Evidence - Search of vehicle without search warrant - Whether grounds to stop and search vehicle - 'Reasonable suspicion' - Whether evidence of drugs seized in search ought be excluded - Bunning v Cross discretionary consideration

Criminal Investigation Act 2006 (WA) s 4, s 4, s 38, s 39, s 155

Misuse of Drugs Act 1981 (WA) s 23

Police Powers and Responsibilities Act 2000 (QLD)

Summary Offences Act 1953 (SA)

Application to exclude evidence of search of vehicle dismissed

The State of Western Australia : Director of Public Prosecutions

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Mukevski v The State of Western Australia [2010] WASCA 138

R v Nguyen [2013] SASCFC 91; (2013) 117 SASR 432

R v Nguyen [2015] SASCFC 7

R v Nguyen [2016] SADC 30

R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56

R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562

R v Sutton [2016] SADC 74

R v Versac [2013] QSC 46; (2013) 227 A Crim R 569

The State of Western Australia v LAM [2014] WADC 62

1 This is an application by the accused Mr Texeira who objects to the admissibility of the evidence of illicit drugs found and seized by police during the search of a vehicle driven by him on 27 February 2015.

2 As police officers were driving a marked police vehicle along Albany Highway in St James in the afternoon of 27 February 2015 in the course of conducting routine patrols, the accused was observed driving a white Commodore sedan registration number 1CBH191 in the carpark of a set of shops at 1059 Albany Highway. The driver of the police vehicle, Senior Constable Wright, observed the vehicle in the driveway of the carpark waiting for the traffic travelling along Albany Highway to pass before turning into Albany Highway. Senior Constable Wright decided to keep the car under observation. He drove past the set of shops and turned left into the next intersecting street and did a U-turn intending to turn back onto Albany Highway and drive back past the car. As he was waiting for a break in the traffic to turn into Albany Highway he saw the driver of the Commodore suddenly reverse back into the carpark of the shops. He interpreted the driver's actions as being intended to avoid or evade the police interest and so he drove the police car along the footpath and verge of Albany Highway towards the set of shops before stopping the police vehicle in front of the Commodore to prevent it from moving.

3 Constable Thompson was in the front seat of the police vehicle and First Class Constable McCallum was in the rear seat.

4 After positioning the police vehicle so that Mr Texeira could not move his vehicle both Senior Constable Wright and Constable Thompson exited the police vehicle and approached Mr Texeira's vehicle. Mr Texeira's partner, Ms Ambrosio, was a front seat passenger in the Commodore, their young daughter was seated in the backseat.

5 As they approached the vehicle Mr Texeira was opening the door intending to get out of the vehicle. The police officers directed him to stay in the car and pushed the door shut. Mr Texeira was acting in an aggressive and angry manner towards the police officers. They obtained his driver's licence.

6 While obtaining Mr Texeira's licence, Senior Constable Wright said he detected a hint of a smell of cannabis coming from within the vehicle and then informed Mr Texeira he intended to conduct a search of the vehicle.

7 Mr Texeira and Ms Ambrosio were then asked to exit the vehicle. While Senior Constable Wright was talking to Mr Texeira, Ms Ambrosio began acting aggressively, shouting and swearing. When she continued to swear and shout abuse after having been requested to stop, Senior Constable Wright arrested and placed handcuffs on her. Mr Texeira was also placed in handcuffs.

8 Senior Constable Wright requested police backup and a short time later two police officers Constables Emery and McCormack arrived. Senior Constable Wright decided to conduct a search of the Commodore.

9 Sometime later members of the gang response squad attended at the scene and assisted with the search of the vehicle.

10 A package containing various clipseal bags containing approximately 13 grams of methylamphetamine was found in the petrol cap of the vehicle.

11 The accused objects to the admissibility of the evidence of the drugs found in the vehicle during the search on the basis the police unlawfully stopped the vehicle, because they stopped the vehicle without any lawful cause, and further, it is submitted, because the search of the vehicle was unlawful. Mr Texeira submits that there was no lawful basis to stop the vehicle and no lawful basis to search the vehicle. Therefore, the drugs seized during the search of the vehicle were unlawfully seized.

12 Mr Texeira submits the only lawful basis upon which the police officers had the right to search the vehicle was pursuant to s 38 or s 39 of the Criminal Investigation Act 2006 (WA) (CIA), that is, a police office can only lawfully search a vehicle if the officer reasonably suspects that it is necessary to do so either to prevent the vehicle from being used in the commission of an offence or to aid or facilitate the commission of an offence or if the officer reasonably suspects that a vehicle is carrying a thing relevant to an offence. It is submitted that the drugs seized during the search of the vehicle were illegally obtained as there was no reasonable belief or suspicion to ground a power to first stop and then to search the vehicle. It is also submitted that if the vehicle was unlawfully stopped the subsequent search of the vehicle was necessarily unlawful.

13 It is further submitted that s 23 of the Misuse of Drugs Act 1981(WA) (MDA) does not apply.

14 Finally, it is submitted that if the search was unlawfully conducted and the drugs unlawfully seized, and if the CIA applies, I should decline to exercise my discretion pursuant to s 155 to permit the evidence of the search and seizure of the drugs to be admitted. I should exclude the evidence.

15 A search warrant authorising a search of the accused's vehicle was not obtained.

Criminal Investigation Act 2006 (WA)

16 It is convenient to first set out the relevant statutory provisions.

1. Warrant not required to exercise this Division's powers

The powers in this Division may be exercised without a search warrant.

1. Vehicle, searches of to prevent offences, damage etc.

If a police officer reasonably suspects that it is necessary to do so for one or more of these purposes -

(ii) to aid or facilitate the commission of an offence; or

(iii) to provide the means for an offender to leave the place of the commission of an offence; or

(iv) by an offender to avoid, or attempt to avoid, being arrested for an offence;

(b) to prevent damage to a vehicle;

(c) to protect the safety of people who may board or be on board or who may be near a vehicle;

(d) to ensure peace and good order on a vehicle, the officer -

(e) may stop, enter and search or inspect the vehicle; and

(f) may take any reasonably necessary action.

1. Vehicle, search of for things relevant to offence

(a) that a vehicle is carrying a thing relevant to an offence; or

(b) that a vehicle is a thing relevant to an offence; or

(c) that a vehicle is carrying a person against whom an offence may have been, or may be being, committed; or

(d) that an offence has been, is being, or is about to be, committed in a vehicle, the officer -

(f) may, under section 46, establish a protected forensic area around or in the vehicle; and

(g) may, subject to section 146, seize any thing relevant to the offence; and

(h) may take any action that is reasonably necessary to stop any offence that is being, or prevent any offence that may be, committed against a person in the vehicle.

(2) If an officer doing a search under this section finds a thing relevant to an offence other than the offence giving rise to the search, the officer may, subject to section 146, seize it.

(3) If an officer doing a search under this section finds a thing that may be seized under this section, then whether or not the officer seizes it, the officer may do a forensic examination on it.

(4) The powers in subsection (1) may be exercised by an officer in the area associated with a dwelling but only if the officer reasonably suspects that -

(a) the person in charge of the vehicle does not reside in the dwelling; and

(b) the vehicle is not in that area with the express or implied permission of a person who does reside in the dwelling.

17 The expression 'reasonably suspects' is defined in s 3 as having the meaning given by s 4. Section 4 states:

For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.

18 The expression 'thing relevant to an offence' is defined in s 3 as having the meaning given to that term by s 5. Section 5 states:

(1) For the purposes of this Act, a thing is a thing relevant to an offence if it is reasonably suspected that -

(a) the thing has been, is being, or is intended to be used for the purpose of committing an offence;

(b) the thing has been obtained by the commission of an offence;

(c) an offence has been, is being, or may be committed in respect of the thing;

(i) evidence relevant to proving the commission of an offence or who committed an offence; or

(2) For the purposes of this Act, a thing relevant to an offence may be material or non-material, animate (other than human) or inanimate.

19 By s 3 'offence' means any offence under a written law.

1. Other written laws, this Act's relationship with

(1) Unless the contrary intention appears in this Act or another written law -

...

(3) If a provision in this Act is inconsistent with a provision in another Act, the provision in the other Act prevails.

(1) Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.

(2) If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.

(3) If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.

1. Stopping vehicles, powers in connection with

(1) If under this Act an officer may stop a vehicle, whether or not at a roadblock set up under section 18, the officer may use any means that are reasonably necessary in the circumstances to do so, including means that hinder or obstruct the passage of other vehicles.

(2) Subsection (1) does not authorise the use of means that are intended or are likely to cause death or grievous bodily harm to any person, whether or not in a vehicle.

(3) An officer who under this Act stops a vehicle in order to exercise a power in this Act in respect of the vehicle -

(a) may detain the vehicle for a reasonable period in order to exercise the power; and

(b) may move the vehicle to a place suitable to exercise the power.

23 If I form the view the search of Mr Texeira's vehicle was unlawful, I am then required to consider whether the evidence of the drugs seized during the search be nevertheless ruled admissible, having regard to the matters set out in s 154 and s 155 which read:

(1) In this section -

authorisation includes a warrant and an order.

(2) If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act -

(a) a thing relevant to an offence is seized or obtained; and

(b) a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,

any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless -

(c) the person does not object to the admission of the evidence; or

(d) the court decides otherwise under section 155; or

(e) if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.

1. Inadmissible evidence, court may allow admission

(1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.

(2) The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

(3) In making a decision under subsection (2) the court must take into account -

(a) any objection to the evidence being admitted by the person against whom the evidence may be given;

(b) the seriousness of the offence in respect of which the evidence is relevant;

(c) the seriousness of any contravention of this Act in obtaining the evidence;

(d) whether any contravention of this Act in obtaining the evidence -

(ii) arose from an honest and reasonable mistake of fact;

(4) The probative value of the evidence does not by itself justify its admission.

Misuse of Drugs Act 1981 (WA)

24 Section 23, s 24 and s 26 provide:

1. Powers of police officers when things suspected of being used in commission of offences

(1) Subject to this section, if there are reasonable grounds to suspect that any thing whatsoever -

(a) with respect to which an offence has been, or is suspected to have been, or may be committed; or

(b) which has been, or is suspected to have been, or may be used for the purpose of committing an offence; or

(c) which may provide evidence in respect of an offence,

is in the possession of a person, a police officer may, using such force as is reasonably necessary and with such assistance as he considers necessary, stop and detain the person and search him together with any baggage, package, vehicle or other thing of any kind whatsoever found in his possession, and for that purpose may stop and detain any vehicle.

(2) A person shall not be searched under subsection (1) except by -

(a) a person of the same sex as the firstmentioned person; or

(3) A police officer who wishes to search a person under subsection (1) may, if it is not then and there practicable to comply with subsection (2) in relation to the person -

(b) detain the person and convey him to a place where,

it is practicable for subsection (2) to be complied with in relation to the person.

(4) A person shall not be detained, or detained and conveyed, under subsection (3) for longer than is reasonably necessary under the circumstances for the purpose of complying with subsection (2) in relation to the person.

1. Granting of search warrants in connection with prevention or detection of offences

(1) A justice of the peace who is satisfied by information on oath that there are reasonable grounds to suspect that any thing referred to in section 23(1)(a), (b) or (c) may be in or on any vehicle, or in or on any premises or other place, may grant to a police officer a search warrant authorising a police officer at any time or times within 30 days from the date of that search warrant to enter any vehicle, or any premises or other place, named in that search warrant and, subject to this section, to search that vehicle or those premises or that other place and any person and any baggage, package or other thing of any kind whatsoever found therein or thereon, using such force as is reasonably necessary and with such assistance as the police officer considers necessary.

(2) A person shall not be searched under a search warrant except by -

(a) a person of the same sex as the firstmentioned person; or

(3) A police officer who wishes to search a person under a search warrant may, if it is not then and there practicable to comply with subsection (2) in relation to the person -

(b) detain the person and convey him to a place where,

it is practicable for that subsection to be complied with in relation to the person.

(4) A person shall not be detained, or detained and conveyed, under subsection (3) for longer than is reasonably necessary under the circumstances for the purpose of complying with subsection (2) in relation to the person.

1. Powers of police officers and others when things suspected of being used in commission of offences found, received or acquired

(1) If there are reasonable grounds to suspect that any thing found or received during the exercise of the powers conferred by section 22 or 23 or by a search warrant or under any other circumstances is a thing referred to in section 23(1)(a), (b) or (c) a police officer or approved person, as the case requires -

(i) a thing that is a prohibited drug, prohibited plant or dangerous substance; or

(ii) a thing that is contaminated by a dangerous substance,

may seize and detain the thing until it is dealt with under section 27; or

(2A) If under subsection (1)(b) a thing may be seized, the Criminal Investigation Act 2006 Part 13, with any necessary changes, applies to and in relation to the exercise of the power to seize the thing.

(2B) If under subsection (1)(b) a thing is seized, the Criminal Investigation Act 2006 Part 13 and the Criminal and Found Property Disposal Act 2006, with any necessary changes, apply to and in relation to it.

(2) A police officer who -

(a) while he or she is an undercover officer acting in the course of an undercover operation, acquires a prohibited drug or prohibited plant; or

(b) acquires a prohibited drug or prohibited plant as a result of its delivery to him by an undercover officer who is not a police officer,

shall detain the prohibited drug or prohibited plant until it is dealt with under section 27.

25 The word 'offence' referred to in s 23 is not defined. In my view the meaning of the word 'offence' must be read and construed in the context in which the word is used in the MDA. It therefore must refer to an offence under the MDA.

26 Unlike in the CIA the expression 'reasonable grounds to suspect' in s 23 and s 26 is not defined.

27 There are no equivalent provisions to s 154 and s 155 in the CIA in the MDA. If police officers are not authorised to conduct a search pursuant to s 23 and the evidence obtained during the search was therefore illegally obtained, a trial judge has a discretion to exclude or allow the evidence in accordance with the principles explained in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Mukevski v The State of Western Australia [2010] WASCA 138 [21] - [22] (per Owen JA).

28 Both Senior Constable Wright and Constable Thompson gave evidence at the hearing before me on 14 February 2017.

29 Senior Constable Wright has been a police officer for nearly 14 years. As at February 2015 he was working in the south-east metropolitan response team. Together with Constable Thompson and First Class Constable McCallum, he was conducting patrol and tasking duties in a marked police vehicle on 27 February 2015. The purpose of those duties was in part to do pro-active patrolling which is stopping vehicles or people in the street, whether it be for random breath testing, or where there are further issues that police find, they might delve into a bit deeper.

30 At 4:00 pm in the afternoon of 27 February he was driving in a westerly direction on Albany Highway in St James when he saw a white Holden Commodore which was positioned coming out of a line of shops on the southern side of Albany Highway. It appeared the Commodore was trying to make its way into the traffic on Albany Highway which was moderate to heavy. Senior Constable Wright observed the registration of the vehicle and the driver who had a number of tattoos. He slowed down as he drove past, looking at the driver. The driver appeared to be looking at the police vehicle.

31 Senior Constable Wright then turned left into the next street past the shops so that he could perform a U-turn and drive back towards the vehicle and conduct further inquiries in relation to the vehicle and the occupants. While he was waiting to turn back onto Albany Highway he observed the Commodore suddenly and aggressively reverse back into the shopping centre carpark, which he interpreted as the driver trying to avoid any police involvement or contact. As Senior Constable Wright was not able to turn onto Albany Highway because of the traffic he drove down the footpath and verge and with the police vehicle blocked the Commodore in the car bays in the carpark. He then exited the police vehicle and approached the driver as the driver was trying to open the door. He told the driver to stay in the vehicle but the driver continued to open the door and Senior Constable Wright pushed it closed. The driver appeared quite angry. Senior Constable Wright pushed the door closed for the purpose of making the driver stay in the car for officer safety because the driver was aggressive.

32 Senior Constable Wright then obtained the driver's licence which confirmed his identity as the accused, Mr Texeira.

33 While he was speaking to Mr Texeira, Senior Constable Wright noticed a hint or a smell of cannabis coming from within the vehicle. He then advised the vehicle occupants he would be conducting a search of the vehicle.

34 Senior Constable Wright said he decided to conduct a search of the vehicle at that point because of the way the vehicle rapidly and aggressively reversed, the aggressive demeanour of the driver and the hint of a smell of cannabis from which he believed that there were drugs in the vehicle. He believed he was lawfully entitled to search the vehicle under the MDA.

35 After he advised Mr Texeira he was going to conduct a search of the vehicle, Mr Texeira and the passenger, Rosie Ambrosio, got out. Ms Ambrosio picked up a child who was sitting in the back seat. There was also a dog in the vehicle, which Senior Constable Wright asked about and Mr Texeira told him 'Open the door and find out how aggressive it is'. Senior Constable Wright said he did not want to have the dog latching onto him causing him to have to shoot it, which is when Ms Ambrosio became aggressive and started swearing and yelling which he interpreted as trying to draw his attention away from the vehicle. Ms Ambrosio also acted aggressively and started swearing when he informed them he was going to search the vehicle which heightened his suspicions she was trying to draw his attention away from the vehicle because there was something in the vehicle (ts 104 - 105). She kept yelling and swearing saying that the police were picking on them. He told her to stop and when she continued he arrested her for disorderly conduct and placed her in handcuffs. Mr Texeira again became aggressive and was yelling and he was also arrested for disorderly conduct and placed in handcuffs by Constable Thompson.

36 Senior Constable Wright said he was not sure whether Mr Texeira got out of the vehicle and locked it. Initially when it was put to him in cross-examination that Mr Texeira said that the police would need to have a warrant if they wanted to search his vehicle, Senior Constable Wright said he might have said that, but police did not need a warrant. When he was asked whether Mr Texeira said police would need to go and get a warrant and Mr Texeira wanted to speak to a lawyer, Senior Constable Wright said he did not recall Mr Texeira saying police needed a warrant or whether he wanted a lawyer (ts 105). Under further cross-examination Senior Constable Wright said he did not recall whether Mr Texeira shut the door of the car and locked it or Mr Texeira saying the police would need a search warrant. Nor did he remember whether he actually mentioned he was going to search the car under the MDA (ts 113 - 114).

37 Another police vehicle was called and Constables Emery and McCormack attended. A ranger was also called to deal with the dog. After the vehicle was empty, the police commenced the search of the vehicle. After Senior Constable Wright started searching the vehicle, Senior Constable Smith and Constable Steens attended and he then played a lesser role. It was those police officers who ultimately found the drugs in the vehicle and seized them.

38 In cross-examination Senior Constable Wright said that their patrolling was described as opportunistic patrolling by which he meant that if he finds anything wrong anywhere he will stop and investigate.

39 He said that seeing a driver, with tattoos, of an old white Commodore is a matter which causes him to give it a second look. It was put to Senior Constable Wright that when the police vehicle drove past Mr Texeira's vehicle it was not positioned in the shopping centre carpark waiting to turn into the Albany Highway traffic, but was stationary in a car parking bay in the position in which it is seen in the search video. Senior Constable Wright denied that and said the car was coming out of the driveway when it reversed which is when Senior Constable Wright drove down and blocked him in. He thought the vehicle was going to reverse and then take off the other way. The vehicle was not parked within the lines of an angled parking bay (ts 88, 89, 96 - 97).

40 He said that he drove along the footpath at speed, probably up to 50 km per hour, and placed the police vehicle in a way so that the other vehicle could not move without hitting the police vehicle. Initially he said he did not know whether the position of the vehicles after the police vehicle stopped was in the position as seen on the search video (ts 90), but later, after he had been shown more of the search video, said that the position of the Commodore was not where the police vehicle had blocked it in (ts 116). He said that when Mr Texeira's vehicle was positioned on the crossover to come out onto Albany Highway he reversed back aggressively (ts 117).

41 After a bundle of five photographs (exhibit 2) was shown to Senior Constable Wright he said Mr Texeira's vehicle was positioned on the shopping centre driveway to turn into Albany Highway when the car reversed. He could not remember whether it was in the left-hand lane or right-hand lane of the driveway (ts 124). When the police vehicle stopped Mr Texeira's vehicle it was backed up to the Halal Butchers Shop. The police vehicle was on the asphalt of the shopping centre. He said the photos reminded him that the vehicles were moved because Mr Texeira's vehicle was right up against the shop (ts 125). He said Mr Texeira's vehicle was 'absolutely not' in the parking bay shown on the photograph (exhibit 2.2) (ts 126).

42 Constable Thompson confirmed he was the front seat passenger in the vehicle driven by Senior Constable Wright. As they drove past he only saw Mr Texeira's vehicle in his peripheral vision after Senior Constable Wright had brought it to his attention and conducted a registration check after the details were read out by Senior Constable Wright. After they turned into the intersecting street past the set of shops waiting to turn back onto Albany Highway or waiting for Mr Texeira's vehicle to come past them, he saw it reverse back into the carpark and Senior Constable Wright then drove the police vehicle down the footpath to chase the other vehicle. By the time they got to the carpark the vehicle was trying to pull into the carpark so they stopped in front of it at the end of the carpark so it could not drive onto the road. The purpose of stopping the police vehicle where they did was to stop the other vehicle from driving off (ts 135).

43 As both he and Senior Constable Wright approached the driver's side of the vehicle, Senior Constable Wright did most of the talking. Constable Thompson observed the driver to be extremely aggressive both in his words and by his actions. After the police told the driver to stay in the car and closed the door to keep him in the car, the driver continued to try and open the door. The driver's licence was then obtained and once the driver had calmed down. Constable Thompson went to the police car and confirmed his identity. He also asked for back up because of the size and aggression of Mr Texeira.

44 Constable Thompson did not make any decision about searching the vehicle but was present when the search commenced. Constable Thompson did not watch the whole of the search which he recalled as being conducted by Senior Constable Wright and an officer from the gang crime squad.

45 In cross-examination it was put to Constable Thompson that Mr Texeira's car remained in a parking bay as the police vehicle initially drove past the shops, specifically in a car bay next to where a black four wheel drive is parked in the photograph exhibit 2.2. Constable Thompson disagreed with that suggestion. He reiterated that he saw the car reverse (ts 142). He agreed that when the police vehicle stopped after it travelled along the footpath, they parked on the footpath in front of the rubbish bin in exhibit 2.2. Mr Texeira's car was within the boundaries of a parking space (ts 143).

46 Constable Thompson could not recall Mr Texeira getting out of the car and locking it with his key and then saying to the police officers that if they wanted to search his vehicle they would have to get a warrant (ts 145).

47 Constable Thompson said that once Mr Texeira got out of the car he was handcuffed with his hands in front of him for officer safety and then while Mr Texeira was handcuffed and was later at the back of the car he became aggressive again and Constable Thompson told him to sit down so that he could place the handcuffs at the back (ts 146). He said Ms Ambrosio was also very aggressive (ts 147). She was upset the whole time (ts 148).

48 When asked in cross-examination whether apart from Mr Texeira's demeanour he made any other observations he said he definitely had a suspicion that there was something in the car that Mr Texeira did not want the police officers to find (ts 150).

49 Constable Thompson reiterated that when Mr Texeira was in the car he was about to leave by driving out of the car park and was not simply parked in a parking bay (ts 151).

50 Mr Texeira gave evidence on his own behalf. He said that on that day he picked his daughter up from school with his partner, Rosie Ambrosio and they were then heading to his sister's house in Rivervale. As they were driving along Albany Highway he stopped at the deli to quickly pick up something. He left the car running with the air conditioner on as he went into the deli. He was not in the deli for long, 'just in and out' (ts 154). He parked the car in the empty car bay next to the black Honda in the photograph (exhibit 2.2).

51 When he got back into the car he noticed the police car go past with the police officer observing and pointing at him. He had the feeling that the police were going to target him so he did not leave the car park. He did not reverse his car but parked the car in the same spot (ts 155). He remained sitting in the car with his partner when the police car travelled along the footpath and parked in front of his car (ts 156). The police vehicle was parked so that it did not block off the driveway. It was parked in line with the wheelie bin. The back door of the police vehicle was in line with the wheelie bin (ts 157).

52 As he was opening his door to get out of the car, the first police officer closed the door onto his foot which caused him to become agitated. He was not aggressive, but the police officer was. He probably swore complaining about his foot (ts 158).

53 After he was allowed to get out of the car he locked the car and told the police officers that they were not going to search his car without a warrant. After he told the police officers that, they never said much, except that one of the officers came up from behind and handcuffed him (ts 161).

54 He said that he had not smoked cannabis in the car that day nor had he ever smoked cannabis in the car. He did not have any cannabis in the car. To his knowledge Ms Ambrosio had never smoked cannabis in the car.

55 In cross-examination Mr Texeira said that when he saw the police vehicle go by he could not really remember the movements of his car, it may have gone forward or reversed a tiny bit but it remained stationary. He parked the vehicle where it was and was trying to get out of the vehicle when the police vehicle blocked his car (ts 165). When further pressed about whether his car had moved, he said he could not remember what the movements of the car were but remembered parking his car when the police were coming back to make the job easier and to make it easier for him (ts 165).

56 He could not remember whether he gave his licence to police or whether they took it from his wallet (ts 167).

57 He agreed he has smoked cannabis but had not smoked cannabis that day nor was he wearing clothes which he had previously worn while smoking cannabis (ts 168).

58 He agreed he knew the police officers were targeting his car.

59 In re-examination when asked about the movements of his vehicle from the moment he parked to the moment the police vehicle blocked his vehicle, he said that he reversed (ts 170):

... obviously to pull out of the car park - to pull out of the bay and then that's when the - like, I've just started reversing. That's when the police have gone past. I wasn't in the - in the - the exit thing. So that's - that's the only thing but - yeah.

Okay. And what about - okay. But how did the car get back there? ---It was always there. That's where I left it. Same - same with the windows. The windows are still up. Like, I've been handcuffed at this point so the windows can't - you know.

Okay. Now, did anyone else move your car into that position?---Nobody else moved my car.

Okay. So what do you say about that location of the car in relation - - -?---That's where I left - - -

- - - to when you got back into the car having been at the deli?---Yeah. No, that's where I'd left it.

60 Although s 23 of the MDA does not refer to the expression 'reasonable suspicion' and the CIA defines the expression 'reasonably suspects' it is helpful to have regard to how similar expressions have been considered in other cases.

61 In George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112 the High Court held:

When a statute prescribes that there must be 'reasonable grounds' for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. ... That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers ...

Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (63), 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees (64), a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay [its] debts as they became due' as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (65):

'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.'

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

63 In R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 [53] Smart JA summarised the propositions which emerged from the cases considering the meaning of the expression 'reasonably suspects' as follows:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.

(See also The State of Western Australia v LAM [2014] WADC 62 [19] - [24] (Bowden DCJ)).

64 I generally accept the evidence of both Senior Constable Wright and Constable Thompson. I am satisfied that when Senior Constable Wright drove the police vehicle along Albany Highway past the line of shops, Mr Texeira's vehicle was in the driveway of the shops waiting to turn into Albany Highway. Mr Texeira's vehicle was not parked in a car bay.

65 I also accept the evidence of both Senior Constable Wright and Mr Texeira that they looked at each other as the police vehicle travelled past the shops and Mr Texeira knew that the police officers were observing him and intending to investigate him and his vehicle. Mr Texeira admitted he thought the police officers were targeting him.

66 Mr Texeira saw the police vehicle turn left into the nearest cross street and turn around to travel back in the same direction. He knew the police vehicle was intending to travel back in the same direction for the purpose of keeping his vehicle under observation and perhaps to stop and question him. With that knowledge and while the police vehicle was positioned at the intersecting street waiting to turn into Albany Highway, Mr Texeira reversed his vehicle suddenly from the exit driveway of the shopping carpark which was observed by both Senior Constable Wright and Constable Thompson. Senior Constable Wright then drove the police vehicle at speed along the verge and footpath of Albany Highway stopping the police vehicle in front of Mr Texeira's vehicle preventing his vehicle from being able to move any further.

67 I reject Mr Texeira's evidence that he did not move his car to any significant extent from the car bay in which he parked when he briefly went into the deli. His evidence about whether he moved his car was unconvincing. Initially he gave evidence he did not move the vehicle because he knew the police were coming back to speak to him and so remained sitting in his car parked in the car bay. However, he later said he may have moved the car forward and may also have reversed, but was uncertain as to his vehicle's movements.

68 I accept the evidence of the police officers when they each initially saw Mr Texeira's vehicle it was in the shopping carpark exit waiting to turn into Albany Highway. Senior Constable Wright saw the vehicle as they drove past the shops. Constable Thompson saw the vehicle when they turned left into the intersecting street intending to travel back along Albany Highway. I accept Senior Constable Wright's evidence that the vehicles were later moved. They were moved before the search video was taken. The position the vehicles were seen in the search video is not the position that the vehicles were in when the police vehicle initially stopped in front of Mr Texeira's vehicle preventing it from moving any further.

69 I accept that when both Senior Constable Wright and Constable Thompson approached Mr Texeira's vehicle he acted towards them in an aggressive and angry manner. He attempted to exit the car and they forced the door shut telling him to stay inside the vehicle. I do not accept Mr Texeira's foot was jammed in the car door which is why he became angry. While Mr Texeira was still inside the vehicle and Senior Constable Wright was talking to him, I accept Senior Constable Wright thought he noticed a hint or smell of cannabis coming from within the vehicle. I accept Senior Constable Wright's evidence that he then advised Mr Texeira and Ms Ambrosio that he would be conducting a search of the vehicle. That caused Ms Ambrosio to become aggressive which heightened Senior Constable Wright's suspicions that they did not want the vehicle searched because something was hidden in it.

70 I accept Senior Constable Wright's evidence that he decided to conduct the search of the vehicle because of the way the vehicle rapidly and aggressively reversed, because of the aggressive demeanour of the driver and because of the hint of a smell of cannabis coming from within the vehicle from which he believed there were drugs in the vehicle. Senior Constable Wright believed that from Mr Texeira's aggressive reversing of his car in the carpark that he was attempting to avoid the police knowing police were intending to either keep his vehicle under observation or stop the vehicle and speak to him. Until Senior Constable Wright saw the reversing action of Mr Texeira's vehicle he had not decided to stop it. It was only because of that rapid reversing movement, which Senior Constable Wright interpreted as Mr Texeira trying to avoid the police attention, that Senior Constable Wright decided to stop the vehicle and speak to the occupants. Constable Thompson also witnessed the reversing action of the vehicle. In my view in those circumstances there were reasonable grounds, when judged objectively, for the police officers to suspect the driver was trying to avoid the police because an offence had been committed and the car was relevant to the commission of that offence.

71 The belief, or the suspicion, that an offence may have been, or was being, committed was reinforced by the aggressive demeanour of Mr Texeira, and also by Ms Ambrosio's aggressive demeanour after the vehicle was stopped, which the police officers believed was for the purpose of distracting the police officers' attention from the car. That belief was further reinforced by Senior Constable Wright noticing what he believed was a hint or a smell of cannabis coming from within the vehicle.

72 I am satisfied that in all of those circumstances there were reasonable grounds for the police officers to first stop the vehicle and then secondly, to search the vehicle without warrant. In my view the police officers were empowered to stop the vehicle pursuant to either s 38 or s 39 of the CIA. I am satisfied Senior Constable Wright had grounds at the time he saw the vehicle reverse aggressively into the carpark, after the police vehicle had turned into the first intersecting street intending to drive back past the vehicle, in circumstances where he had seen the driver looking at the police as they drove past and believed the driver knew police were interested in the vehicle, for suspecting the vehicle was relevant to an offence, which when judged objectively, were reasonable: see s 4 and s 5 of the CIA.

73 Senior Constable Wright believed he was lawfully entitled to search the vehicle under the MDA. In my view, there were reasonable grounds for Senior Constable Wright to suspect that an offence had been or may have been committed under the MDA, or the vehicle may be being used for the purpose of committing an offence, to empower him to conduct a search of the vehicle in accordance with s 23 and s 26 of the MDA.

74 Counsel for Mr Texeira submitted that because there was no lawful reason to stop the vehicle in the first place, all the actions of the police officers which followed thereafter, including the search of the vehicle, were unlawful. That is, by virtue of the vehicle being unlawfully stopped in the first place, the search of the vehicle was also unlawful even if there subsequently became reasonable grounds for a suspicion to search the vehicle.

75 I reject that submission. Where a vehicle has been unlawfully stopped, a subsequent search of that vehicle will still be lawful providing the search is conducted in accordance with any statutory powers under either the MDA or CIA: R v Rondo [57]; The State of Western Australia v LAM [48].

76 The only case which provides guidance as to the correct statutory construction of the provisions of the MDA relevant to the power of police officers to conduct searches which counsel have been able to refer me to is Mukevski v The State of Western Australia. However, that case did not discuss and was not concerned with a search conducted without warrant pursuant to s 23. The case proceeded on the basis a search of premises was undertaken based on a defective search warrant and whether the evidence of the drugs which were found ought to be excluded having regard to the Bunning v Cross factors. That was a case in which police officers had obtained a search warrant issued under the MDA to enter and search premises. There was a defect in the warrant in that it was undated which defect was drawn to the police officer's attention at the time the warrant was executed. Although that defect was brought to the attention of the police, the police conducted the search of the premises and found prohibited drugs and drug paraphernalia.

77 Although the Court of Appeal acknowledged the warrant was defective because it should have included the date but did not, Owen JA observed at [21] that it did not necessarily follow that the warrant was invalid. He then proceeded to determine the appeal on the assumption that the evidence was unlawfully obtained. He said [21] - [22]:

1. ... However, I will approach the matter on the assumption that the evidence obtained during the search was illegally obtained. Were it not for the invalidity, no question of relevance or inadmissibility would have arisen. The question raised by the first ground is whether the trial judge should have exercised the discretion to exclude the evidence in accordance with the principles enunciated in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
2. It is trite to say that the criminal law regards the liberty of the subject as a precious commodity and seeks to protect against inappropriate intrusions against individual rights. Relevantly, the courts take seriously society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired: Bunning, (75). It is possible to extract from the judgment of Stephen and Aickin JJ in Bunning at 78-80 five considerations which serve as guides to the way in which the relevant discretion falls to be exercised. But as their Honours' noted (77), criteria such as these cannot be developed in the abstract and take their meaning from the circumstances of the case. The five principles are:
   1. Whether the unlawfulness was other than the result of a mistaken belief on the part of the police officers that they were entitled to do what they did.
   2. Whether the nature of the unlawfulness in the case affects the cogency of the evidence.
   3. The ease with which the law might have been complied with.
   4. The nature of the offence with which the offender has been charged.
   5. Whether the law breached reflects a deliberate intent on the part of the Legislature narrowly to restrict the police in the exercise of their powers.

78 His Honour then considered each of the five principles in determining the trial judge was not in error in failing to exercise his discretion to exclude the evidence of the seized drugs obtained during the search warrant, finding at [24] - [26]:

1. The cogency of the evidence was not affected by the defect in the warrant. The warrant was executed, the items were seized and some of them were tested. Thereafter, their probative value stood alone, unaffected by the way in which they came into the possession of the investigating police officers. There was no evidence to suggest that the omission of the date from the warrant represented a deliberate 'cutting of corners' by the police officers concerned (Bunning, (79)). On the evidence, it seems to have been an inadvertent mistake by the Justice of the Peace who issued the warrant. Accordingly, the third factor does not weigh either for or against the admissibility of the evidence. The fourth factor involves some examination of the seriousness of the offence charged and of the unlawful conduct of the law enforcement authorities (Bunning, (80)). In this case the offence charged (possessing 440 g of methylamphetamine with intent to sell or supply) is very serious. Leaving to one side the reaction of the police officer when told of the defect (a matter with which I will deal shortly) the execution of a search warrant from which the date of issue has inadvertently been omitted does not rank at the higher end of the scale of seriousness. In my view the fourth factor does not weigh materially against the admissibility of the impugned evidence.
2. The evidence before the trial judge included the transcript of the exchanges between the police officer and the appellant before the search had commenced. The appellant drew attention to the omission of the date. The police officer told the appellant that the advice he had received was that the omission of the date did not invalidate the warrant. There was no evidence that called into question whether the police officer had sought and obtained the advice to which he referred or which tended to show that he did not genuinely believe that the warrant was valid. While it is true that the appellant's initial requests that he be permitted to contact a solicitor were rebuffed, he was eventually afforded that opportunity. There was no evidence that after the contact with the solicitor the appellant renewed his objection to the warrant. Rather, he exercised his undoubted right to remain silent. In all of these circumstances, I think it was open to the trial judge to conclude that the police officers executed the search warrant in the honest but mistaken belief that they were entitled to do so. Accordingly, the first of the Bunning criteria does not weigh against the admissibility of the evidence.
3. Counsel for the appellant drew attention to cases such as Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, George v Rockett [1990] HCA 26; (1990) 170 CLR 104 and Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 in support of the proposition that strict compliance with the statutory conditions governing the issue of search warrants is an important consideration. That is undoubtedly so. But here, the only departure from the expressed will of the legislature was the absence of a date which would enable the appellant to know whether the force of the warrant had expired by the passing of time. It did not go to the essential preconditions for the grant of the warrant; namely, that a justice of the peace had been satisfied by information on oath that there were reasonable grounds to suspect that a 'thing' may be in the subject premises: Misuse of Drugs Act s 23(1) and s 24(1). Rather, it went to the description of the time within which the police officers could properly execute the warrant. The warrant, as issued, did not otherwise depart from anything contained in the Act, the Misuse of Drugs Regulations 1982 (WA) or Form 8 set out in those regulations. It seems to me, therefore, that the omission of the date was not so significant a departure from the will of the legislature as to demand the conclusion that, necessarily and without more, the warrant was so defective that nothing done under it could possibly survive. It was a factor to be taken into account in the exercise of the discretion (and there is no reason to think it was not considered) but it is not such as to lead to the result that the discretion ought to have been exercised by excluding the impugned evidence.

79 As I have found the search of Mr Texeira's vehicle was lawful, it is unnecessary for me to consider whether I ought to exercise my discretion to exclude the evidence in accordance with the Bunning v Cross principles as explained by Owen JA in Mukevski v The State of Western Australia. However, in case I am wrong in my finding that the search of the vehicle was conducted lawfully, I will consider the matter on the assumption that the search was unlawful and the drugs were unlawfully seized.

80 Dealing then with the first factor, if Mr Texeira's vehicle was unlawfully stopped and then searched, the search was conducted by the police officers in the belief that they were entitled to search the vehicle without the need for a search warrant. Senior Constable Wright formed the view he was entitled to search the vehicle because of the combination of factors I have earlier outlined culminating in his belief that he detected a faint smell of cannabis coming from within the vehicle. He believed he was entitled to search the vehicle for drugs pursuant to the MDA. He started to search the vehicle by himself and the search was later completed when officers from the gang response squad attended and they located the drugs hidden in the vehicle. I reject Mr Texeira's evidence that when he exited his car he locked it and told police officers if they wanted to search the vehicle they would need to obtain a warrant. However, even if Mr Texeira did tell police officers they needed to obtain a search warrant before searching the vehicle, that would make no difference to the outcome. A person cannot dictate to police officers whether they need to obtain a search warrant to search a vehicle or premises. If a person tells police officers they need to obtain a search warrant that does not make any subsequent search without a search warrant unlawful. If the search is lawful, either because of compliance with the provisions of the MDA or the CIA, whether or not a person insists that police obtain a search warrant is irrelevant. A subsequent search is only unlawful if it has not been properly conducted in accordance with the relevant statutory provisions. The failure of police officers to comply with a request or demand from a person to obtain a search warrant does not, by itself, render a subsequent search without a warrant unlawful. It might however be a relevant factor in deciding whether to exclude the evidence if there is an initial determination that a search conducted without a warrant was unlawful.

81 If the search of the vehicle was unlawful, it was only on the basis that there were no reasonable grounds for suspecting the vehicle was associated with the commission of an offence against the MDA. I have earlier rejected defence counsel's submission that if the initial stop of the vehicle was unlawful it must follow the subsequent search was unlawful (see [75] above).

82 In considering the cogency of the evidence of the search I take into account the following matters. The accused was present during the search of the vehicle which was audio visually recorded. I have watched the search video. Constable Steens, while explaining to Mr Texeira that during the search he located an item inside the petrol cap and had as a result arrested Mr Texeira on suspicion of possessing methylamphetamine with intent to sell or supply, attempted to explain to Mr Texeira his rights and caution him. Mr Texeira seemed to have some difficulty understanding what was being explained to him. Constable Steens explained that during a search of the vehicle conducted under the MDA he had located an item and the police were going to video record the item. Constable Steens explained that he arrived at the scene at 4:50 pm and assisted the initial police officers in conducting the search. At 5:07 pm he located the item inside the petrol cap and had left it in situ and then immediately advised Mr Texeira and Ms Ambrosio they were under arrest on suspicion of possessing a prohibited drug with intent to sell or supply. Thereafter, both Mr Texeira and Ms Ambrosio were cautioned and the item which was a bag, which in turn contained numerous clipseal bags and crystal material, was seized. All of that process was audio visually recorded. Mr Texeira's wallet was also seized and again, that was audio visually recorded.

83 The cogency of the evidence, particularly in circumstances where Mr Texeira was at all times present when the search was conducted, and when, once the drug package was located, the finding of the drugs was audio visually recorded, was not affected by the search being conducted unlawfully. The probative value of the seized drugs stood alone, unaffected by the way in which they came into the possession of the police officers conducting the search.

84 In relation to the third factor, although there was no evidence given as to the ease by which a formal search warrant might have been able to be obtained, there was also no evidence to suggest that the failure to obtain a formal search warrant represented a deliberate cutting of corners by the police. The failure to obtain a formal search warrant was, if the search which was conducted was unlawful, because of a mistaken belief on the part of Senior Constable Wright that he was authorised to conduct the search in accordance with the MDA. The item which had been earlier located by Constable Steens was then taken out of the petrol cap cavity while it was audio visually recorded and while Mr Texeira was present. During that process Constable Steens confirmed to Mr Texeira that the search of the vehicle was conducted in accordance with the MDA.

85 Although by s 24 of the MDA a search warrant could have been obtained, it is likely to have presented some practical and logistical difficulties to obtain. Certainly there would have been a delay had a search warrant been obtained, during which the police officers and Mr Texeira and Ms Ambrosio would have been kept waiting at the scene. Such a delay would have caused inconvenience not only to the police officers and Mr Texeira and Ms Ambrosio, but to the public generally. The presence of police officers at the line of shops was likely to have caused some disruption to their business. In my view the purpose of s 23 by which police officers are able to search a vehicle without the need to obtain a search warrant, is in part to ensure police officers are able to efficiently perform their functions in relation to the investigation of suspected criminal offences. Regard must be had to situations which develop suddenly. A purpose of s 23 is also to minimise any inconvenience to the public and members of the public who are the subject of police investigation or action. In my view, the purpose and intention of s 23 is to permit police officers to conduct a search of a vehicle in the circumstances of this case.

86 I also have regard to s 13 of the CIA by which police officers are able to apply for a search warrant before a justice of the peace or a magistrate. Generally such an application must be made in writing unless the application is made by remote communication and it is not practicable to send the judicial officer written material. The application must be made on oath. Clearly, to obtain a search warrant would take some time for the documentation to be filed in support of the application to be made and then for the justice of the peace or magistrate to consider the application.

87 While I accept that the police officers could have obtained a search warrant to permit them to search the vehicle, and while as I have noted there is no evidence of what would have been involved in obtaining a search warrant and the time involved, I am of the view that it would have taken some time to organise, resulting in a delay during which it would have been necessary to secure the vehicle and keep Mr Texeira and Ms Ambrosio together with police officers present at the scene causing inconvenience to members of the public including the shop owners and customers of the shops. In my view, on the assumption the search was unlawful, and in the circumstances which existed, it would not have been an easy matter to quickly obtain a search warrant. Although I have no doubt on the basis of the information which existed at the time that a search warrant would have been obtained, a considerable delay would have been occasioned before a search warrant was obtained, causing significant inconvenience and significant use of police resources which might otherwise have been more usefully occupied.

88 In relation to the fourth factor, there is no doubt that the drugs which were found by police, which form the basis of counts 1 and 2 on the indictment are serious offences. The total weight of methylamphetamine which was seized was approximately 13 grams. Two of the packets each contained nearly 3.5 grams of methylamphetamine at a purity of 81% indicating it was close to the source of manufacture. From the packaging of the drugs in the various clipseal bags in varying amounts, I infer the person or persons in possession were actively involved in the distribution of the drugs.

89 The execution of the search if it was unlawful, in circumstances where Senior Constable Wright, and then Constable Steens, believed they were empowered to conduct the search and where the search was undertaken after other police officers attended the scene during which Mr Texeira was present, and which was audio visually recorded, does not in my view rank at the higher end of the scale of seriousness of unlawful conduct by police officers. The failure to obtain a formal search warrant does not weigh materially against the admissibility of the evidence of the drugs which were seized during the search.

90 Considering the final factor, while I accept the provisions in both the MDA and the Criminal Procedure Act 2004 (WA) which empower police officers to conduct searches without a formal search warrant must be read and understood in the context of those provisions which require police officers to obtain a search warrant and that generally there must be strict compliance with the statutory conditions governing the power of police officers to conduct searches, which is an important consideration, the failure to obtain a search warrant and to conduct the search without a warrant did not in my view constitute so significant a departure from the will of the legislature so as to demand the conclusion that, necessarily without more, the search was so defective that nothing done in accordance with it could possibly survive. This is not a case of police officers wilfully or recklessly disobeying or disregarding the law. While it is a factor to be taken into account in the exercise of the discretion, it is not such as to lead to the result that I am persuaded to exercise my discretion to exclude the evidence of the drugs found during the search.

91 Further, on the assumption the CIA applied I would, having regard to the s 155 considerations, permit the evidence of the search of the vehicle to be admitted for the same reasons I have explained when considering whether the evidence should be excluded having regard to the Bunning v Cross discretionary factors. The determination of admissibility under the CIA or exclusion pursuant to the exercise of Bunning v Cross discretion involve very similar considerations.

92 In reaching the conclusion the evidence of the search should not be excluded I have also had regard to the following authorities.

93 In R v Nguyen [2013] SASCFC 91; (2013) 117 SASR 432 the Full Court of the Supreme Court of South Australia considered whether illicit drugs found by police during the search of a motor vehicle without a search warrant were unlawfully seized. The police officers purported to rely upon powers under the Controlled Substances Act 1984 (SA) to stop and search a vehicle. By s 52(6) and s 52(9) of the Controlled Substances Act 1984 (SA):

(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.

94 The trial judge refused to exclude the evidence of the search holding that the information possessed by police was sufficient to raise a reasonable suspicion for the purposes of s 52(9)(b) of the Controlled Substances Act 1984 (SA) to justify the search of the vehicle. In upholding the appeal the Full Court held that the material did not support a reasonable suspicion that there was evidence of offending against the Controlled Substances Act 1984 (SA) in the vehicle at the point in time when the police saw an unidentified person driving the car. It was further held that in order to support a reasonable suspicion that evidence of a contravention of the Controlled Substances Act 1984 (SA) would be found in the vehicle at that time more was required. That is, more was required than a belief or suspicion that on some earlier occasions a driver or passenger of the vehicle engaged in the conduct proscribed by the Controlled Substances Act 1984 (SA): see [23], [24].

95 The facts of that case were that police officers were keeping a residence and a vehicle under surveillance based on information they had received that a person at the premises was trafficking in drugs and that on one occasion the car was involved in a drug deal. The Full Court held that the evidence was not sufficient to establish a reasonable basis for suspecting that the vehicle was being used in relation to an offence on the occasion in question. At [24] the court referred to evidence which might have given rise to a sufficient basis for a suspicion, such as information the vehicle had been consistently or frequently used to convey drugs or the person seen driving the vehicle was involved in drug offending. However, when the police officers stopped the vehicle it was being driven by an unidentified driver and nothing else was known to them which could give rise to reasonable suspicion that the vehicle was being used in relation to the trafficking of drugs at that time. The Full Court held that in the absence of a reasonable suspicion or lawfully obtained search warrant, the police officers unlawfully detained the vehicle by blocking the driveway of the premises and that the trial judge erred in failing to exercise his discretion to exclude the evidence of the police search.

96 In considering the expression 'reasonable suspicion' under the Controlled Substances Act 1984 (SA) the court said [21] - [22]:

1. 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
2. Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officer must not only suspect but 'reasonably suspect' that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.

97 In my view R v Nguyen is distinguishable from the circumstances in which I have found police acted in this case when they decided to stop and then search Mr Texeira's vehicle. When Senior Constable Wright decided to stop Mr Texeira's vehicle and then search it, it was not on the basis of information he had received that the vehicle might have been associated with drug dealing. Rather, it was on the basis of the circumstances as they quickly developed at that time. As I have earlier found, a decision to stop Mr Texeira's car was only made after Mr Texeira was seen to reverse the car rapidly and aggressively from the driveway of the shopping carpark and from where the car had been positioned for the purpose of turning into Albany Highway. The car was reversed after Mr Texeira saw the police vehicle turn left into the next intersecting road and turn around for the purpose of travelling back along Albany Highway towards Mr Texeira's vehicle. Mr Texeira knew the police had seen him and accepted that they were targeting his vehicle. Senior Constable Wright formed the view, in my view on reasonable grounds, that Mr Texeira was attempting to avoid the police scrutiny which gave rise to a reasonable suspicion an offence may have been committed, and for that reason decided to stop the car. His decision to search the vehicle was not reached until after the occupants of the vehicle, Mr Texeira and Ms Ambrosio, acted aggressively and abusively, which aroused his suspicions that they were trying to hide something and to distract the police from the vehicle. When he then detected what he thought was a faint smell of cannabis he decided to search the vehicle under the MDA. Senior Constable Wright had reasonable grounds to suspect the vehicle, which was in the possession of Mr Texeira, was something with respect to which an offence was suspected to have been committed or was being used for the purpose of committing an offence, namely being in possession of prohibited drugs, which justified or authorised him to conduct a search of the vehicle pursuant to s 23 of the MDA without the need to obtain a search warrant in accordance with s 24. There was supporting information or material for the suspicion there were drugs in the vehicle and a rational connection between the supporting material and the suspicion. Further, I am satisfied Senior Constable Wright was thinking reasonably about the supporting information or material when he formed his suspicion.

98 R v Nguyen was followed in R v Sutton [2016] SADC 74. In that case police officers purported to stop and search a vehicle pursuant to s 68 of the Summary Offences Act 1953 (SA). The principal issue was whether the evidence established that the suspicion of the police officers for stopping and searching the vehicle was reasonable in all of the circumstances. At [13] - [14] the judge, before ruling that the search was unlawful and the evidence of the drugs found in the vehicle ought be excluded having regard to the Bunning v Cross factors, said:

1. The material from the declarations and oral evidence of the three police officers which gave rise to their reasonable suspicion such as to justify a search pursuant to s 68 SOA are:
   • The area (the extent of which was undefined) where the grey Mazda was observed was believed to contain a number of houses (unspecified number) where drug trafficking was believed to be taking place. There was no evidence as to which houses were believed to engage in drug trafficking.
   • That the grey Mazda was parked with lights off and then after the unmarked police car passed it, executed a U-turn and moved to another nearby street and parked; again with lights off.
   • The defendant was the sole occupant of the car and the police observed the defendant to be nervous, with shaking hands and sweating.
2. In my view the reasonableness of the suspicion by the police was insufficient. There are many law abiding members of the community who, for various reasons, could drive and park a vehicle in the area of Seaford Rise, who might move their car and become nervous and/or anxious in the presence of the police. The information available to the police was not capable of giving rise to a reasonable suspicion that the car contained drugs or equipment associated with illicit drug use. The police did not know the identity of the driver and there was no known connection with any of the premises which were said to be involved with drug dealing. There was no police intelligence referable to the car or the defendant.

99 In R v Nguyen [2015] SASCFC 7 the South Australia Full Court of the Supreme Court again overturned the decision of the judge at first instance and ruled that the search of the appellant and a motor vehicle in which drugs were found in her handbag was unlawful and excluded the evidence having regard to the Bunning v Cross factors. The facts in that case, which involved a different accused to the accused in R v Nguyen [2013] SASCFC 91; (2013) 117 SASR 432, were similar to the earlier case. In applying the earlier decision in R v Nguyen the Full Court said [31], [38]:

1. Attention was required by subsection (6) to be directed to the prospect that the appellant was in possession of drugs, as opposed to whether the house from which the Commodore emerged was associated with drugs. Similarly, subsection (9) required as a prerequisite for a lawful search of the vehicle driven by the appellant that Detective McFarlane reasonably suspected that drugs were in the vehicle while it was being driven by the appellant, and not merely that the vehicle had historically been associated with drugs.

1. It is apparent from the evidence given by Detective McFarlane that she considered that she was at liberty to exercise the compulsive powers conferred by subsections 52(6) and (9), merely because an unknown person is driving a vehicle in which drugs have historically been found and because the vehicle emerged from premises associated with drugs, regardless of any connection between the driver and either the person historically found in possession of drugs in the vehicle or the persons residing in the house.

100 In exercising the discretion to exclude the evidence that resulted from the unlawful search of the appellant, the court said [40]:

1. The following observation of this Court in R v Nguyen is apposite in this case:

It is of great importance that police officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions on which their lawful exercise depends. The reasonable suspicion which enlivens the powers found in s 52(6) and (9) of the CSA is that illicit substances or evidence of offending are, respectively, on the person or in a vehicle. It was a failure to pay attention to that particular aspect of the suspicion which resulted in the unlawful search of the appellant.

101 Finally, in considering the approach of the courts in South Australia to the resolution of similar issues which arise in the case before me, in the context of the South Australian legislation I have had regard to R v Nguyen [2016] SADC 30 in which the earlier two decisions in R v Nguyen were referred to and followed. In that case police officers driving an unmarked police car while on mobile investigation duties, followed and stopped a vehicle and then searched the vehicle in which illicit drugs were found. On the facts of that case the trial judge ruled there was more than sufficient material to sustain the reasonable suspicions of the police officers that there were drugs in the vehicle and therefore they acted lawfully in stopping and searching the vehicle under the Controlled Substances Act 1984 (SA).

102 In R v Versac [2013] QSC 46; (2013) 227 A Crim R 569 the trial judge, having regard to the Bunning v Cross factors, excluded the evidence of illicit drugs seized from the search of the respondent's unoccupied car which was parked in a carpark near a courthouse while the respondent was being held in custody. The police officers who conducted the search gave evidence that they searched the car because they reasonably suspected that evidence may be concealed or destroyed unless the vehicle was immediately searched. The police officers later obtained a search warrant purporting to justify the search of the vehicle. It was conceded the search of the vehicle was unlawful and the issue was whether the evidence should be excluded having regard to the Bunning v Cross factors.

103 It was held that the unlawfulness of the search reflected a reckless disregard for the constraints imposed by the relevant Queensland legislation and that the police officers' conduct involved a serious disregard of constraints upon the exercise of their official power. It was also held that the evidence could have been obtained without unlawful conduct by a search warrant being relatively easily obtained without substantial delay.

104 The factual circumstances of that case were that after the appellant had been arrested he declined to be interviewed. While he was being processed his motor vehicle keys were taken by police who had a further short conversation with him. The police officers felt his responses were evasive and he was lying and that the vehicle which the keys would open contained illicit drugs. A decision was then made to search the vehicle without warrant while the respondent remained in custody.

105 The statutory provision considered in that case was s 31 of the Police Powers and Responsibilities Act 2000 (QLD) which reads:

(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following -

(b) detain a vehicle and the occupants of the vehicle;

(c) search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.

(2) Also, a police officer may stop, detain and search a vehicle and anything in it if the police officer reasonably suspects -

(b) a person in the vehicle may be arrested without warrant under section 365 or under a warrant under the Corrective Services Act 2006.

...

(5) The police officer may seize all or part of a thing -

(a) that may provide evidence of the commission of an offence; or

(b) that the person intends to use to cause harm to himself, herself or someone else; or

(c) if section 32(1)(b) applies, that is an antique firearm.

(6) Power under this section to search a vehicle includes power to enter the vehicle, stay in it and re-enter it as often as necessary to remove from it a thing seized under subsection (5).

106 In considering that provision the judge held [40]:

1. Section 32 defines the 'prescribed circumstances' and they relevantly include that there is something in the vehicle that 'may be an unlawful dangerous drug.' Section 31(1) contains three distinct powers if a police officer reasonably suspects any of the prescribed circumstances for searching a vehicle. They are a power to stop the vehicle, a power to detain the vehicle and its occupants and a power to search. The power to search a vehicle pursuant to s 31(1)(c) is not unconstrained. It is a power to search a vehicle and anything in it 'for anything relevant to the circumstances for which the vehicle and its occupants are detained.' It does not authorise a search without a warrant of a vehicle in circumstances in which the vehicle and its occupants have not been detained.

107 It was conceded by the prosecution that because the appellant and the vehicle were not detained, there was no proper statutory basis to search the vehicle. That is, the vehicle had not been detained but was left unoccupied in the carpark.

108 However, in considering what circumstances might give rise to 'a reasonable suspicion' the judge observed [42]:

1. In the light of the concession that the search was unlawful, it is unnecessary to dwell on the issue of whether each officer had a reasonable suspicion that dangerous drugs were in the car. I am prepared to find that they did, and no submission was made to the contrary. Such a suspicion might reasonably have been based on the applicant's history, his demeanour, information that he had previously had drugs in vehicles when he was driving in a police pursuit, his possession of car keys and his evasive and untruthful answers when asked by Senior Constable Peek about the keys and how he came to the Courthouse that day.

109 R v Versac was applied in R v Pohl [2014] QSC 173; (2014) 244 A Crim R 56. In that case police, on the basis of information they had received about drug dealing, entered premises from which the appellant and two others were seen fleeing. When the appellant was caught, police seized a set of car keys from him. Knowing that the appellant had driven the vehicle they then searched it using the seized keys. Illicit drugs were found.

110 The trial judge excluded the evidence of the search on the basis the evidence was obtained with reckless disregard for the law, because the evidence did not justify a conclusion that there were proper grounds for a 'reasonable suspicion' under s 160 of the Police Powers and Responsibility Act 2000 (QLD) that the evidence may have been concealed without an immediate search in circumstances where the police officers confirmed the vehicle could have been secured and that a search warrant could have been quickly obtained. It was held that the evidence could easily have been lawfully obtained and that there was a clear public interest in the protection of individuals from unlawful and unfair treatment. Having regard to the Bunning v Cross factors, the evidence of the search ought be excluded.

111 Both R v Versac and R v Pohl are distinguishable from the facts of this case. The decisions to exclude the evidence in each of those cases were based upon the specific statutory provisions which applied by which it was either conceded or concluded that the searches of the vehicles were conducted unlawfully. In R v Versac the search was unlawful because the vehicle had not been detained for the purposes of the particular statute. In R v Pohl the search was unlawful because there was no basis for the police officers to reasonably suspect that the evidence would be destroyed unless the vehicle was immediately entered and searched in circumstances where the vehicle was secured and a search warrant could have been quickly obtained.

112 In summary, the approach of the courts in South Australia and Queensland to the resolution of similar issues which arise in this case before me provide useful observations and guidance to the meaning of expressions 'reasonable suspicion' or 'reasonable grounds to suspect' which expressions appear in the MDA and CIA. However, those cases must be read understood in the context of the legislation which applied in that State which is not in precisely the same terms as the Western Australian provisions. Nothing in those decisions suggests that as a matter of general principle certain factors need to be taken into account in considering whether a search of a vehicle, purportedly pursuant to either s 23 of the MDA, or s 38 or s 39 of the CIA, is lawful.

113 In my view, Senior Constable Wright, and later Constable Steens, conducted the search of Mr Texeira's vehicle lawfully. It follows the drugs which were found by Constable Steens in the petrol cap cavity of the vehicle during the search, were lawfully seized. The search was lawfully conducted pursuant to s 23 of the MDA. Alternatively the vehicle was lawfully searched in accordance with either s 38(a)(i), s 39(1)(a) or s 39(1)(d) of the CIA.

114 In the circumstances in which I have outlined, Senior Constable Wright had reasonable grounds to suspect that the vehicle was being used or may be being used for the purpose of committing a drug offence or may provide evidence in respect of a drug offence, which authorised the search of the vehicle. Alternatively Senior Constable Wright had grounds at the time for reasonably suspecting that the vehicle was being used for the purpose of committing an offence or that the vehicle might afford evidence relevant to proving the commission of an offence which, when judged objectively, were reasonable grounds for the suspicion for the purposes of s 39 or s 39 of the CIA.

115 It follows that there is no question of the evidence of the drugs found during the search to be unlawfully or illegally obtained and therefore, it is unnecessary to have regard to either the Bunning v Cross factors or the s 155 CIA matters in considering whether that evidence ought to be excluded from the trial of Mr Texeira.

116 The State is therefore permitted to adduce the evidence of the drugs which were found and seized by the police during the search of Mr Texeira's vehicle at his trial.

117 Finally, if I am wrong in my conclusion that the search of the vehicle was lawfully conducted, I would, in the circumstances I have explained, in the exercise of my discretion permit the State to lead the evidence of the drugs found during the search having regard to the Bunning v Cross or s 155 CIA factors.

118 The application to exclude the evidence is dismissed.