RYAN JAMES VAN HOUTEN v THE KING [2023] SASCA 57

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE HEFFERNAN) DCCRM-20-1687 Appellant: RYAN JAMES VAN HOUTEN Counsel: MR A GRAHAM - Solicitor: MANGAN EY & ASSOCIATES Respondent: THE KING Counsel: MR A WILSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 07/10/2022 File No/s: SCCRM-22-231 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: 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. VAN HOUTEN v THE KING [2023] SASCA 57 Judgment of the Court of Appeal (The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Mazza) 1 June 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - GENERALLY The day before the 'Schoolies' festival, the appellant was driving toward Victor Harbor when police, having established a Drug Transit Route on Hindmarsh Road, directed him to stop and get out of his vehicle. A drug detection dog, PD Taco, indicated the presence of a controlled drug by sitting next to the appellant. Officer Parish led PD Taco to the appellant's vehicle whereupon he partially entered the cabin area and again gave a positive indication for drugs. Police entered the vehicle locating methylamphetamine and fantasy. The appellant was convicted of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA). The appellant appeals his convictions on the ground that the trial judge erred in failing to exclude the evidence arising from the search. The principal issue on appeal is whether the trial judge was correct in finding that the police had a 'reasonable suspicion' that a controlled drug was present in the vehicle. Held, per the Court, dismissing the appeal: -- 1 of 16 -- 1. The suspicion held by Officer Parish was reasonable. In accordance with s 52D(5) of the CSA, PD Taco gave a positive indication that controlled drugs were present on the appellant and/or in the immediate vicinity of the appellant including his vehicle. 2. As Officer Parish held the 'reasonable suspicion' required by s 52(9) of the CSA, the police's search of the vehicle was lawful. 3. Had it been necessary to exercise the 'Bunning v Cross discretion' afresh, the evidence would not have been excluded. Controlled Substances Act 1984 (SA) ss 50(1), 52(9), 52B, 52D, 52D(5); Controlled Substances (Drug Detection Powers) Amendment Act 2008 (SA), referred to. Bunning v Cross (1978) 141 CLR 54; R v Colenso [2016] SASCFC 128; R v Golja [2017] SASCFC 61; R v Nguyen [2013] SASCFC 91; R v Nguyen [2016] SASCFC 96; Wheare v Police (SA) [2008] SASC 13; Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223, considered. -- 2 of 16 -- VAN HOUTEN v THE KING [2023] SASCA 57 Court of Appeal – Criminal: Lovell, David JJA and Mazza AJA 1 THE COURT: The appellant was convicted after a trial by judge alone of two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA). The offences were alleged to have occurred on 21 November 2019 at McCracken, at a location within a Drug Transit Route. Count 1 concerned a quantity of methylamphetamine. Count 2 concerned a quantity of 1, 4-butanediol (commonly known as fantasy). The drugs were discovered by police in the centre console and in the driver’s side door of the vehicle in which the appellant was the driver and sole occupant. The methylamphetamine was in two press seal bags contained in a sunglasses case and the fantasy was in a shower gel bottle. 2 At a lengthy voir dire held before the trial the appellant challenged the legality of, and thus the admissibility of the items found in, the search of the vehicle by a police officer, Officer Parish, and a drug detection dog, PD Taco. The judge ruled that the search was lawful. His Honour delivered written reasons for his decision: R v Van Houten.1 3 Following the voir dire, a trial was held ‘on the papers’. The appellant elected to adduce no evidence in his defence. The appellant was convicted of both counts. The trial judge delivered written reasons for finding the appellant guilty as charged: R v Van Houten (No 2).2 4 The appellant appeals to this court against his convictions by, in effect, challenging the trial judge’s ruling that the search of the vehicle was legal. The real issue this appeal raises is whether the trial judge was correct to find, as his Honour did, that the police had a reasonable suspicion that a controlled drug was present in the vehicle. 5 The ground of appeal reads: The learned judge erred by failing to exclude the evidence arising from a search of the motor vehicle that the appellant was driving on 21 November 2019. 6 Permission to appeal on this ground has been granted. 7 To understand the ground of appeal it is first necessary to detail the statutory framework upon which the appeal must be decided. After that, we will detail the background to the search and some of the evidence adduced at the voir dire, before addressing the ground of appeal itself. 1 R v Van Houten [2022] SADC 23. 2 R v Van Houten (No 2) [2022] SADC 59. -- 3 of 16 -- [2023] SASCA 57 The Court 2 The statutory framework 8 The statutory provisions relevant to the power to search a motor vehicle and the authorisation of a Drug Transit Route are set out below. 9 Part 7 of the CSA is entitled ‘Search, seizure, forfeiture and analysis’. All of the provisions described below are found within this Part. 10 Section 50(1) sets out who are authorised officers for the purposes of the CSA. By s 50(1)(a) a police officer is a designated authorised officer. 11 Section 52 sets out the general powers to search given to authorised officers. Relevantly, s 52(6) provides that: 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. 12 Section 52(9) states: If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may- (a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and (b) detain and search the vehicle, vessel or aircraft; and (c) seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act. 13 Sections 52A, 52B, 52C and 52D were introduced into the CSA by the Controlled Substances (Drug Detection Powers) Amendment Act 2008 (SA) (the Amendment Act).3 14 Section 52B gives a police officer special powers with respect to Drug Transit Routes established under the section. 15 Relevantly, s 52B provides: (1) A senior police officer may, if he or she reasonably suspects that an area is being, or is likely to be, used for the transport of controlled drugs, controlled precursors or controlled plants in contravention of this Act, authorise the exercise of powers under this section in relation to the area. (2) An authorisation granted by a senior police officer under subsection (1)- (a) must be granted in accordance with any guidelines issued by the Commissioner in relation to such authorisations; and 3 See s 6 of the Controlled Substances (Drug Detection Powers) Amendment Act 2008. -- 4 of 16 -- [2023] SASCA 57 The Court 3 (b) must define the area to which the authorisation relates; and (c) may be subject to conditions specified by the officer granting the authorisation; and (d) operates for an initial period (not exceeding 14 days) specified by the officer granting the authorisation; and (e) may be renewed from time to time by a senior police officer for a further period (not exceeding 14 days). … (4) An area may only be subject to an authorisation under this section if- (a) the whole of the area is situated more than 30 kilometres from the General Post Office at Adelaide; and (b) the total size of the area is not more than 5 square kilometres. (5) If the exercise of powers under this section in relation to an area is authorised, a police officer may- (a) require the driver of a vehicle within the area to stop the vehicle (whether at a drug detection point established in accordance with subsection (7) or at any other location); and (b) detain the vehicle and carry out general drug detection in relation to the vehicle and any persons or property in or on the vehicle; and (c) allow a drug detection dog to enter any part of the vehicle not designed for the purpose of carrying passengers while the vehicle is moving; and (d) direct a person to open any part of the vehicle and give such other directions as are reasonably necessary for, or incidental to, the effective exercise of powers under this section. (6) A police officer may only detain a person who is in a vehicle, by directions given under this section, for so long as is reasonably necessary to carry out general drug detection in relation to the vehicle and any persons or property in the vehicle. (7) A drug detection point may be established by police officers at any time or in the vicinity of any road within an area in relation to which the exercise of powers under this section is authorised for the purpose of exercising those powers in relation to persons driving motor vehicles on the road. 16 A senior police officer as designated in s 52B(1) and (2) of the CSA is defined in s 4 to mean a police officer of or above the rank of Inspector. 17 The expression ‘general drug detection’ used in s 52B(5) and (6) is relevantly defined in s 4 to mean: (a) walking or otherwise placing a drug detection dog in the vicinity of a person or property; or -- 5 of 16 -- [2023] SASCA 57 The Court 4 (b) … for the purpose of determining whether the dog or system (as the case may be) detects the presence of a controlled drug, controlled precursor or controlled plant (but does not include any other conduct by a person that would constitute a search); (emphasis added) 18 The expression ‘drug detection dog’ is also defined in s 4. There is no doubt that PD Taco comes within this definition. 19 Section 52D sets out some general provisions relating to the exercise of powers under Part 7 of the CSA. Relevantly, s 52D(5) provides: For the avoidance of doubt, an indication- (a) by a drug detection dog that the dog has detected the presence of a controlled drug, controlled precursor or controlled plant; or (b) by an electronic drug detection system that the system has detected the presence of a controlled drug, controlled precursor or controlled plant, constitutes reasonable grounds to suspect that a controlled drug, controlled precursor or controlled plant is present. 20 Up until the passing of the Amendment Act, police officers in South Australia had no specific powers to stop vehicles at random on known drug transport routes to check for the presence of drugs.4 It is evident from its statutory language that the purpose of s 52B is to provide for the designation of Drug Transit Routes by a senior police officer within which a police officer may exercise the powers set out in s 52B(5) including the power to carry out general drug detection in relation to a vehicle which has been stopped in the designated area and any persons or property in or on the vehicle. In carrying out general drug detection a police officer may place a drug detection dog in the vicinity of a person or property for the purpose of determining whether the dog detects the presence of a controlled drug. By virtue of s 52B(5)(c) a drug detection dog may only enter those parts of the vehicle not designed for the purpose of carrying passengers while the vehicle is moving. Otherwise, general drug detection does not empower conduct that would constitute a search of a vehicle. 21 Thus, the fundamental power to search a vehicle remains within s 52(9). In particular, the ability of police to search a vehicle and to remove from it anything that would afford evidence of an offence under the CSA is to be found in s 52(9). Section 52D(5) is a statutory aid for the purpose of establishing a reasonable suspicion for the purposes of s 52(9) of the CSA. 4 See South Australia, Parliamentary Debates, Legislative Council 4 March 2008, p 1977 second reading speech by the Hon P Holloway. -- 6 of 16 -- [2023] SASCA 57 The Court 5 The background to the search 22 Schoolies festivities have, for a number of years, occurred on an annual basis in Victor Harbor. For some years prior to 21 November 2019 police have authorised a Drug Transit Route, pursuant to s 52B of the CSA, in areas outside Victor Harbor. In essence, the establishment of a Drug Transit Route enables police to stop vehicles at random to enable drug detection dogs to check drivers and vehicles for the presence of controlled drugs. 23 At about 11.00 am on Thursday 15 November 2019 Superintendent Fairney authorised the establishment of a Drug Transit Route through a designated area on the outskirts of the Victor Harbor townsite which included Hindmarsh Road, McCracken. The period of the authorisation was between 5.00 pm and 8.00 pm on Thursday, 21 November 2019 which was the day before the Schoolies festivities commenced. Superintendent Fairney, who gave evidence at the voir dire, said that the population of Victor Harbor swells during Schoolies, by anywhere between 5,000 to 10,000 young people. He said that he was satisfied of a high likelihood of substances being moved into the town during that time. Superintendent Fairney said that he suspected that illicit drugs were more likely to be moved on the Thursday afternoon prior to the event commencing. The primary source of information in regard to the application for the Drug Transit Route was provided by Senior Sergeant Massey. She also testified in the voir dire. She gave evidence, based on her experience and as a result of intelligence which had been provided to her, that the main movement of drugs into Victor Harbor for Schoolies was by civilian vehicle. Hindmarsh Road was chosen because it is a major arterial road into Victor Harbor. She believed that it was more likely that there would be drugs being transported to Victor Harbor on the afternoon before Schoolies began because there was generally an increase of people arriving in Victor Harbor at that time. 24 In the voir dire, the appellant challenged the validity of the authorisation for the Drug Transit Route granted by Superintendent Fairney. Although Superintendent Fairney did not make notes of any additional information not included in the application for the Drug Transit Route in accordance with the relevant SAPOL general orders which in turn contravened s 52B(2)(a) of the CSA, the trial judge held that the extent of the unlawfulness for non-compliance with the general orders was ‘very minor’. His Honour held that, in the circumstances, the authorisation was valid. On appeal to this court, the appellant does not challenge Superintendent Fairney’s authorisation of the Drug Transit Route. The search 25 Further evidence adduced at the voir dire revealed the following. 26 On 21 November 2019 the appellant was driving a grey Holden Epicure sedan on Hindmarsh Road, McCracken on the way into Victor Harbor. He was the only person in the car. Police, having established a Drug Transit Route on Hindmarsh Road, directed the appellant to stop his vehicle and he did so. The -- 7 of 16 -- [2023] SASCA 57 The Court 6 appellant got out of his car as directed by a police officer. PD Taco was at the scene with his police handler, Officer Parish. PD Taco, like all drug detection dogs, is trained to detect the odours given off by drugs. He is not trained to otherwise locate the drugs. When he smells or identifies a drug odour the dog is trained to work toward the strongest source of the odour. Once he has reached that source the dog will sit down. Having given this indication he is given a reward such as a biscuit. 27 On the occasion in question, after the appellant got out of his vehicle, he stood very close to the vehicle on a grassed area. Officer Parish led PD Taco to where the appellant stood near the vehicle. During the course of Officer Parish’s evidence in the voir dire, body worn camera footage of the search taken by another police officer, Senior Constable Holloway, was tendered.5 28 Upon circling the appellant PD Taco indicated the odour of a drug by sitting next to the appellant. Before the appellant was himself searched, Officer Parish lead PD Taco to the appellant’s vehicle. Officer Parish opened several doors, including the driver’s door and PD Taco partially entered the cabin area of the vehicle. By partially, we mean that PD Taco did not fully enter the vehicle. Rather, the front portion of his body can be seen in areas inside the cabin of the vehicle with the back portion including his hind legs on the ground outside the vehicle. After PD Taco smelt around the area of the driver’s footwell and the area between the seat and the console near the handbrake, the dog sat down and was rewarded with a biscuit. Officer Parish then directed another police officer to a sunglasses case wedged between the driver’s seat and the console. Officer Parish said that PD Taco then searched the rest of the vehicle. According to Officer Parish, PD Taco made no further indication of the odour of a drug on any other parts of the vehicle. Police officers at the scene then entered the vehicle and discovered the methylamphetamine and fantasy. These officers were not called to testify at the voir dire. 29 Officer Parish said that he searched the vehicle ‘because the indication from the dog gives us the suspicion that there’s something in the vehicle’. He agreed that he did not wait for a search of the appellant’s person before searching his vehicle. He accepted that opening the car door to allow PD Taco to enter the vehicle constituted a search. 30 Officer Parish accepted that the positive indication PD Taco gave was only in relation to the appellant and nothing else. In other words, he did not suggest that the positive indication emanated from a drug odour in the car. 31 Officer Parish said that the power to enter the vehicle arose when ‘Taco smelt drug odour on Mr Van Houten’. He said that as a result, he believed that he had 5 Exhibit VDP9. An excerpt from this exhibit was played during the hearing of this appeal. -- 8 of 16 -- [2023] SASCA 57 The Court 7 the power to search the vehicle under s 52(9) of the CSA. Officer Parish explained the effect of the positive indication in this way: It gave me suspicion, the fact that he [PD Taco] indicated on the driver, the sole occupant on the car, gave me suspicion that there possibly could be drugs in the car. 32 Officer Parish said that if there had been no positive indication from PD Taco, he would not have searched the inside of the vehicle. 33 Officer Parish was cross-examined at considerable length about the number of positive indications given by a drug detection dog which resulted in drugs being found on the person or the object that was the subject of the positive indication. The purpose of this line of cross-examination was to advance an argument (also advanced on appeal) that, having regard to the low rate of detected drugs following from positive indications by drug detection dogs, a positive indication by a drug detection dog could not ground a reasonable suspicion to search pursuant to s 52(9) of the CSA. Officer Parish accepted that the ‘strike rate’ of drug detections which resulted from positive indications by a drug dog would be less than 50%. Six statistical returns in relation to drug dog operations conducted by Officer Parish were produced, and, ultimately, tendered.6 All of these statistical returns related to operations conducted in hotels and taverns in the Victor Harbor area on one day, 15 September 2018. The statistical returns revealed that, in the six drug detection operations, a total of 21 positive indications were made, but only one drug diversion resulted. However, in response to a line of questioning as to whether he would stop and think about whether he had a reasonable suspicion, Officer Parish noted that 15 of the people for whom positive indications were made had admitted recent contact with drugs. 34 Towards the end of the cross-examination of Officer Parish, defence counsel put to him a hypothetical situation, as follows: If you'd searched 100 cars previously, no drugs being found, wouldn't that factor into search number 101 as to whether there is a reasonable suspicion. 35 Officer Parish responded: [N]o it wouldn't. If it was a 100th search or a 101st search and Taco has indicated on an occupant of that vehicle, I would search the inside of that vehicle. The trial judge’s ruling on the voir dire 36 The trial judge ruled on the voir dire that the authorisation for the Drug Transit Route was valid. As this part of the ruling is not challenged in this appeal, it is unnecessary to say anything more about it. 37 Relevantly, the trial judge held that Officer Parish’s conduct in respect of the appellant’s vehicle did not go beyond the powers provided for in s 52B(5) of the CSA, which he held permitted the police to engage in activity including, but not 6 Exhibits VDD22–VDD27. -- 9 of 16 -- [2023] SASCA 57 The Court 8 limited to, general drug detection as defined in s 4 of the CSA. In particular, his Honour found that Officer Parish’s conduct came within the ambit of s 52B(5)(b). 38 His Honour said that he thought ‘the better view’ was that the other police officers who later entered and then discovered the drugs in the vehicle based on the information given to them by Officer Parish performed the search. His Honour said in that event, PD Taco’s positive indication at the vehicle gave the other police officers a reasonable suspicion having regard to s 52D(5) of the CSA. In other words, his Honour found that Officer Parish’s actions did not amount to a search of the vehicle, rather, those actions included general drug detection. 39 His Honour held that if Officer Parish’s actions amounted to a search, the search was lawful because he had an objectively reasonable suspicion as required by s 52(9) relying upon the deeming provision in s 52D(5) of the CSA. 40 His Honour rejected submissions put on behalf of the appellant to the effect that the low strike rate of actual drug detections having regard to positive indications given by drug detection dogs precluded Officer Parish from having a reasonable suspicion. The appellant’s submissions 41 In this court, the appellant submitted that by putting PD Taco in the appellant’s vehicle, Officer Parish was searching the vehicle and was not exercising any of the powers in s 52B(5) of the CSA and in particular those powers contained in paragraphs (b) and (c). 42 The appellant also submitted that the deeming provision in s 52D(5) did not apply in the present case because as a matter of statutory construction, the word ‘present’ in s 52D(5) should be read narrowly to attach to the same object indicated or detected, which in this case was the appellant, and not to other objects in the vicinity of the appellant such as his motor vehicle. Thus, because the deeming provision did not apply, the appellant submitted that police were required to prove a reasonable suspicion under s 52(9) of the CSA. 43 In any event, the appellant submitted that the search of the appellant’s vehicle was unlawful because Officer Parish did not have a reasonable suspicion, as required by s 52(9), that searching the appellant’s vehicle would afford evidence of an offence against the CSA. The appellant submitted that the positive indication given by PD Taco toward the appellant himself did not justify a reasonable suspicion because, according to the appellant, the ‘strike rate’ of drug detection dogs, including PD Taco, with respect to positive indications compared to the actual finding of drugs, was very low. 44 The appellant submitted that if this court concludes that the search of the appellant’s vehicle was unlawful, this court in the re-exercise of the Bunning v -- 10 of 16 -- [2023] SASCA 57 The Court 9 Cross7 discretion should exclude the evidence derived from the search, (the controlled substances the subject of the charges) with the result that the appellant’s convictions would be set aside. The respondent’s submissions 45 The respondent conceded that, contrary to the view taken by the trial judge in the voir dire, Officer Parish’s conduct in opening the vehicle doors and allowing PD Taco to partially enter the cabin of the appellant’s vehicle was capable of amounting, at law, to a search of the vehicle. 46 However, the respondent submitted, any search of the vehicle was lawful pursuant to s 52(9) of the CSA. This is because Officer Parish had the benefit of the deeming provision in s 52D(5) of the CSA. The respondent submitted that the word ‘present’ in the subsection should not, as the appellant contends, be narrowly construed and that the initial indication towards the appellant made by PD Taco should apply not only to the search of the appellant’s person but also to the search of the appellant’s vehicle. This is because the word ‘present’ in s 52D(5) should be construed to include the immediate location in which the indication is made by a drug detection dog. 47 Even if the presumption did not apply, the respondent submitted that the detection by PD Taco, along with the surrounding circumstances, were sufficient to give rise to a reasonable suspicion on the part of Officer Parish for the purposes of s 52(9). 48 The respondent submitted that in the event that this court determined that the search of the appellant’s car was unlawful, the Bunning v Cross discretion should be applied by this court to admit the evidence. Disposition 49 Contrary to the finding of the trial judge and consistently with the parties’ submission, in our opinion Officer Parish’s conduct in opening the door of the appellant’s vehicle and allowing PD Taco to enter the cabin of the vehicle, albeit partially, constituted a search of the vehicle and fell outside the ambit of general drug detection within the meaning of s 4 of the CSA. 50 General drug detection, as relevantly defined, permits a police officer to walk or otherwise place a drug detection dog in the vicinity of a person or property for the purpose of determining whether the dog detects the presence of a controlled drug but it does not include other conduct by a person that would constitute a search. By opening the driver’s side door and other doors of the vehicle and allowing PD Taco to partially enter the cabin area of the vehicle, Officer Parish engaged in a search of the vehicle. 7 Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. -- 11 of 16 -- [2023] SASCA 57 The Court 10 51 The word ‘search’ has been held to require some physical intrusion or trespass into what is searched for the purpose of examining it. Mere sensory perception of something, for example by smell or sight does not amount to a search at law: Questions of Law Reserved (No 3 of 1998).8 Thus, had Officer Parish not opened the doors of the appellant’s vehicle and permitted PD Taco to enter the cabin, but placed the dog outside the vehicle and relied upon the dog’s sense of smell, there would have been no search.9 Similarly, had Officer Parish looked through the window of the appellant’s vehicle and seen the controlled drugs, this action, being no more than the use of the sensory perception of sight, would not constitute a search: Wheare v Police (SA).10 52 We would not hold that Officer Parish’s conduct came within the ambit of s 52B(5)(b) which permits a police officer to ‘detain the vehicle and carry out general drug detection in relation to the vehicle and any persons or property in or on the vehicle’ (emphasis added). As the respondent pointed out, s 52B(5)(c) of the CSA authorises police to allow a drug detection dog to enter any part of the vehicle not designed for the purpose of carrying passengers while the vehicle is moving. This provision would be otiose if paragraph (b) allowed intrusion into all areas of the vehicle. Moreover, again as the respondent pointed out, having regard to the authorities referred to above, any incursion or trespass into the cabin area of the vehicle amounts to a search and is inconsistent with the definition of general drug detection which excludes conduct by a person amounting to a search. 53 In our opinion the power in s 52B(5)(b) allows general drug detection, that is in the form of walking or placing a drug detection dog in the vicinity of a vehicle for the purpose of allowing the dog to detect the presence of a controlled drug that may be in the vehicle. Paragraph (b) does not empower a police officer to enter the cabin area of the vehicle. 54 For the sake of completeness, while s 52B(5)(d) of the CSA was broad enough to empower the police to direct the appellant to open the doors of his vehicle, to remove any items in the cabin and to place them outside the vehicle to allow PD Taco to carry out general drug detection of the items, none of these things occurred in this case. We reiterate that what occurred was a search of the appellant’s vehicle. Whether the search was lawful depends upon whether, in this case, Officer Parish reasonably suspected that there was in the vehicle any substance that would afford evidence of an offence against the CSA. 55 As pointed out by Stanley J in R v Golja11 citing R v Colenso12 whether or not reasonable suspicion attaches to certain conduct or circumstances is a factual question. 8 Questions of Law Reserved (No 3 of 1998) (1998) 71 SASR 223, 224 (Prior J) and 226 (Olsson J). 9 Questions of Law Reserved (No 3 of 1998) 224 (Prior J). 10 Wheare v Police (SA) [2008] SASC 13; (2008) 180 A Crim R 396 [48] (Gray J). 11 R v Golja [2017] SASCFC 61 [26] (Stanley J, Kourakis CJ and Parker J agreeing). 12 R v Colenso [2016] SASCFC 128 [32]. -- 12 of 16 -- [2023] SASCA 57 The Court 11 56 The law as to what constitutes reasonable suspicion in the context of a search pursuant to s 52 of the CSA was explained in R v Nguyen13 as follows: A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or 'idle wondering' about the existence of the fact is not the same as a suspicion that it exists. Bain v Police (2011) 121 SASR 10 [28] - [29]; R v Rogers (2011) 109 SASR 307 [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 Davison (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. 57 It is not disputed that once PD Taco had given a positive indication towards the appellant, Officer Parish immediately formed the suspicion that there was a controlled substance in the appellant’s vehicle that would afford evidence of an offence against the CSA. The real issue to be resolved in this appeal is whether that suspicion was reasonable. In our opinion the suspicion was reasonable. We have reached this conclusion using two routes, either of which would be a sufficient justification. 58 First, in our opinion, the deeming provision in s 52D(5) of the CSA applied. It is unchallenged that PD Taco gave an indication that he detected the presence of a controlled drug on the appellant. He did so by sitting next to the appellant having smelt him. By doing so, PD Taco behaved as he had been trained to do. 59 Section 52D(5) deems such an indication to constitute reasonable grounds to suspect that a controlled drug is present. As the parties’ submissions reveal, there is disagreement about the meaning of the word ‘present’. On the one hand, the appellant contends that the word should be construed narrowly in its context to attach only to the same person or object indicated by a drug detection dog. On the other hand, the respondent submitted that the word should be construed to include 13 R v Nguyen [2013] SASCFC 91 [21] - [22]; (2013) 117 SASR 432, 437. See also R v Nguyen [2016] SASCFC 96 [25]. -- 13 of 16 -- [2023] SASCA 57 The Court 12 not just the person or object indicated by the drug detection dog, but also the immediate location in which the indication is made by the dog. 60 As we have already observed, s 52A, s 52B, s 52C and s 52D were introduced in 2008. When read together, it is apparent that their purpose was to facilitate the powers of police officers to search for and detect the presence of controlled drugs and seize them. The word ‘present’ must be considered in a manner which promotes this purpose 61 The word ‘present’ as it is used in s 52D(5) of the CSA should be given its ordinary meaning which conveys that the thing is not only on the person or object being searched but is within the immediate vicinity of that person or object. In its ordinary meaning, there are degrees in which it can be said something is present. It is unnecessary in this case to attempt to define the metes and bounds of the word. Whether something is ‘present’ for the purposes of 52D(5) is, in the end, something to be determined on an assessment of the circumstances of the particular case. 62 We can see no textual or policy reason for adopting the narrow construction contended for by the appellant. In oral submissions, it was suggested that the principle of legality supported a narrow construction. We do not accept this submission having regard to the clear statutory language and the purpose of the provision. 63 On the facts of the present case, there is no doubt that the appellant alighted from his vehicle and stood a very short distance, no more than a few metres, from it, when PD Taco gave the positive indication for drugs. The vehicle was, on any argument, in the immediate vicinity of the appellant. The indication given by PD Taco was an indication that controlled drugs were present in the sense of being on the appellant and/or in the immediate vicinity of the appellant which included the vehicle from which he had just alighted. 64 For these reasons, the deeming provision in s 52D(5) applied. Accordingly, Officer Parish had a reasonable suspicion that the vehicle in which the appellant had driven would afford evidence in the form of controlled drugs of an offence against the CSA including an offence of trafficking in a controlled drug, as required by s 52(9) of the CSA. Therefore, Officer Parish’s search of the vehicle was lawful. 65 The second route arises independently of, and without the need to apply, s 52D(5) of the CSA. In our opinion, the evidence adduced at the voir dire revealed that Officer Parish held a reasonable suspicion at the time of the search that there was a substance in the vehicle which would afford evidence of an offence against the CSA. Central to this conclusion is the positive indication by PD Taco. It cannot be overlooked that PD Taco’s positive indication came very shortly after the appellant had alighted from the vehicle in which he had been travelling by himself. The positive indication by PD Taco was to the odour of drugs. It is -- 14 of 16 -- [2023] SASCA 57 The Court 13 possible that the drug odour PD Taco detected on the appellant derived from drugs that were on his person or in the vehicle in which he had been travelling (or both), or derived from contact the appellant had previously had with controlled substances. All of these hypotheses were reasonably open. In these circumstances, it was completely understandable that Officer Parish would be suspicious that a controlled substance would be in the appellant’s vehicle. The fact that there may be other hypotheses available for the positive indication did not make unreasonable the hypothesis that the positive indication derived from drugs in the appellant’s car. The fact that Officer Parish may have waited for the appellant to be searched, or the fact that the appellant could have been directed to open his vehicle and to place any objects in it outside the vehicle so that general drug detection could be carried out, does not, in our view, render unreasonable Officer Parish’s suspicion that there were drugs in the vehicle. Drugs may have been present on the appellant’s person or in the vehicle or both. 66 For these reasons, we conclude that the search undertaken by Officer Parish and the subsequent search of the car undertaken by police as a result of the search undertaken by Officer Parish was lawful because he had a reasonable suspicion as required by s 52(9) of the CSA that drugs were present in the vehicle. This being the case, no occasion arose for the exercise of the Bunning v Cross discretion. 67 However, if contrary to our finding, the search was unlawful, we will consider the question of the exercise of the Bunning v Cross discretion. Bunning v Cross discretion 68 As Stanley J pointed out in R v Golja,14 once the discretion has been enlivened the exercise of the discretion involves the weighing of competing considerations focused on aspects of the public interest. While the court must be careful to protect citizens from the abuse of police powers, the court must also be careful to ensure that the public interest in seeing the guilty convicted is not frustrated where the unlawfulness or impropriety of police conduct is not the result of some conscious or deliberate flouting of the limitations on the exercise of the search power or the result of some systematic misunderstanding by police about the limits of that power. 69 In the present case, the trial judge held, in effect, that any unlawful behaviour on the part of Officer Parish was minor and inadvertent. Moreover, the power in s 52B(5)(d) to direct a suspect to open any part of the vehicle and make other directions necessary for, or incidental to, the effect of exercise of the powers under s 52B would have allowed the police to direct the appellant to remove from the vehicle, for general drug detection, anything within the vehicle including items that may contain controlled substances. While it might be said that Officer Parish misunderstood the scope of the powers contained in s 52B of the CSA, there was no cogent evidence to suggest that there was any widespread misunderstanding by 14 R v Golja [2017] SASCFC 61 at [35]. -- 15 of 16 -- [2023] SASCA 57 The Court 14 police of the conditions governing the exercise of the powers in that section or the search powers generally. 70 Without question, the alleged offences were serious. The appellant was trafficking in two controlled substances, in circumstances where he appears to have been travelling to Victor Harbour on the eve of Schoolies festivities, where thousands of young people were congregating. In our opinion, there was a strong public interest in the detection and prosecution of the offences. To allow the admission of the evidence of the search in this case does not demean or threaten the integrity of the administration of criminal justice. In our opinion, to exclude the evidence in the circumstances of this case is more likely to have this effect. 71 For these reasons, had it been necessary for us to exercise the Bunning v Cross discretion afresh, we would not have excluded the evidence. Conclusion and orders 72 In our opinion, the ground of appeal relied upon by the appellant has not been made out. We would dismiss the appeal. -- 16 of 16 --