[2024] SADC 79
Prosecution: R Counsel: MS A ZIMMERMANN - Solicitor: DIRECTOR OF PUBLIC
PROSECUTIONS (SA)
Defendant: THANH MY NGUYEN Counsel: MS B ARMSTRONG - Solicitor: DANNI STEPHENS
LEGAL
Hearing Date/s: 07/06/2024
File No/s: DCCRM-22-197
B
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
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 NGUYEN
[2024] SADC 79
Reasons for Decision of her Honour Judge Thomas
9 July 2024
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE
AND INCIDENTAL POWERS
Rule 39 application to exclude evidence of searches of the defendant’s person, bag and residence.
Held: application dismissed.
Controlled Substances Act 1984 (SA) s 32(3), 52, 52(6); Joint Criminal Rules 2022 (SA) r 39.1(d);
Summary Offences Act 1953 (SA) Part 17, s 67, 67(4) 74D, 79A, referred to.
R v Cardy [2018] SADC 3, applied.
Bunning v Cross [1978] HCA 22; R v Romeo (1982) 30 SASR 243; R v Adlard (1825) 107 ER 1247;
Reg v Brown (1871) 174 ER 522; R v Nguyen [2016] SASCFC 96; George v Rockett (1990) 170 CLR
104; Hussien v Chong Fook Kam [1970] AC 942; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR
266; Bae v R; Koo v R (2020) 135 SASR 522; R v Nguyen (2013) 117 SASR 432; McHugh v R [2020]
SASCA 5; R v Dolan (1992) 58 SASR 501; R v Lavery (1978) 19 SASR 515; R v Conley (1982) 30
SASR 226, considered.
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R v NGUYEN
[2024] SADC 79
Criminal
Introduction
1 The defendant is charged with one count of trafficking in a controlled drug
in contravention of s 32(3) of the Controlled Substances Act 1984 (SA).1 It is
alleged that on 8 February 2021, at Prospect, the defendant trafficked in
methylamphetamine.
2 On Monday 8 February 2021, at about 1:00 pm, plain clothes police officers
attended outside a secure apartment building on Prospect Road to search Unit 205,
under the authority of a general search warrant.2 Unit 205 was the defendant’s last
known residential address.3 At about 1:05pm, the defendant and a female (later
identified as Ms Pakkawan) came down the emergency access stairs of the building
alighting out of the door at the bottom in front of the group of police officers who
were standing outside. After some conversation with two of the officers, a search
was conducted of the defendant’s person and of the grey bum bag that was strapped
to his chest. Two mobile phones were found on the defendant and two resealable
bags containing respectively 55.9 grams and 28 grams of mixed
methylamphetamine were found inside the bag.4
3 A search of Unit 205 was then conducted by police officers under the general
search warrant. Police found two sets of digital scales, three mobile phones and
various amounts of suspected illicit substances.5
4 The defendant made an application pursuant to Rule 39.1(d) of the Joint
Criminal Rules 2022 for the exclusion of the evidence found in police searches of
the defendant, his bag and the premises where he resided.
5 In written argument,6 the defendant challenged the lawfulness of the searches
of his person and bag on the grounds that the information available did not support
a reasonable suspicion that he possessed an illicit substance or equipment
warranting a search of his person or his bag. The officer who searched his bag did
not have the requisite suspicion and he was unlawfully detained. The conversation
allegedly had between the defendant and police about what was in his bag was not
recorded contravening Part 17 of the Summary Offences Act 19357 and occurred
prior to his rights being given in breach of ss 74D and 79A of the SO Act.
1 Referred to below as the Controlled Substances Act.
2 Exhibit VDP6.
3 Exhibits VDP6 and VDP7. T61.24-.25.
4 Exhibit VDP11.
5 T81 [DBS Mobbs]. FDN 59 [15].
6 FDN58 dated 15 August 2023.
7 Referred to below as the SO Act.
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2
6 It is for the trial judge to determine the admissibility of the recorded interview
with police. However, the alleged breach of s 74D of the SO Act is relevant as
regards this Court’s discretion to exclude the evidence of the search of the
defendant’s person and bag.
7 As to the search of Unit 205, the defendant challenged the lawful use of the
general search warrant by reason of the alleged failure of the warrant holder to
present it, or his suspicions as to why he was searching Unit 205 as soon as
reasonably practicable. Further, the searching police officers did not have
reasonable cause to suspect, nor justify the use of the general search warrant as
required by s 67 of the SO Act.
8 Further, the Court should exercise the public policy discretion in Bunning v
Cross to exclude the evidence found in these searches in light of the unlawful
conduct of the police.
9 A voir dire hearing was held and evidence was called from Detective Brevet
Sergeants Mobbs (DBS Mobbs), West (DBS West) and Foster-Lynam (DBS
Foster-Lynam). The defendant did not give evidence.
10 The voir dire hearing was adjourned a number of times.
11 On the first day, during the course of DBS West’s evidence-in-chief it
became apparent that the redactions made in the police intelligence reports were
incorrect. Out of fairness to the defendant, cross-examination was adjourned to
the following day. The next day, further additional disclosure occurred of the same
documents with different redactions. A further adjournment was granted to permit
the defendant’s counsel the opportunity to take instructions and prepare cross-
examination on the basis of the new material.
12 There were then difficulties with the availability of a prosecution witness.
The voir dire hearing eventually continued. After DBS West and DBS Mobbs had
given their evidence, the prosecution sought an adjournment to consider whether
to tender a declaration of the third officer, DBS Foster-Lynam who was involved
in the search of the defendant’s bag.
13 An addendum statement from DBS Foster-Lynam was disclosed during the
adjournment. The defendant made an application for leave to issue a subpoena to
the Commissioner of Police and argument proceeded on that application. The
prosecution adopted the submissions made by the Commissioner of Police
opposing leave being granted. The Court ruled against the defendant. The voir
dire hearing resumed. DBS Foster-Lynam gave evidence and oral submissions
were heard.
14 Ultimately, there is a dispute as to which officer made the decision to search
the defendant’s bag under s 52(6) of the Controlled Substances Act and which
officer was required to hold the requisite suspicion: DBS West or DBS Foster-
Lynam. The prosecution’s primary position is that DBS West was the relevant
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[2024] SADC 79
3
decision-maker and the officer required to have the requisite suspicion, not DBS
Foster-Lynam who merely assisted him. In the alternative, if DBS Foster-Lyman
was a relevant decision-maker, the prosecution submits he had the requisite
suspicion to enliven his power to lawfully search the defendant’s bag under
s 52(6).
15 The defendant submits the Court must have regard to DBS Foster-Lynam’s
suspicions and his alone since he conducted the search of the defendant’s bag and
therefore, he must have the requisite suspicion under s 52(6) to lawfully search it.
The defendant submits the Court should find he did not. Further, the inquiry stops
there because DBS Foster-Lynam affirmed he had his own suspicions and was not
directed by DBS West to search. In any event, DBS West’s suspicions were not
objectively reasonable. Even if DBS West held the requisite suspicion and
directed DBS Foster-Lynam to assist him. If properly construed, there is no
implied grant of power for a police officer to be assisted by other officers in
conducting a search under s 52(6). Insofar as the prosecution relies upon the
decisions in R v Romeo8 or R v Cardy,9 this Court is not bound by them and they
are distinguishable on the facts.
16 Supplementary written submission were filed as regards the proper
construction of s 52(6) of the Controlled Substances Act, and specifically whether
there is an implied power for a police office to have the assistance of other officers
for the purposes of conducting a search under s 52(6).
Conclusion
17 I dismiss the defendant’s application to exclude the evidence found as a result
of the searches of the defendant’s person, his bag and Unit 205. My reasons
follow.
The Witnesses
DBS Mobbs
18 Since 2019, DBS Mobbs is and was at the time of the searches an experienced
police officer, who was stationed in the Serious Crime Task Force (SCTF) in the
Serious Organised Crime Branch (SOCB). Prior to that, he was a Detective at the
Southern District CIB, in the Volume Crime Tactical Team. He had joined the
force in 2006. His work involved investigations into organised crime, targeting
drug trafficking which he had done for some five to six years. These investigations
often took a number of months before resolving in any arrests and involved covert
methodology, including police surveillance and intelligence gathering about
persons and places of drug interest.
19 In February 2021, DBS Mobbs was involved in Operation Guild, an ongoing
investigation into the criminal activity of the Tinh Bahn street gang. The main
8 (1982) 30 SASR 243.
9 [2018] SADC 3.
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[2024] SADC 79
4
objectives of Operation Guild were to declare this network as an organised crime
syndicate and to investigate related drug trafficking. The defendant was identified
as a close associate of known Tinh Ban members and a person of drug interest
from intelligence gathered from Operation Guild and other operations conducted
by the SCTF from late 2019 and throughout 2020.
20 DBS Mobbs was the warrant holder and deployed as the exhibits officer for
the search of the unit. He gave evidence about the police intelligence supporting
his suspicions for the execution of the general search warrant at the unit. When
the tactical plan changed on the day, DBS Mobbs gave a second briefing to the
officers concerned including DBS West and DBS Foster-Lynam. Later, at the
scene, it was DBS Mobbs who had the first interaction with the defendant when
he unexpectedly came out the locked door that the police were having difficulty
opening. DBS Mobbs then passed responsibility for dealing with the defendant to
DBS West whilst he dealt with Ms Pakkawan.
21 The defendant makes two criticisms of DBS Mobbs’ dealings with the
defendant. The first concerns the objective reasonableness of his suspicions as the
basis for the lawfulness of the search of Unit 205 conducted under his general
search warrant. The second concerns his alleged delay in presenting his warrant
and his suspicions as to why he was searching Unit 205 to the defendant. His cross-
examination focussed on these topics. There was no real challenge to the
truthfulness or reliability of his evidence.
22 DBS Mobbs’ evidence should be accepted as honest and reliable. He gave
evidence in a straightforward and clear manner. His recall of relevant events and
the intelligence grounding his suspicions was detailed and credible. For the
reasons discussed below, it should be accepted DBS Mobbs held the requisite
suspicion to search Unit 205 under s 67 of the SO Act and he presented the warrant
as soon as reasonably practicable in the circumstances.
DBS West
23 In February 2021, DBS West was also stationed in the SCTF and involved in
what he described as mid-level drug investigations. He was tasked to assist with
the search of Unit 205 as part of Operation Guild on 8 February 2021. Although
he was not directly involved in Operation Guild, he already knew about it and its
objectives.
24 DBS West had been the investigating officer for an 18-month investigation
into another Vietnamese drug syndicate, known as Operation Vinegar. From this
operation DBS West knew the defendant was a person of drug interest and the
subject of intelligence about his involvement in illicit drug activity. On 5 March
2020 Operation Vinegar resolved with the search of premises at Pennington at
which the defendant was present and where police found a heroin press. The
defendant was arrested for offences under the Controlled Substances Act relating
to heroin but not charged.
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[2024] SADC 79
5
25 At the scene, it was DBS West who had the second interaction with the
defendant and searched his person, took his bag from him and gave it to DBS
Foster-Lynam. For the reasons discussed below, I consider it was DBS West who
was required by s 52(6) of the Controlled Substances Act to have the requisite
suspicion to lawfully search the defendant’s person and his bag, not DBS Foster-
Lynam.
26 DBS West was thoroughly cross-examined about events, including as to his
purpose in questioning the defendant and the basis of his suspicions. DBS West
gave clear and cogent evidence. He recalled with detail the intelligence relied upon
and relevant events.
27 There is one aspect of DBS West’s evidence I have not accepted. In
examination-in-chief, DBS West gave a different account of the second question
he asked the defendant10 compared to the version he repeated to the defendant on
camera some three minutes later. Whilst I note DBS West’s explanation that it may
have been an omission in the follow up conversation, I find the recorded version
of the second question more reliable than DBS West’s memory three years later,
noting the defendant agreed to the recorded version at the time.
28 Nonetheless DBS West’s evidence should be accepted as honest and
otherwise reliable.
29 I have not accepted the defendant’s submission that I should prefer the
inconsistent evidence of DBS Foster-Lynam to DBS West’s evidence that he
directed DBS Foster-Lynam to search the bag. There are several reasons why I
have not.
30 First, when the evidence is properly analysed it is not simply a question of
whose evidence should be preferred. DBS West said he directed DBS Foster-
Lynam to search the bag. DBS Foster-Lynam disagreed he was being directed and
said he was certainly assisting because DBS West was dealing with the defendant.
As the video footage shows,11 whilst DBS West did not expressly direct DBS
Foster Lynam to search the defendant’s bag he in effect directed him to do so by
what he told the defendant DBS Foster-Lynam was going to do. That is, in the
presence of DBS Foster-Lynam, DBS West told the defendant he was going to get
DBS Foster-Lynam to search the bag he had removed from the defendant’s person
and handed to DBS Foster-Lynam earlier and off camera. DBS West told DBS
Foster-Lynam not to decant the contents of the bag until the video camera was
activated.
31 In the circumstances, it is clear that DBS West, as the more experienced
officer, had assumed responsibility for searching the defendant’s person, including
10 T16.18-24.
11 Exhibit VDP4.
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[2024] SADC 79
6
the bag strapped to his chest and DBS Foster-Lynam was assisting at DBS West’s
request.
32 Secondly, for the reasons discussed below, if it were necessary to choose
between their evidence, I would prefer DBS West’s evidence to that of DBS
Foster-Lynam. DBS West’s evidence was a more detailed and reliable recollection
of events. Further, bearing in mind the concessions DBS Foster-Lynam made in
cross-examination that in giving evidence three years’ later he was ‘working
backwards’ must be borne in mind.
33 For the reasons also discussed below, it should be accepted DBS West held
the requisite suspicion to search the defendant’s person and bag under s 52(6) of
the Controlled Substances Act, did not unlawfully detain the defendant or by his
conversation with the defendant breach ss 74D and 79A of the SO Act.
DBS Foster-Lynam
34 On 8 February 2021, DBS Foster-Lynam had been in the SOCB for about a
week. Whilst he had some 20 years of experience as a police officer, he had limited
experience in drug investigations, having recollected perhaps some six
investigations. He was previously stationed at the anti-corruption branch and the
internal investigation section and neither of which involved a great deal of drug
trafficking.
35 DSB Foster-Lynam was ultimately called because he conducted the physical
search of the defendant’s bag and his suspicions were in issue. He gave evidence
that he held his own suspicions that the defendant would be in possession of illicit
drugs and the reasons for his suspicions.
36 DBS Foster-Lynam had no prior knowledge of the defendant, or Operations
Guild, Vinegar, or Fortune. He did not attend the morning briefing given by
Detective Sergeant Schollar (DS Schollar). Nor did he read the tactical operation
order or any of the referenced intelligence reports. In those circumstances, he was
tasked to work with DSB Mobbs and conduct surveillance of Unit 205 on the
morning of 8 February 2021. Whilst conducting surveillance sitting in a car for
three and half hours, he said they discussed the investigation in detail and what he
was told formed the basis of his suspicions that the defendant would have illicit
drugs on his person.
37 DBS Foster-Lynam attended the 12:15pm briefing by DBS Mobbs for the
purposes of searching the defendant’s residence, under the authority of DBS
Mobbs’ general search warrant.
38 I found DBS Foster-Lynam’s recollection three years later of his suspicions
regarding the defendant having drugs on his person and the reasons for them
unpersuasive. His evidence on this topic was generalised and lacked detail.
Essentially, all he could recall being told by DBS Mobbs was that the investigation
had been ongoing for a minimum of three months and the defendant had been
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[2024] SADC 79
7
observed travelling to various northern suburb addresses where suspected drug
trafficking was occurring. He also recalled the defendant had some unexplained
wealth. He gave as a further reason for his suspicions that they had originally been
tasked to intercept the defendant, search him, potentially arrest him, as well as
search Unit 205. He was unable to identify an objective or discernible basis for
his suspicions beyond being told by DBS Mobbs that police officers suspected the
defendant was trafficking drugs for reasons he could no longer fully recall.
39 DBS Mobbs did not give any evidence about his conversation with DBS
Foster-Lynam whilst they were observing 171 Prospect Road.
40 In cross-examination, DBS Foster-Lynam made a number of important
concessions. First, he conceded he made no notes about his suspicions at the time
of the search (breaching the general orders). Secondly, he did not mention anything
about his suspicions in his first statement dated 20 April 2021. Thirdly, he was
candid when giving evidence that he was relying on his memory. Fourthly, he was
frank in his concessions while giving evidence that he was ‘working backwards’.12
41 Whilst I do not doubt the truthfulness of DBS Foster-Lynam’s evidence, he
was a poor historian. Understandably he had difficulty three years later in recalling
events that took place over the course of a morning and culminated in some ten
minutes or so of relevant interaction between the police and the defendant in an
investigation in which he had no substantive or ongoing involvement. I find DBS
Foster-Lynam has reconstructed events and in particular, his suspicions, relying as
best he could on his poor memory. He was unable to articulate any substantial
factual basis for his suspicions.
42 For these reasons, I am not persuaded DBS Foster-Lynam turned his mind at
all to whether he had the requisite suspicion to search the defendant’s bag or if he
did, held the requisite suspicion. He did as DBS West directed him. Because he
assisted DBS West and I have found DBS West held the requisite suspicion, my
assessment of DBS Foster-Lynam’s evidence and findings as regards his
suspicions do not affect the lawfulness of the search of the defendant’s person and
bag under s 52(6) of the Controlled Substances Act.
Findings
43 The defendant was known to police and specifically to DBS Mobbs and DBS
West by the alias ‘America’ or ‘My America’ and by various spellings of his name
and at the relevant time as living at Unit 205, 171 Prospect Road, Prospect.
44 The defendant was the subject of ongoing police intelligence gleaned over
the course of more than a year from Operations Guild, Vinegar and Fortune
suggesting he was trafficking illicit drugs. Both heroin and methylamphetamine
were mentioned and as DBS Mobbs said, the police were mindful that drug dealers
are not exclusive to one drug. Because of this intelligence, the defendant and his
12 T146.2-.4; 156.9-.31.
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8
residence (Unit 205) were the targets of a tactical operation order prepared on
7 February 202113 and authorised by DS Schollar as part of Operation Guild. The
stated mission was to safely search Unit 205 for serious offences against the
Controlled Substances and the Criminal Law Consolidation Acts under the
authority of a general search warrant held by DBS Mobbs.
45 DBS Mobbs prepared a record of a general search warrant use (PD23A)14 that
same day (7 February 2021) to justify use of his general search warrant at Unit 205
and support his reasonable cause to suspect. He referenced four intelligence
reports,15 a street check report16 and information from Operation Fortune conveyed
to DBS Mobbs by his supervisor, DS Scholler, all of which linked the defendant
by his name or his alias to ongoing illicit drug activity gathered over the course of
the previous year.
46 At around 8:00 am, on Monday 8 February 2021, DBS West was tasked to
assist in the search of Unit 205. He and others attended an operational briefing
conducted by DS Schollar in relation to the ongoing Operation Guild. As already
stated, DBS West already knew Operation Guild concerned Vietnamese organised
crime and drug trafficking.
47 DBS West received and read the tactical operation order.17 Within the order
was a summary of intelligence from 22 December 2020 to August 2019 about the
defendant’s suspected involvement in/or connection to illicit drug activity and drug
trafficking. Four intelligence reports were referenced, two of which were received
into evidence18 as well as the defendant’s antecedents and other operationally
relevant information. The tactical operation order identified the defendant’s
residential address as Unit 205 and that it was in a secure apartment complex. DBS
West recalled being briefed about this address and that it had been confirmed in
January 2021 as the defendant’s current home address.
48 The most recent intelligence in the tactical operation order was from
22 December 202019 and suggested the defendant by his alias ‘America’ was
dealing large amounts of heroin and living on Prospect Road. DBS West read this
report in its entirety.
49 The tactical operation order read by DBS West contained further important
intelligence. On 9 November and 19 October 2020 police had seen the defendant
attend a drug address of interest. Police observed activity they suspected to be
illicit drug deals occurring whilst the defendant was there. Yet further intelligence
13 Exhibit VDP2.
14 Exhibit VDP6.
15 Exhibits VDP5, VDP7, VDP8 and VDP9.
16 Exhibit VDP10.
17 Exhibit VDP2.
18 Exhibit VDP5 and VDP8.
19 Exhibit VDP5.
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from 7 October 2020 suggested the defendant was supplying heroin to another
person of drug interest who was dealing from another address of drug interest.
50 There was intelligence from March 2020 about the defendant and his ex-
partner’s arrest for offences under the Controlled Substances Act related to heroin.
This information concerned Operation Vinegar which DBS West already knew
because, as already stated, he was the investigating officer for that operation. He
gave evidence that when Operation Vinegar resolved on 5 March 2020 it included
a search of an address at Pennington where the defendant was present and a heroin
press was found.
51 The operational plan was for police to observe Unit 205, wait for the
defendant to leave in his vehicle, conduct a vehicle stop and search him and then
use the general search warrant held by DBS Mobbs to safely search Unit 205.20
The intention was to mitigate the risk of any evidence being destroyed if the
premises search was executed when the defendant was present.
52 DBS Foster-Lynam was tasked to conduct surveillance of the defendant’s
residence with DBS Mobbs. At about 8:00 am, they drove to Prospect Road and
spent approximately three and a half hours sitting in a car together observing
171 Prospect Road. According to DBS Foster-Lynam, they discussed in detail the
ongoing investigation DBS Mobbs was involved in and specifically the ongoing
investigation of the defendant’s suspected drug trafficking.
53 The operational plan changed when the defendant was not seen to leave Unit
205 during the course of the morning. The decision was then made to execute the
general search warrant anyway.
54 DBS Mobbs conducted a second tactical briefing around 12:15pm at a
rendezvous near the scene, also attended by DBS West and DBS Foster-Lynam,
and others. The briefing touched on the topic of the defendant’s suspected drug
trafficking but its primary focus was the tactical deployment of the search of Unit
205.
55 Shortly before 1:00 pm, plain clothes police officers attended the secure
apartment complex 171 Prospect Road, where Unit 205 was located. At about
1:05 pm, while the police were trying to unsuccessfully gain entry into the building
through a locked door, the defendant came down the emergency access stairs and
came out the same locked door the police were trying to get in. The defendant was
with Ms Pakkawan. They both came to a standstill in front of the assembled group
of police.
56 DBS Mobbs immediately recognised the defendant and identified himself
and the others as police and that they were there to conduct a search of the
defendant’s premises, under the authority of a general search warrant. For
operational safety reasons, DBS Mobbs separated the defendant and Ms Pakkawan
20 T71.26-.36 [DBS Mobbs].
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by directing the defendant towards DBS West, who was standing to his left,
leaving DBS Mobbs to speak to Ms Pakkawan.
57 DBS Mobbs did not show the defendant his general search warrant at this
time or give a verbatim or more fulsome explanation of it.
58 It was DBS Mobbs’ evidence that as he directed the defendant towards DBS
West, he said to DBS West words to the effect of: ‘Can you deal with him for now’
but did not expressly say ‘search him’. DBS West’s evidence was that DBS
Mobbs asked him to search the defendant.
59 It is unnecessary to resolve this inconsistency between their evidence as to
whether DBS West was told to search the defendant’s person or not, whether
expressly or impliedly. This is because I have found DBS West is the relevant
decision-maker for the purposes of the search of the defendant’s person and bag
under s 52(6) of the Controlled Substances Act, not DBS Mobbs.
60 DBS West proceeded by asking the defendant whether he had anything in his
bag that would hurt him or the other detectives to which the defendant said no.
DBS West then began a search of the defendant’s person. When he touched the
defendant’s right pocket the defendant took out two phones and gave them to DBS
West who handed them to DBS Foster-Lynam who was standing near him.
61 After DBS West had pulled out the defendant’s pockets, he then asked a
second question: ‘Do you have anything in the bag you wish to make me aware
of?’ The defendant responded ‘Yes, two ounces’.
62 DBS West then took the bag off the defendant’s chest and instructed another
officer to get a camera prior to searching the bag. DBS West then handed the bag
to DBS Foster-Lynam and told him not to decant it until the camera was activated.
DBS West then cautioned the defendant and told him there would be no
conversation until the camera was activated.
63 These initial interactions between the police and the defendant that took place over
the course of about three minutes were not recorded.
64 The video camera was activated at 1:08 pm by Constable Leedham at the direction
of DBS West. Footage of the video taken was received in evidence, which I have
reviewed.21
65 Constable Leedham at the start of the video recording told the defendant the
purpose of the police presence was to conduct a search under the authority of a
general search warrant held by DBS Mobbs. DBS West then identified himself
and asked the defendant to state his name, date of birth and home address, then
cautioned the defendant and told him he was not under arrest. At this point,
21 Exhibit VDP4.
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DBS West asked the defendant further questions to confirm the version of events
and conversation that had just occurred, which the defendant confirmed as correct.
66 DBS West then told the defendant he was going to get DBS Foster-Lynam to
go through his bag which DBS Foster-Lynam did. When he did, he found a plastic
bag of a crystalline substance which he put on the ground in front of DBS West,
the latter describing it for the video as a bag of crystalline substance consistent
with methamphetamine. DBS West then told the defendant he was going to be
placed under arrest and gave him his rights on arrest.
Consideration
Search of the Defendant’s Person
Which Officer?
67 It is first necessary to resolve the dispute about which officer’s suspicions
were relevant before considering the issue as to whether such suspicions were
reasonably held or not.
68 The prosecution’s primary submission is that it is the reasonable suspicion of
DBS West that is relevant because he was the officer who decided to conduct the
search of the defendant’s person and effectively conducted it. The defence
disagreed, submitting that only DBS Foster-Lynam’s suspicions are relevant
because he conducted the physical search of the bag in which the drugs were found.
69 On the evidence, I have found it was DBS West who conducted the search of
the defendant’s person, including his bag.
70 He started the search by touching the defendant’s pocket and when the
defendant handed him his two phones, he gave them to DBS Foster-Lynam, who
was nearest to him. It was DBS West who removed from the defendant’s person
the bag strapped to his chest, which he also handed to DBS Foster-Lynam,
directing him not to decant the contents until the video camera he had called for
was activated. When the camera was activated, DBS West told the defendant he
was going to get DBS Foster-Lynam to go through the bag.
71 In the circumstances, I consider DBS Foster-Lynam was assisting and acting
at DBS West’s direction in decanting the contents of the bag. This was done
following DBS West’s search of the defendant’s person and removal of the bag
from the defendant’s chest. Given the way the search unfolded, it is artificial to
separate the search of the defendant’s pockets from that of the bag strapped to the
defendant’s chest that DBS West removed from the defendant’s person and
contend that the searches were separate.
72 The defendant submits the assertion DBS Foster-Lynam was assisting must
fall over in circumstances where he identified his own reasonable suspicion and
this was an important consideration. This submission should be rejected. It may
have been important if I had accepted DBS Foster-Lynam’s evidence on this topic
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and found he had genuinely held his own suspicion, which I did not. As already
stated, I found DBS Foster-Lynam’s recollection three years later of his own
suspicions and the reasons for them unpersuasive. In any event, having regard to
the video footage and DBS West’s evidence, I am satisfied that DBS Foster-
Lynam’s involvement is properly characterised as assistance.
Right to Assistance
73 The next question concerns the defendant’s challenge of the power of a police
officer to be assisted by another officer in conducting a search of a person under
s 52(6) of the Controlled Substances Act. It was submitted there is no implied
power for a police officer to have the assistance of another officer who does not
also hold the requisite suspicion for the conduct of a lawful search under s 52(6).
The defendant emphasised the civil liberties abrogated by the exercise of the power
to search under s 52(6) as necessarily confining the power to search and contrasted
it to the express provision of assistance provided in s 67 of the SO Act. It was
submitted that the holder of a general search warrant is entitled to assistance
because not every police officer holds such a warrant whereas s 52(6) extends to
any police officer who holds the requisite suspicion.
74 I disagree. The lawful right for a police officer who holds the requisite
suspicion to call upon the assistance of another officer to search a person should
be considered implicit in the power conferred by s 52(6). As both Justice Cox in
R v Romeo22 and Judge Davison in R v Cardy23 said, there is often a reasonable
need for such assistance and the need for assistance to be granted must have been
in the contemplation of the legislature in enacting s 52(6). Accordingly, the right
to call for help may reasonably be considered to be implicit in the grant of power
itself. This is all the more so when the longstanding right of a police officer to call
upon others to assist in exercise of lawful authority is appreciated.24
75 Properly analysed, the assistance of another officer to a police officer who
holds the requisite suspicion in conducting a personal search involves no further
abrogation of civil liabilities or unfairness to the person searched. This is not a
ground for denying an implied grant of power to call for assistance in s 52(6).
76 If it were otherwise, the clear purpose of the Act in regulating or prohibiting
the manufacture, supply and possession of controlled drugs would be undermined
by unreasonably constraining the effective exercise of the power of a police officer
who holds the requisite suspicion to search a person for drugs. It would be both
impracticable and potentially dangerous if a police officer holding the requisite
suspicion to search could not call on others to assist in the dynamic and varied
circumstances in which suspected offences under the Controlled Substances Act
22 (1982) 30 SASR 243 at 271.
23 [2018] SADC 3 at [36].
24 R v Romeo op cit, citing R v Adlard (1825) 107 ER 1247 and Reg v Brown (1871) 174 ER 522.
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routinely occur without first requiring the officer who rendered assistance to also
hold the requisite suspicion.
The Requisite Suspicion
77 Sub-section 52(6) of the Controlled Substances Act provides:
(6) An authorised officer who is a police officer may search any person whom the officer
reasonably suspects has in his or her possession any substance or equipment in
contravention of this Act.
78 The power to search the defendant under s 52(6) of the Controlled Substance
Act is conditioned on both DBS West holding the suspicion at the time he decided
to search and his suspicion being objectively reasonable given the facts and
circumstances known to him.25 It was not in issue that DBS West held a genuine
suspicion, and I have found he did hold a genuine suspicion. The question is
whether the suspicion he held was objectively reasonable on the basis of all the
information, both inculpatory and exculpatory, known to him at the time he
decided to search.
79 Suspicion, as distinct from belief, and the concept of reasonable grounds for
the suspicion were considered by the High Court in George v Rockett.26 The High
Court referred to the statement in Hussien v Chong Fook Kam27 that suspicion “in
its ordinary meaning is a state of conjecture or surmise where proof is lacking:
‘I suspect but I cannot prove’”. That some factual basis for the suspicion must be
shown was explained as follows, citing Queensland Bacon Pty Ltd v Rees:28
A suspicion that something exists is more than a mere idle wondering whether it exists or
not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion,
but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a
reason to suspect that a fact exists is more than a reason to consider or look into the
possibility of its existence.
80 The South Australian Supreme Court has considered the concept of
reasonable suspicion and reiterated the same principles in numerous authorities in
the context of s 52 of the Controlled Substances Act.29 In R v Nguyen, in discussing
the difference between suspicion and belief, the Court of Criminal Appeal said: 30
A suspicion that a fact exists is less certain than a belief in the existence of that fact.
A belief is held on information which is accepted as reliable and implies a reasonable
satisfaction that the fact is at least more likely to be true than any other alternative fact or
facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of
the truth of that fact, is a working hypothesis for which there is some supporting material.
There must be a rational connection between the supporting material and the suspicion.
25 R v Nguyen [2016] SASCFC 96 at [24].
26 (1990) 170 CLR 104 at 115-116.
27 [1970] AC 942 at 948 per Lord Devlin.
28 (1966) 115 CLR 266 at 303 per Kitto J.
29 More recently in Bae v R; Koo v R (2020) 135 SASR 522.
30 (2013) 117 SASR 432 at [21]-[22].
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Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the
same as a suspicion that it exists.
(Citations omitted)
81 The requirement for the ‘reasonableness’ of the suspicion means the known
information from which the suspicion arises must rationally produce a suspicion
in the mind of the authorised police officer and must engender the suspicion in the
mind of a person thinking reasonably about the information. ‘Reasonableness’ is
to be evaluated in the context of the statutory power and the civil liberties
abrogated by its exercise.31
82 It is important to reiterate some further salient observations made by the
Court of Criminal Appeal in Bae v R; Koo v R.32 In considering the requirements
of reasonable suspicion for the purposes of s 52(6) and (9) of the Controlled
Substances Act, Kelly J explained that the requisite suspicion does not require
anything other than the police officer to hold a relevant suspicion and that
suspicion is objectively reasonable, meaning that a reasonable person in the
position of the police officer would entertain the same suspicion.33 Further, it must
be a relevant suspicion in the sense that it must relate to the requirements of the
section that the search will afford evidence that the person is in possession of a
substance or equipment in contravention of the Controlled Substances Act.34 It
does not dictate that any threshold be reached by requiring the strength of the
suspicion to be assessed on some sliding scale.35
83 Properly analysed, a police officer’s opinion of whether their suspicion was
sufficient to trigger a s 52 power to search is irrelevant to the question of its
objective reasonableness.36
84 With the principles in mind, I turn to consider the matters said by DBS West
to give rise to his suspicion that the defendant had in his possession any substance
or equipment in contravention of the Controlled Substances Act.
85 DBS West gave evidence that he was acting under s 52 of the Controlled
Substances Act when he searched the defendant’s person. He confirmed in cross-
examination he understood the difference between authority to search a person
under the Controlled Substances Act and an address under a general search
warrant.
86 I accept DBS West’s evidence that he had already formed a suspicion that
the defendant would have drugs on him before he saw him at the scene. His
suspicion was based on his historic knowledge of the defendant’s drug trafficking,
31 Ibid at [22].
32 Op cit.
33 Ibid at [75].
34 Ibid at [67].
35 Ibid at [75].
36 Ibid at [78].
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the information conveyed in the tactical briefing given by DS Schollar that
morning, the information on the tactical operation order and intelligence report he
had then read, all suggesting the defendant was continuing to drug traffic and the
fact that it was confirmed he was still residing at Unit 205.
87 As I have already said, DBS West was thoroughly cross-examined and
recalled the detail of the matters he relied on in forming his suspicion. An analysis
of the information he relied on37 and his own knowledge of the defendant’s
suggested ongoing involvement in drug trafficking over the course of more than a
year aroused in DBS West an objectively reasonable suspicion in relation to the
defendant having illicit drugs on his person. It was rational for him to connect the
series of intelligence reports about the defendant’s involvement in suspected drug
activity as suggesting ongoing drug trafficking. It was rational for him to consider
the defendant would continue to drug traffic until detected and disrupted by police.
88 Contrary to the defendant’s submission, there is nothing unusual about
considering that if a person is suspected to be drug trafficking, that a person may
possess drugs or equipment on their person and there may also be in their place of
residence, evidence of or things used for the proposes of committing offences
under the Controlled Substances Act. This was the natural inference to be drawn
from the constellation of matters known to DBS West about the defendant. All of
his suspicions combined led to more than “mere curiosity, speculation or idle
wondering” on his part.38
89 The defendant challenged the information DBS West relied on as being too
general and dated. It was submitted that it was not reasonable to infer from the
police intelligence to which he had regard that the defendant was trafficking, as
distinct from being interested in drugs. Further, there was nothing to reasonably
suggest that the defendant would have on his person drugs or equipment on the
occasion in question, six weeks after the latest intelligence report.
90 I disagree.
91 Again, it is in the nature of drug trafficking that it is continuing activity and
continues for some time and often until detected and disrupted by police. The
period between the most recent intelligence and the search did not detract from the
cogency of the information in the circumstances of this case.39
92 That said, it should of course be acknowledged that each of the matters to
which DBS West had regard carried some weight and some were of greater
significance than others, and in this case any in isolation would not have been
enough to form a reasonable suspicion that there was a controlled substance or
equipment on the defendant’s person when he presented at the door. However, it
must be borne in mind in assessing the reasonableness of DBS West’s suspicion,
37 See paragraphs [46]-[50] above.
38 R v Nguyen (2013) 117 SASR 432 at [21]-[22].
39 McHugh v R [2020] SASCA 5.
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it was formed from the constellation of information conveyed at DS Schollar’s
briefing and contained in the tactical operation order and intelligence report he
read, in combination with his knowledge and experience of drug trafficking
generally and specifically in connection with Operations Vinegar, Fortune and
Guild.
93 ‘Reasonableness’ is not tested by individually assessing the quality and
weight of each matter relied on and summing their weights. Rather, an assessment
is to be made as to whether there is a positive link between the entirety of the
constellation of information relied on and the suspected illegality in the entirety of
the circumstances. In this way, in assessing the reasonable of DBS West’s
suspicion, consideration is to be given to the accumulation of relevant information,
inculpatory and exculpatory, and the suspicion was either objectively reasonable
or not.
94 In the circumstances, on the evidence I have found, I am satisfied that DBS
West had an objectively reasonable suspicion that was and rationally supported.
His search of the defendant’s person and bag under s 52(6) of the Controlled
Substances Act was therefore lawful and the evidence found as a result of his
search lawfully obtained.
Breach of ss 74D and 79A of the SO Act
95 The defendant submits he was not cautioned before he was questioned and
his questioning by DBS West was not recorded, in breach ss 74D and s79A of the
SO Act.
96 Ultimately, whilst the initial conversation DBS West had with the defendant
was not recorded, the defendant accepts (and properly so) that the first question
was concerned with securing safety at the scene
97 The second question was contentious:
Have you got anything else in the bag you wish to make me aware of?
98 The defendant submits the second question did not concern safety and should
not be interpreted as such. It was reasonably practicable for a video camera to
have been obtained (as it was a few minutes later) and as DBS West acknowledged
in cross-examination, best practice would require a caution to be administered
before asking the second question. Further, because there was no caution, the
defendant would have felt compelled to answer DBS West’s question and that
ought to have been obvious to an experienced officer like DBS West.
99 I do not accept the defendant’s submissions.
100 Having regard to the way in which the defendant unexpectedly presented in
front of police and circumstances unfolded at the scene, I accept DBS West’s
evidence that it was not practicable for him to first call for a video camera. As
plain clothes police they were not wearing body cameras in accordance with usual
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practice and had attended to execute a search of premises, intending to activate a
video camera when the premises were safely secured.
101 In the circumstances, it was also not necessary for DBS West to administer a
caution or record his initial conversation with the defendant before he had it. A
suspicion sufficient to justify a search under s 52(6) of the Controlled Substances
Act does not of itself require either to have first occurred. It is well established
that it is only when police reach the ‘accusatory stage’ of their investigation that a
caution is required and it would then otherwise be unfair to admit any statements
given by an accused if a caution had not been previously given.40
102 As I have already said, DBS West accepted in cross-examination that in
hindsight it would have been best practice to caution the defendant between the
two questions he asked.41 However, as he also said, that was not practical at the
time because he was in the process of safely searching the defendant. I accept his
second question was directed at safety. Since he was going to search the defendant
regardless, he said it was better for the defendant to tell him what he had than for
him to find needles and other things when he searched.
103 In the circumstances, I consider it was reasonable and necessary for DBS
West to prioritise safety at the scene, bearing in mind both the specific cautions
noted in the intelligence reports for the defendant and DBS West’s experience that
it was common practice for drug traffickers to carry weapons for self-protection.42
104 It should therefore be accepted that both DBS West’s questions were directed
at securing the safety of the scene and not accusatory or the start of a systematic
interview. There was therefore no involuntariness or unfairness arising from a lack
of caution being given to the defendant and him answering the questions asked by
DBS West.
105 There was ultimately no unfairness in the initial conversation not being
recorded. It was immediately addressed by DBS West stopping the search when
the defendant volunteered he had ‘two ounces’, calling for a video camera and
cautioning the defendant both off and on camera, then repeating what had been
said before he directed DBS Foster-Lynam to search his bag. The delay in starting
the recording was approximately three minutes.
106 DBS West properly gave a caution as soon as the defendant said he had ‘two
ounces’, arousing in DBS West a sufficiently strong suspicion that the defendant
had committed an alleged offence, to warrant the giving of a caution.
Detention
107 The defendant submits he was unlawfully detained.
40 R v Dolan (1992) 58 SASR 501 at 505.
41 T 52.16-.21.
42 For example, Exhibit VDP5 page 2.
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108 Having regard to the principles governing de facto arrest considered in R v
Lavery43 and R v Conley,44 it should be accepted that police detained the defendant
when he presented in front of them. However, in the circumstances I have found
the defendant’s detention does not amount to a de facto arrest. His detention was
lawful and justified by the implied power of DBS West to detain him for the
purpose of safely conducting a search of his person under s 52(6) of the Controlled
Substances Act.
Search of Unit 205
109 The defendant challenges the lawfulness of the search of Unit 205 on two
grounds and therefore seeks an order excluding the evidence found by police from
the search of Unit 205.
110 The first is that there was no reasonable cause to suspect. The second is that
DBS Mobbs did not present his general search warrant of his suspicions as to why
he was searching the defendant’s address as soon as reasonably practicable.
Reasonable Suspicion for Searching Unit 205
111 The exercise of the powers of entry and search etc of any house, building,
premises or place conferred by s 67(4) of the SO Act is conditioned on the named
officer having reasonable cause to suspect that it is where an offence has been
recently committed or is about to be committed, there are stolen goods or there is
anything that may afford evidence as to the commission of an offence or that may
be used for the purpose of committing an offence.
112 Having regard to the evidence, I consider DBS Mobbs had reasonable cause
to suspect that the defendant had recently committed or was about to commit an
offence, namely the trafficking of illicit drugs, and that Unit 205 as his residence
was a building, premises or place where there were drugs or other things that may
afford evidence of or may be intended to be used for the purpose of committing
offences under the Controlled Substances Act.
113 DBS Mobbs prepared the record of general search warrant use (PD23A)45
relatively contemporaneously with the search of Unit 205, at midday the preceding
day, 7 February 2021. He stated in the supporting notes the intelligence he relied
on as a basis for his suspicions that the defendant as the occupant of Unit 205, was
dealing in illicit drugs and therefore Unit 205 were premises of drug interest,
among others. In evidence he explained the stated basis of his suspicions as
recorded in the PD23A in detail. He said he had read all of the referenced
intelligence reports before he prepared the PD23A and had been told certain
information about the defendant that police knew as a result of another police
investigation (Operation Fortune).
43 (1978) 19 SASR 515.
44 (1982) 30 SASR 226.
45 Exhibit VDP6.
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114 The intelligence on which he based his suspicions was as follows.
115 DBS Mobbs had been involved for some months in an ongoing investigation
into the Tinh Ban criminal network and related drug trafficking, known as
Operation Guild. He knew from his work in this investigation that the defendant
had been identified as an associate of known members of the syndicate (that is, his
uncle and mother) and there was reliable and recent intelligence suggesting the
defendant was drug trafficking. At the time, it was not known whether the
defendant was a member of the Tinh Ban syndicate or the suggested drug
trafficking involved the syndicate.
116 DBS Mobbs had identified the defendant’s last recorded address as Unit 205,
171 Prospect Road from a police licence check (VLS) as at 23 January 2021 (some
two weeks earlier).
117 On the first page of the PD23A, DBS Mobbs referenced intelligence received
on 5 February 2021 identifying the defendant as linked to an Asian male as owning
an Australia Post outlet and verifying fake documents.46 This was of relevance
because in DBS Mobbs’ experience, drugs were frequently sent through the post.
118 Again on the first page of the PD23A, he referenced the police intelligence
received on 22 December 2020 (some six weeks earlier) suggesting the defendant
(aka America) was selling large amounts of heroin, the relevant report number47
(that he had read) and that this report also corroborated the defendant’s current
address as Unit 205. DBS Mobbs gave evidence that the defendant was known to
police as ‘America’ and ‘My America’ and his name was referred to in reports
with alternate spellings.
119 On the second page of the PD23A, DBS Mobbs referenced police
observations made during the course of Operation Fortune of the defendant on
9 November 2020 attending a drug premises of interest at McQueen Street,
Paralowie. The occupants were observed attending the front passenger window of
the defendant’s vehicle for a short passage of time consistent with the modus
operandi for drug dealing. This intelligence was conveyed to DBS Mobbs by his
supervisor DS Sergeant Schollar, who liaised with officers from the other
investigation.
120 DBS Mobbs referenced a second occasion on the PD23A of 19 October 2020
on which the defendant was observed by police in the course of Operation Fortune
attending McQueen Street, Paralowie.
121 He next referenced further police intelligence received in October 2020
concerning yet another drug person of interest who was suggested as dealing large
amounts of heroin from a Globe Derby Park address and was supplied by the
46 Exhibit VDP7.
47 Exhibit VDP5.
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defendant and another person of interest.48 Because of his involvement in
Operation Guild, DBS Mobbs knew this person of interest was searched as part of
that investigation.
122 DBS Mobbs referenced further intelligence for suspecting the McQueen
Street address (where police had observed the defendant twice) was an address
involved in illicit drug activity. The first was intelligence received on
10 September 2020 about the occupants of McQueen Street, Paralowie suggesting
the occupants were dealing in illicit drugs from that address and the second was
intelligence received on 3 March 2020 about a drug person of interest who was
recorded as living at McQueen Street, Paralowie.49 A street check report50 from
July 2019 for McQueen Street, Paralowie was also referenced.
123 Finally, DBS Mobbs gave evidence that he was mindful of some unexplained
wealth of the defendant. He said whilst he did not document it, he was suspicious
that the defendant had acquired the high end vehicle that he was driving by selling
drugs.
124 On the basis of the police intelligence reports he had read, what he had been
told by his supervising officer was known from Operation Fortune and what he
knew from his involvement in Operation Guild, DBS Mobbs gave evidence that
he suspected the defendant was trafficking in controlled drugs as a mid-level
supplier. Whilst the recent intelligence reported dealing in heroin, DBS Mobbs
said he was mindful and it was his experience that drug dealers were not exclusive
to one drug.
125 Having regard to the nature and significance of all of the intelligence relied
on by DBS Mobbs, his knowledge from his work and involvement in Operation
Guild and experience in investigating drug trafficking generally, I have concluded
the suspicions held by DBS Mobbs that the defendant was trafficking in controlled
drugs were genuinely held and objectively reasonable. Having connected the
defendant to Unit 205 as his current address, DBS Mobbs suspicions about it being
premises of drug interest were objectively reasonable and rationally supported by
all information he had. This was a rationale and natural inference to draw from
the relevant intelligence about the defendant’s continuing involvement in drug
trafficking, particularly given the December and November 2020 intelligence.
126 The defendant submitted that of the intelligence relied on was dated (apart
from the February 2021 intelligence that did not relate to Unit 205) or at its highest,
showed the defendant only had an interest in drug transactions, namely heroin.
These submissions should be rejected for the reasons discussed above.51
48 Exhibit VDP8.
49 Exhibit VDP9.
50 Exhibit VDP10.
51 See [90] above.
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127 As the prosecution submits, it should be borne in mind that the general search
warrant was issued in the context on an ongoing investigation of many months.
The more significant intelligence was relatively recent: from December (six weeks
prior), November (three months prior) and October (four months prior). The
intelligence expressly suggested drug trafficking, not merely an interest in drugs.
128 I am satisfied DBS Mobbs had the requisite reasonable cause to suspect.
Presentation of the Warrant
129 DBS Mobbs read his general search warrant verbatim to the defendant
approximately nine minutes after the video was activated and thus within about
eleven or twelve minutes from when he first spoke to the defendant. Their first
interaction properly involved DBS Mobbs identifying himself and the others as
police and informing him that they were there to conduct a search of his address,
Unit 205, under the authority of his general search warrant. In between, the
defendant was searched and when drugs were found in the bag he was carrying, he
was arrested.
130 The defendant submits DBS Mobbs did not present his general search
warrant nor his suspicions as to why he was searching Unit 205 as soon as
reasonably practicable. As a result, the use of the warrant was unlawful. The
prosecution contends otherwise, submitting it was impracticable for the warrant to
have been presented and explained more fully before first attending to operational
safety.
131 The prosecution submission should be accepted. It was appropriate for DBS
Mobbs’ first concern to be attending to operational safety. He separated the
defendant and Ms Pakkawan, by directing the defendant to DBS West. DBS West
then dealt with the defendant and undertook the search of the defendant’s person
and directed DBS Foster-Lynam to search the defendant’s bag. It was not
practicable for DBS Mobbs to interrupt those dealings in order to formally present
his general search warrant and suspicions to the defendant. He took the first
practicable opportunity to do so.
Exclusion of Unlawfully Obtained Evidence
132 Given my conclusion that the evidence of both searches was lawfully
obtained, my discretion to consider excluding the evidence from the searches
undertaken for public policy reasons arising where evidence has been obtained
unfairly or unlawfully is not enlivened.
133 If I am wrong that the search of the defendant’s bag was unlawful as a result
of Detective Foster-Lynam conducting it or for any of the criticisms made of DBS
West’s lack of the requisite suspicion or dealings with the defendant in alleged
breach of ss 74D or 79A of the SO Act, I have a discretion to admit the evidence
if, after giving consideration to the principles in Bunning v Cross,52 I consider that
52 (1978) 141 CLR 54.
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would be appropriate. The same applies to the criticisms made of DBS Mobbs’
dealings with regard to execution of his search warrant.
134 An important consideration is whether there has been any unfairness to the
defendant.
135 In the circumstances, it is difficult to see how there was. The defendant
presented unexpectedly in front of the police. As plain clothes police, they did not
have body worn carmeras and were not yet prepared to activate a video camera.
The first priority was to secure the safety of the scene, which DBS Mobbs did by
directing the defendant to DBS West and DBS West did by his initial conversation
with the defendant about safety and his search of the defendant’s person. When the
defendant said he had ’two ounces’, DBS Mob cautioned him, stopped the search
called for the video camera and instructed DBS Foster-Lynam not to search the
bag until the camera was activated.
136 This process took approximately three minutes off camera. I have considered
the video.53 All of the recorded dealings with the defendant were respectful.
137 The search of the defendant’s bag that DBS West removed from his person was
conducted by DBS Foster-Lynam at DBS West’s direction. His search is properly
characterised as assisting an officer who had formed the requisite suspicion.
138 DBS Mobbs promptly identified himself and the others as police and their
purpose for being at the scene. He formally presented his general search warrant
and read it verbatim as soon as reasonably practicable, after DBS West had
conducted a search of his person, and formally cautioned him, no more than twelve
minutes later.
139 It cannot be suggested any unlawfulness was motived by mal fides or was
malicious. If there was any unlawfulness, it was inadvertent. Furthermore, the
cogency of the evidence of both searches was unaffected and is of considerable
probative value. I would therefore admit the evidence of both searches in the
exercise of my discretion.
53 VDP4.
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