate Quy Nghiem after making an exchange and search his vehicle under the Controlled Substances Act. 55 He agreed that the mission was predicated on Nghiem leaving the house to deal in drugs.24 56 Metschke was asked whether the contingency plan, as outlined in the TAC Order, involved police pulling over cars and searching them. Metschke answered that he was unable to recall precisely what was written in the TAC Order and would need to read it to refresh his memory. He was asked the purpose of a stop car and said it was to stop cars. The following exchange then occurred in cross- examination:25 Q. And if I was to suggest to you that the stop cars on this occasion were to search cars leaving the premises for the purpose of ascertaining whether or not a drug deal had taken place does that accord with your memory of what your task was on 20 May 2020. 20 T 278.10-16. 21 T 278.36-38. 22 T 279.11-16. 23 T 280.32-34. 24 T 281.3-20. 25 T 281.35-282.21. -- 16 of 120 -- [2024] SADC 31 13 A. Not the way you've phrased it. Q. And depending on the result of your search, consideration would then be made whether or not to search 225 Torrens Road, is that your recollection of it. A. Yes, it would be to considered if it was lawful and appropriate to conduct the search. Q. Isn't it the case that the stop car was simply going to pull over a vehicle leaving 225 Torrens Road and search it irrespective of whether or not reasonable suspicion existed. A. No, I've previously answered this question several times, the answer is 'no'. A search can only be conducted if I was satisfied that it was lawful and appropriate. Q. If I was to suggest to you that that was not the case you would disagree with that proposition. A. I'd disagree and, as I've previously explained, in my view searching any vehicle would be counterproductive to the objective. 57 Metschke had previously disagreed with a proposition put to him in cross- examination, that police intended to stop and search any car that was seen leaving the property. He said that this was potentially counter-productive, depending on which vehicle was stopped. He said that it was his understanding that they would stop the vehicle, speak with the driver and make an assessment. He said that not every vehicle leaving the address was going to be searched.26 58 Metschke agreed that the TAC Order said:27 If Nghiem continues to stay at the West Croydon property and other vehicles and people attend, a controlled traffic stop will occur on one of the vehicles leaving the address to ascertain if a deal has taken place. Depending on the result, consideration will be made whether a search of the West Croydon property should occur at that time. 59 He was again asked, whether it was the case, that police were simply searching cars that left the address in the hope of ascertaining whether or not a deal had taken place. Metschke disagreed with that proposition.28 60 Metschke was asked if he understood what the term ‘controlled traffic stop’ meant, as used in the context of the TAC Order. He said it was not a phrase that he would use and that he had not written the document. He had not sought advice from anyone as to what that phrase meant. 61 Metschke gave evidence that the only information he had with respect to Nghiem’s alleged involvement in drug activities as at 15 May 2020 was the information he received at the briefing, the TAC Order and that he had acquired from being involved with an attendance at Virginia and the discovery of 7,000 cannabis plants. He did not acquire any additional knowledge as to 26 T 201.12-202.8. 27 T 283.10-17. 28 T 283.18-21. -- 17 of 120 -- [2024] SADC 31 14 Nghiem’s practices as a drug dealer between the date of the briefing and 20 May 2020.29 62 It was suggested to Metschke that if that was the case, how could he offer the opinion that Nghiem would have ‘reloaded’ before finishing the sale of his previous batch of drugs. Metschke said that he could not say that with certainty but that it was commonplace.30 He was asked if he accepted that by a Wednesday evening it was more likely that Nghiem did not have drugs at his house. He said:31 I do, with a caveat that excludes the intelligence reports that I also had access to. 63 When asked what additional intelligence reports he had with respect to Nghiem, he agreed that he could not say with 100% certainty whether there were any such further intelligence documents.32 64 After very lengthy cross-examination on this particular topic, Metschke finally agreed with the proposition that the only information he had with respect to the Nghiem investigation, as at 20 May 2020, was that which he had obtained at the briefing as set forth in his notebook, the information in the TAC Order, what he had gleaned from his involvement attending at the Virginia cannabis crop and that he understood that covert resources were being deployed. He did not have access to any other information relevant to Mr Nghiem.33 Between 15 May and 20 May 2020 65 Metschke was cross-examined as to a comment he made over Police Radio Communications with Glasson on 20 May 2020, namely: Just letting you know me and Dazza propped up in that little park we were last week, so we’re there. 66 Metschke did not have any notebook entries relevant to his involvement in the Nghiem investigation as between 15 May and 20 May 2020. However, he confirmed that between those two dates, he and Glasson had waited to perform the same function as they were undertaking on 20 May, that is being a stop car. He said, ‘there were no suitable cars to stop, nothing occurred and in my view there was nothing noteworthy to write down’.34 67 He said that as other covert operatives were making notes of the results of their surveillance, there was no need for him to make a note, unless anything specific occurred. However, he agreed with a proposition that the fact nothing of interest had occurred, may also be relevant to any investigation. He agreed that as 29 T 285.4-21. 30 T 286.19-25. 31 T 287.36-37. 32 T 291.2-7. 33 T 290.2-294.27. 34 T 180.13-18. -- 18 of 120 -- [2024] SADC 31 15 he had not made a note of his attendance on that occasion, his notes were incomplete.35 20 May 2020 – What Happened Roadside 68 Metschke gave evidence that on 20 May 2020 at approximately 4:50pm, he was with Widdrington at a location in the West Croydon area, when they received some information from other officers. He was uncertain if that information was received via a phone call or radio transmission. 69 Metschke was questioned as to its contents of the audio recording of the Police Radio Communications.36 Having had the benefit of hearing that recording, Metschke gave evidence that he received information via police radio with respect to the attendance of a vehicle at the property at around 4:55pm. He was told that the vehicle had only been at the property for a short period of time, was leaving and that he was to facilitate stopping that vehicle. He understood he was utilising the power provided for under the Road Traffic Act 1961 (RTA) in order to stop the vehicle.37 70 Metschke gave evidence that he then stopped the vehicle in Rickaby Street, West Croydon.38 He parked the police vehicle behind the vehicle, approached the driver’s side of the vehicle and spoke to the driver. As it was raining, he suggested that the driver get out. The driver agreed and they both went and stood under a nearby tree.39 71 Metschke said he then had a conversation with the driver, the accused, on several topics. He asked the accused to provide his name, date of birth and address. The accused provided that information.40 72 He then requested the accused produce identification to confirm his identity. The accused produced a driver’s licence. He said that when he compared the photograph on that licence to the person in front of him, he became concerned that the accused may have given him false details, as he was not confident it was the same person.41 He then asked the accused where he had been and what he had been up to. The accused told him that he was just coming from visiting his mum at her house, being an answer that Metschke knew to be false.42 35 T 181.33-35. 36 Exhibit VDP1. 37 T 48.26-28. 38 T 48.31-34. 39 T 49.11-20. 40 T 49.30-34; T 50.1-5. 41 T 50.7-23. 42 T 51.11-24. -- 19 of 120 -- [2024] SADC 31 16 73 Metschke said that he challenged the accused on that answer, told him that that was not true and asked him to explain. He said the accused did not give him an answer and “sort of froze up”.43 He waited for a response but none came.44 74 Metschke gave evidence that he told the accused that it was his intention to search him and his vehicle under the authority provided for in the Controlled Substances Act. When asked how the accused responded, he said:45 A. I've proceeded to try and commence the search, he's flexed or tensed his arms and expressed that he doesn't consent to the search. Q. And what was your response when he said that he did not consent to the search. A. So I've stopped at that point and I've explained to him that it wasn't an issue of consent, that there was an authority I was going to use and it didn't require him to consent, and that we were going to search him. Q. Did he respond to your information. A. He has repeated that he does not consent. Q. Can you tell us what happened when he said he doesn't consent for the second time, what did you do. A. So, to be clear, so on the first occasion I informed him he was being searched, we tried to do the search, he said he didn't consent, flexed his arms. Then I explained what was happening. I tried to do the search again and then we repeated that process one more time. So, effectively, the same process occurred again. Q. After that process what did you do. A. After trying to facilitate the search three times he's been restrained, handcuffed and arrested. Q. Did you say three times. A. Yes. 75 He explained that the arrest was physical in the sense that the accused’s arms were restrained and handcuffs were placed on him. He was on the right arm of the accused and Widdrington was on the left arm. 76 Metschke gave evidence that after handcuffs were applied to the accused, Widdrington then conducted some checks over the radio, as recorded in the Police Radio Communications. The results of those checks were that the accused had been arrested previously and had cautions in relation to drugs and for weapons.46 43 T 51.33. 44 T 51.35. 45 T 52.9-32. 46 T 53.10-19. -- 20 of 120 -- [2024] SADC 31 17 77 Metschke gave evidence that a matter of minutes after handcuffing the accused, Glasson and Hazel attended the scene. He said that while Widdrington was conducting the checks, he had a further conversation with the accused and that after that conversation and those checks, the accused was placed in the rear of the police vehicle. 78 When Glasson and Hazel arrived, he had a conversation with them. When asked what information was conveyed to them, Metschke said:47 A. Basically, the circumstances of what had happened. The parts of what had occurred that day that they weren't aware of. Q. And that would include the conversation you had with the accused. A. That would include stopping the accused, the conversations that were had with him, the things that were said that were untrue and the fact that he'd been arrested and what for. 79 Metschke said that he never conducted a search of the vehicle and that the vehicle was searched by Glasson and Hazel. He was not sure if Widdrington had participated in the search. 80 He was subsequently informed that a large quantity of drugs had been located inside the vehicle. 81 Metschke confirmed that the accused was given his arrest rights on video when seated in the police car. The transcript of that recording was tendered on the voir dire as VDP5. Cross-Examination – Stopping the Vehicle 82 In cross-examination, Metschke maintained that he pulled the vehicle over, utilising the power provided for in s 40H RTA. 83 He gave evidence that his understanding was that s 40H RTA gave him the power to stop a vehicle to obtain details of the driver of that vehicle.48 84 He explained that on the day, he took the view that this was Hazel and Glasson’s operation and that he would taking his cues from them. When asked if they had asked him to do something in relation to the investigation, whether he would do it, he said that he would if he felt it appropriate.49 85 Metschke was asked what he understood Glasson to mean when he said over the police radio “we are definitely interested in taking this car”. He was asked whether he understood that meant that he (and Widdrington) would be pulling that car over and he said yes.50 He further confirmed that when Glasson said to him 47 T 54.1-9. 48 T 58.17-29. 49 T 63.36-38. 50 T 64.8-11. -- 21 of 120 -- [2024] SADC 31 18 “let’s try and grab this one boys”, he understood Glasson was asking for them to stop the vehicle and he had no issue with stopping it.51 86 Metschke maintained that it was not his intention to search the vehicle when he stopped it.52 He disagreed with the proposition that from the moment he was told to stop the vehicle, he intended to search it. He maintained that it would be counter-production to do so and that his only intention was to stop the vehicle.53 87 Later in cross-examination, Metschke confirmed that as at 20 May, he had an understanding that s 40V RTA allowed him to require a driver of a vehicle to provide their details and that he was allowed to use s 40H to stop the vehicle to exercise that power. He was asked if in fact it was the case that s 40V RTA only gave power to a police officer to direct a person to produce evidence of their personal details, if they suspected on a reasonable ground that the personal details given by that person, in response to a direction, was false or misleading. 88 He confirmed that when he spoke to the accused and the accused provided him with his name, he did not, at that stage, suspect that he had provided him with any false particulars. 89 He then gave evidence that he was uncertain whether the accused had provided him those details independently of the driver’s licence or by way of provision of his driver’s licence. He said he only suspected the details to be false when he compared the photo on the licence to the presentation of the accused. He said that the photo looked quite different in appearance to the accused and that that, coupled with the fact that he had lied during the conversations he had with him, exacerbated his concerns. 90 Metschke denied that he had revisited the terms of s 40V RTA and denied that he had tailored his evidence to fit with that provision.54 91 Metschke gave evidence that he did not note the time that he pulled the vehicle over in his notebook.55 He said that when he prepared his first statement, he reviewed his notebook and made an error in terms of interpreting that time to have been 1725, being the time adjacent to the entry in his notebook where he referred to stopping the vehicle. This was the time he had made the entry in the notebook, rather than the time he had stopped the vehicle.56 51 T 65.8-20. 52 T 165.6-9. 53 T 89.5-9: T 90.5-6. 54 T 194.17-196.38; T 199.5-200.35. 55 T 60.30-32. 56 T 257.4-14. -- 22 of 120 -- [2024] SADC 31 19 92 Metschke said that he had corrected this error in his second statement. He maintained that the error as to this time in his first statement, was simply due to a misunderstanding of what was in his notes.57 The Arrest 93 Metschke agreed that he had not made a note of the time that he arrested the accused.58 He acknowledged that the time of an arrest was an important detail and something that he would usually record in his notebook.59 94 He confirmed that the accused was arrested for hindering a search. It was suggested to Metschke that in order to hinder a search, that would require a positive act on the part of the accused. Metschke gave the following evidence:60 A. My understanding is it needs to make my job substantially more difficult. Q. But it requires a positive act, doesn't it. A. Yes. Q. It requires someone to do something. A. It required them to do something, yes, I agree with that statement. Q. So him simply saying that he didn't consent wouldn't make your job substantially more difficult, would it. A. No. Q. And so there's no way that he would be charged with hinder if all he had done was say 'I didn't consent'. A. If that was all he had done, then, yes. 95 Metschke gave evidence that in this case, that was not all that the accused had done, rather he had provided resistance when Metschke had attempted to commence the search, by flexing his limbs. He described the accused having flexed on three occasions, thus prompting his arrest. 96 Defence counsel asked Metschke which part of the accused’s body did he flex and when. He said:61 His right arm each time I tried to commence the search. I’m not sure what he’s done with the left arm. 57 T 272.12-21. 58 T 60.33-35. 59 T 59.37-60.2. 60 T 80.33-81.7. 61 T 81.28-29. -- 23 of 120 -- [2024] SADC 31 20 97 Shortly thereafter, Metschke was asked whether he told Widdrington that the reason he had arrested the accused for hindering the search was because of him flexing. Metschke said:62 A. In my conversations with Widdrington, he experienced the same thing. Q. Widdrington told you that he experienced the flexing as well. A. On the other arm. Q. On the other arm. A. Yeah. 98 He said that it was the flexing that was preventing the search from occurring.63 99 Metschke agreed that nowhere in either of his statements had he mentioned that the accused was flexing. He said he did not feel it necessary to include that detail as the statements were in fact provided as part of the investigation into the major indicatable offence, not the summary offence of hindering a search.64 He reiterated that in re-examination. 100 Metschke confirmed that in his first statement he had described the ‘hinder’ in this way:65 He refused to comply with the search instead stating ‘I do not consent’. I subsequently twice explained the authority to him and the fact that it did not require his consent, each time the accused refused to comply, instead repeated the same phrase. 101 He agreed that there was no reference to flexing in that statement, nor any reference in that statement to the accused doing anything that made his job harder. 102 In addition, Metschke agreed that he would expect that the reason for the accused to be arrested for hindering the search would be recorded in his notes. He gave the following evidence:66 Q. Would you expect that given that the flexing is the reason why you say he was hindering your search, that would be recorded in your notes; wouldn't it. A. Yes, I wrote it down as 'refusing/preventing search'. Q. So no mention of flexing there, is there. A. That's what was covered under the term 'preventing the search'. 62 T 85.23-29. 63 T 81.34-35. 64 T 82.15-23. 65 T 91.22-30. 66 T 84.11-32. -- 24 of 120 -- [2024] SADC 31 21 Q. See, that note reads this, doesn't it 'Hinder police/trafficking, refusing/preventing search on grounds that he does not consent', that's what your note says; doesn't it. A. That's the reason that he stated for his behaviour, yes. Q. There is no mention anywhere in there of flexing, is there. A. No, I've covered it with the word 'preventing the search'. Q. It's the case, isn't it, that you've simply made up today that Mr Than was flexing his arm. A. No. Q. But you accept that the word flexing does not appear in either of your statements or in your notes. A. Correct. 103 Metschke was also asked about the Facts of Charge that were prepared with respect to the accused’s arrest for hindering a search. He said he had not prepared the Facts of Charge.67 However, he agreed that whoever prepared that document would have needed to ascertain information from others (ie either him or Widdrington) to complete the Facts of Charge, as only he and Widdrington were present when various of the matters outlined in the Facts of Charge, in fact occurred.68 104 The Facts of Charge state:69 At about 5:20pm police Widdrington/Metschke activated lights and stopped behind the vehicle on Rickaby Street, Croydon Park. The accused remained to be the driver and sole occupant of the vehicle. Police directed the accused out of the vehicle and advised that they would be conducting a search under the Controlled Substances Act. The accused stated that he did not consent to the search and refused to allow police access to the vehicle. The direction and requirement for the search was explained to the accused on numerous occasions, he continued to not comply with the requirements of the search. At about 5:25pm the accused was placed under arrest for hinder police. 105 Metschke confirmed that this narrative was incorrect. He said that the accused was not directed to leave the vehicle and rather, he had voluntarily left the 67 Noting the Court later heard evidence from Hazel that he was responsible for the preparation of the Facts of Charge. 68 T 85.8-15. 69 Exhibit VDD7. -- 25 of 120 -- [2024] SADC 31 22 vehicle.70 Further, the Facts of Charge did not mention the accused ‘flexing’, thus precipitating the accused’s arrest. 106 As previously stated, Metschke’s notebook entries do not record the time of the arrest and, on his evidence, the note was not made in the correct time sequence. Metschke agreed that as such, his notes were not accurate and complete and all entries had not been kept in sequence as required under s 2 of the General Order Notebooks.71 107 As to why that note was out of sequence, he gave the following evidence:72 A. So, as I previously stated, when I initially stopped the accused I hadn't initially had the intention of searching him, nor did I anticipate he would be arrested. As a result, once that incident did happen, I commenced making notes. Those - for the other entries where there are times I'm writing these things as they are occurring. In relation to things that have occurred prior to me writing notes I've had to write those post. I'm not sure of the time, so I haven't put a time down, and I'm indicating, obviously, those are out of sequence. Q. And so based on that practice do we understand that the entry on the previous page, that is p.65, at 17:55 is something that you've recorded contemporaneously. A. Yes. Q. And do we, again, understand that the entry at 18:17 on p.66 is recorded contemporaneously. A. Yes. 108 Metschke agreed the Facts of Charge contained the same sequence error. He denied that following receipt of the Shield Audit and Police Radio Communications, he and Widdrington had perceived some disadvantage in maintaining the version of events as set forth in the Facts of Charge as to the arrest and had decided together to present a version which included that the accused had flexed, to provide a proper basis for the arrest.73 Arrest Rights 109 Metschke gave evidence that the accused was first given his arrest rights at approximately 5:33pm in the back of the police vehicle.74 He agreed that after the arrest, but before the arrest rights were given, he had a discussion with the accused about whether he had been in trouble before.75 70 T 86.30-33; T 87.4-7. 71 Exhibit VDD8 s 2 p 3 of 4. 72 T 167.15-32. 73 T 270.36-271.26. 74 T 60.20-23. 75 T 336.37-337.3. -- 26 of 120 -- [2024] SADC 31 23 110 He did not make a record of any conversations he had off camera with the accused in question and answer format.76 Errors in First Statement dated 15 June 2020 111 Metschke gave evidence that when he prepared his first statement, he misinterpreted the sequence of events by reference to his notes and as a result, had said in that statement that Widdrington conducted checks on both the accused and the vehicle prior to the arrest. 112 He denied that he had deliberately tailored his statement in this way to give the impression that the checks on the accused had been conducted prior to commencing the search. He said:77 My initial recollection was it occurred in the sequence of events, I’ve later realised that was a mistake. 113 He said that at the time he made that statement (ie 15 June 2020), his recollection was that Widdrington conducted the checks prior to the accused being arrested for hindering the search. He gave the following evidence:78 Q. So between 20 May 2020 and 15 June 2020, a period of about three or three-and-a- half weeks, your recollection of what occurred on 20 May 2020 had become confused, that's fair to say. A. Yes, I think that's reasonable to say. 114 Metschke was cross-examined at length as to the circumstances in which he became aware of the two errors contained in his first statement, that is the error relating to the time upon which the accused’s vehicle was stopped and the errors relating to the sequence in which specific events had occurred. 115 Metschke confirmed that as a result of being shown material other than his own first statement and his own notebook entries, he significantly revised the chronology of what had occurred in his second statement dated 28 February 2023. Metschke said that those materials included the statement from McGreevy, which was emailed to him by Glasson on 29 November 2022 containing the Shield Audit, a copy of the record of interview that he conducted with the accused in the back of the police vehicle and the audio of an excerpt of the Police Radio Communications.79 116 Metschke gave evidence that having reviewed that material, he recognised there were two mistakes in his first statement; one in relation to a time and a second in relation to the sequence of events. He gave the following evidence:80 76 T 87.22-24. 77 T 273.31-33. 78 T 274.10-14. 79 T 78.4-11. 80 T 78.21-35. -- 27 of 120 -- [2024] SADC 31 24 Q. That's because in your original statement you said that the checks on Mr Than were conducted prior to his arrest; didn't you. A. It could be inferred from the way the statement was structured that that's what was said. Q. That's what you said in your statement, isn't it. A. I said that I was present when Detective Widdrington conducted the checks. Q. Well, that's what you meant to convey in your statement, wasn't it, that you had access to the material that those checks revealed before you arrested Mr Than. A. That was my initial recollection of events. Q. Yes, so that's what you meant to convey in your original statement. A. Yes. 117 Later, he gave the following evidence:81 Q. Is it the case that, in your first statement, you deliberately recorded a version of events that had the checks on Mr Than conducted prior to your arrest. A. No, that's not the case. Q. And did you do that because, without that, you did not think that you had a reasonable suspicion to search him under the Controlled Substances Act. A. No, I thought there would be reasonable suspicion without it. 118 He said he was present when Widdrington conducted the checks with Gabel via police radio, as Widdrington was seated in the police vehicle, in the front passenger seat with the door open and he was standing with the accused on the side of the road, adjacent to the police vehicle. He said he could hear what Widdrington was saying.82 119 Metschke was asked if, in the ordinary course, he would expect to be emailed affidavit material from other witnesses in a matter. He said, “it’s pretty common for police to share relevant materials with people involved in the investigation, particularly to refresh people’s memory”.83 120 It was suggested to Metschke that by accessing those materials, what he was doing was not in fact refreshing his memory but learning about other evidence that existed in the case. He denied that what he was in effect doing was reconstructing his evidence to fit the other documented evidence.84 81 T 91.13-21. 82 T 79.13-34. 83 T 77.36-38. 84 T 223.28-225.12. -- 28 of 120 -- [2024] SADC 31 25 121 Metschke maintained that he had a recollection of the events and that all he had done was made a mistake with the sequence. He said he had corrected that mistake as soon as it had become apparent to him, by providing the second statement. He maintained that his present recollection of the sequence of events was as set forth in that second statement and as outlined in the evidence he gave in-chief.85 122 Metschke was cross-examined at length about why he had recorded in his notebook the various matters which formed the reasonable suspicion for the search of the vehicle. Those suspicions are listed at the end of Metschke’s notebook entries for 20 May, with no time or date alongside them, nor time recorded on the notes anywhere to reflect the time that they had been completed. 123 It was put to Metschke in cross-examination that the suspicions that he had written in his notebook referred to him exercising his search powers at that time. He denied this. He denied these were the suspicions he had when he commenced exercising his search powers on the accused on the side of the road, after pulling him over. He gave the following evidence:86 A. No. So when I spoke with him after that conversation some of those grounds were present and then post his arrest additional grounds were present in relation to his vehicle. Q. So is it the case that these entries are not necessarily referable to the suspicions that you entertained at the time you commenced attempting to search Mr Than. A. I'd have to address each one individually. Q. I will ask you this question: do all of the entries under that heading relate to suspicions that you held prior to commencing or attempting to commence the search of Mr Than. A. No. So in relation to what I've written when I've formed the intention to search the accused, so dot point 1, applies 'Intel from briefing on 15/5/20 by Hazel regarding 225 Torrens Road, West Croydon and Quy Nghiem'. The second point applied 'The brief attendance of Than, the accused'. The fifth point 'The accused stated he had just been to visit his mother. This was known to be false. He was challenged and there was no response' and then the last point 'The driver's licence photo looked quite different in appearance to the accused. Checks done to verify his identity'. However, those checks, as I clarified in my addendum statement, were done post his arrest. 124 Metschke gave evidence that the note relevant to the CSA suspicions for the search was the final entry he made for the day in his notebook and that he had not recorded the time when his notes were completed.87 He agreed that as such, his notes did not comply with the General Order which required the dates and times 85 T 225.21-226.3; T 226.30-33. 86 T 164.6-30. 87 T 172.28-32. -- 29 of 120 -- [2024] SADC 31 26 when the notes were commenced and completed to be included in the body of the notes.88 125 Metschke was asked if it was possible, given he had not recorded the time the notes were completed, if space permitted on the page, those notes could be added to at a later time. Metschke said, ‘[t]hat’s possible but it’s not what I do :89 He denied a proposition put to him that the suspicions that he had named with respect to enlivening the powers under s 52 of the Act were something he had made up after the fact.90 126 Metschke denied a proposition put to him that the reason he had incorporated into his first statement the fact the checks had occurred prior to the search taking place, was because he needed to rely upon those checks to found his reasonable suspicion. He said:91 A. No, it's incorrect. At the time I was satisfied there was sufficient grounds to search the accused and his vehicle and when it came to compiling my statement I've used my notes. Effectively, I've written a standard preamble, I always write for my statements, I've then gone through my notes and, effectively, for entries that I thought were relevant for the statement I've taken the time and placed it in chronological order. Then when I've got to the end of the statement I have this section which I've written post - post or after it's occurred, not at the time, and then I've had to take that information and put it where I believed was a correct place in the statement to put it. I made a mistake in doing so, and I've addressed that. Collusion with Widdrington as to ‘Reasonable Suspicion’ 127 Both Metschke and Widdrington’s notes and first statements contain the same error in terms of the sequence of events, namely that the checks Widdrington conducted of the accused via Gabel, occurred prior to the accused’s arrest. 128 Metschke denied a proposition put to him in cross-examination that he had not recorded his suspicions contemporaneously (and included this only at the end of his notes of that day) because he wanted time to collude with Widdrington about the reasonable suspicion.92 It was suggested to Metschke that he had been in Widdrington’s company during the evening of 20 May 2020, allowing them plenty of time to discuss the alleged foundation for any reasonable suspicion to search Than and the vehicle. The following evidence was heard:93 Q. And you wanted to reflect on your reasonable suspicion and incorporate Detective Widdrington into that process to make sure that his records were broadly consistent with yours. A. No, it's not the case. In reality, I'm the one that's made the decision to conduct the search, I'm the one that's informed the accused he's going to be searched. As far as I 88 T 173.2-8. 89 T 173.36. 90 T 202.9-14. 91 T 274.25-38. 92 T 275.1-6. 93 T 275.13-34. -- 30 of 120 -- [2024] SADC 31 27 was concerned I'm the one that's attempted to use the power to search him. Whatever Widdrington's thoughts or suspicions at the time are his own. In the end it's up to me. Q. His actions at the scene though were important to your reasonable suspicions as they're recorded in the statement of 15 June 2020, aren't they. A. Yes. Q. And they're important because Widdrington conducts the checks on the accused, correct. A. Yes. Q. And so you wanted to make sure that you and Widdrington had your stories straight with respect to the timing of those checks, correct. A. No. 129 Metschke maintained that at the time he advised the accused he was going to be searched under the Act, he was satisfied there was reasonable suspicion to conduct the search, even without the checks having been done.94 He said that reasonable suspicion was based on the information he had received at the briefing, the information in the TAC Order, the brief attendance of the accused at the property, the fact the accused had falsely told him that he had just visited his mother and the fact that the accused did not look like the person on the photograph on the driver’s licence produced by him.95 130 He had never had any prior interactions with the accused or the vehicle.96 131 He agreed with a proposition that where a search was conducted by someone else, there was no need for him to record other people’s suspicions in his notebook.97 He agreed that he was involved in briefing both Hazel and Glasson when they arrived at the scene but denied that he told them that the accused had refused to allow the vehicle to be searched.98 He said that insofar as Hazel may have recorded any such information in his notes, he must have misinterpreted what he said during the briefing about the accused saying he did not consent to the search.99 Identifying and Correcting Mistakes in First Statement 132 Metschke received Glasson’s email containing the Shield Audit in November 2022. However, he gave evidence that it was not until he attended a proofing at the 94 T 276.3-8. 95 T 164.18-30. 96 T 298.8-21. 97 T 295.35-38. 98 T 340.3-9. 99 T 340.10-19. -- 31 of 120 -- [2024] SADC 31 28 DPP prior to giving evidence on the voir dire that he formed the opinion that there were mistakes in his first statement.100 133 He confirmed it was likely that he had first reviewed the Police Radio Communications at the same time he received a transcript of that material by way of email from Gabel on 24 February 2023.101 He was asked whether upon receiving that email, he reconsidered his earlier version of events. He gave the following evidence:102 A. No, so, again I've opened the attachment, I've reviewed it. I looked at the content of the conversation and it was consistent with my memory, however I didn't give any consideration to the sequence of events. So, again, I've read the document, not realised there was any contradictions at all, assumed it really had no impact or relevance to my evidence and then disregarded it. 134 Metschke gave evidence that he became aware that the times at which various communications had taken place could be reconciled or ascertained by reference to other material and that is what he ultimately did. He reviewed the Shield Audit to see what time Gabel conducted the checks as requested by Widdrington and was able to marry up the sequence of events in that way.103 He then realised that those checks were undertaken after the accused had been placed in handcuffs and therefore after his arrest. He then realised that his original version of events was inconsistent with the objective evidence insofar as there were two mistakes in his original statement. 135 As to whether at that stage he discussed that mistake with Widdrington, Metschke said:104 Prior to being aware it was definitely a mistake I discussed it with him to try and determine if it was a mistake or if there was a reasonable explanation. 136 As to why he had done this, he said that Widdrington may have said something that would refresh his memory as to what had occurred.105 Metschke said he wanted to review their phone calls and phone records to try to determine what had happened and to see if he had any reasonable explanation for any mistake. 137 Metschke discussed the events of 20 May 2020 with Widdrington; before compiling his second (addendum) statement. He denied that when he realised the objective evidence contradicted aspects of his first statement that he alerted Widdrington to this, so he could also alter his version of events, to marry up with the objective evidence. He said, curiously:106 100 T 299.7-8. 101 T 301.6-25. 102 T 301.28-34. 103 T 302.8-15. 104 T 303.16-18. 105 T 304.7-20. 106 T 304.5-6. -- 32 of 120 -- [2024] SADC 31 29 No, that’s not the case. I presumed that the DPP would proof him also. 138 Earlier in his evidence, Metschke had been cross-examined about whether he had supplied a copy of his notes to Widdrington. He said he recalled supplying a copy of his notes to Glasson and may have supplied a copy to Widdrington but could not remember having done so.107 139 Metschke was shown a copy of an email that he sent to Widdrington dated 25 February 2023 (Exhibit VDD12). In that email, Metschke stated: Hey mate, My notes are attached to assist refreshing your memory. Last page is the briefing we attended. Looking at everything together, 1725 is the time I started writing notes, not the time we stopped him – my mistake there. Looking at Google Maps – I am believe we propped in Brown Lane West Croydon. 140 He denied that there was any risk in contaminating Widdrington’s memory of events by providing him with that material. As to why he did not believe that to be a risk, he said:108 Because I believe he is competent enough to realise what is his memory and what isn’t. 141 Metschke was asked why he had sent that email to Widdrington. He explained that Widdrington had a particular query in relation to the location that they were waiting at before the incident, namely Brown Lane, West Croydon. He said he remembered Widdrington being unsure of that, but he could not recall when Widdrington had said that to him, it being several months ago.109 142 Metschke was cross-examined in detail as to why he had sent Widdrington a copy of his notes the weekend prior to them both giving evidence on the voir dire. He gave the following evidence:110 Q. Now, the reason you sent that email to Detective Widdrington was to enable him to review your notes, correct. A. It was to assist him refreshing his memory. Q. Which he would do by reviewing your notes, correct. A. Yes. 107 T 209.9-20. 108 T 210.15-16. 109 T 210.36-211.29. 110 T 213.10-214.5. -- 33 of 120 -- [2024] SADC 31 30 Q. Your purpose in doing that was to ensure that he knew what was in your notebook, correct. A. No, he'd contacted me unsure on some details, he asked for a copy of my notes, I provided them and also in the same email clarified a question he had in relation to the location we stopped our vehicle. Q. How did Widdrington contact you. A. I don't remember the location or how he's contacted me. I remember some of the words of the conversation but I don't remember that. Q. This email is you providing Widdrington with your notes to assist him to give evidence in the same terms that you were giving evidence, correct. A. No, it was to assist him in refreshing his memory in relation to some facts he was unsure on. Q. This is simply written documentation of you and Widdrington trying to ensure that your evidence in this court is consistent, isn't that right. A. I'd presume that he'd have his own recollection of events, I'd presume he'd have some differences to mine. The reason I provided him the document is to help assist him in refreshing his memory. Q. The reason you provided him with the notes was to attempt to ensure that yours and his evidence was consistent in this court, isn't that the truth of the matter. A. No, it's not the truth and I'd presume that he'd have his own notes as well. 143 Metschke denied that he had informed Widdrington of his mistake about the time the vehicle was stopped because he already knew Widdrington had made the same mistake.111 He said he simply did not want Widdrington to make the same mistake. 144 Metschke was also cross-examined about whether he had told Widdrington about the mistake he had made in his first statement about the sequence of events and he agreed that he had but could not recall when. As to why he had done that, he gave the following evidence:112 A. Well, initially with the mistake in sequence my first assessment of it upon reviewing the materials - actually, when I fist (sic) reviewed the materials I didn't realise there was a mistake. I skim read the materials, I didn't notice any issues and I disregarded them as not being really relevant to me. When I later spoke with the DPP it caused me to review the materials again and at that stage I realised there potentially was a mistake. However, I wasn't a hundred per cent sure, I was a little confused as to how the mistake came about. In my view, before compiling the addendum, I was of the view that possibly there wasn't a mistake and there was a reasonable explanation. With that in mind I sought to try and either corroborate that my original version was correct or confirm that it was incorrect. So with that in mind, ironically, I sought to look at my own phone records that you have tried to subpoena, look at my own phone 111 T 214.12-24. 112 T 215.17-216.2. -- 34 of 120 -- [2024] SADC 31 31 records to see if there was just a bit of confusion. However, upon reviewing everything and speaking with Darrin, I came to the conclusion that there was a mistake in the sequence of events. I wanted to be sure, a hundred per cent confident, that I had actually made that mistake before compiling another addendum saying there was a mistake. 145 Metschke was asked if he was aware that Widdrington’s first statement also contained the same mistaken sequence of events. He said:113 I was aware that he had his own recollection of events which didn’t entirely match mine but I didn’t see that as an issue at all. 146 As to how Widdrington’s version of events differed from his and what Widdrington had told him about that, he said:114 A. I can't remember exactly when the conversation was. I remember trying to clarify this issue to identify if there was a mistake or if there was a reasonable explanation. I remember there were details where his view differed to my memory, but in my view the differences in his memory or recollection of the events was inconsequential. I would expect every witness to have a slightly different memory of what had occurred. Q. Can I ask you this question; when you spoke to Detective Widdrington about the sequence of events as per your first affidavit, did what he told you of his recollections match with your first statement. A. No, he was unsure himself and he wanted to look into it. Q. So you were both unsure as to the sequence of events. A. Yeah, it took me some time to review everything and come to a conclusion which was in my addendum statement. 147 He denied that what had simply occurred was that he and Widdrington had discussed the evidence that they were going to give in court with the purpose of ensuring that their evidence was consistent.115 148 Metschke gave evidence that had only discussed his version of events with Widdrington on one occasion prior to him giving his evidence on the voir dire, in addition to sending the email on 24 February 2023.116 He denied that within the SOCB there was a practice of disseminating information amongst members of that section to ensure that the evidence given by those officers was consistent in court.117 However, he agreed it was possible he had seen Widdrington’s statements prior to giving evidence.118 113 T 216.22-24. 114 T 216.27-217.4. 115 T 217.38-218.12. 116 T 218.20-24. 117 T 220.32-37; T 221.33-38. 118 T 271.27-34. -- 35 of 120 -- [2024] SADC 31 32 149 Notwithstanding the mistake he had made in his first statement as to the sequence of events, Metschke maintained that he had confidence in his memory, such that he did not consider it could be contaminated by being exposed to other evidence. He denied his memory of events had been contaminated as a result of any other input.119 150 Metschke denied that he had kept his notes deliberately vague and had omitted to include in those notes the time of the arrest, to allow him to later tailor his evidence to imply that the checks on the accused were undertaken prior to him commencing the search.120 Other Methods of Police Communication 151 During cross-examination, Officer Metschke was cross-examined extensively about whether he had communicated with any other members of the investigation team in any way, other than via police radio on 20 May 2020 or indeed, at any time thereafter. 152 Metschke gave evidence that the use of encrypted messaging services such as Signal and What’s App was approved and authorised by the SOCB. He said he did not use any telephone service associated with his encrypted messaging services with respect to this matter on 20 May 2020.121 153 However, he said that from time to time, police used their own personal mobile phones to communicate with each other during these types of investigations. He denied that they did this to ensure that those communications would not be disclosed to defence.122 He explained that it was easier to use the phone rather than the radio if having a longer conversation.123 154 Metschke could not recall receiving any calls on his mobile phone during the period from 4:45pm to 6:00pm on 20 May 2020.124 However, he confirmed that he had received a text message via his mobile phone from Glasson at 5:43pm on 20 May 2020 identifying the drug in the vehicle as methamphetamine.125 155 He said there were no other messages sent via text on that mobile phone relevant to the investigation between 4:50pm and the accused’s arrest.126 156 Metschke could not recall receiving any information on 20 May 2020 with respect to the matter by way of What’s App but agreed that he had sent a copy of 119 T 305.19-20. 120 T 305.21-34. 121 T 320.31-321.2. 122 T 67.24-68.36: T 70.20. 123 T 70.11-13. 124 T 71.16-19. 125 T 321.23-34; T 322.8-19. 126 T 324.36-325.3. -- 36 of 120 -- [2024] SADC 31 33 his notebook entries to Glasson via Signal on 27 July 2022. He said he was at home at that time and it was the quickest method to provide them.127 Officer Widdrington Preliminary Observations 157 In order to understand the overall effect of Widdrington’s evidence, it is necessary to outline some preliminary observations. 158 Widdrington provided two statements dated 4 July 2020 and 28 February 2023. Neither of those statements were in evidence. However, Widdrington was extensively cross-examined as to their contents and in particular, as to various inconsistencies in his first statement as to the sequence of events on 20 May 2020 and the evidence ultimately given by him. 159 Widdrington’s notebook entries were received and admitted into evidence. He was extensively cross-examined as to how he prepared his notes and how he said their contents came to be misinterpreted by him, when he relied upon them to form the basis of his first statement. 160 The content of Widdrington’s notes and first statement effectively mirrored the contents of the notes and first statement made by Metschke. Widdrington’s subsequent statement and his evidence effectively mirrored the subsequent statement and evidence provided by Metschke. 161 Widdrington denied that any of the content of his notes came from Metschke128 and he denied that he and Metschke had constructed their notes and their initial statements to improve on the issue of reasonable suspicion.129 Notebook Entries 162 It is important to reproduce some of Widdrington’s notebook entries in order to understand his evidence and the basis for much of cross-examination. Reproduced below is an extract of those notes relevant to what occurred immediately prior to and after the arrest. 1650 Brown Lane West Croydon I/C Metschke re operation re Qui Van Nguyen Nghiem b 1-6-94 225 Torrens Road, West Croydon 1725 Rickaby Street, West Croydon Black Toyota Camry SA plate S188ADS stopped 127 T 71.32-34; T 234.5-32; T 235.7-13. 128 T 426.25-28. 129 T 428.3-6. -- 37 of 120 -- [2024] SADC 31 34 1 x occupant Tri Khang Than. b.23-7-93, 444 Grand Junction Road M-0416xxxxxx Produced driver’s licence as ID Licence no CJxxxx (photo taken) Did not resemble image. Stated M/V belonged to mother Checks conducted via DSgt Gabel Than warning flags for drugs and may be armed. Previous arrest record cannabis located at (indecipherable) & images on phone. Than had come from known dealer’s house on this occasion. Than got out of vehicle stood with Metschke. Denied previous arrest. Stated M/V belong to mother again. Than stated he did not consent to search when Metschke explained we would be searching him and M/V under Controlled Substances Act section 52 Explained didn’t need his consent but Than kept saying he was not consenting Explained by not allowing us to search he would be arrested for hinder Than again stated he wouldn’t consent. Metschke arrested Than for hinder Handcuffed to rear (2 sets) (double locked) DBSgt Metschke searched person DBSgt Glasson, Constable Hazel attend scene M/V searched DBSgt Glasson located in backpack on rear seat 4 oz packages of meth. Than placed into police vehicle 1733 Than arrested in police vehicle on video. Rights given 1737 Video deactivated. Than conveyed to CWH 1742 On route video reactivated Advised drug meth. 1743 Video deactivated -- 38 of 120 -- [2024] SADC 31 35 1755 Arrive CWH. Than placed in holding cell To Shield and notes 1858 Than charged Mobile + $490 seized 1942 I/C DBSgt Metschke, attend 144 Grand Junction Road, Mansfield Park … … 2055 Search completed 2130 Attend I/C Metschke. Also present Gabel, Webber and Northern District Officers Search of premises under authority of GSW of DSgt Gabel Nil items seized. Returned to base 2230 Base. Attention to Shield Items seized re Than. PPMS 20/A39996 2240 Handed backpack seized from Than and motor vehicle by DBSgt Glasson. All items seized labelled photographed and decanted. 2310 Commenced decant of TKT003 backpack – change gloves each item Inside 4 x oz of meth wrapped 4 separate packages. Kitchen paper tied with elastic band around plastic resealable bag with approx. 1 oz of meth inside. Also in brown paper bag contained within backpack was approx 1 kg of meth in 2 x plastic resealable bags (1 bag within other) 0105 To MESU with drug exhibits with Glasson 0135 MESU. All exhibits deposited Drugs – 20/A39996 Drugs – 20/A40026 Documentation completed. 0200 Completed 2½ O/T Evidence-in-Chief 163 Widdrington gave very brief evidence-in-chief, which differed markedly in terms of its sequence from that as recorded in his notebook entries. -- 39 of 120 -- [2024] SADC 31 36 164 He confirmed that at approximately 4:50pm on 20 May 2020, he was with Metschke in Brown Lane, near a park in West Croydon. He explained that while on route to that location, Metschke informed him that there was an address being investigated for drug activity, ‘and that we were going to be a stand by car, as we call it, for possible – any vehicles that are coming away from the address’.130 165 In cross-examination, Widdrington denied that a stand by car was, in effect, a ‘stop car’. He said that a stand by car was really another term for a cover car in the sense that they were there in case something was required, something goes wrong ‘or something is required to be stopped’.131 166 He said he had no previous knowledge of the Nghiem investigation. He had not attended the briefing on 15 May 2020. 167 The audio recording of the Police Radio Communications was played near the start of Widdrington’s evidence. By reference to that recording, Widdrington gave evidence that he and Metschke then stopped the vehicle. He said he got out of the police vehicle and then approached the passenger door of the vehicle. There was one sole male occupant in that vehicle. 168 It was his memory that Metschke was on the driver’s side. He did not hear any conversation but the driver then got out of the vehicle and “we kind of walked towards the rear of the vehicle”.132 169 He said that at this point there was a heavy downpour of rain, as a result of which they moved over to the pavement under either a large tree or bush which was providing some cover. 170 He did not recall having any conversation with the accused at that time. 171 He had a memory of going back to the police car but he was uncertain why, potentially it was to collect his jacket or phone or radio. Thereafter he returned to where Than and Metschke were. He said that there had already been some conversations between Than and Metschke and Metschke was basically saying to Than that they were wanting to search him under s 52 of the Act. He said:133 Mr Than was saying “I’m not consenting”. I think Craig Metschke explained again on at least two occasions and Mr Than kept saying that “I’m not consenting”. I think Detective Brevet Sergeant Metschke was explaining its not a consent situation and if you continue that he could be arrested for hinder and eventually he said he wasn’t consenting and he was arrested for hinder. 172 He said that at that point they had not searched the vehicle. 130 T 8.15-17. 131 T 356.7-17. 132 T 12.19. 133 T 13.20-26. -- 40 of 120 -- [2024] SADC 31 37 173 Widdrington gave evidence that the accused was handcuffed. He then went to the car and did a radio check on the accused via Detective Sergeant Gabel. About five to ten minutes thereafter, Hazel and Glasson arrived at the scene. Widdrington said:134 We, basically, briefed them as to what had occurred. 174 As to what information was conveyed to Hazel and Glasson, Widdrington said:135 Probably what I’ve told the court, is, basically, he wasn’t consenting to a section 52 search. Detective Brevet Sergeant Metschke, you will have to ask him what he conveyed, but I’m sure that he probably conveyed whatever conversations he had with Mr Than. 175 At no stage did he search the vehicle.136 Cross-Examination – Practice as to Note Keeping 176 Widdrington was asked about his practice with respect to note recording. He confirmed that he tended to record his notes later, rather than when the investigation was unfolding and he said, initially, that these particular notes were recorded when he got back to base, at around 10:30pm. 177 Later, when asked to carefully consider the notes, he suggested that it may have been the case that he started preparing his notes at approximately 5:55pm that day, having regard to the entry in his notes at that time “to Shield and notes”.137 In other words, he believed that he may have created all of the notes with time entries from 1650 to 1755 at or about 1755.138 In any event, he confirmed that the notes relevant to his interactions with Mr Than on 20 May were created no later than 10:30pm on 20 May, or thereabouts.139 178 Widdrington was asked whether he had consulted with anyone to prepare his notes or whether they were entirely from his own recollection. He gave the following evidence:140 A. I probably may have asked for a time on a couple of things, I may have checked Shield on times of things. The audio recording of the video interview, I would have checked times on that to put in those accurate times. Q. Aside from that, the observations are yours and yours alone. A. Yeah, from my memory, yes. 134 T 14.17. 135 T 14.20-24. 136 T 14.25-26. 137 T 400.32-401.10. 138 T 401.24-28. 139 T 401.33-37. 140 T 17.1-17. -- 41 of 120 -- [2024] SADC 31 38 Q. What do you mean from your memory. A. My memory at the time of making the notes. Q. So, for example, you and Metschke didn't sit down and create the notes together or anything like that. A. No. Q. Did you discuss the matters with Metschke that you were going to record in your notes. A. No. Q. So it was a completely individual process. A. Yes. 179 Later in cross-examination, Widdrington was asked again whether he had discussed the content of his notes with Metschke. He said he may have, “maybe to say that I am supplying my notes”.141 180 When asked if he had shown Metschke the content of his notes, Widdrington said that he was not sure but he did not believe that he had done so. He said he may have shown Metschke his first statement, albeit he was unable to recall why.142 181 He explained that on occasions, he would supply his statements to other officers preparing for trial. He said he did not do so as a matter of course but that he had done that. When asked in what circumstances this would be done in his experience, he said:143 In my experience I think I couldn’t say why I’ve shared my statement in previous cases, I can’t recall. 182 As to whether he had shared the content of his statements with any other police officer involved in this investigation, Widdrington said he could not recall. He said that it remained a possibility but he did not know if he did or didn’t.144 The Arrest 183 Widdrington was questioned in cross-examination about his understanding of offences involving the hindering of police. He agreed with a proposition that such offences involved conduct comprising a positive act that made the task of policing harder.145 184 As at 20 May 2020, he was of the belief that the act of not consenting to a search, was hindering that search for the purposes of s 52D of the Act. However, 141 T 357.34. 142 T 357.28-358.6. 143 T 358.34-35. 144 T 359.11-27. 145 T 20.23-27. -- 42 of 120 -- [2024] SADC 31 39 he agreed that Metschke had told Than, in his presence, that whether or not he consented to the search did not matter.146 185 Widdrington agreed that there was a discretion not to handcuff a person who was under arrest. When asked why Than was handcuffed, notwithstanding he had not shown any signs of violence, Widdrington said:147 A. It depends, he didn't show any signs of violence I'll give you that, yes. Q. He didn't show any signs that he was going to run away. A. No, but he was, what I call flexing or like staunching and saying 'I'm not consenting' and he is a big man. Q. Flexing or, sorry what was the other word that you used, I missed that. A. He was stiffening, I'm trying to find of a word to explain it. Q. He was a big man, he was flexing or stiffening, saying 'I don't consent'. A. Yes. Q. Is that why you exercised your discretion to apply handcuffs or to, at least, participate in the process of applying handcuffs. A. Yes. Q. Did you make a note of that. A. No. Q. Why not. A. I just made a note that he was handcuffed. 186 Widdrington confirmed that there was no reference, in either his notes or in either of his two statements, to Mr Than flexing or stiffening while he was saying he did not consent to the search. He denied that that was because he had just made up that evidence that day and/or to justify why handcuffs had been applied to Than.148 187 When it was suggested to Widdrington that there was nothing the accused had done to hinder his search of either him or his car, he gave the following evidence:149 A. I don't think hinder, he kept saying 'I'm not consenting'. 146 T 21.9-10. 147 T 23.1-20. 148 T 23.31-24.6. 149 T 24.35-25.34. -- 43 of 120 -- [2024] SADC 31 40 Q. I understand that, but that doesn't make the job any harder, does it. A. In what way? Q. It doesn't make your job any more difficult because you don't need his consent, do you. A. We don't need his consent, yeah, that's right. Q. So him saying 'I don't consent' doesn't make the job any harder, does it. A. The context of the situation, on that night, and Mr Than is not consenting, resulted in him being arrested for hindering. Q. You tell us about what the context or how the context influenced the decision to arrest him for hinder, what is that context. A. I wasn't there for the full conversation because I went back to the car, but when I came back he was already, Metschke was telling him that he wanted to search under the Controlled Substances Act and he was saying that 'I'm not consenting' and Metschke said 'If you don't consent, then you would be arrested for hinder'. Q. Just to be clear, Metschke said 'If you don't consent, you will be arrested for hinder'. A. Yeah, I think something along those lines, yes. Q. That's despite the fact that the consent doesn't matter. A. The consent doesn't matter, but when you are searching it is not just the vehicle that you are consenting to search, we are searching the person as well and if you are trying to search someone that's going to be, potentially, not consenting or resisting, if you get that far, we try and talk people into allowing us to search. You don't want it to become a violent situation. Q. You didn't require his consent and he did nothing to make your job more difficult; that's fair to say, isn't it. A. He did not consent to the search, yes. 188 Widdrington was asked if he was the author of the Facts of Charge relating to the hinder. He confirmed that there was an entry in his notes made on 25 May 2020 which said “complete shield facts of charge re Than” which made he feel as if he did.150As he had authored an occurrence, he had cut and pasted that occurrence into the facts of charge.151Although he may have filled in some of the information in that document, another officer had completed the narrative.152 189 It was suggested to Widdrington that some of the information in the Facts of Charge related to matters that occurred when only he and Metschke were present, such that it must have been communicated by (at least) one of them, to the author 150 T 33.10-16. 151 T 392.35-37. 152 T 33.28-35. -- 44 of 120 -- [2024] SADC 31 41 of the document. In particular, he was cross-examined about a statement in that document that: Police directed the accused out of the vehicle and advised that they would be conducting a search under the Controlled Substances Act. The accused stated that he did not consent to the search and refused to allow police access to the vehicle. 190 Widdrington agreed with the proposition that he would not have ever described the accused’s behaviour as amounting to a “refusal” to allow police access to the vehicle, rather what he had said was he was not consenting to a search.153 191 Widdrington gave evidence that when Glasson and Hazel arrived, he conducted a briefing with them as to what had occurred on the side of the road with the accused, prior to their arrival. He could not recall if Metschke was there or not. He said he would have informed them that they were yet to search the vehicle. He would have said to them that Metschke had told the accused that they were going to search him and the vehicle under s 52, that the accused refused and kept saying that he was not consenting to the search and ended up being arrested for hinder, placed in handcuffs and put in the police vehicle. He said he would have said that the accused had not consented to the search of the vehicle.154 192 Widdrington did not make any notes of this briefing. When asked whether he could remember verbatim what was said, he said “I would have reiterated what had happened”. He could not now recount the topics that were discussed.155 193 It was suggested to Widdrington that the search had commenced at the time of the accused’s arrest. Widdrington disagreed. The following exchange occurred:156 Q. So he couldn't have hindered a search that hadn't commenced, could he. A. No, he hindered the police in his execution of his duty. Q. So you accept then at the time of his arrest the search of him had commenced. A. It hadn't commenced until he was arrested. Q. You can't be arrested for something that hadn't occurred, can you. A. You can be arrested for hindering the police in the execution of their duty. However, from my memory he was not searched. He was told we wanted to search him but that's not commencing the search. That is just informing him what we wanted to do. That is not commencing in. What I believe your Honour is that when you commence 153 T 40.37-41.34. 154 T 399.2-17. 155 T 423.23-28; T 424.8-11. 156 T 384.4-32. -- 45 of 120 -- [2024] SADC 31 42 is when you start putting your hands in his pockets and taking out his possessions, that is searching. Q. What was he resisting then or hindering rather. A. Hindering, he's verbal. I think I went through on this on day 1 is his stance, he was staunching. Q. What was that preventing you or Metschke from doing. A. Safety is paramount. If someone is verbally telling us in a stern voice 'I'm not consenting to a search' and then in a staunch position, stiffening, staunch, flexing whatever you want to say his non-verbal communications. His verbal communications was he wasn't going to consent to that search. I'm sure that is why the reason that Metschke arrested him for hinder. But I didn't arrest him for hinder. 194 Widdrington denied that he and Metschke had spoken together, prior to giving evidence, about what they would say with respect to the accused’s arrest for hinder. He denied that together they had come up with a version of events involving Than having flexed or staunched as the basis for the hinder.157 He acknowledged that there was no mention of the accused either staunching or flexing in his notes or in his statements. He then gave the following evidence:158 Q. Is it often the case that you omit from people's statements the act that gives rise to the charge. A. Omit? No, no, it's not something that's - anything that's omitted intentionally in any of my statements. Q. Is it usual then in your practice to omit from your statement or your notes the basis of a criminal charge. A. No, it's - it's, what, unusual or usual, did you say? Q. Either, is it usual or unusual for you to do that. A. It's unusual to omit the basis of the charge. Arrest Rights 195 Widdrington acknowledged that the accused was not given his arrest rights until he was in the police car (as recorded on video) and that he had spoken to him prior to this.159 He denied having questioned the accused after his arrest but prior to him being cautioned in order to benefit the investigation.160 196 Widdrington was driving the police vehicle when Metschke was interviewing the accused. He agreed therefore that the times referred to in his notebook at 1737, 1742 and 1743 must have come either from him viewing the video of the accused’s 157 T 445.37. 158 T 395.27-35. 159 T 422.11-34. 160 T 438.25-32. -- 46 of 120 -- [2024] SADC 31 43 arrest or had been provided to him by Metschke.161 However, when immediately asked thereafter if it was possible that some of the content in his notes had actually come from discussions with Metschke, he responded “No”. Eventually he conceded that if in fact some of the times in his notebook had been provided by Metschke, that part of what was recorded in his notes, had been secured from his discussions with him.162 Collusion with Metschke as to ‘Reasonable Suspicion’ 197 Widdrington was cross-examined at length as to various inaccuracies in his notebook entries. The first such entry related to that “1725 Rickaby Street West Croydon”. Widdrington confirmed that this reflected the time the vehicle was stopped. He was asked if he had subsequently learnt that time to be incorrect and he initially said, ‘I can’t recall. I don’t know if its incorrect or not.’163 198 He denied that Metschke had told him that that was incorrect. 199 Widdrington was cross-examined about the email sent to him by Metschke on 25 February 2023 enclosing a copy of his case notes and stating:164 Looking at everything together, 1725 is the time I started writing notes, not the time we stopped him – my mistake there. 200 Having revisited that email, Widdrington then agreed that prior to giving evidence, he was informed by Metschke that the time of 1725 was incorrect.165 Widdrington denied a proposition put to him that the reason Metschke had told him about this error, was because Metschke knew that Widdrington’s notes also recorded, erroneously, that the vehicle was stopped at 1725. He gave the following evidence:166 Q. And he knows that because you've told him that, correct. A. No. Q. And you've given him access to your notes. A. No. Q. You've given him access to your statement. A. Can't recall. Q. Did you have a conversation with Mr Metschke prior to Saturday, 25 February 2023 asking him to clarify certain matters in relation to this investigation. 161 T 425.23-426.24. 162 T 427.31-32. 163 T 364.23. 164 Exhibit VDD12. 165 T 365.18-26. 166 T 365.38-367.30. -- 47 of 120 -- [2024] SADC 31 44 A. Possible. Q. When did that conversation occur. A. Don't know. Q. Why would you have that type of conversation with Detective Metschke. A. Well, I said it's a possibility but I didn't say it occurred, so I can't say when it occurred because I'm not saying if it occurred or it didn't occur. I can't recall. Q. I'm asking why would you have such a conversation with Detective Metschke. A. I have no idea. Q. Is it to make sure that you get your stories straight so the evidence you give in court is consistent. A. No, the evidence I gave in court is that I thought I'd stopped at 1725 Rickaby Street. Q. Did you respond in any way to Detective Metschke's email of 25 February 2023. A. Possible. Q. Was the email sent to you by Detective Metschke on 25 February 2023 a product of a request that you made of him to supply his notes to you. A. Can't recall. Q. So it remains a possibility that you asked to see his notes. A. Anything's a possibility. Q. Is it likely. A. Anything's a possibility. Q. Is it likely. A. I can't say if it's likely or unlikely. I can't answer that question either way. Q. So, sitting here in court today, you cannot provide an explanation for why it is that you've received that email. A. Not from my memory, no. Q. Did Detective Metschke ask you questions with respect to the sequence of events in his statement prior to giving evidence on 2 March 2023. A. Not from my memory, no. Q. So you didn't sit down and discuss what might have been mistakes in his statement, for example. A. Definitely not. -- 48 of 120 -- [2024] SADC 31 45 Q. And you didn't discuss with him over the phone or, indeed, in any context what sort of mistakes might be in his statement. A. No. Q. He didn't, for example, tell you that he'd made a mistake in his statement about the time that he pulled over the car, being 1725. A. Well, he did in this email. Q. I'm just asking about his statement, did he tell you that that mistake was contained in his statement. A. No. Q. Did he tell you that he had made a mistake with respect to the sequence of events and, in particular, the point at which you conducted checks on Mr Than. Did he talk about that mistake in his statement. A. No. Q. Are you certain about that. A. No, I just - I can't recall. 201 Widdrington agreed that in his first statement he said. “at about 5:25pm this day we stopped a Black Toyota Camry SA plate S188-ADS on Rickaby Street West Croydon”. He agreed that he had subsequently come to understand that that time was incorrect. When asked to explain how he came to understand the time was incorrect, he said:167 I think it was when I was supplied, I think its Senior Constable McGreevy and potentially when I got supplied the transcript of the timing of the radio messages. I think it were more the timing of the radio messages, from memory, that I realised that. 202 He confirmed that he had obtained a statement of Officer McGreevy (the Shield Audit), via email from Glasson dated 28 November 2022. He had received the transcript of the Police Radio Communications via email from Gabel on 24 February 2023. 203 Widdrington was asked what was about the combination of those documents that led him to consider that he had made a mistake with respect to the sequence of events. He said:168 I think the first transmission occurs at 4:55 and it wasn’t 30 minutes after that we stopped it. From my memory, it must have been prior to that. Could I tell you exactly the time that we stopped it? No, but it would have been prior to 5:25. 167 T 370.9-13. 168 T 373.3-7. -- 49 of 120 -- [2024] SADC 31 46 204 As to whether there was anything else in those documents that alerted him to the fact there was an error in sequence in his statement (and notes), he said:169 I think the sequence is, is that, that from the radio messages, that Mr Than had been arrested prior to me having communications with Detective Sergeant Gabel. 205 Widdrington agreed that his notes indicated that the accused was arrested at 5:33pm and that the accused was arrested well prior to then. He suggested this time was taken from the video which recorded Metschke giving the accused his arrest rights in the police vehicle, commencing at 5:33pm.170 He agreed that in his second statement made on 28 February 2023 he had not corrected the mistake made in his first statement as to the time the vehicle was in fact pulled over.171 206 As to whether he was aware of that was a mistake when he swore that affidavit (on 28 February 2023), he gave the following evidence:172 A. I can't recall. When we do statements as in we always put 'at about' so in the original statement on 20 June, I have written 'At about 5.25', it's not accurate. It could be five minutes, 10 minutes earlier. It could be five minutes, 10 minutes later. What I'm saying is it's from after getting the transcript of the chat channel 2.20, it's quite clear if we start conversations at 4.55, it wasn't 30 minutes so I couldn't even tell you the exact time now. It's at about 5.25, but it could be approximate - if you want it definitely could be 5.10. It could be 5.15, 5.20. I'm still not certain so even sat here now, I couldn't tell you the exact time it was. You could look at the radio transmissions and tell me, but I didn't get the exact times of the radio transmissions so I'm trying to be - to explain it as when we do make notes in these notes, it's 'at about'. We are not forever looking at watches to get it like it's 5.16 or 5.18 or 5.20. It's 'at about'. 207 He was uncertain how it was that he came to get the sequence of events wrong. He thought that it might have had something to do with his memory of having gone back to the car twice. He suggested that this had caused him to believe that he spoke to Gabel (to do the checks on Than) the first time he went back to the car (ie prior to the arrest) and not the second time. He accepted that the Police Radio Communications made it quite clear that he did not speak to Gabel until after the accused was in handcuffs and therefore after the arrest. 208 He denied that he had kept the time of the arrest deliberately vague in both his notes and his first statement.173 209 He agreed that his notes read as if he had conducted the checks on Than before the arrest.174 He further confirmed that the contents of his first statement reflected the sequence errors that were in his notes.175 169 T 373.16-18. 170 T 382.1-10. 171 T 381.4-7. 172 T 381.10-27. 173 T 383.25-28. 174 T 399.18-24; T 400.6-13. 175 T 400.25. -- 50 of 120 -- [2024] SADC 31 47 210 It was suggested to Widdrington that given the errors in his notes, he was already misremembering the sequence of events when those notes were made, that is, either sometime between 5:55pm and about 7:00pm or around 10:30pm on 20 May 2020. Widdrington denied this. He reiterated that what was in the notes was all accurate, it was just that the sequence of those events had been misunderstood by him when he came to give his statement a month later. He denied that the notes were neither accurate, nor transparent. He said:176 A I think the notes are very accurate and transparent. I think when I have done this statement on 20 June a month later that I have misinterpreted them when I’ve done the statement, but the notes are transparent and accurate. You’ve got a copy of them. I’m not hiding anything there. I put everything in that I felt I needed and required to be able to do a statement. Q Your notes can’t be accurate and transparent if you misinterpret them a month later, can they? A That’s just my error, a personal error. 211 It was suggested to Widdrington that his manner of recording notes did not comply with the General Order which requires notes to be accurate and complete and for all entries to be kept in sequence. Although not conceding this, Widdrington said, ‘I don’t dispute that I misinterpreted them a month later.’177 212 Widdrington denied a proposition put to him that the reason both his notes and first statement placed the checks with respect to Mr Than as having been conducted before Than was searched, was because he was aware that the result of those checks would bolster Metschke’s reasonable suspicion. He said, “no that’s not the case and Metschke had already told me he’s going to arrest him”.178 213 He agreed with a proposition put to him that his state of knowledge at the time Than was pulled over up, until his arrest, was that the vehicle had come from a known dealer’s house.179 He also confirmed that prior to Glasson and Hazel arriving at the scene, he had not received any texts, phone calls or encrypted messages conveying any further information with respect to Than, beyond that communicated to him by Gabel over the radio.180 214 He confirmed that Gabel had told him that Than had warnings for drugs and may be armed. He was told by Gabel that Than had a previous arrest record but was not told that cannabis had been located at his home and/or that there had been images on his mobile phone.181 176 T 404.7-16. 177 T 407.22-23. 178 T 408.17-18. 179 T 410.5-8. 180 T 420.27-421.3. 181 T 421.4-12. -- 51 of 120 -- [2024] SADC 31 48 215 Widdrington therefore agreed that paragraph 8 of his first statement contained two mistakes. That paragraph states:182 I then returned to the police vehicle and conducted checks on Than via the radio with Detective Sergeant Gabel. I was informed that Than had warning flags for drugs and may be armed. I was also informed that he had a previous arrest record and that cannabis had been located at his home address and there had been images on his mobile phone. I then returned to speak to Than who denied previous arrest and stated the vehicle belonged to his mother. Detective Brevet Sergeant Metschke informed Than that he would be searching him and his vehicle under the authority of s 52 of the Controlled Substances Act. 216 The first mistake was that the information that he said he had received from Gabel was not that as set forth in that paragraph. The second was the sequence because he did not have any information from Gabel prior to the arrest.183 He agreed that some of the information that he had attributed to having been conveyed to him by Gabel, he had in fact learned from speaking to other detectives or from making his own interrogation of the Shield system.184 217 Widdrington acknowledged that he had used Shield to conduct enquiries with respect to Than when he was back at base after 6:00pm. He explained that when preparing his statement from his notes, he had also misinterpreted his notes to suggest that information that he only learned then, through those searches, was information that Gabel had told him earlier. 218 He denied that he had deliberately exaggerated the amount of information that Gabel had provided to him to bolter Metschke’s suspicions to use his authority under s 52.185 219 Widdrington gave evidence that when he completed his first statement on 4 July 2020, he did not have a clear recollection of the events as they had occurred on 20 May 2020 and that he had in fact referred to his notes.186 The following exchange then ensued:187 Q. The truth of the matter is that you and Metschke have simply shifted the time at which the search occurred in relation to the checks, correct - I'll ask the same question in a different way if you're confused about it. A. Yes, I am. I'm confused by you saying we've manipulated the time of the search. Q. You have, you've made up the fact - A. The sequence of events, yeah, I understand that. 182 T 410.16-30. 183 T 410.32-411.14. 184 T 411.20-23. 185 T 412.23-27. 186 T 412.12-19. 187 T 413.1-17. -- 52 of 120 -- [2024] SADC 31 49 Q. - the search was conducted after - A. Yes. Q. - the checks were conducted. A. Yes. Q. You've made that up, haven't you. A. No, it's just the way I've misinterpreted my notes. Q. Are you aware of any errors in Metschke's sequence of events. A. No idea. 220 He was asked then what was his explanation for including in his statement additional information said to have been provided to him by Gabel, which was not:188 A. Well, when I read my notes I thought actually, sorry, Gabel gave me that information, but I've assumed to go over the same points as before when I do my statement commencing on 20 June, completed on 4 July because the paragraph that I wrote down things about Mr Than in my notes I've misassumed that Gabel gave me all that information. So I don't actually say 'Detective Sergeant Gabel in my notes provided this following information'. It's just the way it's done about driving around, his mother, Gabel warnings and then I have given an explanation to what happened at the scene and it's just, yeah, and I have accepted - I've looked at that and when I have been doing the statement between 20 June and 4 July I've misinterpreted the little bit of information, extra information that possibly I got that from Shield. Possibly I got it from Hazel and Glasson in the briefing, I cannot recall, but when I do my notes I've known. I've had knowledge of it and I've wrote it down and maybe with hindsight, I should have got a transcript of the chat channel and then I wouldn't have made a mistake when I was doing my statement. It would have reminded me 'This is the sequence of events', but I didn't have the opportunity to do that. 221 He acknowledged that when he made his second statement on 28 February 2023, he knew that his original statement included these errors as he already had access to the Police Radio Communications (and therefore details of the information conveyed by Gabel to him). He was asked why he had not corrected this in his second statement. He could not explain why but said that what he had been focusing on when reviewing that material was the fact that he had not spoken to Gabel until after the arrest.189 222 Widdrington denied that he put his notes in this incorrect sequence as he knew Metschke was doing the same.190 He denied that he had deliberately lied about the sequence of events in both his notes and first statement.191 188 T 413.27-414.11. 189 T 415.2-6. 190 T 445.6. 191 T 445.29. -- 53 of 120 -- [2024] SADC 31 50 Dissemination of Material between Officers 223 Widdrington confirmed that until he received the Shield Audit and the transcript of the Police Radio Communications, he believed that the content of his first statement was correct.192 When asked if therefore his second statement was simply a reconstruction of events based on what he then understood the objective evidence to mean, he said:193 I think the second statement that I have provided is that where I’ve put the sequence of events I think that statement was provided more on the basis of the transcript of the audio messages which were quite clear I’d got it out of sequence. 224 Widdrington said he now remembered the sequence of events had occurred in the order as stated by him during examination-in-chief, namely that he had done the checks with Gabel after Than had been arrested. He was asked:194 Q So is it the case today that your recollection is that you conducted the checks on Mr Than after his arrest. A I think it’s not so much recollection now, it’s knowledge now. I think the recollection was conducting them prior, but obviously I accept that was wrong and it’s knowledge know that I conducted them afterwards. Q With that knowledge is it the case that you’ve in fact reconstructed your recollection of what occurred on the side of the road in Rickaby Street. A Well, yeah, I have reconstructed it differently to what I thought it was from my memory. 225 He gave evidence that it was not commonplace for those in the SOCB to disseminate the statements of other officers via email or to refresh their memories.195 He denied that he had placed any significance on the fact that he was aware that the Shield Audit material had been requested by defence.196 226 He maintained that he did not know, prior to giving evidence, that Metschke’s statement also contained a similar sequencing error.197 227 He denied discussing the content of his statement with Metschke and he denied having any discussions with Metschke about reviewing phone calls or phone call records to ascertain how the mistakes in sequencing had arisen.198 228 Widdrington was questioned specifically as to whether he would have had any cause to speak to Officer Metschke about their location having been in Brown Lane. He agreed with the proposition that there would not have been any need for 192 T 430.12-31. 193 T 430.6-10. 194 T 433.21-31. 195 T 429.28-35. 196 T 429.1-8. 197 T 438.6. 198 T 437.1-23. -- 54 of 120 -- [2024] SADC 31 51 him to do so, given that he had specifically recorded in his notes that their location was Brown Lane.199 229 Widdrington was asked if he had ever asked Metschke to provide him with a copy of his notes with respect to the investigation. He said, “not that I can recall, no” but that everything was a possibility.200 230 He ultimately agreed with a proposition put to him by defence counsel that it would not be commonplace to access other police officers’ notes or statements, as doing so may have the capacity to contaminate the evidence that he ultimately gave in court.201 Officer Hazel Nghiem Investigation 231 Hazel gave evidence that he became involved in the Nghiem investigation as he was the investigating officer with respect to the cultivation of a cannabis crop at Virginia.202Nghiem’s connection to that crop was two finger prints located on a heat-sealed bag. 232 Hazel attended a briefing with respect to the Nghiem investigation on 15 May 2020. He gave evidence-in-chief as to the purpose of that briefing, namely:203 Yes, with the assistance of surveillance with respect to Mr Nghiem we were investigating him for drug trafficking and the purpose of the briefing was to identify him conducting a transaction, a drug transaction and then from there, further investigating with the potential to arrest him if found to be doing any transactions and then, further, also on the back of my original investigation where he was a suspect. 233 Hazel confirmed that during that briefing he spoke as to the content of the TAC Order. This was prepared by him, but was authorised by his supervising officer, Detective Sergeant Gabel.204 234 The TAC Order was not in evidence, however Hazel was cross-examined as to its contents. 235 He agreed that as at 15 May 2020, police had information that Nghiem collected drugs from an unknown location on a Wednesday night and dealt in those drugs from Thursday onwards. He confirmed that police also had information to suggest that Nghiem dealt in drugs at locations other than his home at 225 Torrens Road.205 In cross-examination, he agreed that there was an expectation that Nghiem would leave the premises to deal in drugs and that the primary plan put in place 199 T 361.1-19; T 362.18-363.3. 200 T 363.4-9. 201 T 363.10-38. 202 T 460.18-24. 203 T 461.17-24. 204 T 493.25-35. 205 T 494.4-18. -- 55 of 120 -- [2024] SADC 31 52 was to attempt to stop Nghiem following a transaction that he conducted outside of his house.206 236 In addition, he agreed that a contingency or secondary plan was also put in place that involved stopping cars leaving 225 Torrens Road. He agreed that the contingency plan was described in the TAC Order as follows:207 If Nghiem continues to stay at the West Croydon property and other vehicles/people attend, a controlled traffic stop will occur on one of the vehicles leaving the address to ascertain if a deal has taken place. Depending on the result, consideration will be made whether a search of the West Croydon property should occur at that time. 237 When asked to explain what was a ‘controlled traffic stop’, Hazel described this as “something more than just a random traffic stop”.208 238 He disagreed with a proposition put to him that the contingency plan was, in effect, to search a car leaving the address, whether or not reasonable cause to justify that search existed.209 239 He agreed that he had not included in that part of the TAC Order which related to the contingency plan, any reference to s 52 of the Act but maintained that it was implicit, having regard to the balance of the document and specifically, the “Authority Section” which referred to the Act and therefore that reasonable cause to justify any search was required.210 240 He agreed that the brief overview of the plan in the TAC Order was:211 1. With the aid of ISB (Investigation Support Branch), along with live CAD (telecommunications data), Nghiem will be identified at a meet location with an unknown person. 2. Two stop vehicles will be monitoring the job and waiting nearby for direction. 3. At the conclusion of the likely deal, a controlled traffic stop will take place by one of the stop vehicles, Nghiem will be removed from the vehicle and a search will take place under the Controlled Substances Act. 4. The secondary stop vehicle will locate, identify and search the secondary party involved in the exchange. 5. Upon the conclusion of the search, Nghiem will be arrested for his involvement in the Virginia cannabis crop. 206 T 494.19-33. 207 T 495.4-11. 208 T 495.34-35. 209 T 496.8. 210 T 496.27-36. 211 T 497.5-498.4. -- 56 of 120 -- [2024] SADC 31 53 241 When questioned as to whether the purpose of stopping cars leaving Nghiem’s address was to, in effect, generate a reasonable suspicion to search his home at 225 Torrens Road, Officer Hazel said, ‘Not necessarily, no.’212 242 Hazel explained that in addition to the fingerprints relevant to the cannabis crop at Virginia, police had a lot more intelligence to suggest that Nghiem was dealing in other drugs. He confirmed:213 1. Intelligence received on 12 February 2019 suggested that 5,000 gelatine capsules had been delivered to Nghiem’s home address at Pooraka. 2. That on 13 June 2019 intelligence was received to suggest Nghiem was part of a syndicate involved with the distribution of controlled drugs in the city. 3. In May 2020 there was surveillance conducted whereby Nghiem was observed on four separate occasions leaving the house, meeting people quickly in nearby suburbs and then returning home. 243 Hazel gave evidence that as at 15 May 2020, police already had sufficient information to exercise a general search warrant on Nghiem’s address.214 Events on 20 May 2020 244 Hazel gave evidence-in-chief that on 20 May 2020, he was in a ‘stop car’ with Glasson near 225 Torrens Road, as part of the Nghiem investigation. 245 He confirmed that as at that date there were covert operations with respect to the address at 225 Torrens Road, including surveillance. The purpose of the surveillance was to assist to identify Nghiem’s movements and build up a further investigation into drug trafficking matters.215 246 Hazel could not recall precisely where his vehicle was positioned but believed it was north of Torrens Road. He could not see the address at 225 Torrens Road from where the vehicle was located. 247 He said he and Glasson were monitoring a radio on behalf of surveillance, with a view to responding to any activity which occurred at the address. As to what he meant by ‘responding’, he explained:216 … so should information be provided to us of a transaction, at that stage we weren’t aware what was going to occur, whether Mr Nghiem was to leave the premises and make transactions elsewhere. There was a series of different things that could have occurred. Should an event occur and our suspicions were raised to conduct vehicle searches, that was to occur or just be in the vicinity to respond as they move around metropolitan areas. 212 T 498.29. 213 T 499.19-36. 214 T 500.4-8. 215 T 461.3-6. 216 T 463.24-32. -- 57 of 120 -- [2024] SADC 31 54 248 He said that there was another stop car in the vicinity of 225 Torrens Road conducting a similar role, being that carrying Metschke and Widdrington. 249 Hazel was asked during examination-in-chief, what information he received as to any activity flowing from 225 Torrens Road at about 4:40pm on 20 May 2020. He said they received information that one vehicle attended the address for a short period of time, checks were made on the vehicle and a decision was made not to stop that vehicle. He then became aware that another vehicle had attended a short time later, being a black Toyota Camry S188-ADS. He said:217 I was aware that a male occupant got out of the car and entered the address. 250 He reiterated that the information he received with respect to that particular vehicle was that a male was seen to get out of the car and enter the address.218 251 Hazel said that he then conducted a number of checks with respect to that vehicle. Those checks revealed the vehicle’s registration as belonging to a female. There was a specific address linked to that female so he conducted further checks with respect to that address. From looking at that address, he identified Mr Than and then conducted some checks into him. As to what those checks revealed, he gave the following evidence:219 I recall there being some warning flags attached to his name in relation to drugs. There was some history of drug-related searches and that’s what I recall at the moment. 252 Hazel said that he conveyed this information to Glasson and that ‘we decided that we would like to stop the vehicle’.220Glasson then advised either Metschke or Widdrington to stop the vehicle.221 253 During cross-examination, Hazel was played the recording of the Police Radio Communications and confirmed that what he heard on that recording was Glasson communicating information to Widdrington and Metschke and that this information had been conveyed when he was sitting in the car with Glasson. He confirmed that the outcomes of any checks that he had conducted were not conveyed to Metschke and Widdrington at that time as far as he was aware.222 254 Hazel gave evidence that he was eventually advised that the vehicle had been stopped on Rickaby Street, Croydon Park by Metschke and Widdrington. He and Glasson then drove to Rickaby Street. When they arrived, the vehicle was parked on the side of the road and Metschke and Widdrington’s police vehicle was parked 217 T 464.26-27. 218 T 465.14-16. 219 T 466.4-7. 220 T 466.20. 221 T 467.1-3. 222 T 483.15-18. -- 58 of 120 -- [2024] SADC 31 55 behind it. He said that Mr Than was with either Widdrington or Metschke outside of the vehicle.223 255 Hazel recalled having a brief conversation with Metschke, during which he was told of the circumstances that led to Mr Than being arrested. 256 When asked whether he recalled the exact details of what he was told then, Hazel said:224 I don’t recall the exact details. From my memory, I was told that it was communicated to Mr Than that his vehicle was to be searched and that he made verbal communication that he was not going to allow it to happen and that led to his arrest for hinder. 257 He said that at that stage, in his mind, there was sufficient evidence to conduct a search of the vehicle pursuant to s 52 of the Act and he then undertook that search. 258 During the search of the vehicle he located a backpack in the rear seat footwell, behind the front passenger seat, inside of which were multiple bundles, one of which was checked and thought to be an illicit substance.225 259 Hazel confirmed that those matters which formed the basis for his reasonable suspicion to search the vehicle were the checks that he had conducted on Mr Than. These included; that that there were drug warnings associated with Than, a drug- related search had also been undertaken and the information that had been relayed to him by Metschke as to the circumstance of Mr Than’s arrest for hinder, that is not allowing police to search his vehicle.226 260 In cross-examination, Hazel confirmed that he was now unable to recall precisely what Metschke had told him regarding the circumstances of Mr Than’s arrest. He had not recorded the details of that conversation in his notebook.227 261 As to why he had not made notes of that conversation, Hazel gave the following evidence:228 A. I received the verbal information from Metschke. Again, I felt I had my own suspicion to search the vehicle so I wasn't enlisting information provided by him. Q. So you felt you had sufficient suspicion absent anything that Metschke or Widdrington told you at the side of Rickaby Street; is that correct. 223 T 467.31-34. 224 T 468.4-8. 225 T 470.4-20. 226 T 468.9-26. 227 T 484.31-485.4. 228 T 485.6-24. -- 59 of 120 -- [2024] SADC 31 56 A. No, not absent. I'm saying the reason I hadn't taken notes was because I was - it was an impromptu briefing leading to why that had to leave the scene with Mr Than under arrest and I just didn't take notes at the time. Q. Now, you've given evidence that whatever you were told on the side of the road formed part of your reasonable suspicion to search the car, that's correct, isn't it. A. It assisted to, however, I already felt that I had reasonable suspicion to search the car. Q. That was my question. So absent what Widdrington and Metschke told you, you felt that your powers under s.52 were enlivened by what you knew; is that the case. A. Yes, that's correct. 262 Hazel maintained that he searched the vehicle based on his own reasonable suspicions. He said he was not assisting Widdrington and Metschke to search the vehicle on the basis of reasonable suspicions held by either of those two officers.229 263 Hazel agreed with a proposition put to him that at the time he conducted the search, he had received information that a vehicle had been at 225 Torrens Road.230 It was suggested to him that he had not received any information to the effect that a male had gone into 225 Torrens Road. He denied this. 264 He agreed that that information had come over the surveillance channel.231 265 Exhibit VDD17 is a surveillance log with respect to observations conducted at 225 Torrens Road on 20 May 2020. Hazel agreed that document recorded the following relevant observations, namely:232 1. At 1649 – ‘Obs a black Toyota Camry sedan, SA reg S188-ADS, now referred to as Vehicle 2 (V2) parked in the driveway of S HA. Obs not maintained.’ 2. At 1700 – ‘No change’. 3. At 1705 – ‘Obs V2 reverse out of S HA and travel north west on Torrens Road Croydon Park, not followed. Obs maintained S HA.” 266 Hazel agreed that there was nothing in the surveillance log that would suggest that surveillance operatives had in fact observed a male entering the property. He agreed with a proposition put to him that it remained a possibility that he may have misremembered having heard over the surveillance radio that a male had entered the property. He further agreed that it was a possibility that what had in fact occurred was that it was communicated to him that a car was at the property, that he then conducted the checks and after seeing Than’s name associated with those 229 T 484.26-30. 230 T 485.25-27. 231 T 486.1-11. 232 Exhibit VDD17. -- 60 of 120 -- [2024] SADC 31 57 checks, that had caused him to misremember hearing that a male had exited the car.233 267 Hazel confirmed that he drafted the narrative for the Facts of Charge. He agreed that he had obtained a version of events from either Widdrington or Metschke to enable him to produce that narrative and he believed that version had been provided by Metschke.234 268 As to the conduct of the investigation thereafter, Hazel denied having ever seen the notes prepared by either Metschke or Widdrington or any of the statements that they had made. He denied having spoken to either Metschke or Widdrington about his evidence.235 269 He acknowledged that he had given a copy of his notes and statement to Glasson as Glasson was the investigating officer. He said he did not discuss his notes or statement with Glasson or the evidence that he would be giving and disagreed that he had any discussion with Glasson with respect to him utilising his powers under s 52.236 Officer Glasson Examination-In-Chief 270 Glasson gave evidence that he attended the briefing on 15 May 2020 with respect to the Nghiem investigation. During that briefing he was made aware that there would be covert operations with respect to a property linked to Nghiem at 225 Torrens Road. 271 It was his understanding that there was to be surveillance of that property to gain intelligence on Mr Nghiem.237 272 He recalled that at about 2:00pm on 20 May 2020, he was working with Hazel and that they were in a police car, driven by Hazel, in a location near the property, he thought south of Torrens Road – with a view to “helping and assisting”.238 He said Metschke and Widdrington were in another police car – he thought on the northern side of Torrens Road – fulfilling a similar role.239 273 Glasson could not recall precisely where he and Hazel were parked and he did not make a note of that location.240 233 T 488.20-36. 234 T 491.26; T 492.28-30; T 493.20-21. 235 T 503.10-504.10. 236 T 504.11-505.20. 237 T 520.6-29. 238 T 521.1-22. 239 T 521.23-31. 240 T 550.26-38; T 553.1. -- 61 of 120 -- [2024] SADC 31 58 274 At about 4:50pm, he received information pertaining to activities with respect to the property. 275 He was told that a dark coloured Camry had arrived at that address and parked in the driveway. He and Hazel were told the registration number of the vehicle. 276 At that point, Hazel began undertaking some checks on the vehicle and the owner to try to establish who the driver might have been. Those checks revealed the vehicle was owned by an elderly female who had a son (the accused) and the checks also established that there was some previous association between the accused and controlled drugs. He and Hazel discussed that information and decided that they would try and stop the vehicle when it left the property. 277 Glasson was played the audio recording of the Police Radio Communications. He was asked if it was fair to say that he had asked Metschke and Widdrington to stop the vehicle. He said:241 A. Yes, it was sort of at that stage the direction was still unknown so I wasn't sure whether it would be us stopping the car or them and because of the time of the day with peak hour traffic it was very up in the air who would be stopping the car when we didn't know which direction it would be heading. 278 He understood that that vehicle was then stopped on Rickaby Street, Croydon and as a result, he and Hazel then attended that location. 279 Glasson gave evidence that he did not conduct any further checks on the vehicle before arriving at Rickaby Street.242However, he had learned, through information heard over police radio, that the accused had not consented to the search, that he had been arrested and handcuffed and that he had been arrested in February 2019, being information conveyed by Gabel to Widdrington over the police radio. 280 Glasson said that when he and Hazel arrived in Rickaby Street, he saw the accused in the process of being escorted to a police car by Metschke. He said he spoke quickly with Widdrington who gave him a ‘brief update’ about what had transpired before they arrived. 281 When asked precisely what information had been provided to him by Widdrington, he said that information was general in nature but to the effect that they (Widdrington and Metschke) had asked the accused about his criminal history and that it was not consistent with police records. He said, “that was sort of mostly it”.243 He then gave the following evidence:244 241 T 527.31-36. 242 T 528.5-7. 243 T 530.8-14. 244 T 530.15-28. -- 62 of 120 -- [2024] SADC 31 59 Q. So at that point, having the information from the earlier checks, the information from the radio coms and information from Widdrington, in your mind was that sufficient to search the vehicle under s.52. A. Yes, but I guess the part that I should have included is that I also spoke with Detective Metschke once he'd put Mr Than in the back of the vehicle and my conversation with him was about where he'd had a conversation with Mr Than, asked him where he'd just been or words to that effect and Mr Than made reference to having just come from his mother's house so at that point in my mind that wasn't true and that he was trying to distance himself from 225 Torrens Road. It was at that point that I was more than satisfied that we had enough for s.52. 282 Having regard to that information, the fact that the accused had also told the officers that he had not been previously arrested, the earlier checks conducted by Hazel and the address from which he had come, Glasson was satisfied that there was reasonable suspicion sufficient to search the vehicle pursuant to s 52(9) of the Act.245 283 He and Hazel then searched the vehicle and found a backpack on the back seat of the car within which was what they initially thought to be 4 ounces of methylamphetamine.246 Cross-Examination – Briefing/Nghiem Investigation 284 Glasson confirmed that he had made notes with respect to his attendance at the briefing on 15 May 2020 but that he had completed them some time after the events described therein.247 285 He confirmed that he would note the time he was making the notes and if he is describing something that occurred earlier, he will refer to the time at the start of that note within the body of the text.248 286 Glasson agreed that part of the overall plan on 20 May 2020 was to stop vehicles leaving the property. He was asked whether the intention behind that was to generate a reasonable suspicion to search the property, at least in part and he agreed that it was, partly. He further agreed that a secondary plan was to stop cars leaving the premises. He said:249 That’s right, though at the time we had enough suspicion to search the premises, it was more to try and work out if the people within the house were holding drugs or not. 287 Glasson was asked whether the plan as set forth in the TAC Order, was effectively a plan to stop cars to see if there was evidence of a deal having taken place. He agreed with that. 245 T 531.35-38. 246 T 532.25-31. 247 T 542.8. 248 T 542.35-543.1. 249 T 641.37-642.2. -- 63 of 120 -- [2024] SADC 31 60 288 He further agreed that in that particular portion of the TAC Order relevant to the contingency plan, there was no specific reference to the Controlled Substances Act, albeit it was referred to earlier in the TAC Order.250 He did not think it necessary to reproduce the reference to that section and Act in that part of the TAC Order, dealing with the secondary or contingency plan, that is stopping other cars that may have left the premises. 289 Glasson agreed that on 20 May 2020, he and Hazel were effectively acting in a ‘stop car capacity’.251 He explained that term referred to a car with lights and sirens which had the ability to stop a car when required.252 290 Glasson was asked if he understood what was meant by the term ‘controlled traffic stop’. He said he assumed it referred to stopping a car in co-ordination with surveillance but it was not a term that he personally used.253 291 Glasson was cross-examined as to whether there was a possibility that he was conducting a similar role with Metschke, at any time between 15 and 20 May 2020, having regard to what could be heard in the Police Radio Communications as set forth at paragraph 65 herein. 292 Glasson could not recall having done so and he agreed with a proposition that if he had been undertaking such duties, he would expect that to be recorded in his notebook “if it’s of some significance”.254 293 However, he explained that if nothing had happened, it may not be recorded as there were surveillance logs which were otherwise being created to reference what happened on the day.255 He did agree with a proposition that in some cases, a lack of activity in the course of an investigation, could be significant. He ultimately agreed with a proposition that therefore it would be important to record such activities, even if they revealed a lack of activity at the target of the observations.256 294 Later in cross-examination, Glasson gave evidence that he did, in fact, have a note pertaining to the activities he conducted with Metschke on 15 May 2020, namely:257 Follow up ENQ’s with Nghiem → surveillance 225 Torrens Road West Croydon 295 Glasson agreed that broadly speaking, the mission of the Nghiem investigation was to locate and stop Nghiem after a suspected drug exchange and 250 T 643.35-645.24. 251 T 543.24. 252 T 553.11-13. 253 T 553.14-554.1. 254 T 543.22. 255 T 543.28-544.6. 256 T 544.4-17. 257 T 610.11-611.7. -- 64 of 120 -- [2024] SADC 31 61 that thereafter, there was a plan in place to search the property. The property had in fact been searched following the accused’s arrest and the search of the accused’s vehicle.258 296 Glasson was asked about what he knew about the presence of another vehicle that had attended at the property prior to the black Camry. He agreed that he was aware of such an attendance. As to whether it was intended that car would be pulled over, he said “potentially yes”.259 As to whether that car was not pulled over because the surveillance teams lost sight of it, he said:260 That and a combination of us not being able to do any checks in a timely manner either because the car came and left before any checks could be undertaken. 297 He agreed that his notes stated: Before Camry searched, small white car attended quickly and left Unable to stop due to poor radio comms. 298 He agreed there was no reference in his notes to not be able to stop the car because of any inability to conduct checks. Notwithstanding this, Glasson maintained that that was part of his recollection as to why that car was not stopped. 299 He then gave the following evidence:261 Q. You didn't stop the car or police were unable to stop the car because surveillance lost it. A. They didn't lose it. There was a breakdown in communications in terms of - I don't know why it occurred, but not all their transmissions were coming through. We were made aware of the vehicle, it had arrived, we started - or tried to do some checks and then before that could even be done the vehicle had left. There was a breakdown with the vehicle leaving. Q. That vehicle not being stopped then wasn't a choice made by police, was it. A. Probably not, no. Q. The stopping of the vehicle was frustrated by circumstances with respect to the radio. A. That was part of the issue, yes. As I mentioned, the checks were also part of it. With these types of - what we were trying to achieve, you only get one opportunity to do it, and so part of ensuring you're taking the right opportunity is you do need to try and ascertain who is driving the vehicle because potentially the person driving that vehicle could be a landlord, employee, who knows. 258 T 575.20-30. 259 T 604.19. 260 T 604.23-25. 261 T 605.3-24. -- 65 of 120 -- [2024] SADC 31 62 300 Glasson was asked whether what could be heard on the Police Radio Communications was him giving a direction to either Metschke, Widdrington or both to pull over the accused’s vehicle. He said:262 I wouldn’t say it was a direction, but we were working collectively to stop the car, yes. 301 Later, when asked what he meant when he said ‘let’s try and grab this one boys’, he said:263 A. I wouldn't say it's a direction, no. Q. That's what it is, isn't it. A. No, far from it. At this time we all hold the same rank, we have the luxury of having done some checks on the car beforehand. It was essentially James Hazel's job at that time and with these checks in mind we decided that this was going to be a car that we were going to stop. It was not a direction. 302 He maintained that it was not a direction, rather he was simply seeking their assistance to stop the vehicle.264 303 He said it was intended that he and Hazel would pull the vehicle over but they were unable to do so because of heavy traffic. He was then asked the following:265 Q. So in an ideal world you and Hazel would have pulled over the car. A. Well, I wasn't overly concerned because Craig Metschke was in the other car, and I'd worked with him in the shift prior on the 15th, and he had just as much knowledge of the investigation as I did. Q. He didn't have the state of knowledge necessarily that you had about the Toyota Camry, though, did he, to be fair. A. No, no. Q. So his state of knowledge was different to yours, is that correct. A. But, yeah, sorry, I was talking about overall in terms of the investigation in regards to the house. Q. At that stage you were asking Metschke and Widdrington to pull over that vehicle, correct. A. Well, we were asking for them to help, yes. It was going to be a matter of whoever got to it first. 262 T 611.27-28. 263 T 648.30-37. 264 T 649.13-18. 265 T 650.19-651.2. -- 66 of 120 -- [2024] SADC 31 63 Q. It was the case that your expectation was when you were asking for Metschke's assistance that he would pull that car over and he would search that car, correct. A. No. 304 He denied that he had an expectation that Metschke and Widdrington would search the vehicle once they pulled it over, in accordance with the TAC Order. 305 He disagreed that the TAC Order was simply a SAPOL endorsement to turnover and search cars without a lawful justification.266 Cross-Examination – What occurred at Rickaby Street 306 Glasson gave evidence that he did not speak to either Metschke or Widdrington over a phone between 4:50pm and 5:15pm on 20 May 2020. He said that they were using police radios to communicate, rather than any encrypted application.267 307 When he and Hazel arrived at the scene in Rickaby Street, the accused was already in handcuffs and therefore under arrest. 308 Glasson’s notes did not record either the fact he had been briefed by Widdrington and/or Metschke upon his arrival at Rickaby Street as to what had occurred prior to his attendance, nor what was said during any such briefing.268 309 He gave evidence that when they told him what the accused had said to them prior to his attendance, he had not asked them about the status of the accused’s arrest at the time he had given them that information. He agreed that he did not know whether the accused had been given his arrest rights or cautioned prior to him giving them that information. 269 310 Glasson was aware, from what he had been told by Widdrington and Metschke, that the accused had been arrested for hindering a search. He then gave the following evidence:270 Q. So his arrest for hindering a search must have occurred after the search commenced, correct. A. Well, not necessarily. I mean, if you're going to advise that a search is going to occur and that's when the hinder occurs, the search hasn't taken place yet. Q. You can't hinder a search that hasn't commenced, though, can you. A. Well I guess not. 266 T 652.18-653.1. 267 T 612.10-27. 268 T 613.14-19. 269 T 613.20-614.17. 270 T 630.21-631.3. -- 67 of 120 -- [2024] SADC 31 64 Q. So when you were reviewing the radio communications you were aware that the search had a relationship to the arrest, correct. A. I was aware that he had been arrested for hinder. In terms of what transpired before that, I wasn't there. Q. I'm not suggesting that you were, but you understood his arrest for hindering a search had a relationship to the search, correct. A. Well, if they had started the search, then yes. Q. So you well understood then that as a matter of logic the search must have commenced prior to his arrest, correct. A. Yes. Search Power 311 Glasson was asked a number of questions as to his understanding as to the power provided for by s 52(9) of the Act. 312 He agreed with a proposition that if one of the searching officers had a reasonable suspicion then that was sufficient.271 He also agreed that if one officer had a reasonable suspicion, that officer could have other police officers assist them with the search.272 When asked if a person referred to themselves as assisting a search, that may mean that person did not themselves have a reasonable suspicion under the Act, he answered “potentially”.273 313 Glasson agreed that it was important for a police officer to record the details of the use of a search power along with their suspicions in their notebook.274 He gave the following evidence:275 Q. When you were searching Mr Than's car on 20 May 2020 you were not exercising any search power yourself, were you. A. In my mind I was using s.52. Q. Isn't it the case that you were actually assisting Widdrington and Metschke in the search. A. Well, potentially. Q. So in those circumstance you were relying on their reasonable suspicion rather than yours. A. I wouldn't say that. I'd formed my own suspicion when I searched that car. 271 T 571.30-32. 272 T 572.12-15. 273 T 572.36-573.1. 274 T 577.14-20. 275 T 578.7-579.1. -- 68 of 120 -- [2024] SADC 31 65 Q. You accept, though, that there is a distinction between an officer who is assisting with a search and those officers which may have a reasonable suspicion, you accept that distinction. A. I accept that. Q. So is it the case that your notes - well, your notes record that you were assisting Widdrington and Metschke, don't they, p.2. A. Yes, they may. Q. Well, feel free to have a look at p.2. A. Yep. Q. To be clear, Mr Than was under arrest when you arrived. A. Yes. Q. He was in the company, I think, of one of Widdrington or Metschke. A. Yes. Q. He had handcuffs on. A. Yes. Q. They had no requirement for your assistance in terms of dealing with him, did they. A. No. Q. And you didn't interact with Mr Than at all, did you. A. No. 314 He acknowledged that his notes recorded that he was assisting Widdrington and Metschke.276 Q. So is it the case that your notes - well, your notes record that you were assisting Widdrington and Metschke, don't they, p.2. A. Yes, they may. 315 Further, he agreed that as Than had already been arrested, with handcuffs applied, prior to him arriving at the scene, any such assistance could not have related to dealing with Than and must have amounted to assistance with the search.277 316 Glasson confirmed that his notes did not record him exercising a search power in his own right.278 However, in his mind, he was quite clear that he 276 T 578.22-25. 277 T 578.28-579.17. 278 T 580.4-13. -- 69 of 120 -- [2024] SADC 31 66 suspected there were drugs in the car, that he would be using s 52 and there was no need to make a note of it.279 317 It was suggested to Glasson that the notes were also important for transparency purposes. He was asked whether anyone reading the notes could see any reference to him exercising powers under s 52. He said:280 A. Well the notes that I make are to refresh my memory in the future. It was very clear in my mind that I was only ever going to be using 52 to search that car so I didn't feel as though that was important for me to make a note to remind myself of what authority I was using. I was pretty clear. 318 He was then asked if it would it be important to include that material in an affidavit in relation to the search and said, “to some degree, yes”.281 319 Glasson agreed that in his first statement dated 17 August 2020, he had made no specific reference to him exercising his search powers pursuant to s 52 of the Act.282 He agreed that in fact he had stated that he had assisted with a search of a vehicle.283 320 He confirmed that the first time he made a record in either an affidavit or a note to the effect that he had exercised his search powers under s 52(9) was in his second statement made on 1 March 2023 and that he had prepared that affidavit at the request of the DPP to clarify his suspicions.284 He gave the following evidence:285 Q. Isn't it the case that where in your notes and in your affidavit of August 2020 you accurately refer to your role in the search, and that is that of an assisting officer, is that fair to say. A. Yes, I do refer to myself as an assisting officer. Q. And that's accurate as to your role with respect to that search, isn't it. A. If you're talking about my grounds for suspicion again I had made my own assessment and believe I had my own reasonable cause before searching the vehicle and I use the term 'assisted', but let's not - it's used in the context that I was satisfied with my own suspicion before searching the car. Q. The reason why you've used the word 'assisted' in both your notes and in your first affidavit is because you weren't, in fact, exercising your powers under s.52. That's the case, isn't it. A. No, I was using the authority of s.52. 279 T 580.22-24. 280 T 580.30-35. 281 T 581.17-22. 282 T 582.2-8. 283 T 582.17-19. 284 T 585.35-586.6; T 586.14-16. 285 T 586.35-587.21. -- 70 of 120 -- [2024] SADC 31 67 Q. Now, the reason why the day before this matter was listed for a voir dire hearing that you've nominated the search power is because you became concerned that there might be some merit in the challenge to the lawfulness of Widdrington and Metschke's actions on the side of the road, isn't it. A. No, that's incorrect. 321 Glasson gave evidence that one of the matters that he relied upon to form his reasonable suspicion in order to search the vehicle was the fact that the accused’s “coming and going from the premises” was “very consistent with what we would expect to see at drug houses”.286 He was then asked the following:287 Q. Where you are referring to him coming and going to the premises, you're referring to the car coming and going to the premises, aren't you. A. That, and the car previously that came and went. Q. So it's a combination of the cars coming and going from the address, is that what you're referring to. A. And also the previous work that we had done on the address. Cross-Examination - Challenge to the Validity of the Search 322 Glasson confirmed that he was assigned the role of investigating officer with respect to the accused’s prosecution, a couple of days after 20 May 2020. His responsibilities in this role include compiling a brief of evidence, providing copies of all statements and notes to the DPP and collecting material to answer relevant subpoenas.288 323 Glasson gave evidence that in his role, he had cause to review the material he had obtained. He assumed that at some stage that would have included reviewing the statements of the officers involved and their notes.289 324 He agreed that as at August 2022, he was aware that there was going to be a challenge to the legality of the search.290 325 Glasson gave evidence that as far as he was concerned, he had conducted himself in accordance with his statutory and common law obligations with respect to the search of the vehicle. He said that in his role as investigating officer, nothing had come to his attention since May 2020 to suggest that any of the officers in the investigation may not have conducted themselves in accordance with their common law and statutory obligations.291 286 T 531.15-22. 287 T 640.2-9. 288 T 547.11-548.22. 289 T 549.5-12. 290 T 549.37-550.1. 291 T 582.36-583.8. -- 71 of 120 -- [2024] SADC 31 68 326 Glasson said he had reached that conclusion from his assessment of the material to which he had had access in his role as investigating officer.292 Those materials included the audio of the Police Radio Communications and McGreevy’s statement containing the results of the Shield Audit for the various officers involved in the investigation. After having listened to the Police Radio Communications and considering McGreevy’s statement, he could not recall detecting any issues with the version of events as put forward by either Widdrington or Metschke in their statements.293 327 Both the Shield Audit and Police Radio Communications were disclosed after a request made on behalf of the accused by email on 12 July 2022. That email was in evidence as part of a bundle of emails tendered as Exhibit VDD22, together with other emails passing between various SAPOL members, including Glasson, relevant to that request. 328 Glasson was cross-examined about some of the statements he made in those emails. He agreed that he held a view that such information should only be accessible to defence after the provision of a subpoena and said a similar view was expressed by Michele Wales, a team leader of Shield support. 329 Glasson denied that he was attempting to put up a barrier to deny defence access to this material or to make it more difficult for defence to access the material. He said that this type of material was not ordinarily disclosed and he was simply concerned to ensure that the right process was followed in terms of its production. 330 He agreed that he had written in an email to Ms Wales that “unfortunately” defence counsel was still pushing for the records to be produced without a subpoena and that he did not “want this to become a common practice for DC in the future”.294 He maintained that he had no issue with handing over the audit trails, rather he was eager to work out a process going forward in terms of managing these requests. 331 Glasson agreed with a proposition that the material would be relevant to defence insofar as it may have informed reasonable suspicions with respect to the search. 332 He denied that in August 2022, when he was asked to provide this material, he was aware that the audit trails would reveal issues with the timing of the checks made and he denied that he had something to hide and wanted to avoid close scrutiny.295 He had not used the word “unfortunately” in his email of 2 August 2022 292 T 583.15-17. 293 T 583.18-38. 294 Exhibit VDD22, p 6; T 593.31-595.4. 295 T 591.24-592.2; T 593.16-20. -- 72 of 120 -- [2024] SADC 31 69 as he was concerned it would expose problems with the search, rather he was simply expressing his frustration in terms of the process. 296 333 He denied that his insistence upon the notes being provided by subpoena was him attempting to frustrate the provision of this material to defence.297 Dissemination of Material amongst Officers 334 Glasson agreed that by email dated 29 November 2022, he forwarded the Shield Audit to all five members of the investigation team. In that email, he stated:298 Good morning all, In relation to the voir dire for THAN on 2 March 2023 - Defence requested an audit of Shield to identify any checks that were conducted by police prior to the arrest of THAN. A Shield audit was conducted by S/C John McGreevy and a copy of this statement is attached. Hopefully this will help refresh your memory of the events on the day. Thanks 335 Glasson gave evidence that he had used this language in that email because it was very unusual to have to do checks or audits on Shield and he thought that the officers would be wondering how he came about that information.299 336 Glasson said that he had no difficulty in effectively asking the officers to refresh their memory from someone else’s sworn affidavit because what that affidavit contained was effectively data that could not be changed.300 337 He agreed that the document he distributed to the five officers contained the Shield Audit trails for all five officers.301 338 It was suggested that as such, those officers were at risk of some contamination of their memories if they read the entirety of the material. Glasson said:302 A. Not necessarily. I guess in terms of me reading Hazel's I was present with him on the day and was there when he was going through the Shield program and potentially I don't know if Metschke or Widdrington were together when they were doing it either, but potentially. 296 T 600.9-12. 297 T 600.6-602.4. 298 Exhibit VDD6. 299 T 619.29-32. 300 T 615.33-617.14. 301 T 617.34-36. 302 T 620.25-621.17. -- 73 of 120 -- [2024] SADC 31 70 Q. You accept that these officers wouldn't necessarily be able to refresh their memories with respect to events that they hadn't been a part of, you accept that. A. Yes. Q. So, for example, Mr Widdrington wouldn't be able to refresh his memory from Mr Hazel's audit trails, would he necessarily. A. No. Q. So do you accept that, in disseminating the information in the way that you have, there is a risk that officers - a possible outcome is that those officers learn information about the actions of other officers that they would not necessarily know. A. If they - maybe if they read it. Q. If they read it. A. Yeah, if they read, or (a) if they even read the statement but also if they even read the other officers' audit trails. Q. To be clear, there is no suggestion in this email that they only ought to read the audit trails that apply to themselves, is there. A. No. Q. And there is no warning with respect to the possibility that reading the audit trails of other officers may have an adverse effect on their memory on the day. A. No. 339 He agreed that he could have extracted the relevant Shield Audits for each officer from McGreevy’s affidavit and given them to each officer individually but did not.303 340 Glasson denied that he had disseminated this document to give the officers an opportunity to craft their evidence so that it married up with the objective evidence. He said his intention in sending the email was simply to allow the officers to refresh their memory about what transactions on Shield took place, having regard to the fact that they each conducted hundreds of checks each year.304 341 Glasson was cross-examined about when he was first provided with the audio of the Police Radio Communications. He said that he listened to the recordings during the process of complying with a subpoena for the request of the production of that material in August 2022.305 Notwithstanding this, he did not become aware until much later that those radio communications suggested that Widdrington had conducted checks on the accused, after the accused’s arrest.306 As to why this was, 303 T 631.20-24. 304 T 621.18-27. 305 T 627.28-36. 306 T 628.3-8. -- 74 of 120 -- [2024] SADC 31 71 given it was clear from the audio that the accused was conducting the checks with Gabel after the accused was already in handcuffs, he explained:307 A. Yes, but what I didn't know was if they had a laptop computer with them either. Q. If one is using a laptop computer, there wouldn't be any need to make those checks over the radio, would there. A. Potentially not. Q. Well, potentially or not at all. A. Yeah, you probably wouldn't, no. Q. So that would suggest that Widdrington or Metschke or both didn't have access to any other way to conduct their checks, doesn't it. A. Yes. Q. Or, if they did, they certainly weren't using it. A. Yes. 342 He said he had not identified any potential issue when listening to the audio of the Police Radio Communications in or about August 2022.308 343 Glasson was already aware of what was in the Police Radio Communications when he saw what was in McGreevy’s affidavit relating to the Shield Audit. He was aware, from that affidavit, that neither Widdrington, nor Metschke, had conducted any checks relevant to the matter between 4:40pm and 6:00pm on 20 May 2020 and said that this did not cause him any concern.309 344 Glasson confirmed that at the time he saw what was in McGreevy’s affidavit, he was aware of the contents of the statements made by Metschke and Widdrington that put the timing of the checks prior to the arrest. However, he said, if he had identified that issue at that time, he would have tried to rectify it in terms of the provision of addendum statements or similar.310 345 Glasson said that he could not recall any of the officers approaching him with concerns about what those checks revealed during the period after he sent the email (29 November 2022) and the commencement of the voir dire on 2 March 2023.311 307 T 628.24-36. 308 T 629.2-4. 309 T 629.12-21. 310 T 629.29-38. 311 T 621.28-32. -- 75 of 120 -- [2024] SADC 31 72 346 However, he gave evidence of a discussion he had with Widdrington between 24 February 2023 (the date of the DPP proofing) and 1 March 2023, because Widdrington was confused by the order of the Police Radio Communications.312 347 As to how he responded to Widdrington’s concerns, Glasson said:313 A. It was a very short conversation. I don't recall the conversation specifically. There wasn't anything that could be done, it just needed to do an addendum or whatever the case might be to try and explain it and then move on. There's nothing that can really be done by it at that point. Q. Never mind what can or can't be done, I'm just asking how you responded to Widdrington. A. That's what I responded with. 'You can't do anything about it, let's just do the addendum and move on'. Q. That's what you told him. A. I don't remember the specifics but it would have been probably something along those lines. It's a phone call that occurred months ago. Q. At the time you were having that conversation you were obviously aware that that would be a topic that might be the subject of Detective Widdrington's evidence. A. Yes, potentially. Q. And bearing in mind the proximity of 1 March to the start of the voir dire, do you accept that it's more likely that that phone call with Detective Widdrington occurred prior to 1 March. A. I don't accept that. Q. You don't accept that. A. It occurred sometime between - I really don't know when it occurred. It was sometime after the proofing. Q. The proofing of you or the proofing of Widdrington. A. It would have been Widdrington's. Q. So Widdrington discussed the fact that he had been proofed by the DPP with you. A. Well, I organised it, the time and the date. Q. But he discussed the fact that he had been proofed. A. Well he I knew he'd been proofed. Q. He discussed that with you, though. 312 T 584.21-22; T 648.5-16. 313 T 625.30-626.33. -- 76 of 120 -- [2024] SADC 31 73 A. Yes. Q. And you told him that he just needed to file or swear an addendum affidavit, that's your recollection of it. A. I think my advice was there's nothing that can be done, we have nothing to hide and we just have to be honest and, if we've made a mistake, then so be it. Q. Did you remind Detective Widdrington to be honest. A. No, I didn't say that, there was no need to say that. 348 He said that Widdrington could not explain the difference between what he could recall from his memory as opposed to what was apparent from the Police Radio Communications.314 349 He believed Widdrington had raised this with him because he was the case officer. He recalled that Widdrington had asked him about his phone records relevant to an enquiry he (Widdrington) had about his grounds for suspicion.315 He said Widdrington was confused by the order of the radio transmissions as they did not occur in the order (or sequence) that he thought they had.316 However, based on his understanding of the available evidence, Glasson said he had no cause for concern with respect to the sequence of events and he was satisfied that Widdrington’s concerns were unfounded.317 350 Glasson had no recollection of speaking with Metschke as to any similar concerns.318 He said he had not had any discussion with Metschke about his version of events of what had occurred on the side of the road at Rickaby Street. 351 Later in his evidence, Glasson confirmed that he was aware that both Widdrington and Metschke had provided addendum affidavits to amend their earlier affidavits as to the sequence of events in which things occurred. He said these affidavits may have been provided directly to the DPP, rather than through him.319 He was asked if he knew what necessitated Metschke and Widdrington, having to file addendum affidavits. He said:320 A. So I was aware of part of a proofing but at the time when this was raised I was away on a course and I didn't have the opportunity to freely call people and discuss matters, so I was aware there was an issue but I haven't read their statements. Q. To be clear, you were aware that there was an issue before the voir dire commenced on 2 March 2023, that there was an issue. 314 T 624.6-8. 315 T 584.1-18. 316 T 584.19-22. 317 T 585.2-8. 318 T 585.14-27. 319 T 622.18-37. 320 T 623.6-28. -- 77 of 120 -- [2024] SADC 31 74 A. Yes. Q. And what was your understanding of the issue. A. The issue was that the audio communications weren't in the same sequence as what the officers thought was in their mind, had in their mind. Q. Did you have any understanding about what, if anything, McGreevy's statement added to that picture. A. No. Q. Which officers did you understand had concerns with respect to the sequence of events. A. Widdrington. Q. Metschke at all. A. No. Q. No. A. I didn't speak to him about it. 352 He then acknowledged that those matters being out of sequence was potentially significant.321 Later, Glasson agreed that he, Metschke and Widdrington were all proofed by the DPP on the same day, namely 24 February 2023.322 353 Glasson denied that as a result of that proofing, it became clear to him that there were issues with respect to the search and that he was concerned about that. He denied that he had provided his affidavit on 1 March 2023 to cover off on any potential issues with either Widdrington or Metschke regarding their reasonable suspicion to search.323 He denied that he included in that affidavit, for the first time, the fact that he had exercised search powers under s 52 of the Act in an effort to patch up something that he perceived to be an illegality associated with Metschke’s and Widdrington’s conduct.324 Dissemination of Material amongst SOCB Members generally 354 Glasson denied that it was a common practice within SOCB to disseminate other police officers’ statements by way of email. He said that he had not done it, although he was aware that some police officers did and that it had happened on occasion. He agreed that such a practice ran the risk of contaminating another person’s evidence if they ultimately had to give evidence about the matter.325 321 T 624.19-22. 322 T 647.18-21. 323 T 587.22-36. 324 T 647.32-36. 325 T 632.14-633.12. -- 78 of 120 -- [2024] SADC 31 75 355 He acknowledged that Gabel had sent an email to other investigating officers containing the Police Radio Communications. He was asked if that ran the risk of contaminating people’s memories and he acknowledged that insofar as an officer was not present when certain radio communications had been made, then there was potentially such a risk.326 356 He acknowledged that when he distributed the Shield Audit it would have been best practice for each officer’s Audit results to have been separated and he should not have exposed the officers to an apparent risk of contamination by providing them with the others’ audit trail records.327 357 Glasson was also cross-examined at some length about the use of encrypted messaging services and mobile phones by police to communicate with one another. 358 He disagreed with the proposition that Signal was used because it had the capacity to self-delete messages.328 359 He confirmed that there was a policy which required police to retain those messages which were sent via such applications, relevant to investigations.329 He said that he rarely used Signal or What’s App with respect to investigations. 360 He denied that one of the reasons that officers used personal applications on their own personal mobile phones, was to frustrate a subpoena process insofar as the Commissioner of Police was name as the recipient of the subpoena.330 He acknowledged however that messages stored on those phones remained on the phone and did not become part of any investigation file held by SAPOL.331 He was unaware of any policy or procedure that would require their transfer from the personal mobile phone to an investigation file.332 361 Glasson explained that there was a policy in place that allowed for the use of encrypted applications and although that policy did not limit the circumstances of the use of those applications, they were usually used for administrative purposes.333 362 He acknowledged that he had used such an encrypted messaging service for an investigation in 2014 and that he had not transferred that material over to a file.334 363 Glasson denied that he was using Signal with respect to this particular matter on 20 May 2020 or any other encrypted application.335 However, Glasson did 326 T 633.37-635.7. 327 T 633.13-20. 328 T 559.17-22. 329 T 561.23-36. 330 T 563.4-8. 331 T 562.32-37. 332 T 562.38-563.3. 333 T 569.17-570.8. 334 T 563.25-38. 335 T 565.19-24. -- 79 of 120 -- [2024] SADC 31 76 produce a copy of what he said were all the Signal messages that he held relevant to the investigation generally, being those in Exhibit VDD18.336 Later he acknowledged that he had not produced a message Metschke sent to him via Signal on 27 July 2022 which attached a copy of his handwritten notes. He said he did not think they were relevant to produce as he had already provided a hard copy of that material. He was unsure why Metschke had provided another copy of his notes to him at that time.337 364 He agreed that insofar as he had deleted some of the messages from his Signal application which pertained to the investigation, there was a deficiency in his record keeping.338 He also acknowledged that if messages were deleted from Signal, that would mean that potentially this material would never make its way to defence.339 365 Glasson also acknowledged that he had contacted Metschke via Signal after 2 March 2023 relating to the production of call charge records which had been requested by defence. At this stage, Metschke was under cross-examination. He acknowledged that those materials may well have formed part of Metschke’s cross-examination and that another more senior officer, who was not also giving evidence on the voir dire, could have contacted Metschke about this.340 Submissions Defence Submissions Overview 366 Counsel for the accused addressed the Court at length on the various bases upon which it was submitted that the evidence of the search should be excluded. 367 As a general proposition, it was submitted that by their actions, both Metschke and Widdrington had acted unlawfully, and that the illegality had started with Metschke and Widdrington and continued thereafter. 368 The Court was urged to make a finding that neither Metschke, nor Widdrington was a credible or reliable witness. 369 It was submitted that Metschke, in particular, had demonstrated both the capacity and propensity to tailor his evidence to suit the circumstances in which he found himself. 370 Although Widdrington had ultimately conceded that the evidence given by him was reconstructed, Metschke had never made that concession, notwithstanding the overwhelming evidence to support such a proposition. 336 T 564.25-28. 337 T 565.36-566.12. 338 T 574.11-13. 339 T 567.25-36. 340 T 558.23-559.7; T 560.6-561.18. -- 80 of 120 -- [2024] SADC 31 77 371 It was submitted that even if the Court was not prepared to conclude that Metschke and Widdrington had worked together in order to present a false picture as to the sequence of events, to generate what appeared to be a legitimate basis for the search of the vehicle, after the event, the Court could not and should not have any confidence in the reliability of their evidence. 372 Both Metschke and Widdrington claimed to have mistakenly misinterpreted (and wrongly remembered) the timing and sequence of events, when they each used their notes to form the basis to prepare their first statement in June 2020. The fact their memory had failed them both, in such material ways, within a short period of time after the offending, meant the Court could have no confidence in the reliability of those aspects of their evidence which were unsupported by other cogent evidence. 373 Counsel for the accused addressed the Court on the evidence which he submitted supported the following findings: 1. That when Metschke and Widdrington pulled over the vehicle, they did so in accordance with a direction given to them by Glasson via police radio and that contrary to the evidence given by Metschke and Glasson, it was always intended that the vehicle would be both stopped and searched. 2. The search of both the accused and the vehicle was commenced by Metschke in the absence of him having the requisite suspicion pursuant to either s 52(6) and/or s 52(9) of the Act. 3. There was only one continuous search of the vehicle, being that commenced by Metschke and concluded by Glasson (and Hazel). In the alternative, if there were two separate searches, the search undertaken by Glasson and Hazel was tainted by the provision of information to them in a roadside briefing from Metschke and/or Widdrington, which included information obtained unlawfully from the accused after his (unlawful) arrest, but before his arrest rights were administered pursuant to s 79A SOA. 4. The officers involved in the investigation, including senior officers, had, routinely, failed to comply with the requirements of the General Order as to Notebooks and had participated in the improper sharing of notes and witness statements, including immediately prior to the voir dire. This was conduct said to demonstrate a failure by police to have proper regard to their statutory obligations and further evidence of a lackadaisical approach to complying with their broad and invasive search powers. 374 It was submitted these practices should not be condoned and ought be appropriately sanctioned by the Court exercising its discretion to exclude the evidence. -- 81 of 120 -- [2024] SADC 31 78 Why was the Vehicle Stopped? 375 Counsel for the accused reminded the Court that the vehicle was stopped in the context of the Nghiem investigation. There was no evidence to support a finding that any of the officers and in particular, Metschke or Glasson, had had any previous dealings with the accused prior to 20 May 2020. 376 It was submitted that the real focus of the investigation was to obtain sufficient information to justify the issue of a general search warrant with respect to the property at 225 Torrens Road. 377 The TAC Order prepared by Hazel and distributed at the briefing with respect to the Nghiem, investigation on 15 May 2020, stated that the primary intent was to stop Nghiem following a drug transaction conducted outside of his house, in order to generate the necessary suspicion to search the property. The secondary or contingency plan, confirmed by Hazel, was: If Nghiem continues to stay at the West Croydon property and other vehicles/people attend, a controlled traffic stop will occur on one of the vehicles leaving the address to ascertain if a deal has taken place. Depending on the result, consideration will be made whether a search of the West Croydon property should occur at that time. (my emphasis) 378 It was submitted that there was really no dispute, and the Court should find, that on 20 May 2020, Metschke (and Widdrington) and Glasson (and Hazel), were performing the function of “stop cars” for the purpose of achieving the objectives outlined in the TAC Order. 379 It was submitted that notwithstanding both Metschke and Glasson gave evidence to the contrary, and consistent with the wording of the contingency plan, it was always intended that any vehicle that was stopped as part of that plan, would be searched ‘in order to ascertain whether a deal had taken place’. It was quite clear from the Police Radio Communications that when Glasson spoke to Metschke over the police radio and said to him, with respect to the vehicle, first that they were “interested in taking this car” and then “let’s try and grab this one boys” that what he was doing was directing Metschke to stop and then search the vehicle, in accordance with that contingency plan. 380 The court was urged to reject Metschke’s evidence to the effect that when Glasson had asked him to stop the vehicle, he had not understood that he was also required to search it. Metschke’s evidence of Glasson’s request was that they would stop the vehicle, speak with the driver and make an assessment.341 381 However, if that was the case, this was inconsistent with Metschke’s actions after having pulled over the vehicle. If Metschke was to ‘make an assessment’, it may be expected that after obtaining the accused’s personal details, the first thing 341 T 201.26-27. -- 82 of 120 -- [2024] SADC 31 79 he would do would be to radio back to get further information with respect to the accused, rather than simply commencing the search. 382 It was submitted that on all of the evidence, the Court could be satisfied that it was always intended that the vehicle would be both stopped and searched, irrespective of whether there was any reasonable suspicion under s 52(9) of the Act. 383 The Court was also reminded of the evidence given by Metschke that rather than stopping the vehicle under s 52(9) of the Act, as outlined in the Facts of Charge, Metschke’s evidence was that the car was pulled over under s 40H and s 40V RTA. The Court was reminded of the evidence given by Metschke as to his understanding of the authority provided by those two provisions. It was submitted that there was a subtle change in Metschke’s evidence, after there being a break in the evidence and him having re-read the provisions, which ought to cause the Court some concern. That change related to Metschke initially giving evidence-in-chief to the effect that the accused had provided to him his personal details and thereafter, he had made a request of the accused for him to produce his driver’s licence. In cross-examination, Metschke confirmed that he did not have any cause to suspect the truthfulness of the information provided by Than as to his personal details until he looked at the driver’s licence and saw the photograph contained thereon, which in his view, differed from the person in front of him. 384 Metschke ultimately acknowledged that s 40V RTA only gave him the power to direct Than to produce evidence to correct that detail if he suspected on reasonable grounds that the detail given by the person, in response to a direction, was false or misleading. 385 Having initially said he had requested Than to produce his driver’s licence, Metschke’s evidence subtly changed to the effect that he could no longer recall whether he had made such a request and he said it may well have been the case that Than volunteered the material. 386 It was noted that albeit there was power for police to require the driver of a motor vehicle to produce their driver’s licence under s 96 of the Motor Vehicles Act 1959 (MVA), the manner in which Metschke gave his evidence on this topic told against the credibility and reliability of his evidence generally and was yet another example of Metschke simply being willing to tailor his evidence to suit the circumstances. Commencement of Search 387 The Facts of Charge confirm that the accused was arrested for a breach of s 52D(3)(a) of the Act and specifically for hindering the police in their exercise of the search powers conferred by the Act. 388 It was submitted that it must follow that the decision to search the vehicle was made prior to the accused’s arrest. Further, it must follow that the search -- 83 of 120 -- [2024] SADC 31 80 had commenced prior to the accused’s arrest, as one cannot hinder the exercise of a police power unless police are endeavouring to exercise that power. If the search had not commenced, then the arrest itself was unlawful.342 389 It was submitted that the Court should not accept the evidence given by Metschke and Widdrington as to the accused’s conduct allegedly giving rise to the arrest. That is, the Court should not accept the evidence Metschke gave in-chief and in cross-examination, and the evidence Widdrington gave in cross- examination, that the accused was ‘flexing’ (or ‘staunching’) so as to physically prevent a search from being undertaken. Neither Metschke nor Widdrington had recorded this in their notes or made mention of this in either of their statements. There was no mention of this in the Facts of Charge. 390 However, curiously, both Metschke and Widdrington agreed that there was an error in the Facts of Charge insofar as it stated that one of the reasons for the arrest, was that the accused had ‘refused to allow the Police access to the vehicle’. They both agreed that the accused had done no such thing. Although Hazel was the author of the Facts of Charge, only Widdrington and Metschke were present at and before the time of the arrest, meaning that information in the Facts of Charge must have been communicated by one of them to Hazel, unless it was a product of some misunderstanding on his part. 391 It was submitted that the only recorded conduct relied upon to form the basis of the hinder charge was the accused having stated verbally, several times, that he refused to consent to the search. It was submitted that as the accused’s consent was not required for the search, he had not performed any positive act which made the task of policing more difficult, or, specifically, hindered or obstructed them in their powers under the Act, such that the arrest was unlawful. 392 Counsel for the accused argued that not only had Metschke and Widdrington colluded, prior to giving evidence, to ensure they both referred to the accused ‘flexing’ prior to his arrest, but the content and form of their notes (and their first statements) could only be the product of collusion between them, having regard to the identical errors in timing and sequence as contained therein. 393 It was submitted that neither Metschke nor Widdrington had recorded the time of the arrest in their notes and had structured their notes (and then their first statement) in a sequence which suggested checks on the accused were undertaken prior to the search, to deliberately and falsely bolster the purported ‘reasonable suspicion’ to found the basis for the search. If the defence had not made a request for the provision of the Police Radio Communications and the Shield Audit and had the Police Radio Communications not referred to the accused being in handcuffs, it would never have come to light that, in fact, the arrest (and therefore the commencement of the search) occurred prior to the checks having been conducted. 342 T 720.35-721.18. -- 84 of 120 -- [2024] SADC 31 81 Basis of Any ‘Reasonable Suspicion’ held by Metschke 394 Counsel for the accused contended that the search of the vehicle was commenced by Metschke, prior to the arrest and well prior to Glasson and Hazel’s arrival at Rickaby Street. As such, the issue for the Court to determine was whether Metschke held the requisite suspicion pursuant to s 52(9) of the Act, when he commenced that search. 395 It was submitted that all of the evidence supported a finding to the effect the search was commenced by Metschke. 396 In addition to the accused having been arrested for hindering the search, Metschke had conceded, in evidence, that he made the decision to search the vehicle. Metschke’s notes specifically listed the ‘CSA suspicions for search’, whereas Glasson’s notes, and first statement, made no reference to him exercising any search power under s 52 of the Act and instead described him and Hazel as having ‘assisted’ Widdrington and Metschke. As the accused had already been arrested by the time Glasson and Hazel arrived, that assistance must necessarily have been with the search. 397 It was submitted that consistent with the TAC Order, and notwithstanding the evidence of Metschke (and Glasson) to the contrary, the intention was always to both stop and search the vehicle, irrespective of whether there was reasonable suspicion for the purposes of s 52(9). In this respect, while it was conceded that prior to the search commencing, both Hazel and Glasson had more information about the accused than Metschke and Widdrington, the very fact that neither Metschke or Widdrington asked why they were to stop the vehicle, supported a finding that the vehicle was always going to be both stopped and searched, consistent with the secondary plan in the TAC Order. 398 Metschke had given evidence that the following matters had formed the basis for his reasonable suspicion under s 52(9) of the Act:343 • the intelligence he received at the briefing on 15 May 2020 (including the TAC Order). • The accused’s brief attendance at the property. • The accused stated that he had just been to visit his mother, which was known to be false. • The accused looked different in appearance to that in his driver’s licence photo. 343 T 164.18-28. -- 85 of 120 -- [2024] SADC 31 82 399 Counsel for the accused addressed each of these items in turn, to develop an argument that combined, they did not amount to reasonable suspicion for the purposes of s 52(9) of the Act. Briefing/TAC Order 400 The focus of the briefing was Nghiem, not the accused. It was submitted that it was clear from the TAC Order, authored by Hazel, that Nghiem was known to obtain drugs on a Wednesday and to sell them, from locations away from the property, from Thursday onwards. Although Metschke had given evidence that, in his view, it was likely that Nghiem would have reloaded his drug supply prior to it being depleted, there was simply no evidence to support such a proposition. 401 As such, it was submitted that the police intelligence supported a finding that there was not likely to be any drugs at the property in any event on the relevant date, namely 20 May 2020, it being a Wednesday. Attendance at the Property 402 Metschke’s evidence was that he relied on the fact that the accused was seen to briefly attend at the property, shortly prior to the vehicle being stopped. 403 It was submitted that there was simply no cogent evidence that the accused had in fact interacted with the house at the property in anyway. Rather, the surveillance log on 20 May 2020 established that the vehicle was seen to be parked in the driveway of the property at 1649, there was no change as at 1700, and at 1705 the vehicle was observed reversing out of the driveway. Having regard to the evidence given by both Metschke and Glasson as to why they had not fully documented what they were doing as part of the covert operation on 15 May 2020, that is, because details were being recorded in the surveillance log by others, the Court could be satisfied of the accuracy of the surveillance log. 404 It was submitted that there was no evidence that the accused had any interaction with the property and that the only information known to Metschke on this topic, which could feed into any suspicion, was the presence of the vehicle at the property as outlined in the surveillance log. There was simply no evidentiary basis that the accused had in fact interacted with the premises. 405 Further, there was no evidence that Metschke was aware of any other connection between the vehicle and drug activity (or suspected drug activity), save for the vehicle’s presence at the property. 406 The evidence given by Metschke as to his reasonable suspicion had made no attempt to distinguish between the requirements of s 52(6) and s 52(9) of the Act. Here, as in R v Nguyen,344 the relevant suspicion must have applied to the vehicle. It was submitted that there was ‘an enormous missing link’ in the evidence insofar as there was no reliable evidence of any interaction between the driver of the 344 (2013) 117 SASR 432. -- 86 of 120 -- [2024] SADC 31 83 vehicle (or the vehicle at all) and the property, save for the vehicle’s presence in the driveway for a short period of time.345 Statement by Accused about Visiting his Mother 407 Metschke gave evidence that after the accused had produced his driver’s licence but prior to his arrest, he had a conversation with the accused, during which the accused said he was just coming from visiting his mum at her house. He said that he knew that answer was false.346 He said when he confronted the accused about that being a lie, the accused did not answer him and sort of froze up.347 408 Metschke did not record this conversation verbatim in his notebook. As such, there was no record as to precisely what was said by the accused, or when this was said. The Court was referred to the decision in McLachlan v Opie,348 which was said to be apposite, as what was being relied upon by the prosecution was a statement said to have been made by the accused, contrary to his interests, and in those circumstances, it was simply unsafe to rely on that evidence, particularly given what were said to be real doubts the Court should have with respect to Metschke’s reliability (and credibility) in general. 409 In addition, without knowing precisely what question was asked by Metschke, and what words the accused used when answering that question, it was impossible to determine if, in fact, the accused’s answer was a lie. For example, he may have been at his mother’s house immediately before stopping briefly at the property in the driveway. An example was used of someone coming from work to court and stopping to get a coffee on the way. Would it be a lie if that person said they had come from work to court? 410 Further, it was submitted that it would not be at all unusual for someone, having been stopped and questioned by police, and then told they had lied, to be taken aback by that and then pause, rather than to continue to engage. The Court was referred to what was said by the Chief Justice in R v Marafioti,349 namely that behaviours which may appear ‘odd’ or ‘different’ to some should not too quickly be associated with illegality. It was submitted that guilt could not be inferred simply from someone pausing or freezing after having been confronted and called a liar. 411 The Court was urged to give very little, if any, weight to this evidence. Driver’s Licence Photo 412 It was submitted that the fact a person may look different in person to how they appear in a photograph, on a driver’s licence, possibly taken up to ten years 345 T 667.22-26. 346 T 51.18-24. 347 T 51.30-33. 348 (1957) SASR 53. 349 (2014) 118 SASR 511 at [13]. -- 87 of 120 -- [2024] SADC 31 84 earlier, could not be something necessarily considered suspicious. However, if it was, it was submitted that this should have prompted police to conduct checks on the accused immediately thereafter, prior to commencing any search arising from any such alleged suspicion. This had not occurred. 413 Further, the details the accused gave as to his identity matched those on his driver’s licence. Further questioning of the accused by Metschke as to whether he had been in trouble before only occurred after his arrest.350 Metschke (and Widdrington) only learned that the accused had previously been arrested after the checks were conducted by Gabel, that is, after the accused’s arrest (and therefore after the commencement of the search). Other 414 It was submitted that consistent with the observations of the Court of Criminal Appeal in R v Nguyen,351 an evidential onus lay on the prosecution to adduce evidence from the officer who determined to stop and search the vehicle that the officer, at least, suspected that there were drugs in the vehicle, to justify the detention and search of the vehicle under s 52(9). 415 It was submitted that in this case, none of the officers had given any such evidence, rather they had conflated suspicions they had with respect to the accused, namely that he had drugs in his possession, sufficient to justify a search of the accused under s 52(6). 416 It was submitted that therefore the prosecution had not discharged its evidential onus under s 52(9). Roadside Briefing of Glasson and Hazel 417 The prosecution position at trial was that the search of the vehicle was commenced and conducted by Glasson and Hazel, roadside on Rickaby Street, on the basis of a reasonable suspicion held by them in accordance with s 52(9) of the Act. As previously stated, the accused contended that to the contrary, Metschke made the decision to search the vehicle and the search had commenced before Glasson and Hazel arrived at Rickaby Street. 418 However, counsel for the accused argued that if the Court determined that there were two separate searches, rather than one continuous search, the search of the vehicle commenced by Glasson and/or Hazel was unlawful as it was tainted by the provision of information obtained unlawfully from the accused after his (unlawful) arrest, but before his arrest rights were administered pursuant to s 79A SOA. 419 That information was said to be a statement made by the accused wherein he denied having previously been arrested. Widdrington gave evidence in cross- 350 T 336.37-337.6. 351 [2015] SASCFC 7 at [27]. -- 88 of 120 -- [2024] SADC 31 85 examination wherein he agreed with a proposition put to him that this conversation with the accused occurred after his arrest, but prior to the provision of his arrest rights.352 420 It was submitted that the Police Radio Communications established the accused was placed in handcuffs (and arrested) at about 5:13pm. There was no dispute that the accused’s arrest rights were administered at 5:33pm, some 20 minutes later. It was submitted there was no explanation for that delay, such that there had been a breach of s 79A SOA and the evidence of anything said by the accused during that delay should therefore be excluded. 421 It was submitted that neither Glasson or Hazel gave evidence that they held a reasonable suspicion under s 52(9) prior to being briefed on the roadside by Metschke and/or Widdrington.353 422 In addition, the evidence as to precisely what was communicated by either Metschke and/or Widdrington to Hazel and Glasson during that briefing was unclear. None of the officers had made a note of what was said during that briefing and none of the officers could give evidence as to what was specifically said at that time. 423 Further, it was submitted that as both Hazel and Glasson had relied upon the fact that the accused, rather than the vehicle, had come and gone from the property, meant there was a ‘missing link’ with respect to any alleged suspicion. 424 In all of these circumstances it was submitted that the prosecution could not establish that either Glasson (or Hazel) held a reasonable suspicion to search the vehicle under s 52(9). Police Impropriety 425 Counsel for the accused argued that the search was unlawful, the evidence of the fruits of that search should be excluded. In support of that submission, it was argued that the evidence demonstrated multiple occasions where the officers had acted improperly not only on the roadside, but during the investigation. 426 The Court was urged to find that the similarity in the errors made by Metschke and Widdrington in their notebooks in term of the time the vehicle was stopped and the sequence of events was not accidental. Rather, it was the product of them determining together to draft their notes in this way, to give the false impression that they had much more information about the accused than they in fact had, prior to his arrest. 352 T 422.4-34. 353 Noting this is not strictly accurate having regard to Hazel’s evidence at T 485.21-24. -- 89 of 120 -- [2024] SADC 31 86 427 Further, the notes themselves did not comply with the requirements of the General Order as to Notebooks, demonstrating a general attitude on the part of the officers in terms of their approach to serious matters of police procedure. 428 The dissemination of material as between the officers involved had not been properly explained, and in particular why it was that Metschke had forwarded a copy of his notes to Widdrington in the week before the voir dire. This wholesale dissemination and exchange of material, and in particular the Shield Audit, had contaminated the memories of the witnesses and led to a significant change in the version of events as presented at trial by each of Metschke, Widdrington and Glasson, and as outlined in the Facts of Charge for the hinder. 429 In those circumstances, the Court simply could not be satisfied of the reliability or credibility of those witnesses, particularly when it also considered the absence of detailed notes properly outlining precisely what was said and when on the roadside, either by the accused, or during the briefing of Hazel and Glasson. 430 It was submitted that the parallels in what had occurred in this case, and that in R v AS and Raynor (No 1),354 also involving officers from the SOCB, was of significant concern, and demonstrated that such practices were widespread and ought not be condoned by the Court. Prosecution Submissions 431 The prosecution submitted that the search of the vehicle was lawful for the following reasons: 1. Metschke and Widdrington lawfully stopped the vehicle in the exercise of their powers under s 40H RTA. 2. Metschke and Widdrington were acting lawfully and pursuant to s 40V RTA and/or s 96(1) MVA when they checked the accused’s licence. 3. Metschke and Widdrington were acting lawfully when they spoke with the accused prior to his arrest and were perfectly entitled to approach and question him.355 He had volunteered the answers to those questions. 4. The arrest was lawful. It was submitted that the Court should accept the evidence given by both Metschke and Widdrington that the accused had flexed or tensed his arms, in addition to saying he did not consent to the search, being conduct which hindered the search of the accused. 5. There was only a brief and unintentional delay between the time of the arrest and the time the arrest rights were administered, having regard to the fact that during this period, Glasson and Hazel arrived at the scene and were 354 [2023] SADC 60. 355 As observed by Vanstone J in R v Dam & Nguyen; Case Stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131 at [25] -- 90 of 120 -- [2024] SADC 31 87 briefed, and a delay caused by the necessity to obtain a second (working) camera in order to record the procedure. It was submitted the arrest rights were administered at the earliest opportunity. 6. When Metschke and Widdrington pulled over the vehicle, they had not yet determined to search it. It was submitted the Court should accept the evidence given by Metschke, supported by the evidence given by and Glasson, that it would be counterproductive for the police to have stopped and searched the vehicle without a proper basis and that an assessment was to be made once the vehicle was stopped, to determine if that vehicle would be searched. 7. The search was conducted by Glasson and Hazel, both of whom gave evidence that they held the requisite suspicion pursuant to s 52(9) of the Act prior to commencing the search. That reasonable suspicion was based on the following information: • Hazel had been told that the vehicle had attended at the property and the occupant got out of the vehicle, entered the premises and subsequently left the premises shortly thereafter. • The property was known to be Nghiem’s primary residence, and Nghiem was reasonably suspected of being involved in drug dealing. • The checks conducted by Hazel led him to identify a connection between the vehicle and the accused, and the accused had warning flags relating to drugs and a history of drug related searches. • Acting on this information Hazel and Glasson decided to stop the vehicle. They communicated this decision to Metschke and Widdrington who reached the vehicle first and subsequently stopped it. • When Glasson and Hazel arrived at Rickaby Street they were briefed by Metschke (and/or Widdrington) and learned of the accused’s arrest and that he had said he had come from his mother’s house, which was known to be a lie, and had denied having previously been arrested. • Alternatively, if the Court determined Metschke commenced the search, the information he had, namely that the vehicle had been at the property briefly, the accused’s lie as to where he had been, his reaction to being challenged as to that lie and the fact that he did not look the same in appearance to the driver’s licence photo, was more than enough to constitute reasonable grounds under s 52(9). • The Court could be satisfied as to both the reliability and credibility of Metschke’s evidence, and the fact he was defensive during cross- -- 91 of 120 -- [2024] SADC 31 88 examination as understandable given he was questioned at length as to his character and integrity. 432 Alternatively, if the Court was to find the search unlawful, it was submitted that the exercise of the public policy discretion favoured the admission of the evidence. While it was conceded that there were some irregularities with respect to the officers’ notes, some errors in the Facts of Charge relating to the hinder, and the dissemination of material ‘was not desirable’, such conduct was not intentional or deliberate and did not meet the threshold of impropriety required for the evidence of the search to be excluded. Assessment of the Witnesses 433 In this matter, both the reliability and credibility of the witnesses was challenged, and the Court was urged to make adverse findings in this respect, particularly as to the evidence given by Metschke and Widdrington. 434 Before I address the evidence of those two officers, I will deal first with my assessment of the evidence of Hazel and Glasson. 435 Hazel gave his evidence in a matter of fact way and made concessions where appropriate. I am satisfied that, generally speaking, his evidence was reliable and credible. 436 Hazel’s evidence was important as he was the officer who conducted the initial checks on the vehicle, and the accused, which led to Hazel and Glasson jointly deciding that the vehicle was an appropriate vehicle to stop. This decision was made in the context of them performing the role of a ‘stop car’ as part of the Nghiem investigation. The TAC Order expressly stated the contingency plan for that investigation was to conduct a ‘controlled traffic stop’ on a vehicle seen leaving the property ‘to ascertain if a drug deal has taken place’. 437 Hazel denied a proposition put to him in cross-examination that the contingency plan required police to ‘stop and search’ any vehicle seen leaving the property, irrespective of whether there was reasonable suspicion under s 52(9). 438 Hazel explained that there was no need for the TAC Order to refer to s 52(9) of the Act in connection with the contingency plan, given the Act was otherwise referred to in the document. I accept that evidence. Further, I accept Hazel’s evidence that it was only after he conducted checks on the vehicle and learned about Than’s connection to that vehicle and his prior history, that they (that is, he and Glasson) decided that they would like to stop the vehicle. I am satisfied Hazel (and Glasson) were being particular about what vehicle (if any) was to be stopped in accordance with the contingency plan, as they did not want to waste what may be only one opportunity to get that decision right. 439 In this respect, both Metschke and Glasson gave evidence that it was counterproductive to stop and search every vehicle seen leaving the address. I -- 92 of 120 -- [2024] SADC 31 89 accept that evidence. However, as soon as any vehicle was stopped by police leaving the address, this had the potential to compromise the Nghiem investigation and to alert Nghiem to the very fact of that investigation. 440 Having regard to all of the evidence, I am satisfied that Hazel and Glasson made a calculated decision to stop the vehicle in accordance with the contingency plan. That is, they identified the vehicle as being an appropriate vehicle to stop to see if a drug deal had taken place (as per the contingency plan). The only way they could ‘see if a drug deal had taken place’ was for the driver and/or the vehicle to be searched. 441 I accept that Hazel now recalls that prior to making the decision to stop the vehicle, he was informed by surveillance operatives that the vehicle had attended the property and that a male occupant had got out of that vehicle and entered the property. However, I consider he is genuinely mistaken as to this recollection. 442 The surveillance log (Exhibit VDD17) contains no record of any such observations being made by those conducting covert surveillance of the property. Rather, those records state only that the vehicle was seen at the property. Further, those records state that for a short period, those observations were not maintained, and further that there was ‘no change’ in terms of what was observed, prior to operatives seeing the vehicle reverse out of the driveway. There is no record in the surveillance log of any person associated with that vehicle being observed interacting with the property, or at all. 443 Both Metschke and Glasson gave evidence that they did not make extensive notes of their involvement assisting covert surveillance operatives, as others were recording the results of that surveillance (presumably in the surveillance log). However, Glasson’s notes refer only to the vehicle, and not any male occupant, seen to attend at the property. 444 If a male occupant of the vehicle had entered the house at the property or approached the front door of the property and interacted with someone at the property (or even if it was observed that there was a male in the vehicle), I would have expected this to be documented in the surveillance log. 445 I also note the concession made by Hazel in cross-examination that it was possible that what had in fact occurred was that it was communicated to him that a car was at the property, he then conducted the checks and because he had seen Than’s name associated with those checks, this caused him to misremember hearing that a male had exited the car.356 446 Hazel’s mistaken recollection may also simply be due to the combination of the fact the vehicle was seen to briefly attend at the property and a male was later found to be the sole occupant of that vehicle and/or the passage of time. 356 T 488.20-36. -- 93 of 120 -- [2024] SADC 31 90 447 Hazel also gave evidence about the various checks he made of the vehicle and the accused, prior to the decision being made to stop it. I accept that evidence. However, the evidence he gave on this issue was limited. He recalled some ‘warning flags attached to (Than’s) name in relation to drugs’ and that there was a history of drug related searches. Hazel did not give evidence about what those warning flags were (or meant), or when Than had previously been searched for drugs and what, if anything, was found during any earlier such search. 448 It was not the prosecution case that Hazel, armed with this information, then formed the requisite reasonable suspicion to stop and search the vehicle under s 52(9) of the Act, nor did Hazel give evidence to that effect. Rather, the prosecution case was that the vehicle was stopped under the RTA by Metschke, and that the search of the vehicle was only commenced by Hazel and Glasson after they arrived at Rickaby Street. 449 I accept that Hazel now genuinely believes that when he started to search the vehicle, upon his arrival at Rickaby Street, that he had reasonable suspicion to search the vehicle, and that he believes he then acted on that reasonable suspicion. For reasons which follow, I am satisfied the search had already commenced before Hazel’s arrival at Rickaby Street. 450 I also accept Hazel’s evidence that he had never seen the notes prepared by either Metschke or Widdrington nor any of the statements that they had made and that he had not spoken to Glasson, Metschke or Widdrington about his evidence.357 451 Turning now to the evidence of Officer Glasson. 452 Officer Glasson is a very experienced police officer, holding the rank of Detective Sergeant. Glasson’s evidence was interrupted and was given over three days listed several weeks apart. He was subjected to rigorous and extensive cross- examination, directed at attacking both his reliability and credibility. 453 I have carefully considered Glasson’s evidence. Having done so, I am satisfied that, generally speaking, Glasson was both a credible and reliable witness. He was calm, considered and responsive. He made a number of relevant concessions, including that the search must have commenced before the accused’s arrest, in order for him to have been arrested for hindering it. He also conceded that the provision by him of the entire Shield Audit report to the officers by email had the potential to contaminate their individual recollections of relevant events and therefore impact the evidence they gave on the voir dire. 454 I have carefully considered Glasson’s evidence as to the circumstances in which a decision was made to stop the vehicle. I accept the evidence he gave as to why it was that an earlier vehicle seen at the property was not stopped. Although part of the reason related to issues with radio communication, an important component was that police were unable to conduct any checks on that particular 357 T 503.10-504.10. -- 94 of 120 -- [2024] SADC 31 91 vehicle. I accept Glasson’s evidence that they had only one opportunity to do it, that is, stop a vehicle leaving the property as part of the contingency plan, so it was critical that they took the right opportunity. Conducting checks to ascertain who was driving any vehicle observed was an important step that needed to be undertaken so that a landlord or employee was not the target. 455 This is consistent with my earlier observation – that is, police simply stopping any vehicle that left the property would alert Nghiem to the investigation and potentially compromise it. Police had to make the most of that one opportunity. 456 I accept Glasson’s evidence that after Hazel conducted checks on the vehicle, which revealed the vehicle’s owner was a female, who had a son, who had previously had some association with controlled drugs, he and Hazel had a discussion and determined that this was a vehicle that they would try to stop. 457 However, as previously stated, I am also satisfied, that having stopped the vehicle, it was always intended the vehicle would be searched, as that was the stated purpose of the contingency plan. As such, I reject Glasson’s evidence wherein he denied a proposition that the vehicle was to be searched once it was pulled over. 458 Glasson did not give evidence that the information obtained about the vehicle (and the accused) by Hazel, in addition to the material he and Hazel already knew about Nghiem, amounted to ‘reasonable suspicion’ for them to stop (and, by necessary extension, search) the vehicle pursuant to s 52(9) of the Act. 459 However, he gave evidence that the TAC Order was not simply a SAPOL endorsement to turnover and search cars without a lawful justification. Implicit from that evidence, is that he must have thought there was the requisite reasonable suspicion to stop and search the vehicle under s 52(9) of the Act. The Court cannot assess whether such a reasonable suspicion did, in fact, exist, at the time Hazel and Glasson made that decision, in the absence of more specific evidence as to precisely what Hazel and Glasson knew about the accused from the checks made by Hazel.358 Further, there was no evidence from Glasson on this specific issue.359 460 I accept that Glasson now genuinely believes that when he started to search the vehicle upon his arrival at Rickaby Street, he had reasonable suspicion to search it under s 52(9). However, given the circumstances as they unfolded on 20 May 2020, and for reasons further outlined hereunder, I am satisfied that what he was in fact doing was assisting Metschke with a search that had already been commenced by Metschke. 461 Glasson’s reluctance to provide the Shield Audit and the Police Radio Communications to defence counsel, by way of disclosure, rather than under the compulsion of a subpoena was the subject of lengthy cross-examination. I accept 358 Hazel’s evidence on this topic is outlined at [251] herein. 359 See also discussion at [537]-[541] and [581] herein. -- 95 of 120 -- [2024] SADC 31 92 Glasson’s evidence that the language he used in emails addressing these requests reflected his concern to ensure that there would be some agreed position in terms of the correct process by which police would respond to such requests in the future, having regard to the volume of work required to do so. I accept his evidence that he was not aware that disclosing that material would reveal issues with the timing of the checks made by Widdrington and thus result in close scrutiny of police conduct in this matter. 462 Glasson said that he disseminated the Shield Audit to the officers for them to each refresh their memory of the searches they had undertaken with respect to the matter, given they undertook so many such searches in the course of their employment. It is unfortunate that he did so shortly prior to those witnesses giving evidence on the voir dire and that he included all of the officers’ searches in the one email. This obviously had the potential to contaminate those officers’ recollections. 463 Glasson also explained that his email attaching the Shield Audit report had informed the officers that this material had been requested by defence, because it was unusual for him to have this information and the officers would likely be wondering how he came to have it. I accept that evidence and specifically I reject any submission that he had included this in his email to warn them that defence had this material. 464 Glasson did agree that he could (and should) have taken the time to separate the material so that the officers did not also receive information about other officers’ interactions with Shield. 465 Having regard to all of the evidence, while it is possible he did so, I cannot find that Glasson sent the Shield Audit in the form that he did for any improper purpose, for example, to give the officers an opportunity to craft their evidence so that it fit with the objective evidence as per that material. 466 I also accept Glasson’s evidence that shortly prior to the voir dire, he was aware that Widdrington had a concern insofar as his recollection of the sequence of the audio communications differed from what was in the Police Radio Communications, but that he (that is, Glasson) had not had any similar concerns regarding the sequence of events. 467 I accept Glasson’s evidence that it was not common practice within the SOCB for officers to disseminate their affidavits to others involved in the same investigation by email, albeit he was aware that it had happened on occasions. I also accept Glasson’s evidence that he rarely used encrypted applications to communicate with respect to investigations and that these applications were more frequently used for administrative purposes. 468 Glasson acknowledged that he had deleted some Signal messages exchanged between him and Metschke relevant to the investigation (and specifically relevant to a defence request for the production of phone and call charge records) and had -- 96 of 120 -- [2024] SADC 31 93 not downloaded them onto the file. While not best practice, I am satisfied that this was a matter of oversight only, noting that such communications were with respect to a peripheral administrative matter. 469 Turning now to the evidence of Metschke and Widdrington. 470 I do not doubt that both Metschke and Widdrington are hardworking and committed officers, whose actions are focussed upon the detection and reduction of crime, particularly drug crime and thus prioritising the safety of the community. These obligations and the nature of their duties must necessarily exact enormous pressure on officers in their position. 471 I am mindful that each officer gave evidence over a number of separate days and that they were both vigorously cross-examined on matters relevant to their integrity generally. 472 Notwithstanding this, after having carefully considered the evidence given by both Metschke and Widdrington, I am left with significant concerns as to both the reliability of their evidence and the truthfulness of important aspects of that evidence. 473 As to the issue of reliability, both Metschke and Widdrington gave evidence at significant odds with the contents of their notes and first statements. 474 They each gave evidence that when they completed their first police statement, they misconstrued (or misinterpreted) what they had written in their notes as to what occurred on 20 May 2020, thus resulting, in them both providing an initial statement containing significant errors in terms of the timing of relevant events and the sequence of events. This must mean that within one month of the relevant date, when each officer sat down to prepare their initial statement, they were both significantly mistaken in their memory of what, in fact, occurred that night. 475 If each officer’s memory of events was confused and unreliable as at June 2020, I can have no confidence that the evidence they each gave of their recollections at the voir dire, well over two years later, was reliable. 476 Despite Widdrington’s notes being inaccurate and lacking in transparency, he refused to concede this, instead insisting that as the notes did accurately contain a record of everything that had occurred, it was of no moment that he had listed the sequence in which those events had occurred out of order. 477 The fact the events were listed out of sequence was not only contrary to the General Order – Notebooks but led any reader of those notes (apparently including Widdrington himself) to have a completely false impression of how the events unfolded. -- 97 of 120 -- [2024] SADC 31 94 478 Widdrington did concede in cross-examination that the evidence given by him was a product of reconstruction, informed by the contents of the Police Radio Communications and the Shield Audit. Metschke refused to make that latter concession, instead maintaining that he now had an accurate and independent recollection of what occurred on 20 May 2020, consistent with his evidence-in- chief. Metschke’s refusal to acknowledge that his evidence was clearly the product of reconstruction was of concern, as was his refusal to accept that providing a copy of his statement to Widdrington had the potential to contaminate Widdrington’s memory of events. 479 I am satisfied that the evidence given by both Metschke and Widdrington as to the sequence of events on 20 May 2020, and, to some extent, what, in fact, occurred (irrespective of the sequence in which it occurred), was reconstructed to fit with what could not otherwise be disputed– that is, the sequence and fact of events as evident both from the Police Radio Communications, the NICE Report and the Shield Audit. 480 Importantly, I am not satisfied that either Metschke or Widdrington now have an accurate and independent recollection of what occurred that night, nor a genuine recollection of the accused allegedly flexing or tensing his arms, this being one of the reasons they now both recall and led to his arrest for hindering the search. 481 Neither officer recorded this detail in their notebooks. Metschke’s evidence that the statement in his notes that the accused was ‘refusing/preventing search’, was intended to include the accused flexing or tensing was unconvincing and I do not accept it. His notes in fact record the basis for the arrest as the accused was ‘Refusing/preventing search …on the grounds that he “does not consent’’’. Widdrington’s notes refer to the accused stating, several times, that he would not consent to the search. 482 Metschke acknowledged that he would expect the reason for the arrest to be included in his notebook. Widdrington said it would be unusual to omit from his notes (or statement) the basis for a criminal charge. 483 In addition, neither Metschke nor Widdrington recorded this detail, that is, the accused flexing, tensing or staunching, in either their first or subsequent statements. The explanation given for this was that these statements had as their focus the major indictable offending. However, in Metschke’s first statement, he outlined the circumstances in which the accused was arrested for hindering the search and made no mention of any flexing or tensing of the arms. 484 Further, although the Facts of Charge were authored by Hazel, Hazel must have relied on information provided by Metschke and/or Widdrington as to what had occurred in terms of the circumstances of that alleged offending, when he prepared that document. The Facts of Charge make no reference to any tensing or flexing, but, curiously, include a statement that the accused ‘refused to allow police access to the vehicle’, being something both Metschke and Widdrington agreed -- 98 of 120 -- [2024] SADC 31 95 had not, in fact, occurred. While this latter detail may have been the product of some miscommunication between the officers and Hazel, the absence of any reference to flexing or tensing in the Facts of Charge, being a document intended to accurately outline the circumstances of the alleged summary offending, is telling. 485 Metschke’s evidence on this topic was also inconsistent. He initially said that he felt the accused’s right arm flex, but that he was uncertain what the accused had done with his left arm. Later he said that Widdrington had told him that he had also felt the accused flex his left arm. 486 In addition, when Widdrington gave his evidence-in-chief on this issue, he said nothing about any alleged flexing (or staunching). He referred to this for the first time only in cross-examination and when questioned specifically as to the legality of the arrest. 487 Metschke and Widdrington denied that they had, together, concocted the detail that the accused was flexing, to provide a legitimate basis for the arrest. I cannot make a finding of fact that they did. However, when that evidence is carefully considered in the context of the other evidence, to be detailed hereunder, that explanation remains a very real possibility. 488 Metschke and Widdrington were both extremely poor witnesses, with many of their answers in cross-examination being evasive and unresponsive. 489 As one example, as to Metschke, I refer to the evidence he gave as to his role was with respect to the Nghiem investigation. When first asked specifically if he was assigned a role as a stop car, his response was that he could not recall being assigned a specific role.360 However, when immediately further pressed on this topic, he conceded that was his role.361 Another example is the evidence he gave about the way he had structured his first statement in terms of the sequence of events.362 Metschke’s evidence can be best described as guarded. 490 As to Widdrington, I refer to his decidedly unsatisfactory evidence as reproduced at paragraph 200 herein.363 Widdrington often resorted to the use of the response ‘anything is possible’ when pressed on any important (or contentious) topic. This was of little assistance to the Court. 491 The notes made by both Metschke and Widdrington: • suggest (albeit do not expressly state), in error, that the vehicle was stopped at 1725 (5:25pm). 360 T 177.5-7. 361 T 177.8-22. 362 T 78.21-35 reproduced at [116] herein. 363 T 365.38-367.5. -- 99 of 120 -- [2024] SADC 31 96 • do not include the time of the accused’s arrest for hindering the search. • contain the same errors in terms of sequence relating to when Widdrington conducted checks on the accused via Gabel and the substance of the information he in fact obtained from Gabel at that time, rather than information only learned from further checks conducted by him later at the City Watchhouse. 492 It is clear from an analysis of the Police Radio Communications, the NICE report and the Shield Audit, and I find, that the vehicle was stopped much earlier than 5:25pm, probably between 5:05pm and 5:09pm. Further, it is clear from those same materials, and I find, that the checks conducted by Gabel on Shield in response to Widdrington’s request of her to do so, were commenced at 5:15pm. The accused had already been arrested for hindering the search at that time. 493 Widdrington refused to concede that there was an error in his notes as to the time the vehicle was stopped, given that the time he had recorded was effectively ‘close enough’ to being accurate. However, the time the vehicle was stopped was a critical factor in the Court’s determination as to whether the search was lawful, given the findings made hereunder. The time various events occurred and the sequence in which they occurred was critical in the court’s assessment of the lawfulness of the search. As both Metschke and Widdrington are experienced officers, they should be well aware of the need for their notes to be as accurate as possible and in chronological sequence, given that those notes are often the only documented record of what has transpired at any given time. 494 There were internal inconsistencies in the evidence given by Metschke as to both how and when he completed his notes. 495 Metschke said that when he prepared his first statement, he misconstrued his notes to mean the vehicle was stopped at 1725 as that was the time written next to that event in his notebook. The error therefore was that he construed that time as being the time of the event recorded, rather than the time the record was made of the event.364 496 In cross-examination, initially Metschke gave the following evidence:365 Q. When you prepared your notes in relation to this matter, in particular on 20 May 2020, when did you prepare those notes. A. The notes were prepared throughout the shift. Q. So were they, for example, when we see an entry at 1733, was that entry made at that time. A. Yes. 364 T 257.4-14. 365 T 92.32-93.4. -- 100 of 120 -- [2024] SADC 31 97 Q. And so where we see a time entry, that corresponds with the time of the event and also the time that you made the note; is that correct. A. Yes. 497 However, later Metschke was cross-examined about what certain times meant in his notes and whether they were indicative of the time of the event recorded, or the time the record was made of the event.366. Importantly, he said, as to a note appearing next to the time ‘1741’, ‘advised of right to apply for bail’:367 Q. And does that refer to a time when you advised the accused that he had the right to apply for bail. A. Yes. Q. And was that note made contemporaneously or at a later time. A. So with that note and with all the notes where times are in the margin I'm writing the notes at the time - at that time. 498 Having carefully reviewed Metschke’s evidence on this topic, I remain uncertain as to whether the evidence can be properly interpreted to the effect that the times appearing in his notes reflect the time of the event or the time the note was made of the event. It seems to be a mixture of both, depending on whether Metschke had his notebook available at the time. 499 While it is possible that Metschke was simply mistaken when he assumed the time of 1725 in his notes was the time the vehicle was stopped, that does not explain how it came to be that Widdrington made the identical mistake in his notes. 500 Further, Metschke’s notes were otherwise, admittedly, incomplete, out of order and contained no notation as to the time the notes were either commenced or finished, being contrary to the procedure outlined in the ‘General Order – Notebooks.’ 501 Widdrington gave evidence he tended to record his notes after relevant events had occurred, that is, when he got back to base, rather than when the events were unfolding. Notwithstanding the similarity in their notes, he denied having sat down with Metschke to create the notes, together. He denied discussing with Metschke those matters he was intending to record in his notes. He maintained that the preparation of his notes was a completely individual process.368 Metschke gave similar evidence. 502 I cannot accept that evidence. 366 T 256.24- 260.4. 367 T 258.20-27. 368 T 17.1-17. -- 101 of 120 -- [2024] SADC 31 98 503 In making this finding I have had regard to all of the evidence but in particular the evidence each officer gave about the sequence of events. 504 I do not accept Metschke’s evidence as to why he recorded the ‘CSA Suspicions for search’ in his notebook in the terms and form as they appear in his notes. 505 Metschke gave evidence that these notes were the final entry he recorded in his notebook at the end of the shift on 20 May 2020. If that is the case, then the events of the evening must have been (very) fresh in his memory at the time the notes were made. He gave evidence that only five matters informed his reasonable decision to conduct the search – that is, the information he received at the briefing on 15 May 2020, the TAC Order, the brief attendance of the accused at the property, the accused’s lie about having come from visiting his mother and the difference in the accused’s appearance to that on his driver’s licence photo. However, many more matters are listed in Metschke’s notes as having informed that reasonable suspicion, including, relevantly: • ‘Than using a vehicle not registered to him’. Hazel obtained this information when he conducted checks on the vehicle before it was stopped, being information not communicated to Metschke at that time.369 • ‘Police checks – drug user warning’. Widdrington only learned this information from Gabel after the accused’s arrest for hindering the search. • ‘prior search of H/A located cannabis’. Widdrington only learned this information when he conducted checks on Shield after arriving at the City Watchhouse, well after the arrest and the search. • ‘prior search of phone showed photos of cannabis crop - suspected ecstasy’. Again, Widdrington only learned this information when he conducted checks on Shield after arriving at the City Watchhouse, well after the arrest and the search. • ‘Checks showed that he had been previously arrested but Than denied ever being arrested’. Metschke gave evidence that the conversation he had with the accused about whether he had previously been in trouble before occurred after his arrest for hindering the search. 506 If Metschke in fact made these notes at the end of his shift on 20 May 2020, then, at that time, he must have known that he did not have (at least some of) this information prior to the accused’s arrest for hindering the search. Leaving aside the question as to precisely when the search commenced, some of this information was only learned by Widdrington after they returned to the City Watchhouse. Widdrington must have communicated this information to Metschke thereafter for it to be included by Metschke in his notes. Metschke must have known that this 369 And noting there was no evidence that Hazel ever communicated that information to Metschke. -- 102 of 120 -- [2024] SADC 31 99 information was only ascertained by Widdrington well after the search had been completed. It is simply implausible that at that time, so soon after the relevant events, he could be so mistaken about what information he did in fact have at the time he decided to search the accused and the vehicle. He must have known that the matters he listed in his notes did not, in fact inform his reasonable suspicion to search the vehicle. 507 Metschke’s explanation as to how his first statement then came to include the same errors as to sequence and the timing of the arrest, was that he simply misconstrued his notes. However, I simply cannot accept that evidence, in circumstances where Widdrington’s notes contained many of the same errors, which also made their way into Widdrington’s first statement. I note in particular paragraph 8 of Widdrington’s first statement which: 1. misstated the information he had received from Gabel about the accused as including the information that cannabis had been located at his home and that he had images on his mobile phone (thus replicating two of the alleged bases for the CSA suspicions as listed, in error, in Metschke’s notes); and 2. misstated the sequence of events, insofar as it stated he had received information about the accused from Gabel prior to the arrest. 508 The evidence given by Metschke as to why he sent Widdrington a copy of his notes shortly prior to them both giving evidence at the voir dire and why he informed him that he had made an error, in his first statement as to the sequence of events, was also unconvincing and I do not accept it.370 509 Metschke’s evidence was that he sent Widdrington a copy of his notes as Widdrington had a query as to their location prior to stopping the vehicle. However, Widdrington’s notes specifically record that location. Widdrington agreed he had no reason to seek any clarification from Metschke on this issue and, contrary to Metschke’s evidence, he did not recall asking Metschke to provide him with a copy of his notes, albeit (again) saying, unhelpfully, that everything was a possibility. 510 Metschke explained that he told Widdrington about the mistake he had made in his notes as to the sequence of events, as he was trying to clarify how the mistake had come about.371 I have struggled to make sense of this evidence. The Police Radio Communications and Shield Audit confirm the true sequence of events, that is, when various checks were done with respect to the accused by all team members, including the first checks made by Widdrington. As such, Metschke could not have ‘corroborated’; his original version (ie that the checks were done by Widdrington before the arrest) either by checking phone records or speaking with Widdrington. 370 See evidence referred to at [138]-[142] herein. 371 See evidence given at T 215.17-216.2, reproduced at [144] herein. -- 103 of 120 -- [2024] SADC 31 100 511 I have carefully considered whether the discrepancies in the notes and initial statements made by both Metschke and Widdrington can be explained on the basis of simple human error or misunderstanding in the face of heavy (and similar) workloads and/or the passage of time. As I said, I am mindful of the significant pressures facing officers, particularly those doing the important work of the SOCB. 512 However, after carefully considering all of the evidence, I am satisfied that the only reasonable explanation for both the notes (and initial statements) made by Metschke and Widdrington to each contain the same errors as to the time the vehicle was stopped, and the same sequence error, is, that contrary to the evidence given by them, Metschke and Widdrington did discuss the content of their notebook entries, at or about the time those entries were made. 513 I am further satisfied that the list of ‘CSA Suspicions for search’ included in Metschke’s notes was created by him in consultation with Widdrington and was not an accurate description of the information in fact available to Metschke either at the time he decided to either stop the vehicle and/or the time he informed the accused that he intended to search both him and the vehicle. 514 I am further satisfied that both Metschke and Widdrington must have known what information was, and was not, known to them at the time of the accused’s arrest, when they made these notes towards the end of their shift on 20 May 2020. It is simply implausible that their memory of the sequence of events was already mistaken, and in the same way, as at that time. Findings of Fact Why was the Vehicle stopped? 515 Metschke gave evidence that the vehicle was stopped under the RTA. 516 Section 40H(1)(a) RTA provides the power for an authorised officer to direct the driver of a vehicle to stop the vehicle for the purpose of or in connection with exercising other powers under a road law. A ‘road law’ is defined to mean the RTA, the MVA, or rules or regulations made under either of those two Acts. 517 Metschke’s evidence was that he stopped the vehicle for the purpose of exercising the power under s 40V RTA. There was no evidence that the vehicle was observed to be driving erratically, or, for example, that Metschke intended to stop the vehicle to administer an alcotest. 518 Metschke gave evidence in chief that after stopping the vehicle he and the accused had a conversation on several topics. The first topic discussed was the accused’s personal particulars. He said the accused told him his name, date of birth -- 104 of 120 -- [2024] SADC 31 101 and address. He said the next step was to request the accused ‘to produce identification to confirm who he was’.372 He gave the following evidence:373 Q. And following that, did you request for his driver's licence. A. I requested for identification and he's produced a driver's licence. 519 During cross-examination, Metschke confirmed his understanding that he could utilise s 40H RTA to stop a vehicle for the purposes as set forth in s 40V RTA, namely, to request a person to provide their personal particulars. Later in cross-examination, he acknowledged that s 40V(3) RTA only authorised him to direct the accused to produce evidence to confirm his identity if he suspected on reasonable grounds that a personal detail given by the person was false or misleading. He acknowledged he had no such suspicion until after the accused had presented his driver’s licence and he saw the photograph on it, which, in his view, differed in appearance to the accused. In those circumstances, s 40V did not authorise Metschke to request the accused produce evidence to confirm his identity. 520 Section 96(1) of the MVA authorises a police officer to request the driver of a motor vehicle to produce their driver’s licence or learner’s permit, either forthwith or within 48 hours of such a request being made. 521 When counsel for the accused cross-examined Metschke, counsel summarised the evidence given by him during examination-in-chief in terms to the effect that Metschke had requested the accused produce his driver’s licence, and Metschke agreed that was an adequate summary of that earlier evidence. Counsel for the accused then conceded, during closing submissions, that Metschke had the power to stop the vehicle to exercise the power under s 96(1) MVA. 522 However, Metschke did not give evidence in chief that he made a request for the accused to produce his driver’s licence, either pursuant to s 96(1) MVA or at all. Rather, Metschke’s evidence was that he requested the accused produce ‘identification’ to confirm who he was. 523 Viewing this aspect of the evidence in isolation, I cannot be satisfied that Metschke did, in fact, stop the vehicle ‘for the purpose of or in connection with exercising other powers under a road law’, because the circumstances, as he described them, do not fit either with an exercise of power under either s 40V RTA or s 96 MVA and no other relevant ‘road law’ was identified by Metschke as providing the basis for the vehicle stop under s 40H RTA. 524 Metschke’s evidence that he stopped the vehicle under the RTA mirrors what is contained in his second statement dated 28 February 2023 at paragraph 5. 372 T 49.38. 373 T 50.7-12. -- 105 of 120 -- [2024] SADC 31 102 Importantly, neither his notes, nor first statement, make any reference to the power he utilised to stop the vehicle. 525 Relevantly, the Facts of Charge include the following narrative immediately after a discussion relating to police observations of the property as part of the Nghiem investigation:374 The vehicle left after about 5 minutes and drove west on Torrens Road, West Croydon. Police conducted checks on the vehicle and the address in which the vehicle is registered to. As a result the most likely driver was ascertained to be the accused in this matter. Police continued to conduct checks on the accused which revealed the accused has drug warnings and numerous drug related searches at his premises as a result of investigations into the accused. With this information and the observations that the accused had just left an address suspected to be involved in the dealing of drugs, Police decided to stop the vehicle. 526 As previously stated, the contingency plan in the TAC Order was described in the following terms:375 If Nghiem continues to stay at the West Croydon property and other vehicles/people attend, a controlled traffic stop will occur on one of the vehicles leaving the address to ascertain if a deal has taken place. Depending on the result, consideration will be made whether a search of the West Croydon property should occur at that time. 527 Metschke denied that having stopped the vehicle, it was always his intention to search it. However, other than speaking to the accused roadside after stopping the vehicle, neither Metschke or Widdrington conducted any further checks with respect to the accused, prior to Metschke informing the accused of his intention to search both him and the vehicle. 528 Metschke’s actions therefore were inconsistent with him seeking further information to make ‘an assessment’ in order to make a properly informed decision whether to search either the accused or the vehicle under s 52(9)(b) of the Act. 529 Rather, Metschke’s actions were entirely consistent with what is recorded as per the Facts of Charge (in terms of what, in fact, happened) and entirely consistent with the purpose of stopping the vehicle, as per the contingency plan. I refer also to my earlier observations and findings with respect to the evidence of Hazel and Glasson and the fact that the vehicle was identified as being appropriate to stop as per the contingency plan in the TAC Order after the initial checks conducted by Hazel. 530 Having regard to all of the evidence, I find that the vehicle was not stopped under the RTA. Rather, the vehicle was stopped pursuant to the contingency plan, meaning it was stopped to ascertain if a drug deal had taken place. This could only 374 Exhibit VDD7 at p 1. 375 T 495.4-11. -- 106 of 120 -- [2024] SADC 31 103 be ascertained if the vehicle and/or its occupant(s) were searched. As such, police must have been purporting to exercise the authority to stop and search the vehicle under s 52(9) of the Act when they made the decision to stop the vehicle. When did the Search of the Vehicle commence? 531 As outlined by the Court of Appeal in Schatto v The King,376 when a vehicle is stopped under s 52(9)(a) of the Act, the time the vehicle is stopped is the time the exercise of the statutory search powers is taken to have commenced. 532 Having regard to my earlier finding, it must therefore follow that the search of the vehicle commenced when the vehicle was stopped on Rickaby Street by Metschke. 533 If I am wrong and the vehicle was in fact stopped under the RTA, then, at the very latest, the search must have commenced at the time the accused was arrested for hindering the search. 534 Both Metschke and Widdrington gave evidence that the accused was informed by Metschke that he intended to search both the accused and the vehicle. For the reasons as previously outlined, I do not accept the evidence given by Metschke and Widdrington that what the accused did to hinder the search included flexing or tensing to prevent a physical search of his person (as potentially distinct from a search of the vehicle). I am satisfied that the accused was arrested for hindering the search simply because he verbally informed Metschke and Widdrington that he did not consent to ‘the search’. 535 Having regard to the language used by both Widdrington and Metschke in their notes, the Facts of Charge and the purpose for which the vehicle was stopped as outlined in the contingency plan, I am satisfied that the only reasonable interpretation of all of the evidence is that the accused was arrested for hindering both the search of the vehicle and of his person. 536 The accused could not have been charged with hindering a search that had not commenced. I am satisfied that at the very latest, the search of the vehicle commenced at the time the accused was arrested for hindering it. This was well prior to Hazel and Glasson arriving at Rickaby Street and prior to Widdrington conducting any checks on the accused via Gabel. Who made the decision to search the vehicle and what information formed the basis for the decision? 537 Hazel and Glasson identified the vehicle as being an appropriate vehicle to stop in accordance with the contingency plan under the TAC Order. 376 [2022] SASCA 129 at [37]. -- 107 of 120 -- [2024] SADC 31 104 538 Neither Hazel nor Glasson gave evidence that they either held a reasonable suspicion to stop and search the vehicle under s 52 or had made any decision to search the vehicle prior to their arrival at Rickaby Street. 539 Although Hazel gave evidence that he formed a reasonable suspicion under s 52(9) of the Act prior to physically commencing the search of the vehicle, and absent any material being provided to him by Widdrington and/or Metschke,377 he did not record in his notebook what matters founded the basis of any reasonable suspicion held by him at that time to search the vehicle. Hazel agreed that he had been trained to record in his notebook matters including any suspicions acted upon to exercise a search power. 540 Similarly, Glasson gave evidence that he formed a reasonable suspicion under s 52(9) of the Act prior to physically commencing the search of the vehicle, but after being briefed roadside by Widdrington and Metschke. He said that it was at that point he was more than satisfied there was enough information for the purposes of s 52.378 However, again, Glasson did not record in his notebook what information formed the basis for any reasonable suspicion held by him under s 52(9). Similarly, he made no mention of him exercising search powers under s 52 in his first statement. Glasson agreed with a proposition that had he been exercising such search powers it would be important to record this in his notes. 541 Perhaps more importantly, it was never the prosecution case that Hazel and/or Glasson had sufficient material to amount to a reasonable suspicion to stop and search the vehicle under ss 52(9)(a) and (b). 542 Metschke in fact stopped the vehicle. At that time, he did not have any of the information that Hazel obtained when conducting the earlier checks on both the vehicle and the accused, which had informed Hazel and Glasson’s decision to stop the vehicle under the contingency plan. 543 It was Metschke who communicated to the accused that he intended to conduct a search under s 52 of the Act. Metschke’s evidence on this topic did not identify whether he was acting under s 52(6) or s 52(9) of the Act or both, noting there is a subtle difference in terms of the requirements as outlined by the Court of Criminal Appeal in R v Nguyen.379 544 Nevertheless, I am satisfied that, on the evidence, Metschke was the person who first determined to search both the accused and the vehicle. 545 In Schatto v The King, the Court of Appeal said:380 Whether there exists a reasonable suspicion must usually be assessed at the time the search is conducted and the statutory powers are exercised. Though it is relevant to take into 377 T 485.6-24. 378 T 530.15-28. 379 [2015] SASCFC 7 at [21]-[22]. 380 [2022] SASCA 129 at [37]. -- 108 of 120 -- [2024] SADC 31 105 account what was known to the police officer at the time the decision to search is made, if more information becomes available by the time the search is undertaken then that further information can be taken into account in order to assess the question of reasonableness. Here, however, the assessment had to be made at the time the vehicle was stopped, for that is when the exercise of statutory search powers commenced, see s 52(9)(a) of the Controlled Substances Act 1984 (SA) …’ (my emphasis) 546 If, as I have found, the search commenced at the time the vehicle was stopped, then it follows that the relevant assessment of what material informed the decision to search must be undertaken at the time the vehicle was stopped. 547 Metschke gave evidence that he formed the reasonable suspicion to search the vehicle based on the following information: • the information he received at the briefing. • the information in the TAC Order. • the brief attendance of the accused at the property. • the accused lied to him when he said he had just come from visiting his mother. • the accused did not look like the person on the photograph on the driver’s licence produced by him.381 548 Of these five matters, only the first three were known to Metschke at the time the vehicle was stopped. The Information received by Metschke at the Briefing382 549 The focus of the briefing was the Nghiem investigation, not the accused. 550 I accept Metschke’s evidence that Nghiem’s fingerprints had been located on a heatsealed bag discovered at an address in Virginia where there were also some 7,000 cannabis plants located and that Nghiem had a significant connection to the property at 225 Torrens Road. I accept Metschke’s evidence that at the briefing he learned that police had other intelligence that Nghiem was involved in dealing other drugs, which Metschke recorded in his notes as MDMA, cocaine and heroin.383 551 Hazel gave evidence that he spoke at the briefing with respect to the TAC Order that he prepared. He gave evidence that police had other information to suggest Nghiem was dealing in drugs namely: 381 T 164.18-30; T 276.3-6. 382 Noting Metschke also gave evidence that he knew some of the information provided at the briefing already because he was one of the officers who attended at the cannabis crop in Virginia. 383 T 276.28-277.26. -- 109 of 120 -- [2024] SADC 31 106 • Intelligence received on 12 February 2019 suggesting that 5,000 gelatine capsules had been delivered to Nghiem’s home address at Pooraka. • Intelligence received on 13 June 2019 suggesting that Nghiem was part of a syndicate involved with the distribution of controlled drugs in the city. • Surveillance conducted in May 2020 during which Nghiem was observed on four separate occasions leaving the house, meeting people quickly in nearby suburbs and then returning home. 552 I consider it is likely that this is the information to which Metschke was referring about intelligence to the effect that Nghiem was dealing in other drugs, noting there was no other evidence of any such intelligence. The Information in the TAC Order 553 The TAC Order was not in evidence. However, the primary goal, or mission, as contained in the TAC Order was to locate Nghiem after he had left the property, making an exchange (ie dealing in drugs), and to then search Nghiem’s vehicle. The contingency plan was to cover off on a possible scenario whereby Nghiem may have dealt in drugs at the property, and to find evidence of that drug deal by stopping and searching a car leaving the property. 554 Metschke’s evidence, contrary to Hazel’s, was that there was not, at that time, sufficient information to provide the basis to issue a General Search Warrant with respect to the property and that part of the Nghiem investigation was to generate reasonable suspicion for a search of the property. 555 Metschke agreed that he knew from the briefing or the TAC Order, that there was intelligence that Nghiem collected drugs from an unknown location on a Wednesday night and dealt in those drugs from Thursday onwards. It was submitted that such intelligence suggested that Nghiem was probably without a controlled substance on Wednesday 20 May 2020. I do not necessarily agree with that submission. 556 While that intelligence was consistent with there being less likelihood of drugs being at the property on a Wednesday night, it does not necessarily follow that there would not be any drugs at the property at such time if that intelligence was otherwise accurate. Further, as no information was to hand as to where Nghiem collected his drugs, having regard to such intelligence, it remained a possibility that drugs were delivered to Nghiem at the property on a Wednesday, rather than him leaving the property to collect same. The Brief Attendance of the Accused at the Property 557 The only information Metschke knew about the presence of the vehicle at the property came from what he heard being said by Hazel and Glasson over the Police Radio Communications. He confirmed he did not receive any other information with respect to this by way of a phone call or via an encrypted application. -- 110 of 120 -- [2024] SADC 31 107 558 That is, he knew from what Glasson said over the Police Radio that the vehicle was at the property, that it had been there for about five minutes and that Glasson and Hazel were ‘definitely interested in taking’ that car. He heard Glasson say, ‘Let’s try and grab this one boys’ and shortly thereafter, heard Glasson say they were caught in traffic and ask ‘are you guys able to get back to this car”. 559 As such, Metschke knew Glasson wanted to stop the vehicle under the contingency plan and that he needed his help to do so. 560 Metschke had no other information about the vehicle, or the accused. He had never previously dealt with the accused. 561 He was not told about the results of any checks conducted on the vehicle (or the accused) by any other officer, prior to stopping it. 562 There was no evidence that Metschke knew that before the vehicle had attended at the property, another vehicle had also briefly attended at the property. 563 There was no evidence that Metschke was informed of any interaction between the accused and the property, albeit the fact the accused was driving the vehicle shortly after the vehicle was observed at the property, was a factor in Metschke’s decision making. 564 The remaining two matters identified by Metschke as forming part of the basis for his reasonable suspicion to search the vehicle were not ascertained by him until after the vehicle was stopped. The Difference in the Accused’s Appearance to that on his Driver’s Licence Photo 565 Metschke gave evidence that the accused looked different in person to the photograph on the driver’s licence produced by him. He also recorded this in his notebook and in his first statement. 566 There was no evidence by way of photographs or video evidence depicting the accused’s physical appearance as at 20 May 2020. The accused’s driver’s licence was marked for identification but not tendered in evidence. The date that driver’s licence was issued is unknown. 567 Obviously, the time which has passed between the time the licence was issued (and therefore when the photograph on that licence was taken) and the date of comparison, will be critical in determining what, if any, significance can be attached to any apparent difference in appearance of the person purporting to be depicted therein. The mere fact of any difference in appearance must carry limited weight. The Accused’s Lie about having come from visiting his Mother 568 Metschke gave evidence that after the accused produced his driver’s licence, and at a time when he was concerned the accused did not look like the man in the -- 111 of 120 -- [2024] SADC 31 108 photograph on that licence, he asked the accused ‘where he had been and what he had been up to’. He said that in response, the accused said he ‘had just come from visiting his mum at her house’, which answer he knew to be false. 384 He said he challenged the accused on this, he froze, and never responded. 569 Metschke did not record this conversation with the accused, being an off- camera conversation, in question and answer format in his notebook. In his notebook he recorded the fact of this conversation, out of chronological sequence, under the heading ‘CSA Suspicions for search’ at the end of his notes made on 20 May 2020. The notes state that the accused, ‘stated that he had just been to visit his mother, this was known to be false. Challenged and no response’.385 570 In his first statement, Metschke described having two conversations with the accused following the production of his driver’s licence. These conversations were described in the following terms:386 … I asked him questions about his previous interactions with Police, with a view that the owner of that licence would know those details. The accused lied in response to those questions, further exacerbating concerns over the correctness of his identity. I spoke with the accused and he stated that he had just been to visit his mother. I was aware that this was also untrue … 571 In cross-examination, Metschke agreed that he had a conversation with the accused after his arrest, as to whether he had been arrested before. He agreed that as a result of the checks conducted by Widdrington (with Gabel), it was ascertained the accused had been arrested before. Those checks were only conducted after the accused’s arrest. As such, any conversation that Metschke had with the accused about his prior interactions with police, which may have elicited a response which Metschke knew to be untrue, must have occurred after the accused’s arrest, and therefore after the commencement of the search. 572 The fact Metschke placed that conversation, in his statement, as being the first thing that raised in him a concern that the accused was not the same person as that in the driver’s licence, is of concern, given he described it as being the first of the two alleged lies by the accused which raised suspicions. 573 If that conversation occurred before Metschke asked the accused where he had come from, as could be inferred from the structure of Metschke’s first statement, then that latter conversation must have also occurred after the arrest and therefore after the search occurred. 574 Given my doubts as to the reliability of Metschke’s evidence and the obvious errors in sequence in both his notes and first statement, I am unable to accept his 384 T 51.11-24. 385 Exhibit VDD9. 386 Exhibit VDD14 at [5] and [6]. -- 112 of 120 -- [2024] SADC 31 109 evidence as to precisely when in the sequence of events this conversation occurred (albeit obviously being after the vehicle was stopped). 575 Further, in the absence of Metschke’s notes reproducing this conversation in question and answer format, it is difficult to ascertain whether the answer given by the accused was, in fact, false. The accused was driving his mother’s car. He may well have come from her house shortly prior to the vehicle being sighted at the property. The precise words used during that exchange are important in considering how this conversation may have added to any suspicion held by Metschke. Was the Search of the Vehicle Unlawful? 576 In determining whether the search of the vehicle was authorised under s 52(9) of the Act, the Court must determine if at the time the search commenced, Metschke held a genuine suspicion that any substance or equipment that would afford evidence of an offence against the Act was in the vehicle and, if so, whether that suspicion was reasonable. 577 This is a factual question that is to be decided on the balance of probabilities.387 578 It is important to bear in mind that as outlined by the Full Court of the Supreme Court in R v Nguyen,388 a suspicion that a fact exists is less certain than a belief in the existence of that fact. However, the connection between the supporting material and the suspicion must be rational and not tenuous, and mere curiosity, speculation or idle wondering about the existence of a fact is not the same as a suspicion that it exists. The requirement for the suspicion to be reasonable is to prevent incredulous, gullible, naïve and artificially held subjective suspicions from empowering police officers to execute powers of search that effect a substantial intrusion into civil liberties. 579 The difficulty facing the prosecution in this case is that Metschke did not give any evidence to the effect that he held any reasonable suspicion for the purposes of s 52(9) of the Act until after he had stopped the vehicle and specifically, until after the accused presented a driver’s licence which apparently bore a photograph of someone who did not physically resemble him, and after the accused allegedly lied to him about his previous movements. 580 There is simply no evidential basis therefore for the Court to make a finding that at the time Metschke stopped the vehicle, he held even a genuine, let alone reasonable suspicion, for the purposes of s 52(9). 581 Further, there is no evidence that either Hazel or Glasson held such a reasonable suspicion at the time they made the decision to stop the vehicle in 387 Zenuni v The King [2022] SASCA 106, [12]. 388 (2013) 117 SASR 432 at [21]. -- 113 of 120 -- [2024] SADC 31 110 accordance with the contingency plan.389 Even if either Hazel or Glasson had given such evidence, as previously stated, Hazel gave only limited evidence as to what he learned about the accused when he conducted the checks prior to making the decision to stop the vehicle. In my view that material, even combined with what was known about Nghiem and the property, was not sufficient to amount to a reasonable suspicion under s 52(9)(a), particularly absent any reliable information to the effect that a male occupant of the vehicle was seen to interact either with the property or Nghiem. 582 If, as I have found, the exercise of the statutory search power commenced at the time the vehicle was stopped, then the search was unlawful. 583 If my conclusion as to when the search of the vehicle commenced is wrong, and it was only commenced when Metschke informed the accused of his intention to search both him and the vehicle, then the Court must determine first if Metschke had a genuine suspicion for the purposes of s 52(9) at that time, and second if that suspicion was reasonable. 584 Notwithstanding my reservations as to aspects of Metschke’s evidence, I accept that at that time, he did genuinely suspect there were drugs or equipment in the vehicle contrary to the Act. I make that finding having regard to those matters which I am satisfied were known to him at that time, namely, what he learned at the briefing, what he knew from the TAC Order and what he knew about the vehicle’s attendance at the property. He also knew that Officers Hazel and Glasson had identified the vehicle as an appropriate vehicle to stop in accordance with the contingency plan in the TAC Order, albeit he did not know why that decision had been made. 585 I also accept Metschke’s evidence that the accused did present his driver’s licence to him prior to Metschke informing him of his intention to conduct a search of the vehicle. However, any difference between the photograph on the driver’s licence and the accused’s appearance was of very little moment, given that such licences can be issued for a period of up to ten years. 586 Further, as previously stated, given my doubts about the reliability of Metschke’s evidence, I cannot make a finding as to when any alleged conversation between the accused and Metschke about the accused’s prior movements occurred, and specifically, I am unable to find that this occurred prior to the accused’s arrest. Even if that conversation did occur before the arrest, in the absence of knowing precisely what was said, it is difficult to attribute much, if any, weight to the 389 Although Hazel gave evidence that he believed he had a reasonable suspicion prior to being briefed roadside by Metschke and/or Widdrington, this was in the context of him also having heard the results of Gabel’s checks with respect to the accused, which were then communicated to Widdrington over the Police Radio, after the accused’s arrest. -- 114 of 120 -- [2024] SADC 31 111 accused’s statement in those circumstances, or the accused’s apparent reaction to then having been called a liar. 390 587 Whether the genuine suspicion being subjectively held by Metschke was a reasonably held suspicion requires an assessment of whether the information available to Metschke would ‘rationally produce a suspicion in the mind of … a person thinking reasonably about that information’.391 588 In answering this question, the Court must put itself in Metschke’s position and ask whether, in the circumstances, the suspicion was reasonably held. 589 Relevant considerations when examining the reasonableness of that suspicion include; the nature and extent of the information, the particularity (or generality) of the information, the source of the information, the apparent reliability and credibility of the information and the nature, duration and currency of the illegal activity to which the information relates. 590 Metschke was not in possession of any information linking the vehicle itself to the commission of any previous drug offending. 591 Similarly, neither at the time the vehicle was stopped, nor prior to the accused’s arrest, was Metschke aware that the accused had any prior criminal history, let alone any prior drug related history. 592 Metschke’s suspicions related primarily to his knowledge that the vehicle was observed to spend a short period of time in the driveway at the property, being an address closely associated to Nghiem. Although Metschke was aware that there was intelligence linking Nghiem to drug dealing, that intelligence was limited. 593 The fact that Nghiem’s fingerprints were located on a heat seal bag found at the scene of a large cannabis crop at Virginia, was equally consistent both with Nghiem being involved in the manufacture of that cannabis and that fingerprint having been left on that bag in innocent circumstances. The date of the discovery of that cannabis crop was not in evidence. Although there was intelligence received in February 2019 and June 2019 consistent with Nghiem potentially dealing in drugs, there was no evidence as to the source or reliability of that intelligence, and it related to a period between 11 and 15 months prior to the search. The other (current) evidence police had linking Nghiem to drug dealing was all to the effect that he would leave his home to deal in drugs, rather than deal in them from the property. 594 Further, the intelligence was that Nghiem would deal in those drugs from Thursday onwards. The search occurred just after 5:00pm on a Wednesday. 390 Noting what was said by the Chief Justice in R v Marafioti (2014) 118 SASR 511 at [12]-[13], as to attributing illegality to conduct which may be the result of a suspect’s anxiety in the presence of police. 391 R v Nguyen (2013) 117 SASR 432, [22]. -- 115 of 120 -- [2024] SADC 31 112 595 All of this information was sufficient to engender a suspicion that there may be drugs at the property. Whether any such suspicion was itself reasonable is another matter, and not one that this court is required to determine. 596 However, in circumstances where there was no reliable evidence that the driver of the vehicle was seen to interact either with the property or Nghiem, and where Metschke was unaware of any information linking the vehicle or the accused to drugs or drug offending, any suspicion generated by the information known to Metschke at the time he informed the accused of his intention to search the vehicle, at its highest, amounted only to mere speculation or conjecture that there may have been drugs inside the vehicle. 597 The combined effect of that material was not sufficient, in my mind, to engender a suspicion in the mind of a person thinking reasonably about that information, that there was a substance or equipment that would afford evidence of an offence against the Act in the vehicle. 598 In my view, any suspicion for the purposes of s 52(9) which was held by Metschke either at the time he stopped the vehicle, or at the time he informed the accused of his intention to search the vehicle, was in the nature of mere curiosity or speculation about the existence of that fact, rather than a suspicion based on a rational connection between the supporting information and the suspicion. 599 Finally, as previously stated, there was no evidence that Hazel or Glasson held any reasonable suspicion under s 52(9) at the time they decided to stop the vehicle. By the time Hazel and Glasson arrived at Rickaby Street, the accused had already been arrested for hindering the search. As previously stated, I find that he was arrested for hindering both the personal search and the search of the vehicle, meaning the search of the vehicle must have commenced before Hazel and Glasson arrived at Rickaby Street. 600 I find that the search of the vehicle was unlawful. Other Issues 601 In light of these findings, there is no necessity for the court to determine whether the arrest was lawful and/or whether any conversations between the accused after his arrest and prior to his arrest rights being administered, ought be excluded from the evidence. 602 Having regard to my findings as outlined at paragraphs 512 to 514 herein, I am satisfied that the errors in the notes and initial statements made by Metschke and Widdrington are the product of impropriety and not simply a product of human error. 603 While I have made several adverse findings with respect to both the reliability and credibility of the evidence given by Metschke and Widdrington, I have not made similar criticisms of the evidence given by Glasson. -- 116 of 120 -- [2024] SADC 31 113 604 Glasson is a Detective Sergeant and a person in a position of authority. While it is possible that Glasson was aware of the errors in sequence and timing in the notes and initial statements of Metschke and Widdrington, I am unable to make such a finding on balance. I am further unable to make a finding that he knew of and condoned any improper conduct on the part of either Metschke and/or Widdrington. Discretion 605 The unlawfulness of the search of the vehicle does not render the evidence as to the fruits of that search inadmissible, however I have a discretion to exclude the evidence if its admission would operate unfairly as against the accused and/or having regard to broader questions of high public policy. 606 In R v Ireland,392 Barwick CJ stated: … 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 or unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. 607 In Bunning v Cross,393 Stephen and Aickin JJ (Barwick CJ agreeing) said: What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. 608 The principles governing the exercise of a discretion to exclude relevant and admissible evidence based on public policy considerations, where the evidence has been obtained illegally or unlawfully were outlined in detail in R v Golja.394 609 Those matters which may play a role in informing the exercise of the discretion include: • The nature of the offence charged. • The probative value of the evidence sought to be excluded. 392 (1970) 126 CLR 321, 335. 393 (1978) 141 CLR 54, 74. 394 [2017] SASCFC 61 at [33]-[35] per Stanley J. -- 117 of 120 -- [2024] SADC 31 114 • Whether the conduct of the police was deliberate or resulted from a mistake. • The ease with which the law could have been complied with to procure the evidence. • The legislative intention of the law said to have been infringed. • In the case of unlawful conduct, whether the conduct in question is tolerated or encouraged by those in higher authority in the police force. 610 I also note the observations made by both David AJ and the Chief Justice in Ghamrawi v The Queen,395 wherein reference is made to the proper balance that needs to be struck between individual liberty and privacy and the enforcement of the criminal law. In particular, I note the Chief Justice’s observation, namely:396 Police officers should be guided by a good working knowledge of those powers and their limits. They should not act on their subjective view of what they ought to be free to do and then hope, after the event, that they have observed the limits of the law. 611 I have made several critical adverse findings with respect to the evidence given by both Metschke and Widdrington. I am satisfied that together they crafted their notes to give a false and misleading impression of what information was available and relied upon by Metschke when he purported to exercise his authority to search the vehicle under s 52(9) of the Act. 612 It is apparent from a consideration of all of the evidence that the initial shortcut that was taken by police, which led to the later difficulty Metschke and Widdrington sought to overcome, was the fact the vehicle was stopped in the absence of police observing any interaction between its male occupant (that is, the accused) and either Nghiem or the property. 613 If police knew the driver of the vehicle was a male, then having regard to the checks conducted with respect to the vehicle and its owner by Hazel, it may have been reasonable for them to assume that driver was the accused. 614 Hazel then conducted checks on the accused. His evidence as to what those checks revealed was confined to the following:397 I recall there being some warning flags attached to his name in relation to drugs. There was some history of drug-related searches and that's what I recall at the moment. 615 The Court did not hear evidence about what that ‘drug warning’ was (or meant), nor the results of any of those drug related searches (or when such searches were undertaken). However, it may have been the case, given what Widdrington learned later from checks conducted by Gabel, that there was sufficient material on the system implicating Than with drug activity, in combination with the other 395 [2019] SASCFC 108. 396 [2019] SASCFC 108 at [2]. 397 T 466.4-7. -- 118 of 120 -- [2024] SADC 31 115 information known to Hazel, to amounted to a reasonable suspicion to both stop and search the vehicle under s 52(9). 616 Hazel and Glasson decided to stop the vehicle under the contingency plan. I am satisfied that having done so, police were always going to search the vehicle as this is what was stated in that plan. As such, for such procedure to be lawful, it was necessary for one of those officers to have ‘reasonable suspicion’ under s 52(9). Indeed, unless this necessary precondition is read into the TAC Order it would, in effect, be an endorsement for police to simply ‘turnover’ any vehicle seen leaving the property. 617 This was not a case where once the vehicle was stopped, further checks would be conducted and only then would a decision be made whether or not to search it. The mere fact of police stopping any vehicle seen leaving the property had the very real potential to adversely impact the ongoing Nghiem investigation. Police had to get that decision right. 618 In this case, a shortcut was taken. 619 This was very serious offending, carrying with it a potential maximum penalty of life imprisonment. The controlled drugs found in the vehicle were destined for sale on the streets, causing irreparable and untold damage to the community. There is obviously considerable public interest in drug offenders being tried and brought to account. 620 The cogency of the evidence found in the search was not diminished by the illegality. 621 However, as outlined in Bunning v Cross:398 To treat cogency of evidence as a factor favouring admission, where the legality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of the discretion where the illegality involved in procuring it was intentional or reckless. To this there will no doubt be exceptions: for example, where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist. 622 If the illegality was confined to the ‘short cut’ outlined above, of itself, this would not have led me to conclude that it was appropriate to exercise my discretion to exclude the evidence, having regard to the balancing act required. 623 However, the Court is satisfied that what occurred after this short cut was taken, is that Metschke and Widdrington, both being experienced officers, working within the SOCB, together worked towards creating a false narrative, in order to give the procedure legitimacy, based on what information ultimately came to be 398 (1978) 141 CLR 54 , 79. -- 119 of 120 -- [2024] SADC 31 116 known by police about the accused as the investigation unfolded on 20 May 2020. While I do not doubt that in doing so, both officers honestly considered that the means justified the ends, given what the search had uncovered, this was deliberate conduct, designed to retrospectively cure (or camouflage) what was unlawful police conduct. 624 In R v Rockford the court stated: 399 … it is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not to be 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. 625 By way of further observation, in this case, the fact Metschke and Widdrington both changed the narrative in their notes and initial statements would never have come to light, given the absence of any record in their notes as to the time of the arrest, but for the contents of the Police Radio Communications considered in conjunction with the Shield Audit. 626 This improper conduct must not be given curial approval. 627 To condone the unlawful conduct in these circumstances, despite the seriousness of the alleged offending, would amount to an abrogation of the legislature’s safeguard of individual liberties. 628 Having conducted the balancing exercise of the various competing considerations as discussed in Ghamrawi v The Queen,400 I consider in these circumstances it is appropriate to exercise my discretion to exclude the evidence of the search of the vehicle. 399 [2015] SASCFC 51, 39. 400 [2019] SASCFC 108. -- 120 of 120 --