[2026] SADC 84

Prosecution: R Counsel: MR J BACH WITH MS L DOCKING - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: RICKI EDGAR AYRES Counsel: MR C KUMMEROW - Solicitor: MANGAN EY & ASSOC Hearing Date/s: 13/03/2026 File No/s: DCCRM-24-048219 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 AYRES [2026] SADC 84 Reasons for Ruling of his Honour Judge Petraccaro 17 July 2026 EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE CRIMINAL LAW - EVIDENCE - DRUG OFFENCES CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE Applicant charged with two offences against the Controlled Substances Act 1984 (SA) (‘CSA), namely, trafficking in a controlled drug. The offences related to two searches on two separate occasions of vehicles the applicant was a passenger in. Police purported to search the vehicles and applicant on both occasions pursuant to s52 CSA as a result of a reasonable suspicion engendered by observations of the drivers and the applicant on each occasion. Applicant interviewed by police to obtain PIN to phone as a result of first search. Police failed to comply with Part 17 of the Summary Offences Act 1953 (SA). PIN number obtained on contravention of SOA. Application to exclude result of vehicle searches on ground suspicion not reasonable. Application to exclude interview with police due to failure to comply with Part 17 SOA. Held: 1. The evidence obtained as a result of the stop and search of the vehicle and the applicant on 18 January 2024 excluded. 2. The evidence obtained as a result of the unlawful obtaining of the applicant’s PIN on 18 January 2024 excluded. 3. The evidence obtained as a result of the stop and search of the vehicle and the applicant on 14 April 2024 excluded. -- 1 of 22 -- Controlled Substances Act 1984 (SA); Road Traffic Act 1961 (SA); Summary Offences Act 1953 (SA), referred to. Bunning v Cross (1978) 141 CLR 54; Cleland v The Queen (1982) 151 CLR 1; Ireland v The Queen (1970) 126 CLR 321; Foster v The Queen (1993) 67 ALJR 550; R v Swaffield 151 ALR 98; R v Marifioti (2014) 118 SASR 511; R v Nguyen (2013) 117 SASR 432; Middlin-Hannah v The Queen [2020] SASCFC 112; Thomas v The King [2024] SASCA 51, considered. -- 2 of 22 -- R v AYRES [2026] SADC 84 Introduction 1 The defendant, Ricki Edgar Ayres (the applicant) is charged with two offences against the Controlled Substances Act 1984 (SA) (‘CSA’), namely, two counts of trafficking in a controlled drug. 2 The offences relate to allegations of trafficking which arose as a result of two different searches. The first search was conducted on 18 January 2024. A white Holden Commodore station wagon was parked in the driveway of 1 Fraser Avenue in Murray Bridge, which was an address known to police due to frequent drug activity having occurred there. After the applicant observed police, he ran from the vehicle and into the address. A licence check on the applicant confirmed that he was disqualified from driving. 3 The vehicle left the address, which appeared to evade police. The vehicle was located shortly thereafter. Ms Brackenbury was the driver of the vehicle and was unlicenced at the time. The applicant was in the passenger seat. Checks undertaken by police confirmed that both the applicant and Ms Brackenbury had been involved in trafficking methylamphetamine in Murray Bridge. 4 When the applicant was searched, a resealable plastic bag with 12.2 grams of crystals containing methylamphetamine was located in his left vest pocket. A further 0.98 grams of crystals containing methylamphetamine was located in a plastic bag in a backpack inside the vehicle. There was $1286.50 found inside the applicant’s wallet, which was seized. Messages on the applicant’s phone indicated his involvement in the sale of methylamphetamine. The applicant was arrested on this occasion and was granted bail. 5 The second search was conducted on 14 April 2024, when a vehicle the applicant was a passenger in was stopped for an alcotest. The driver of the vehicle, Ms Murison returned a negative result to the alcotest. The applicant was on bail for trafficking in a controlled drug. The vehicle was searched by police and 4 resealable bags with a total of 9.37 grams of crystals containing methylamphetamine were located. The applicant admitted in his record of interview to having the methylamphetamine and said that he was a heavy user of the drug. The Search on 18 January 2024 6 The applicant applies for exclusion of the evidence obtained as a result of the stop and search of the vehicle and the applicant on 18 January 2024 on the grounds that Constable Evans did not have reasonable cause to suspect any of the matters delineated by section 52 of the CSA, and that the exercise of the public policy -- 3 of 22 -- [2026] SADC 84 2 discretion favours the exclusion of the evidence obtained as a result of the allegedly unlawful search. 52—Power to search, seize etc 7 The relevant provisions of s52 CSA are as follows: (6) An authorised officer who is a police officer may search any person whom the officer reasonably suspects has in his or her possession any substance or equipment in contravention of this Act. (9) If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may— (a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and (b) detain and search the vehicle, vessel or aircraft; and (c) seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act. Mobile Phone Evidence 8 The applicant applies for an exclusion of the evidence obtained from police accessing the applicant’s mobile phone on the grounds that police obtained the PIN to his mobile phone in non-compliance with Part 17 of the Summary Offences Act 1953 (SOA), that it is not in the interests of justice to admit the conversation obtaining the PIN code and that any evidence derived by the use of the PIN should be excluded given it would be unfair to admit such evidence against the applicant, and that the exercise of the public policy discretion favours exclusion of the evidence obtained from the mobile phone. Part 17 SOA 9 The relevant provisions of the SOA are as follows: 74C—Interpretation In this Part— interview includes— (a) a conversation; or (b) part of a conversation; or -- 4 of 22 -- [2026] SADC 84 3 (c) a series of conversations, but does not include an examination under the Independent Commission Against Corruption Act 2012; 74D—Obligation to record interviews with suspects (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with: (a) if it is reasonably practicable to make an audio visual record of the interview, an audio visual record of the interview must be made; (b) if it is not reasonably practicable to make an audio visual record of the interview but it is reasonably practicable to make an audio record of the interview, an audio record of the interview must be made; (c) if it is not reasonably practicable to make either an audio visual record or audio record of the interview— (i) a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and (ii) as soon as practicable after the interview, the record must be read aloud to the suspect and an audio visual record made of the reading; and (iii) when the audio visual recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and (iv) if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and (v) at the end of the reading, but while the audio visual recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and (vi) if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the error or omission asserted by the suspect in an addendum to the record of interview. (2) If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer's obligations under subsection (1) arise at that point and apply to the interview from that point. (3) In deciding whether it is reasonably practicable to make an audio visual record or audio record of an interview, the following matters must be considered: (a) the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed; (b) mechanical failure of recording equipment; -- 5 of 22 -- [2026] SADC 84 4 (c) a refusal of the interviewee to allow an audio visual record or audio record of the interview to be made; (d) any other relevant matter. (4) As soon as practicable after an audio visual record or audio record of an interview is made under this Part, the investigating officer must give the suspect a written statement— (a) if an audio visual record was made—of the right of the suspect or the suspect's legal adviser (or both) to view the recording and to obtain from the audio visual record an audio record; or (b) if an audio record but no audio visual record was made—of the right of the suspect to obtain a copy of the audio record. (5) Arrangements must be made, at the request of a suspect, for the playing of an audio visual record at a reasonable time and place to be nominated by an appropriate investigating officer. (6) A suspect must be provided, on request and on payment of the fee fixed by regulation, with— (a) an audio record of the audio visual record of an interview with the suspect under this Division; or (b) a copy of an audio record of an interview with the suspect under this Division. 74E—Admissibility of evidence of interview (1) In proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible against the defendant unless— (a) the investigating officer complied with this Division; or (b) the court is satisfied that the interests of justice require the admission of the evidence despite the investigating officer's non-compliance. (2) If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must— (a) draw the jury's attention to the non-compliance by the investigating officer; and (b) give an appropriate warning in view of the non-compliance, unless the court is of the opinion that the non-compliance was trivial. The Search on 14 April 2024 10 The applicant applies for exclusion of the evidence obtained as a result of the stop and search of the vehicle and the applicant on 14 April 2024 on the grounds that Senior Constable Conroy did not have reasonable cause to suspect any of the matters delineated by section 52 of the CSA, and that the exercise of the public -- 6 of 22 -- [2026] SADC 84 5 policy discretion favours exclusion of the evidence obtained as a result of the allegedly unlawful search. 11 Constable Evans, Senior Constable Conroy and Constable Telegramma each gave evidence on the voir dire in relation to the respective searches undertaken. 12 The onus is on the applicant to show – on the balance of probabilities - that the evidence ought to be excluded. The applications do not stand or fall together, and I have considered each application separately, although of course in respect of the search of the vehicle on 18 January 2024 and the obtaining of the applicant’s mobile phone PIN these occurred as a result of the one “incident”. 13 The applicant did not give evidence on his applications. Constable Evans 1 14 On 18 January 2024, Constable Evans was on shift, driving down Fraser Avenue in Murray Bridge when he observed the applicant running into the front door of an address of interest to police. He recognised the applicant from previous interactions while he was on duty. He also recognised a vehicle, registered to Ms Kruger, who he knew was an associate of the applicants. 15 Ms Jeans approached Constable Evans in his vehicle and advised him of another male of interest. He suspected that she was distracting him from his primary objective of observing the applicant. During this conversation, the vehicle Constable Evans had observed previously departed the address. 16 Constable Evans attempted to locate that vehicle but was unsuccessful. He found a vehicle that looked similar on Clifford Street, but by the time he returned, he could not confirm that it was the same vehicle. He remained in the area for approximately 30 minutes before observing a white Holden Commadore on Kintore Avenue. Constable Evans conducted a traffic stop of the vehicle. Ms Brackenbury was the driver of the vehicle, and the applicant was in the passenger seat. He gave evidence that Ms Brackenbury appeared to him to be nervous, avoiding eye contact, stuttering and swallowing. 17 Constable Evans conducted a check on police systems and became aware that Ms Brackenbury driver’s licence was cancelled in 2012. He went on to perform other checks on police systems and saw recent information that the applicant was involved in trafficking methamphetamine in Murray Bridge and that Ms Brackenbury had also been present at the recent unrelated search from which he recognised the applicant. 18 Constable Evans returned to the vehicle and commenced a search. 1 T 3-16. -- 7 of 22 -- [2026] SADC 84 6 19 After obtaining the PIN for the applicant’s phone, Constable Evans found several messages which indicated the sale of methylamphetamine. A phone number also rang the phone which was under the contact name, ‘Lawrie’, who was identified as living at the address the applicant was initially seen at earlier that day (1 Fraser Avenue, Murray Bridge). 20 Constable Evans conducted a record of interview with the applicant. Once his body worn video (BWV) was turned off, he asked the applicant what his PIN number was for his phone. He cautioned the applicant. Mr Ayres provided his PIN number for his main phone, which was the only one that was functioning at that time. Constable Evans sent the phone to the Digital Evidence Section. 21 In cross-examination2, Constable Evans gave evidence that it was his intention to conduct a traffic stop of the applicant’s vehicle if he observed it. He would have stopped the vehicle irrespective of the driver. He said that his suspicions about the vehicle included the fact that it was seen at multiple drug related addresses in recent times. Constable Evans confirmed that he had intelligence on both occupants of the vehicle at the time that he completed the traffic stop, and that their behaviour was abnormal. He was aware that his knowledge of their drug history was not sufficient grounds to conduct a search. 22 Upon searching the vehicle, no drugs were located. There was evidence of drug dealing. Constable Evans said that Ms Brackenbury’s nervousness could have been attributed both to her committing a driving offence, or that she had knowledge of what was on the applicant’s person. 23 Constable Evans confirmed that he had been given a briefing prior to locating the vehicle and conducting the search, although he had not read the document to know anything about it. He believed his suspicions to search were reasonable and rejected the proposition that they were not. 24 Constable Evans made notes saying that he obtained the PIN code under caution. He didn’t tell the applicant that he was not required to provide his PIN code but recalled a conversation with the applicant where he told him that if he didn’t want to provide the PIN code, then he would send the phone to the Digital Evidence Section. Constable Evans agreed that this conversation could have given the applicant the impression that he needed to provide his PIN code or eCrime would gain access to the phone regardless. Senior Constable Conroy 3 25 On 14 April 2024, Senior Constable Conroy was stationed at Murray Bridge with Constable Telegramma on mobile patrol. She drove past 9 Amanda Street, as 2 T 17-39. 3 T 42 -46. Senior Constable Conroy was a Constable at relevant time. For ease of reference, I will refer to her by her rank at the time of the voir dire. -- 8 of 22 -- [2026] SADC 84 7 it was a known drug address. She observed a BMW vehicle parked in the driveway with the number plate S090CXU. She said that there were unknown people loitering but due to the darkness she was unable to identify who they were. She remained static to observe activity. She recalled seeing a bicycle being pushed out of the address and loiter at the front before leaving. The BMW followed. 26 Senior Constable Conroy followed the BMW and conducted a traffic stop. The purpose of stopping the vehicle was to complete an alcotest. She recognised the driver as Ms Murison. The passenger was the applicant. She was familiar with the applicant from previous dealings. Senior Constable Conroy recalled that Ms Murison appeared nervous despite the alcotest returning a negative result. She described the applicant’s behaviour as ‘evasive’ and recalled him avoiding eye contact and sweating despite it being cool that night. Senior Constable Conroy formed the suspicion that the applicant was under illicit substances. She discussed her observations with Constable Telegramma and was satisfied that she could conduct a search. She turned off her body worn video to have the conversation with Constable Telegramma. 27 In cross-examination4, Senior Constable Conroy confirmed that prior to the search, she was aware of activity at the Amanda Street address. She remained with the intention of stopping the vehicle for an alcotest. She disagreed that conducting the alcotest was to stop the vehicle to see who was inside it and that the vehicle was associated with offending of interest. Before the stop, she was not satisfied to conduct a search pursuant to S52 of the CSA. She confirmed that she had been the one to suggest the search, not Constable Telegramma, but he had agreed. 28 Senior Constable Conroy confirmed that her earlier observations were not sufficient to conduct a search of the vehicle. The behaviour and demeanour of the occupants of the vehicle enlivened her suspicions to search. 29 Senior Constable Conroy was aware that the applicant would frequent the Amanda St address to see his children there. She had no knowledge of any association with drug activity at this property but knew the applicant frequented the address often. 30 She gave evidence that it was dark at the time of the traffic stop but she could see the applicant’s sweatiness due to the illumination of the police car lights. She said that from her experience, drug activity increases later at night. Senior Constable Conroy admitted that 9:00 pm or 10:00 pm at night is not a particularly unusual time for people to be driving around at night. Senior Constable Conroy did not recall doing any searches as her MCA was not functional. 31 In re-examination5 Senior Constable Conroy recalled discussing observations and suspicions with Constable Telegramma but not the particulars of those 4 T 47-59. 5 T 61-63. Constable Telegramma was a Probationary Constable at the relevant time. For ease of reference, I have referred to him and will refer to him by his rank at the time of the voir dire. -- 9 of 22 -- [2026] SADC 84 8 conversations. She said that once she was satisfied that she had reasonable grounds to conduct a search, Constable Telegramma went to the drivers’ side of the vehicle and spoke to the occupants while she manually entered the traffic stop. Constable Telegramma 6 32 Constable Telegramma recalled seeing the vehicle. He conducted a vehicle registration check which confirmed the vehicle was registered to Ms Murison. The police siren was activated, and the vehicle was pulled over. Constable Telegramma said that Ms Murison was the driver and the applicant was the passenger. He was familiar with both occupants in the vehicle from previous dealings. 33 Constable Telegramma said that he found it ‘interesting’ that Ms Murison ran out of breath and failed the first alcotest administered to her. He observed the applicant sweating “profusely.”7 34 Constable Telegramma did not recall what he and Senior Constable Conroy discussed but recalled that they had a conversation. He said that his body worn video was activated but was deactivated when he was not interacting with the occupants of the vehicle. 35 In cross-examination8 Constable Telegramma said that he did not make any notes about his suspicions to conduct a search of the vehicle. He said that both he and Senior Constable Conroy came to an agreement together that they were to conduct a search of the vehicle but did not recall who had mentioned it first. Constable Telegramma made no notes of the applicant being sweaty and did not know why. He disagreed that this was something that he had heard from Senior Constable Conroy. He recalled that he thought it was unusual that the window was not rolled the whole way down at the traffic stop regardless of the cold. 36 Constable Telegramma said that he was aware of the applicant attending the Amanda Street address to visit his family and said it was possible that this was a property of interest because of the applicant going there and he was an individual who had connections to drug activity. 37 Constable Telegramma did not recall if he operated the keyboard at the time of the search of Ms Murison. He could not recall whether he knew that the applicant was on bail for drug offending. He recalled that regardless of Ms Murison’s comments about Lisa Howler and Wayne Jacobson (other individual’s known to police), they still would have searched the vehicle. 6 T 64-69. 7 I pause to note that Constable Conroy does not use the description of “profusely”. 8 T 69 – 78. -- 10 of 22 -- [2026] SADC 84 9 38 Constable Telegramma said that the applicant had never appeared in a way where he did not want to cooperate with police. The Three Applications 18 January 2024 - The Vehicle Search 39 It is difficult to comprehend what amounted to a proper basis for the search of the vehicle the applicant was in. It seems that Ms Brackenbury’s nervousness when stopped under s 40H of the Road Traffic Act 1961 (‘RTA’) was the catalyst for conducting further checks which led to the search of the vehicle. The difficulty I have about this is firstly, I did not detect at the time of the hearing – and having viewed the footage again – any nervousness – let alone avoiding eye contact, stuttering and swallowing which I took were manifestations of the supposed nervousness - on the part of Ms Brackenbury sufficient to raise a reasonable suspicion to search her vehicle - and subsequently the applicant – and secondly, the information Constable Evans gleaned from interrogating the police systems was no more than he had than when he decided he didn’t have enough information to search the vehicle under the CSA prior to the RTA stop. That is, at the point of stopping the vehicle he did not have the requisite suspicion to search the vehicle or persons, despite the previous knowledge he had about the applicant and Ms Murison. 40 If the position is that the nervousness along with the police checks - basically what he already knew in any event – gave Constable Evans sufficient basis to form a reasonable suspicion to utilise the CSA, then it falls on a couple of hurdles. Firstly, the footage itself and secondly, there may be many reasons why someone may be nervous in the presence of police and in this case, there is a readymade one being the licence cancellation. Having become aware of the licence disqualification, Constable Evans did not - or chose not to - turn his mind to the nervousness, he at least says he saw, being the product of that fact rather than speculating it must be because she had, or someone in the car, had drugs on them. 41 In R v Marafioti9, Kourakis CJ (with whom Vanstone and Stanley JJ agreed) said: The judge found, and it is not contested on appeal that Constable Boyd, subjectively suspected that there were drugs in the car for all of the reasons he gave. However, in the absence of his belief about Ms Doukas’ state of intoxication I harbour doubts about the reasonableness of the other grounds. There are many law abiding members of the community who for a variety or reasons hire cars to travel in their home state, wear bumbags or become anxious in the presence of police. True it is that the other circumstances relied on by Constable Boyd may often be associated with drug dealers, but they are also commonly associated with innocent persons. 9 (2014) 118 SASR 511. -- 11 of 22 -- [2026] SADC 84 10 The suspicion associated with those circumstances is qualitatively and quantitatively very much weaker than the suspicion which attaches to a drug intoxicated person. Behaviour which might appear “odd” or “different” to some should not too quickly be associated with illegality. Eccentricities should not be magnets for the exercise of police powers.10 42 The comments are apt. I could see no evidence of Ms Brackenbury being nervous either on viewing the footage in court or on reviewing it in chambers. If Constable Evans did view nervousness, then he has too quickly associated it with illegality rather than any other plausible explanation (which readily existed in this case). 43 I find that there is no evidence to indicate that Ms Brackenbury was nervous and I in fact find from the Realtime footage (the best evidence) that she was not. Accordingly, the search of the vehicle and the applicant was unlawful. If I am wrong about that and Ms Brackenbury could be considered as exhibiting nervousness, that in itself was not sufficient to make the leap that it was because of illegal behaviour and accordingly the search of the vehicle and the applicant was unlawful. The Application to Exclude the Phone Evidence 44 The applicant’s house was searched. There was an interaction at the house where the applicant was arrested. This conversation was audio-visually recorded in compliance with Part 17 of the SOA. The applicant was interviewed at the Murray Bridge Police Station. This was also audio-visually recorded in accordance with Part 17 of the SOA. 45 Both the video camera and Body Worn Camera (BWC) were then switched off. A conversation then occurred where Constable Evans requested the PIN to the applicant’s phone. He recorded the PIN in his notebook. When asked in examination-in-chief why did not record the conversation he said: “I believe at that time as I said I was quite junior, I didn’t have any – my senior partner was off for the day as well as my supervisor, so I didn’t have much guidance in the interview process.”11 46 It seems to me to be quite incredible that having conducted two “interviews” in compliance with the SOA at the house and the police station that Constable Evans was of the view that he was inexperienced and didn’t have much guidance as to how to conduct this interview with the applicant. 47 Constable Evans said that he “believed” he cautioned the applicant again. He did not tell him that he did not have to provide his PIN code. Constable Evans said 10 At [12] – [13]. 11 T 15 line 38 – T 16 line 3. -- 12 of 22 -- [2026] SADC 84 11 that the applicant asked, “Do I have to?” And he told the applicant “No, you don’t, but we’re still going to send it off anyway, it might just take longer.” 48 Constable Evans conceded that this conversation was not recorded audio- visually, or in his notebook.12 He conceded that he may have given the applicant the impression that either he had to provide the PIN or the phone would be opened anyway by eCrime. 49 Various matters flow from the above summary of what occurred in respect of obtaining the PIN code to the phone. Firstly, inexperienced or not, it beggars belief that having interviewed the applicant twice utilising the provisions of the SOA, Constable Evans would have an unrecorded conversation with the applicant about a vital issue to the investigation as obtaining the PIN code to the phone. Either it was a gross error of judgment or something more sinister. I proceed on the basis of the former. I cannot make a finding as to whether the applicant was cautioned or not prior to this conversation, but it points to the obvious observation that had the conversation been recorded there would be no doubt one way or the other. Not being able to find whether the applicant was cautioned or not I proceed on the basis that there is no independent evidence that the applicant was cautioned and I am not prepared to proceed on the basis that he was cautioned. The provision of the PIN code in these circumstances, the messages found on the phone are liable to exclusion in the exercise of discretion. 50 That said, even if the applicant had been cautioned the conversation with him asking in respect of giving over his PIN code “Do I have to?” followed by Constable Evans saying “No, you don’t, but we’re still going to send it off anyway, it might just take longer.”, would have “undone” the caution in any event. As Constable Evans himself conceded, he may have given the applicant the impression that either he had to provide the PIN or the phone would be accessed anyway by eCrime. 51 Cautioned or not the exchange was unfortunate for precisely the reason identified and conceded by Constable Evans. The exchange likely conveyed to the applicant that he had no choice but to hand over his PIN – undermining the caution if it was given – when he’d been told as part of the very same conversation that he didn’t have to. 52 In my view both the search of the vehicle and the applicant on 18 January 2024 and the obtaining of the evidence from his mobile phone were unlawful and the evidence obtained from them is liable to exclusion from the applicant’s trial. On the one hand, the search under the CSA was not reasonable, no amount of trying to justify the element of reasonableness from the observation of nervousness of Ms Brackenbury in the absence of there being no discernible evidence of 12 To say this was unfortunate – put aside the failure to comply with the SOA by not reducing the rights to writing as required by the legislation – is an understatement. This case serves to remind police of the importance of making contemporaneous notes. This evidence is even more perplexing given Constable Evans had made contemporaneous notes of his investigation prior to this aspect of it – T 3. -- 13 of 22 -- [2026] SADC 84 12 nervousness on the footage I have viewed and even if present that that somehow tipped to balance in favour of reasonableness, can make it so. Whatever suspicion Constable Evans had it was not reasonable in the circumstances either before he stopped the vehicle (as he conceded) or after he observed the “nervousness”. In my view, more was needed. On the other hand, the obtaining of the PIN in circumstances where cautioned or not – and I cannot make a finding the applicant was in fact cautioned – Mr Evans had effectively told the applicant he had no choice but to hand it over undermines the right of an accused not to provide information to police, in effect to the right not to answer their questions. 14 April 2024 53 Whilst the conduct of the alcotest was permitted by law, in my view the purported basis for searching the applicant is not made out. The bases for so doing once the car had been stopped was the nervousness of Ms Murison even though she had returned a negative result and the sweating and “nervousness” of the applicant which suggested he was drug affected. 54 In my view given the hour of night and the quality of the lighting emitted from the police equipment it is somewhat difficult to accept that police had sufficient time or capacity to make the observations relied on to the point that they had a reasonable suspicion to search. Indeed, Senior Constable Conroy says she did not have enough capacity to observe the applicant given it was dark but simultaneously had enough capacity to observe he was sweating, evasive and avoiding eye contact. If Senior Constable Conroy was correct that she did not have enough to search the vehicle prior to pulling the vehicle over, the evidence of both Senior Constable Conroy and Constable Telegramma does not fill me with enough confidence to show that either Ms Murison was nervous or that the applicant was sweating or otherwise exhibiting the behaviours Senior Constable Conroy says he was13. 55 I did not take the view that either officer was deliberately lying during their evidence, but it is hard to resist the conclusion that knowing where the vehicle had come from, knowing who was associated with the vehicle, knowing that the applicant was connected to the premises the vehicle had come from and believing that they did not have enough to search the vehicle under the CSA, both officers were keen to find something to allow them to search the vehicle. That potential conclusion is supported in that both officers said that the vehicle was going to be stopped to see who was in it regardless of the alcotest. Senior Constable Conroy’s evidence was that the vehicle was “always going to be stopped for a legitimate purpose to see who was in that vehicle because it was associated with the address 13 I pause to note that it is not the sweating that gives rise to the reasonable suspicion. A person sweating is simply that. The sweating in this instance is said to have led to the conclusion that the applicant was drug affected which then gives rise to the reasonable suspicion (or in this case tips the balance along with what was already known, which of itself was not enough to found a reasonable suspicion). I also note that the DPP in their Written Submissions appear to have attributed the observations of the applicant around the wrong way, attributing Senior Constable Conroy’s observations to Constable Telegramma and Constable Telegramma’s observations to Senior Constable Conroy: at [43] g – h. -- 14 of 22 -- [2026] SADC 84 13 of interest”14 and Constable Telegramma’ s evidence was that the purpose for doing the mobile alcotest was to see who was driving the car.15 I do not go so far as to find that the vehicle was stopped for an illegitimate purpose and the alcotest was a ruse for stopping and searching the vehicle but that evidence provides some support for my findings as to the reliability of the officers’ subsequent observations; having stopped the vehicle and seen who was in it as they said they were always going to do there was a danger that both officers were keen to find something to allow them to search the vehicle. 56 It may well be that Ms Murison was nervous – many people are when stopped by police – or that the applicant was sweating, although I saw no evidence of either myself. And of course, there are many other signs of drug use that may be present if someone is drug affected such as, dilated pupils or shaking. Sweating on its own does not necessarily point to recent drug use. If police had a suspicion in respect of the applicant on this score, then in my view, it was not a reasonable one in these circumstances. I also note that Constable Telegramma says Mr Ayres was sweating “profusely” whilst Senior Constable Conroy – the more experienced officer – makes no such observation.16 Had the applicant been sweating “profusely”, I doubt an experienced officer of Senior Constable Conroy’s service would have failed to note it. 57 Again, having viewed and reviewed the relevant footage it is clear to me that there is no sign of nervousness on the part of Ms Murison during the times she is captured in her dealings with Constable Telegramma. Indeed, Constable Telegramma makes no mention of it nor does he ask her why she is nervous – and for that matter he makes no mention of the applicant sweating profusely or ask him why he is sweating profusely, or even why he is sweating -; he simply returns Ms Murison’s licence to her and says “here’s your licence back, that’s all good” then has a conversation commencing “what have you guys been up to tonight?”, the responses to which reveal nothing incriminating and he then says they are going to do a “quick search under the CSA”. 58 Police in this case may have offered a belief as to the applicant’s state of intoxication, but the basis of the belief being “he was sweating” or “sweating profusely” hardly points to a reasonable basis to engage s52 of the CSA. More was needed before making the leap that the applicant was under the influence of drugs which could then engage their earlier observations which on Senior Constable Conroy’s evidence were not enough to stop the vehicle and search it prior to engaging the RTA in respect of Ms Murison. If the information they had wasn’t enough before the legal halting of the vehicle for the alcotest, nothing relied on by them: the nervousness of Ms Murison and the “sweating” of the applicant was - in my view - sufficient enough observation to engender a reasonable suspicion to engage the CSA. To repeat - something more was required. One need go no further 14 T48 -19-26. 15 T73 -26-28. 16 Her evidence at best is that he was “quite sweaty” – T45 line 38. -- 15 of 22 -- [2026] SADC 84 14 than the former Chief Justice’s pithy explanation as to reasonableness in the passage from Marafioti cited above. 59 I am not of the view that Senior Constable Conroy’s observation that the applicant was evasive and avoiding eye contact is a contemporaneous recollection that I can rely on. Again, the footage does not assist, and I note that Constable Telegramma makes no such observations in respect of the applicant. 60 It is of concern that whilst Senior Constable Conroy made some notes of her interactions that night, Constable Telegramma made no notes of his observations and suspicions at the relevant time which is as concerning in this instance as it is in Constable Evans’ failure referred to above.17 The importance of making contemporaneous notes of observations, conversations and suspicions cannot be stressed enough in circumstances of searches under the CSA. It makes it difficult to rely on observations and suspicions given in Court two years after the event where there are inconsistencies between the officers as to level of sweatiness, manifestations of nervousness i.e. evasiveness, lack of eye contact. To reiterate, I saw nothing in the footage which supported both officers evidence on these issues. I cannot find that the evidence they gave in court on those issues were accurate recollections of contemporaneous events, that is contemporaneous to the decision to search. 61 Accordingly, the search of 14 April 2024 was unlawful. The Discretion to Exclude Evidence 62 The two vehicle searches and the obtaining of the PIN being unlawful the question is whether I ought to exclude the evidence obtained from them, or any of them, in the exercise of discretion. 63 The applicant’s application in respect of the vehicles, is one to exclude the evidence, not on the basis of unfairness, but on public policy grounds.18 That is, given that the police have acted unlawfully in not having a reasonable suspicion to search the vehicles under the CSA on the two occasions, the evidence ought to be excluded in the exercise of discretion; that is, weighing the desirability of admitting otherwise reliable evidence against the public policy that those who enforce the law ought to respect it. The principle is well set out in the seminal judgment in (Bunning v Cross)19: What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on 17 See fn12. 18 T 73. 19 (1978) 141 CLR 54. -- 16 of 22 -- [2026] SADC 84 15 the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.20 64 Much has been written and said on the discretion to exclude evidence on the basis of the public policy discretion since the decision in Bunning v Cross, but its intent is clear: that in a given case where police have departed from fundamental rights either under statute or at common law of an accused in gathering evidence against that accused, their departure if serious ought not be countenanced by the Courts. 65 In respect of the obtaining of the PIN, the applicant appears to apply for exclusion of the evidence on the grounds of unfairness21 and public policy considerations.22 That is, that it would be unfair to admit the evidence against the applicant in circumstances where his right not to incriminate himself had been denied to him and also that Constable Evans’ failure to comply with the SOA was unlawful and that the evidence ought to be excluded on grounds of :”high public policy” as identified in Bunning v Cross.23 In truth both discretions are in my view open and in this case, on the issue of the obtaining of the PIN, intersect. 66 In this case, the discretion falls to be exercised on the following bases in favour of the prosecution argument: (a) The offending is serious. On two occasions the accused was searched and found to be in possession of trafficable amounts of methylamphetamine; a serious breach of the CSA. (b) The accused’s phone indicated evidence of trafficking which is serious enough of itself but also supports the prosecution case on trafficking in respect of the charged offences. (c) The searches and the phone evidence provide cogent evidence of drug trafficking.24 (d) If excluded the denial of this evidence at trial would render the prosecution’s case a nullity as there would be no evidence to support either both charges or, one or other of them, depending on the ruling.25 20 Bunning v Cross (1978) 141 CLR 54, at 74-75. 21 See R v Ireland (1970) 126 CLR 321 at 355. 22 Paragraph [6] (c) of the Applicant’s Written Submissions appear to refer to the unfairness discretion only but the balance of his submissions on this point from Paragraph [69] invoke the Public Policy Discretion. 23 Op Cit. 24 However, cogency of the evidence can only take matters so far. It would render the Public Policy discretion nugatory if not withstanding unlawful conduct, evidence ought not be excluded because it was nonetheless cogent. This was made clear in Bunning v Cross itself (at 78). 25 The charges are separate and the arguments for exclusion although similar do not stand or fall together. -- 17 of 22 -- [2026] SADC 84 16 67 However, in favour of the applicant’s application the following factors are pertinent: (a) The searches were not reasonable in the circumstances. The resort to notions of “sweating” and evasiveness of the applicant on one occasion and “nervousness” on the part of the drivers on both occasions, doubtful observations on any of the footage but even accepting them did not add much to what police already knew and they conceded was not enough to form a reasonable suspicion for the purpose of the CSA. (b) Constable Evans undermined the applicant’s right to silence/not answer questions by either failing to caution him at the police station or if he did, ignoring the caution and effectively tell him his PIN code when the applicant’s question “Do I have to?” clearly indicated he did not wish to. 68 In my view, in respect of both charges the discretion falls to be exercised in favour of exclusion of the evidence obtained in respect of both searches and in respect of the evidence on the phone. The Exercise of the Discretion – Vehicle Searches 69 In my view, the issue of reasonableness is central to a reasonable suspicion under the CSA. So much is obvious. Parliament did not legislate that police had to hold a suspicion alone. The caveat of reasonableness provides a point of difference between being allowed to search in some circumstances – those where a suspicion is reasonable - and a virtual limitless power to search where merely a suspicion is enough to engender a search. 70 That being the case, the police in both these instances had on their own evidence a suspicion in respect to the vehicles they stopped but not a reasonable one at the time of stopping. It was only by reference Ms Brackenbury being “nervous” in the first case and of Ms Murison being nervous and the applicant sweating and being evasive in the second, the evidence of which in both cases was in my view tenuous, that the suspicions they held in each case became reasonable (according to them). 71 To borrow from R v Nguyen26: “[I]t 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 …”27 72 I bear in mind that the discretion to exclude evidence is not there to punish police for their unlawful conduct. It exists to ensure that there is not curial accommodation to that unlawful conduct. Powers to search (and powers to stop persons and vehicles for that matter) are an intrusion on the rights of peoples’ rights 26 16 (2013) 117 SASR 432. 27 at [22]. -- 18 of 22 -- [2026] SADC 84 17 to go about their daily business without let or hinderance. Parliament – with good reason in my view – has limited the circumstances upon which that right of proceeding without let or hinderance can be interfered with by those whose task it is to police the criminal law. 73 I have borne in mind that the charges are serious and that drug trafficking is difficult to police and detect. I have borne in mind that my task is not to punish the police; however, at the end of the day in the case of both these searches having heard, seen and reviewed the evidence I am of the view that the police in both these searches have either made observations which were not there – sweating and nervousness - or if present have made the mistake averted to in Marafioti namely associating those behaviours in each of the respective cases, too quickly, as being associated with illegality. 74 Accordingly, in the exercise of discretion, I exclude the evidence obtained from the unlawful searches of the vehicles in both instances – essentially the drugs located on Mr Ayres – from his upcoming trial. The Exercise of the Discretion – Mobile Phone 75 In respect of the evidence from the phone the exercise of the discretion falls in favour of exclusion of the evidence. The accused’s right to refrain from answering questions was – cautioned or not – effectively taken from him by the answer to his question as to whether he had to hand over his PIN. It matters not that police would likely have obtained the contents of the phone via eCrime in any event. The fact is that they obtained them in defiance of the applicant’s right not to answer questions – in this case not to provide his PIN. 76 Without repeating the authorities mentioned above, the discretion to exclude evidence obtained in these circumstances arises on grounds of unfairness and high public policy which applies to conversations/interviews as much as it does to other forms of evidence (cf: R v Swaffield)28. 77 It is not to the point that Constable Evans was inexperienced29, which may have impacted this aspect of the conversation as did the failure to record the caution (if it was in fact given). At the end of the day – put aside the failure to comply with Part 17 of the SOA, this case falls squarely within these propositions: (I) Whilst there is nothing improper about requesting a PIN code which will allow access to a smartphone, the privilege against self-incrimination extends to the right to refuse to identify documents which may be incriminating. The right to silence extends to a right to refuse to provide a PIN code for a mobile telephone lawfully seized.30 28 (1998) 192 CLR 159 at [74]. See also Foster v The Queen (1993) 67 ALJR 550 at 554. 29 He had recently become a detective as I understand his evidence. 30 Middlin-Hannah v The Queen [2020] SASCFC 112; Thomas v The King [2024] SASCA 51. -- 19 of 22 -- [2026] SADC 84 18 (II) Where the force of the caution – assuming for present purposes it was given in this case - is undermined by the circumstances of the demand or request, then the caution may well be found to be insufficient to show that an accused person’s action resulted from a genuine choice.31 78 To my mind, the fact that the accused declined to answer questions in his “formal interview” about the substantive charges, is a strong indicator that he would have similarly declined to provide his PIN if he had been properly cautioned and even if he had been, had the right not to provide the PIN number been taken from him by Constable Evans’ reference to sending the phone to eCrime “anyway”. 79 In my view the following passages in Thomas v The King32 are apt: In Middlin-Hannah, the Court’s conclusion as to the need for a caution depended on the finding that it was sufficiently apparent that the police had not given the appellant a genuine choice not to give the PIN. For present purposes, that is the relevant inquiry. We accept the force of the appellant’s submission that even where a person is cautioned about answering questions, an instruction to do an act may well, in the particular context, warrant a conclusion that the person was nevertheless given no real choice about doing that act. Thus, to take a simplified example, a person might be cautioned in ordinary terms against answering questions, and then have their phone seized lawfully but with an accompanying peremptory demand to unlock the phone that could not be interpreted as anything other than giving the person no choice but to do so. In such a case, the circumstances might well dictate that the caution was insufficient as the demand for the PIN had become effectively associated with the exercise of the search power.33 The passages are not only apt but relevant. It has to be borne in mind that there is no independent evidence that the applicant had been cautioned. And if he was then the SOA had not been complied with. This is not a situation in which I can find – nor do I find - that the caution had been given before the request was made. Nor is it the situation identified in Thomas where “Police cautioned the appellant at the outset of the interview. The interview was not interrupted. The appellant had, notwithstanding that caution, manifested a willingness to talk from the outset, in circumstances where it could not be concluded that he had not been given a genuine choice.”34 80 As previously noted, the applicant had declined to be interviewed in the formal interviews prior to this conversation. This is not a case where the applicant “has manifested a willingness to talk from the outset, in circumstances where it could not be concluded that he had not been given a genuine choice”. 81 On any analysis, cautioned or not cautioned, the applicant’s right to decline to incriminate himself was taken away from him. In those circumstances it is only to remind police that they have a duty to ensure that the right against self- 31 In this case, Constable Evans told the applicant that he didn’t need to provide the PIN but “we’re still going to send it off anyway”. Evans conceded that the impression could have been formed that he needed to provide the PIN code because the phone would be opened by eCrime in any event. 32 [2024] SASCA 51. 33 at [32]-[33]. 34 Thomas v The King at [41]. -- 20 of 22 -- [2026] SADC 84 19 incrimination must be as jealously guarded by them as it is by the courts. The provisions of the SOA are there to protect the rights of an accused whilst in the custody or indeed the presence of the Police who are investigating them for criminal conduct. 82 Whilst, as the applicant asserts, the evidence is not “critical” to the prosecution case35, it is nevertheless important. The evidence of uncharged trafficking in drugs would be admissible in any trial against the applicant as uncharged discreditable conduct to show that he is a person who deals in drugs pursuant to s34P of the Evidence Act. The courts have become familiar with the admission of this evidence which is probative of the Prosecution’s case on trafficking. 83 It is precisely for that reason that – as a species of cogency – it must be borne in mind what was said in Bunning v Cross,36 namely, that cogency of the evidence can only take matters so far. It would render the Public Policy discretion nugatory if not withstanding unlawful conduct, evidence ought not be excluded because it was nonetheless cogent. It is a truism, in my view, applicable to highly probative (and prejudicial) evidence of propensity where it is obtained by unlawfully denying an accused their right against self-incrimination. 84 Again, I exercise my discretion not as punishment for the police and Constable Evans in particular, but to avoid giving curial comfort to the actions on this occasion as it undermined a fundamental right of the applicant. 85 Accordingly, in the exercise of discretion, I exclude the evidence obtained from the unlawful search of the applicant’s phone – essentially the evidence of drug dealing – from his upcoming trial. 86 For completeness sake, the applicant applied for exclusion of the evidence of the drug dealing conversations on the phone. I have dealt with that issue. He also submitted that the evidence of any conversation in respect of the PIN was not admissible given the content of s74E of the SOA.37 Of course, even if not admissible because of non-compliance with s74D, an interview may be admissible under s74E if it is in the “interests of justice”. On the findings I have made, I do not find the issue arises as it is impossible to know what truly transpired in the “PIN conversation” and whether the applicant was cautioned as Constable Evans made no notes of that part of his dealings with the applicant; however, insofar as Constable Evans accepts there was a conversation namely – “Do I have to?” “No, you don’t, but we’re still going to send it off anyway, it might just take longer.” – for the avoidance of doubt, I would admit that conversation as it is in the interests 35 Applicant’s written submissions at [83]. Clearly it is important enough evidence that the prosecution seek to lead it in any trial against the applicant. 36 at 78. 37 Applicant’s written submissions at [69]-[72]. -- 21 of 22 -- [2026] SADC 84 20 of justice to do so given it is central to the issue of, if the caution was given, its legal effect was taken away by that exchange. Orders 87 The evidence obtained as a result of the stop and search of the vehicle and the applicant on 18 January 2024 is excluded from the trial of the applicant listed to commence on 3 November 2026. 88 The evidence obtained as a result of the unlawful obtaining of the applicant’s PIN on 18 January 2024 is excluded from the trial of the applicant listed to commence on 3 November 2026. 89 The evidence obtained as a result of the stop and search of the vehicle and the applicant on 14 April 2024 is excluded from the trial of the applicant listed to commence on 3 November 2026. -- 22 of 22 --