Azar v DPP

Supreme Court of NSW|2014-02-20|Before: Adamson J, Hedigan J, Smart J

Introduction 1By an Amended Summons filed 29 October 2013, Emil Azar, the plaintiff, appeals, under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW), against a conviction entered by Milledge LCM at the Downing Centre Local Court on 13 May 2013. There was no opposition to an extension of time being granted to institute the appeal. 2The two grounds are: (1)The Magistrate failed to properly consider the test for the legitimate exercise of police powers under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA); and (2)The Magistrate erred in finding that the plaintiff was not under arrest at the relevant time. 3The material before me comprised the transcript of proceedings before the Magistrate, the transcript of her Honour's reasons which were given orally and the exhibits, including a DVD of footage taken of relevant events, which, by agreement between the parties, I watched in chambers rather than in open court.

Whether the grounds of appeal involve a question of law alone 12Mr Azar would require leave to appeal to this Court on a question of fact, or mixed law and fact. No leave was sought. 13Mr Ozen contended on behalf of Mr Azar that he had an appeal as of right in the present case by reason of s 52 of the Crimes (Appeal and Review) Act, which lies on a question of law alone. He submitted that the question whether a police officer was exercising lawful authority is one which must, by definition, be a question of law, although he accepted that the grounds on which such determination is based arise from the facts of the case. 14The DPP disputed that the grounds as framed raised questions of law alone. Mr Kell, who appeared on behalf of the DPP, submitted in respect of the first ground that the question whether the particular matters known to the police officers concerned, and taken into account by the Court, amount to reasonable suspicion involves questions of fact and degree that are specific to the particular circumstances. Further, a mixed question of fact and law does not fall within the description of "question of law alone": Attorney General for NSW v X [2009] NSWCA 199; (2009) 49 NSWLR 653 at [44]; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at [60]. The DPP also submitted that ground two raised a question of fact or a mixed question of fact or law. 15I consider that the first ground raises a pure question of law only if it is understood as contending that, taking the evidence at its highest, the Court below could not have found that the police officers suspected on reasonable grounds that the plaintiff had a prohibited drug under his control, whether on his person, or in the vehicle he was driving. The relevant test was articulated by James J in Ohlsen v Jones (1991) 53 A Crim R 136 in the underlined passage in the following terms: "The evidence on which the Magistrate relied in the present case, namely evidence relating to the time (the early hours of the morning), the presence of two persons in the vehicle and the fact the vehicle was registered in relation to an address which was not in the locality, but a considerable distance away, certainly did not compel the conclusion that a suspicion held by the informant was an objectively reasonable suspicion. However, it seems to me that it cannot be said that there was no evidence on which within reason there could be a finding that the suspicion was held on grounds which were reasonable." [Emphasis added.] 16In so far as the second ground raises a question whether detention that is authorised by s 21(1) or s 36(1) of LEPRA amounts to an arrest, this is, in my view, a question of law alone. 17If the grounds are not confined in the manner set out above, they do not involve pure questions of law and no appeal as of right would lie.

Relevant legislation 18Section 21 of LEPRA relevantly provides: 21 Power to search persons and seize and detain things without warrant (1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists: . . . (d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug. (2) A police officer may seize and detain: (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) any dangerous article, and (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985, found as a result of a search under this section. 19Section 36 of LEPRA relevantly provides: 36 Power to search vehicles and seize things without warrant (1) A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exists: . . . (e) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985, . . . (3) A police officer may seize and detain: . . . (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985, found as a result of a search under this section. 20Section 13(1) of Road Transport (Safety and Traffic) Management Act relevantly provides: Power to conduct random breath testing (1) A police officer may require a person to undergo a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that the person: (a) is or was driving a motor vehicle on a road or road related area, or . . .

Ground 1: whether it was open to the Court below to find that the suspicion entertained by the police was held on reasonable grounds

The evidence in the Court below 21Both police officers were asked on the voir dire to identify the basis for their suspicion that Mr Azar had prohibited drugs in his possession or under his control. Officer Simpson identified the following three factors: (1)Mr Azar was driving a hire car, which police regarded as a notorious means of transporting prohibited drugs; (2)Mr Azar drove to namely Lime Street, King Street Wharf area in the proximity of the Cargo and Bungalow 8 bars, which is an area well-known to police for the use and supply of prohibited drugs; and (3)The incident that involved a male getting into the vehicle and leaving it after a very short time. 22Although Officer Simpson did not refer to Mr Azar's use of the hand-held device when listing the matters that founded his suspicion, he had earlier given evidence that this observation led them to follow the vehicle when they first saw it in Oxford Street. He said that Mr Azar appeared to be "utilising a device which was in his lap area ... and he was constantly looking down." Officer Simpson gave evidence in the Court below that he could see a vibrant colour coming from the device. 23Officer Pisani described the decision to search the vehicle as being "a joint decision". He gave the following evidence: "In my mind I'd made the decision to search when that gentleman [i.e. the male suspected of being involved in a drug transaction] got out of the car." 24Officer Pisani identified the bases for his decision to search the vehicle. He referred to the area which was known to be frequented for illicit drug transactions, the time of night and the actions of the man getting into the car for a short period of time. 25Although neither officer, in terms, identified Mr Azar's use of a mobile phone/ hand held device as a factor that was germane to his suspicion for the purposes of s 21 or 36 of LEPRA, this was part of the reason they decided to follow the Corolla when they first observed him on Oxford Street.

Relevant principles 26The question whether there are reasonable grounds for suspicion was considered by the High Court in George v Rockett [1990] HCA 26; 170 CLR 104. The Court said, at [14]: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at p 948, '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 [1966] HCA 21; (1966) 115 CLR 266, 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 (at p 303): A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. 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 sub-section 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." 27A suspicion is more than a possibility and less than a belief. Reasonable grounds for suspicion can include information that the officer concerned has been told by another officer. It can include material of a hearsay nature. 28In Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [75] McHugh J referred to the spectrum of mental states between 'suspicion', 'belief' and 'knowledge' and quoted the proposition: "Suspicion lives in the consciousness of uncertainty." 29The applicable principles regarding the concept of reasonable suspicion have recently been summarised by McColl JA in Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 517 (a false arrest/imprisonment case) at [14]-[19]; see also [54]-[59] per Basten JA. They are also summarised in Street v Bauer (Supreme Court (NSW), Smart J, 16 March 1998, unrep), a decision relied on by Mr Ozen on behalf of Mr Azar.

The plaintiff's submissions 30Mr Ozen emphasised the importance of construing strictly the powers conferred on police officers to conduct a search. He referred to Nguyen v Elliott (Supreme Court (Vic), Hedigan J, 6 February 1995, unrep) in which the Supreme Court of Victoria set aside convictions for assaulting and resisting an officer in the execution of his duty when the arrest was unlawful and therefore not made in the execution of the officer's duty. Hedigan J (who was cited with approval by McHugh J in Coleman v Power [2004] HCA 39; 220 CLR 1 at [118]-[120]) relevantly quoted the following passage from Mann CJ's judgment in Henderson v O'Connell [1937] VLR 171: " It is quite true that all the powers of the police of arresting and searching and bringing before a justice are powers specifically conferred upon them for the purposes of obtaining evidence in respect of charges not yet laid, and it is said in those circumstances the rule against searching persons not under arrest has no application. But there is great necessity in my opinion for construing strictly the powers conferred upon the police in this respect. The power at large to search persons not in custody is one which calls for the clearest authority. It is one which almost inevitably tends to provoke breaches of the peace and is one which on the construction of this section I think the Legislature has not authorised." 31Mr Ozen submitted on behalf of Mr Azar that, although the threshold for a reasonable suspicion was lower than required for a belief, it nonetheless required some rational basis. He relied on the following observation made by Lakatos DCJ in R v Orm [2011] NSWDC 26 at [55]: "I pause to note that it is one thing for a police officer to use his commonsense and experience to seek out and investigate leads in relation to an offence. In my view, it is quite another for an officer to make value judgments about the actions of a suspect and to translate those value judgments to the level of a reasonable suspicion of offending. This is especially so when the officer appears to make little effort to consider any innocent explanation for such actions. This approach may indicate a closed rather than an open and inquiring mind and may suggest that the officer's intention was to gain evidence inculpating the accused." 32Mr Ozen submitted that there were no factors in the present case that made the Corolla "stand out" to a reasonable person. He contended that the presence of a hire car, which was not driven in an erratic manner, in a popular entertainment quarter on a Friday night and the happening of a brief interlude between driver and another man who came and sat in the passenger seat were entirely unremarkable and wholly insufficient to give rise to a reasonable suspicion. He also submitted that the matters in the minds of the relevant officers were "no more than generalisations". 33Mr Ozen submitted that the following list of matters relied on by the Magistrate was more extensive than had been identified by the police officers when they were asked to list the bases for their suspicion although, with one exception, he accepted that the officers had given evidence of the other matters referred to by the Magistrate. The relevant passage from the reasons was: They had formed a view and the view was well formed. The reasons that they gave that it was a hire car, usual drug suppliers involve themselves in the use of hire car; the brightly lit device on his lap in Oxford Street; the considerable use of the mobile phone; the Cargo Bar and Bungalow 8 in the King Street wharf area; that it was a Friday night; that there were U-turns and the stops; that there was this person, a quick visit to the vehicle for some thirty seconds and then walked quickly, despite the fact that it's raining; that it was not speculative, absolutely not at all. 34The single exception was that Mr Ozen said that the following statement by the Magistrate contained in the passage set out above was in error in that it overstated the evidence: "usual[ly] drug suppliers involve themselves in the use of hire car" 35Mr Ozen accepted that hearsay evidence is a proper basis on which a police officer may act. However, he argued that the notoriety of the Cargo Bar and the Bungalow Bar as locations associated with transactions involving prohibited drugs was of limited weight in the present case since the plaintiff's car was located 100 metres from one and 400 metres from the other when the man came and sat for a short period in the passenger seat of his car.

Reasons 36The principles that govern the interpretation of statutes which confer powers on police officers are not contentious. The statement of Mann CJ relied on by Mr Ozen and set out above is entirely orthodox. There was no relevant issue about the identification of the appropriate test in the instant case or whether the Court below posed the correct test or addressed the relevant statutory provisions. As I have said, in the context of my jurisdiction under Part 5 of the Crimes (Appeal and Review) Act, the issue for me is whether it was open to the Court below to find that the police officers had reasonable grounds for their relevant suspicion. 37In my view, the submissions made on behalf of Mr Azar do not have sufficient regard for the relevance of the time at which suspicion arises, which is, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942 at 948: "at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end." 38The reference by Mr Ozen to "generalisations" in the submission summarised above ignores the relevance of police experience. In forming a suspicion the officer is, in effect, drawing upon his or her training and experience and the whole of his or her observations of the relevant events. 39Where generalisations are based on nothing more than prejudice they could not amount to a basis for a reasonable suspicion but where they are, as in the present case, potential indicia of criminal conduct, they are capable of so doing. The fact that only a minority of hire cars are used for drug trafficking does not preclude the fact that hire cars are not uncommonly used for that purpose, (presumably because their use makes it more difficult for the driver to be identified, or traced) being used to ground a reasonable suspicion. The fact that only a minority of people in the King Street Wharf area may be involved in illegal drug transactions does not preclude the circumstance that it is an area in which such transactions are known to occur with a greater concentration than might be expected elsewhere, being taken into account. The circumstance that Mr Azar's car was parked 100 metres away from, rather than immediately outside the entrance of, a bar notorious for being associated with transactions involving prohibited drugs does not, in my view, diminish the relevance or force of this consideration as a reasonable foundation for a suspicion. The fact that some people get into the passenger seat of a motor vehicle and get out again within a short period for an entirely innocent purpose is no reason not to have regard to the fact that the conduct is consistent with a drug transaction having been effected. 40I do not consider that anything turns on the slight overstatement in the reasons of the Court below of the evidence as to the relevance of hire cars. The officers said that it was well known that it happens that hire cars are used by persons for supply of drugs. They did not say that it was usual that drug dealers use hire cars. On one reading of the Magistrate's reasons, her Honour was saying that it was. The authorities remind one of the need to resist adopting too pedantic an approach to reasons given orally by Magistrates in busy courts: Acuthan v Coates (1986) 6 NSWLR 472 at 479A per Kirby P (Glass and Mahoney JJA agreeing). 41Although the reasons for decision were not given until the transcript of the proceedings, which took some time, was available, they were given orally, without an opportunity being afforded to Milledge LCM to proof read or edit them. Further, as the transcript of the reasons records, other matters for hearing or mention were interposed in the course of the oral delivery of reasons. These matters together militate against my placing any weight on what I regard as no more than an isolated infelicity of language. 42It is a moot point whether the relevant suspicion would have been based on reasonable grounds had the officers searched the vehicle before the man got into the passenger seat for a short period consistent with the length of time it would take to complete a drug transaction. In my view this matter was ample, in light of the other two matters, to ground a reasonable suspicion. One might rhetorically ask what more would have been required to ground a reasonable suspicion if not those three matters taken together. 43In my view it was reasonably open to the Court below to find that the following combination of factors was sufficient to give rise to reasonable suspicion within the meaning of ss 21(1)(d) ands 36(1)(e) of LEPRA: (1)Mr Azar was driving a hire car, against a background of police experience that it is not uncommon for drug dealers to use hire cars to transport drugs for supply; (2)He was in an area known to police to be connected with drug use and supply; and (3)The other male got in and out of Mr Azar's car in a short period of time (which led the officers to suspect that a drug transaction had taken place). 44In my view, the Court below was also entitled to take into account Mr Azar's use of the hand held device/mobile phone (and, indeed, the other matters listed by the Court below in the extracts from the reasons set out above) although the officers did not specifically identify it in that part of their evidence in which they listed the matters that caused them to harbour the relevant suspicion. As Gleeson CJ, Gummow, Hayne and Heydon JJ said in Ruddock v Taylor (2005) 222 CLR 612 at [40], what constitutes reasonable grounds for a forming a suspicion or belief must be judged against "what was known or reasonably capable of being known at the relevant time." In a case similar to the present, Bain v Police [2011] SASC 228, White J said at [26]: "... in considering whether Constable Brown did reasonably suspect that the appellant's car may have in it something which would afford evidence of an offence ... it was appropriate for the Magistrate to have regard to all of the information concerning the appellant then available to Constable Brown..." 45However, as I consider that it was open to the Court below to find a relevant suspicion based on the three factors listed above, it is not necessary to consider the relevance of the handheld device/mobile phone or of any of the other matters further. Mr Ozen tentatively submitted that these other matters were irrelevant considerations but I did not understand him to press that submission, which would, in my view, have been without merit. 46The first ground of appeal has not been made out.

Ground 2: whether the Court below erred in finding that Mr Azar was not under arrest when the search was undertaken 47Mr Azar contended that once the police stopped the Corolla in which he was the driver, he was under arrest because he was not free to go. 48The DPP accepts that, prior to the search being undertaken after the Corolla had been stopped by police and the breath test administered, Mr Azar was not free to go. Officer Simpson explained why Mr Azar was not free to go in the following terms: "Cause we had reason to believe there were drugs in the car so under powers in LEPRA we have the right to stop, search and detain someone to search them." 49Mr Azar submitted in this Court, as he did in the Court below, that as soon as he was no longer free to go he was under arrest and that, as he was not cautioned, the ensuing conduct by police was unlawful. He also submitted that this ought lead to my setting aside his convictions. 50A power to detain arises under ss 21(1) and 36(1) of LEPRA. In this respect, s 36(1) authorises a police officer, who relevantly has reasonable grounds to suspect, to "stop, search and detain" a person. A separate power arises under s 13 of the Road Transport (Safety and Traffic) Management Act to stop a motor vehicle to conduct a roadside breath test. 51Mr Azar was, shortly thereafter, in fact arrested (initially for failing to comply with a direction of a police officer and then for resisting police in lawful exercise of duty). However, prior to that time he was not under arrest: rather, he was being detained under the relevant LEPRA provisions. 52The difficulty with Mr Azar's submission is that it ignores the powers of detention referred to above which are separate and distinct from the power to arrest a person. Had Parliament intended these specific powers to detain to amount to an arrest it would, in my view, have made it clear by the use of the word "arrest". 53The Court below correctly rejected the submission that Mr Azar was under arrest from the time the police stopped the vehicle and found that he was then being detained under LEPRA. 54Accordingly, the second ground also fails. 55For completeness, I should add that I accept Mr Kell's submission made on behalf of the DPP that, even had I allowed the appeal, the matter would have had to be remitted to the Court below since it would not have been open to me to set aside the conviction. If I had found that the search was unlawful because the finding of reasonable suspicion was not open as a matter of law to the Court below, the question of the admissibility of the prohibited drugs would still have to be determined as a matter of discretion by reference to s 138 and s 139 of the Evidence Act 1995 (NSW). This discretion would be exercised, in that event, by the Court below and not by this Court.

Orders 56I make the following orders: (1)Dismiss the amended summons. (2)Order the plaintiff to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 03 March 2014

Road Transport (Safety and Traffic) Management Act 1999(NSW)

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