Babui v O'Neill [2020] NTSC 50

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573, Momcilovic v The Queen (2011) 245 CLR 1, Police v Prinse (1998) 196 LSJS 267, Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, R v Kola [2002] SASC 203, The Queen v Gehan [2019] NTSC 91, referred to.

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

Babui v O'Neill [2020] NTSC 50

• [1] On 10 June 2019 police searched passengers who had disembarked from a ferry which arrived at Wurrumiyanga. During the course of that search the appellant was found to be in possession of 54.78 grams of cannabis, and he was subsequently convicted of two offences relating to that cannabis. The sole question at issue in both the proceedings at first instance and on this appeal is whether that search was unlawful such that evidence of the results of the search was inadmissible by operation of s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT).

• [2] The search was conducted under the powers of search and seizure conferred by the Liquor Act 1978 (NT). The Liquor Act 1978 was repealed with effect from 1 October 2019 and replaced by the Liquor Act 2019 (NT). However, at the material time ss 95(1) and (2) of the Liquor Act 1978 provided:

(a) do 1 or more of the following if the inspector reasonably suspects a relevant offence has been, or is being or likely to be, committed:

(i) enter and search an area of land (whether or not it is the general restricted area);

(ii) stop, enter, search, remove and retain a vehicle, vessel or aircraft (whether or not it is in the general restricted area);

(iii) stop, detain and search a person in connection with the exercise of a power under subparagraph (i) or (ii);

(iv) search a thing in connection with the exercise of a power under subparagraph (i), (ii) or (iii); and

(b) seize a thing found in connection with the exercise of a power under paragraph (a)(i), (ii), (iii) or (iv) that the inspector reasonably believes to be related to a relevant offence.

(2) In addition, an inspector may, without a warrant:

(a) do 1 or more of the following on a random basis for the detection of a relevant offence that has been, or is being or likely to be, committed:

(i) stop, enter, search, remove and retain a vehicle (whether or not it is in the general restricted area);

(ii) stop, detain and search a person (whether or not in connection with the exercise of a power under subparagraph (i));

(iii) search a thing in connection with the exercise of a power under subparagraph (i) or (ii); and

(b) seize a thing in connection with the exercise of a power under paragraph (a)(i), (ii) or (iii) that the inspector reasonably believes to be related to a relevant offence.

• [3] Section 95(11) of the Liquor Act 1978 provided further that a police officer was taken to be an inspector for those purposes.

• [4] The facts are uncontentious. Wurrumiyanga had been declared a general restricted area under the Liquor Act 1978. At the material time the police officers who conducted the search were engaged in general duties in Wurrumiyanga. Those duties included the conduct of random searches in order to detect alcohol being brought illegally into the area. In pursuance of that duty, the officers attended at the wharf to conduct a search of people arriving on the ferry from Darwin to determine whether any had alcohol in their possession. The officers had no "reasonable suspicion" within the meaning of s 95(1) of the Liquor Act 1978 that a relevant offence had been, was being, or was likely to be committed by any particular person on the ferry. Rather, the searches were purportedly conducted "on a random basis for the detection of a relevant offence" in the exercise of the power conferred by s 95(2) of the Liquor Act 1978. The officers did not stop, enter, search, remove or retain the ferry. As passengers alighted they were searched on the beach. The body worn video records that there were 46 people on the ferry and that 38 were subjected to search. Children were not searched.

• [5] In ruling the evidence of the search admissible, the Local Court found in essence that although the reference to a "vehicle" in s 95(2)(a)(i) did not authorise the random search of a "vessel", it was lawful for police to select a vessel randomly and conduct a blanket search of the passengers who had travelled on that vessel. The appellant challenges the second limb of that ruling. The appellant's contentions in that respect may be summarised as follows.
• [6] First, the powers conferred by s 95(1) of the Liquor Act 1978 were of broad application because their exercise was conditioned on the formation of a reasonable suspicion; whereas the powers conferred by s 95(2) were of narrow application because they permitted search on a random basis.
• [7] Second, the specific reference to "an area of land" and "a vessel" in s 95(1) of the Liquor Act 1978 impliedly excluded the random search of an area of land or a vessel (in contradistinction to a "vehicle" or "person") in the exercise of the powers conferred by s 95(2).
• [8] Third, to the extent the meaning of the provisions and the underlying legislative intention is unclear, a construction which would leave fundamental rights and freedoms undisturbed should be adopted. To put it the other way, the legislation should not be construed to abrogate fundamental rights and freedoms unless it does so with words of irresistible clearness[1].
• [9] Finally, and in the application of those interpretive guides, it is said that the selection of a vessel for the purpose of searching all persons on it did not constitute the search of a "person" on a random basis, even where the vessel was selected on a random basis. The submission follows that to construe the provisions otherwise would, for example, effectively permit the random selection of an area of land and the search of every person on that land contrary to the clear legislative intention.

• [10] The purpose of the powers of search and seizure conferred by s 95 of the Liquor Act 1978 is to allow the detection of "relevant offences", which are defined to mean offences against that Part of the Act in which s 95 appears. The principal offences created by that Part are of bringing into, possessing, controlling, consuming, selling, supplying or otherwise disposing of liquor in a general restricted area.[2]
• [11] In aid of that purpose, an inspector (and, by extension, a police officer) may exercise powers of search and seizure without a warrant. Where the officer has a reasonable suspicion that an offence has been, is being or is likely to be committed, he or she may enter and search an area of land (including premises on that land)[3], a vehicle, a vessel or an aircraft. In addition, an officer may search a person "in connection with" the entry and search of an area of land, vehicle, vessel or aircraft. The power to search a person in those circumstances is conditioned on the anterior entry and search on reasonable suspicion. An officer may also "on a random basis" enter and search a vehicle and search a person. The power to search a vehicle or person in those circumstances is not conditioned on any anterior entry and search, or on any reasonable suspicion.
• [12] The submission that the powers of search and seizure on reasonable suspicion are of broader application than the powers of search and seizure in the absence of reasonable suspicion adds nothing to the foregoing analysis. The powers on reasonable suspicion are broader in relation to the things which may be entered and searched, but narrower in relation to the conditions for their exercise. It does not follow that in the absence of a reasonable suspicion officers have no power to search a person recently alighted from a vessel or aircraft. In order to make good his contention, the appellant must establish either that the search of all adult persons alighting from the ferry constituted a search of the ferry or "in connection with" the search of the ferry in the absence of a reasonable suspicion; or that it constituted a search of those persons other than "on a random basis". These are quite separate propositions.
• [13] The first proposition may be dealt with in short order. The powers conferred by s 95(1) of the Liquor Act 1978 are directed to areas of land, vehicles, vessels and aircraft. It may readily be accepted that the express reference to a "vehicle, vessel or aircraft" in that subsection, and the reference only to a "vehicle" in s 95(2), excludes the exercise of any power to enter and search a vessel under the latter provision. However, it is common ground that the officers in the present case did not stop, enter or search the ferry.
• [14] It may also readily be accepted that statutory powers which authorise intrusions on common law rights are to be read narrowly.[4] However, the principle does not operate such that the search of a person who has alighted from a vessel or aircraft is properly characterised as the search of that vessel or aircraft, or a search "in connection with" a search of that vessel or aircraft. There is no relevant constructional choice. Nor does the express reference to a "vessel" in s 95(1) of the Liquor Act 1978 impliedly exclude from the scope of s 95(2) the power to search a person, or even all persons, who have disembarked from a vessel or aircraft. For these purposes, it excludes only the power to search a vessel and to search persons in connection with the search of a vessel.
• [15] The legislative policy and intention underlying the scheme is clear. The legislature determined that there must be a reasonable suspicion in order to warrant the intrusion on common law rights constituted by entering and searching land and private premises, or of stopping, entering, searching and detaining a vessel or aircraft. On the other hand, the legislature determined that the intrusion constituted by the stopping and search of a vehicle or person could be committed for the purpose of detecting a relevant offence without need for any reasonable suspicion. The fact that there is a disaggregation in that respect does not resolve to a legislative intention or implication that a person, or a group of persons, who are or have been passengers on a vessel or aircraft acquire some form of immunity from random search for the purpose of detecting an offence. There are clear textual, circumstantial and functional distinctions between searching a vessel and searching a person who has previously been on that vessel.
• [16] The second proposition put by the appellant is that the search of all persons who have disembarked from a vessel constitutes a search of those persons other than "on a random basis". I have not been directed to, and nor have I been able to locate, any authority from a superior court which considers the meaning of randomness in the context of the exercise of police powers of search and seizure. The term "random" and the phrase "on a random basis" are protean in meaning. Depending on context, they can mean haphazard, lacking any definite plan or prearranged order, or a choice without regard to the characteristics of the person or thing chosen. In this particular legislative structure and context, the phrase "on a random basis" is used in s 95(2) of the Liquor Act 1978 in contradistinction to the exercise of power under s 95(1) on the basis that the inspector "reasonably suspects a relevant offence has been, or is being or likely to be, committed". When viewed in that light, the phrase "on a random basis" connotes that the person searched is selected in the absence of a reasonable suspicion, and that the exercise of the power is not subject to that limitation; but that is not its only operation.
• [17] There is no doubt that subjecting a person to a search represents a general interference with that person's common law liberties requiring scrupulous observance of the conditions imposed on the exercise of the power. In that context, the phrase "on a random basis" also imposes important limitations. In order to be characterised as "random", the selection of a person for search could not be made capriciously[5] or for a purpose unconnected with legitimate policing of the liquor laws as they then stood. Similarly, the use of the power for the ulterior purpose of the general criminal investigation of the person subjected to search, rather than for the purpose of detecting a "relevant offence" under the Liquor Act 1978, would both contravene the law which confers the power and deprive the search of the necessary character of randomness. There is no suggestion of capriciousness or ulterior purpose in the present matter.
• [18] However, it is difficult in this context to see how or why the random selection of a ferry coming into a community subject to a general alcohol restriction, and the search of all the passengers who disembark from that ferry, deprives that search of the character of randomness. The concept is not ordinarily used to draw distinctions based upon the proportion of the members of a group selected for a particular purpose.
• [19] The appellant's contention also has potentially broader ramifications. By way of example, all Australian states and territories have enacted legislation which authorises a police officer to direct the driver of a motor vehicle to pull over for the purpose of requiring the driver to submit to a breath test without need for a reasonable suspicion the driver has committed an offence. These are commonly known as "random breath tests", and the authorising legislation sometimes confers the power by reference to the concept of randomness.[6]
• [20] Police will on occasion set up testing stations on a road egress (and sometimes all road egresses) from an entertainment district or a sporting venue and require all drivers coming from the precinct to pull over and submit to a breath test. Counsel for the appellant accepts that on his submission in this case, those tests would not have the requisite attribute of randomness and would be unlawful. However, counsel for the appellant is unable to identify at which point on the spectrum from zero to 100 percent of drivers tested (or passengers searched) the exercise would cease to be "random" in in the relevant sense. This was said in submission to be a matter of fact and degree.
• [21] Going back to the random breath test example, testing all drivers using a particular route at the time selected is arguably a good way of ensuring randomness, whereas picking and choosing cars out of passing traffic might arguably be characterised as a less random process or a choice made with regard to the characteristics of the thing chosen. In the former case, police do not know who will be using the road at the time selected, and the fact that all drivers are tested does not detract from the random nature of the exercise. Similar observations may be made in relation to the search of the passengers who disembarked from the ferry in this case. I am unable to conclude that the search in this case was not conducted on a random basis in the relevant sense.
• [22] Three further matters warrant brief mention.
• [23] First, counsel for the appellant submitted that a construction which allowed the search in this case to have been conducted lawfully and on a random basis would, in its practical operation, permit blanket searches of particular areas. That is an imperfect analogy. Section 95(1) of the Liquor Act 1978 only permitted the search of an area of land on reasonable suspicion. While an officer might have been authorised to enter onto public land and search persons in public places on that land without reasonable suspicion, that power would not have extended to the search of the land or the entry into and search of private premises on that land. Whether the search of a person in those circumstances was lawful would depend on whether the selection was made randomly rather than capriciously, and for a purpose connected with the legitimate policing of the liquor laws.
• [24] Secondly, and following on from that first matter, as described at the outset the Liquor Act 1978 has now been repealed and replaced by the Liquor Act 2019. Part 10 of that legislation enacts a new regime of special search and seizure powers. That regime permits the entry to and search of a vehicle, vessel or aircraft even in the absence of a reasonable suspicion that a liquor offence has been committed, is being committed or is about to be committed. There was not, prior to the enactment of the current statute, any curial determination bearing on the issue arising in this appeal, and the provisions made for search and seizure in the current statute do not inform the interpretation of the search and seizure provisions in the repealed statute.
• [25] Finally, I have previously described the operation of s 138 of the Evidence (National Uniform Legislation) Act 2011 in a similar setting.[7] As I observed in that matter, where the statutory limitations and conditions which govern the exercise of a search power have not been observed, the desirability of admitting the evidence obtained as a consequence of that search will ordinarily be outweighed by the undesirability of doing so. That is so even where the evidence has high probative value and is of critical importance to the prosecution case, and where there has been no deliberate impropriety on the part of the police officers. That result is dictated by the importance which must be attached to ensuring that law enforcement officers entrusted with powers which abrogate fundamental liberties pay close attention to the conditions and limitations on the exercise of those powers. In this case as well, had I concluded that the search had been conducted unlawfully I would have ruled the evidence obtained as a consequence of the search inadmissible.

[1] See Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304.

[3] See definition of "area of land" in Liquor Act 1978, s 73(1).

[4] See, for example, Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573; Momcilovic v The Queen (2011) 245 CLR 1 at 46; R v Kola [2002] SASC 203 at [39].

[5] See, for example, Police v Prinse (1998) 196 LSJS 267 at 271-272, where the Court gave examples such as police officer stopping a vehicle to ask the driver for her identity for the purposes of inviting her out, or stopping a vehicle to make an offer to purchase it, or stopping a vehicle to inquire of the driver about the result of a sporting event.

[6] In the Northern Territory, for example, the heading to s 29AAB of the Traffic Act 1987 (NT) is "When police can pull driver over at random". See also Road Transport Act 2013 (NSW), Sch 3, Div 2. In some other jurisdictions the power is conferred on the basis that it may be exercised "at any time": see Road Safety Act 1986 (Vic), s 53. This suggests a legislative purpose only to remove any requirement for the anterior formation of reasonable suspicion.

[7] The Queen v Gehan [2019] NTSC 91 at [7]- [9], [67].