DPP v FARR

• 8 - IN THE SUPREME COURT OF NEW SOUTH WALES

S11403/2000 - DIRECTOR OF PUBLIC PROSECUTIONS v FARR JUDGMENT 1 The Director of Public Prosecutions seeks an order pursuant to s.109(a) of the Justices Act 1902 quashing the order of a magistrate dismissing the informations laid against Karen Gail Farr for the offences of goods in custody, cultivate prohibited plants, supply prohibited drug and possess prohibited drug. The Director challenges two decisions of the magistrate, namely his ruling that certain admissions made by the defendant were inadmissible for not having been recorded in accordance with the provisions of s.424A of the Crimes Act 1900 and his further ruling that in the exercise of his discretion he would not admit certain evidence pursuant to s.138 of the Evidence Act 1995. The Director seeks to have the matters remitted to the magistrate for further hearing. 2 The prosecutions arose in the following way. According to the police Mrs Farr was driving along Anne Street Moree when her vehicle was stopped near Balo Street for the purpose of a random breath test. The vehicle was heavily loaded with large bags of onions, carrots and potatoes. After administering the breath test which was clear, Snr Const. Anderson asked what was the score with the vegetables and in reply ascertained that she had driven down from Gratton that day and was staying at a local motel with her boyfriend. Snr Const Fitzsimons went and used the police radio. Snr Const Anderson asked Mrs Farr to get out of the car although there is a dispute as to the point at which this happened. He saw that her pupils were enlarged and that her eyes were bloodshot and glazed. He said "Have you taken any drugs, smoked anything?" She replied "No" After telling her that he wanted to smell her breath, he leant forward and smelt her breath/face area. He smelt the distinct odour of cannabis smoke. Const. Anderson formed the opinion that Mrs Farr was mildly affected and showed the symptoms of cannabis use. He said "You have smoked cannabis, I can smell it". She replied "No". 3 After Const. Fitzsimons spoke to him Const Anderson said, amongst other things, "… there are two drug related intelligence reports on you. Have you any drugs in the car?" She said "No". Const Anderson said "John, look at her, she has smoked some yarnie. I have reasonable cause to search the car for drugs and I intend to search it". He asked her to stand in front of the car and ascertained that her boyfriend owned the car. 4 After verifying that the black carry bag on the front passenger side floor was that of Mrs Farr, the bag was placed on the roadway in front of her. Within the bag there were two plastic resealable bags containing green vegetable matter, a set of electronic scales and a large amount of cash in wads of twenty dollar notes and fifty dollar notes. Snr Const Anderson then arrested Mrs Farr for possession of prohibited drugs. 5 She was cautioned. Whilst holding a plastic resealable bag containing green vegetable matter this conversation allegedly occurred: "Anderson: Do you agree that this is cannabis? Farr: Yeah Anderson: How many grams? Farr: Sixty.

Anderson: How much cash? Farr: Around $2200

Anderson: You did smoke some cannabis didn't you? Farr: Yeah, I had a smoke at a friend's place.

Anderson: Is this cannabis yours? Farr: Yes

Anderson: Are these scales yours? Farr: Yes." 6 Mrs Farr was taken to the police station. On the way there in a police vehicle Snr Const Anderson confirmed with her that she understood that she was under arrest and that she understood her rights. He asked her "Do you smoke much?" She replied "Yes, I'd rather smoke than drink or take powders, it is much less damaging". There was other conversation of no consequence. She thought that "speed was the real danger". At the station the cash was counted and totalled $2750. 7 Mrs Farr was interviewed by the police at the station and that interview was recorded. She agreed that about 9.50 pm she was driving a vehicle when she was stopped by police. She agreed that on the passenger side floor was a black bag owned by her. She was asked (Q39) "Do you agree that this bag was searched and a quantity of cannabis was located in this bag … Do you agree that those two satchels (shown to her) of cannabis is the cannabis that was located in that black bag." She replied "Yes". She said that she owned the cannabis. She also agreed that in the black bag was a large quantity of $20 and $50 notes totalling $1700. This passage appears: "Q44 Do you agree that when the officer spoke to you about the cannabis you told him there was about 60 grams there? A Yes.

Q46 Do you agree that when this officer spoke to you and he asked you how much cash was there you said about around $2,200? A Yes.

A little later this passage appears: "Q56 Also in the bag was a set of scales, a T-A-N-I-T-A brand scales. Can you tell me who owns those? A I do.

Q57 Do you agree that they were in the bag amongst the cash and the cannabis? A They were in the bag in the sock in the same bag that the cannabis and the.---" 8 She told the police that the cannabis was hers and that she had grown one plant in the mountains in Forestry property. She planted it using fertiliser and watered it about once per month. She picked it in about June or July 1998. She said that she obtained about 9 ounces of cannabis and sold some of it for $250. 9 As to the cash she said that she travelled with about $1000. This was for emergencies in case of a breakdown. She said that the rest of the cash was from selling marijuana. She declined to answer questions as to when she sold it and whether she sold it to people in Moree. She stated that she carried the scales with her all the time and used them for weighing up gemstones. She also used them for weighing up marijuana and had last done so on the previous day. She had sold more than 2 ounces which she had weighed and sold it for $250. 10 She said that the value of an ounce of marijuana ranged from $150 to $400, that there was around 60 grams in the two separate bags worth about $500. She said that she had weighed up about 7 ounces on the previous day and sold them that night in Moree for about $1750. The cannabis was packaged in small Glad bags. She had intended to keep the remaining 2 ounces. Thus of $2750, $1000 was her money and $1750 was from the sale of cannabis. Her mother had given her $1000. This passage appears: "Q161 Did you come to Moree for the purpose of selling drugs? A No, yes.

Q162 Are there any drugs in your motel room? A. No". 11 She was advised that the police intended to make application for a search warrant to search her hotel room. When asked if she had any objections to the police searching her room at the motel, she replied "No" 12 This passage appears in her record of interview (Q-A 204-206). "Q204 Do you agree you came here to sell some drugs? A. If I could.

Q205 Did you plan to sell drugs in Moree tonight? A. If I could. Q206 Do you agree that 7 ounces of cannabis is a fair bit of, substantial amount of cannabis? A. Yes".

13 Possessed of a search warrant the police attended at Mrs Farr's room at the motel. A male was lying on a single bed. A search was carried out. There were two plastic resealable bags containing cannabis underneath the double bed. In a carton on the floor between the two beds was a 30 resealable Glad bag box which was unopened. Under the double bed there was an open white shopping bag containing a large quantity of cannabis. In a suitcase resting on the double bed there were a further five resealable plastic bags. In the pocket of a work shirt which was of a size to fit Mrs Farr there was a half smoked joint containing cannabis and a small quantity of cannabis in another plastic resealable bag. A shoulder bag on the double bed contained numerous papers in Mrs Farr's name. 14 The police returned to the police station and advised Mrs Farr that they had executed a search warrant on her room and found further cannabis under her bed. With her consent they weighed the cannabis in front of her. The two bags weighed 34.6 and 34.1 grams gross respectively. The smaller size bag found in the shirt pocket weighed 4.6 grams gross. The large white shopping bag of cannabis weighed 219.2 grams gross. Mrs Farr insisted that the cannabis under the bed was hers. 15 Mrs Farr then commenced to take part in a further record of interview. She appeared upset and declined to answer any questions so the interview was terminated. 16 Some of the police evidence was challenged in cross-examination. Mrs Farr also gave evidence on the voir dire. It will be convenient to deal with further aspects of the evidence when dealing with the particular issues raised. 17 The Charges

It was common ground that the charge of goods in custody, ie $2750 reasonably suspected of being stolen or otherwise unlawfully obtained, could be dealt with summarily. The charge of cultivating a prohibited plant was a Table 2 offence under the Criminal Procedure Act 1986 because of the small quantity involved. It was an indictable offence to be dealt with summarily unless the prosecuting authority elects otherwise. It had not so elected. The charge of having in her possession a prohibited drug, to wit, cannabis, was a summary offence. The charge of supplying a prohibited drug namely cannabis, is classified under Part 6 of Table 1 as an indictable offence to be dealt with summarily unless either the prosecuting authority or the person charged elects otherwise. It was common ground that s 424A of the Crimes Act 1900 applied to the supply charge (see s 424A(4)(c)). 18 Mrs Farr challenged the admissibility of evidence of the police under s 424A of the Crimes Act 1900 insofar as it was not the subject of an electronically recorded interview. Thus she sought to exclude most of the terms of the oral interviews or conversations between the police and herself prior to the recorded interview. One difficulty which the police faced was that one of the police officers who stopped Mrs Farr had an audio recording machine (described as a belt clip tape recorder) but did not use it. That officer said: "It's not a thing I frequently use at Moree and it's something that I may have neglected, looking back in hindsight". 19 Section 424A of the Crimes Act 1900 provides (1) This section applies in relation to evidence of an admission within the meaning of this section. (2) Evidence of an admission is not admissible unless: (a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or (b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of a tape recording as mentioned in subsection (2). (4) In this section: "admission" means an admission: (a) that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to have been, suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence other than an indictable offence that may be dealt with summarily without the consent of the accused. "investigating official" means (a) a police officer (other than a police officer who is engaged in covert investigation under the orders of a superior), or (b) a person appointed by or under the Act (other than a person who is engaged in covert investigations under the orders of a superior) and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations for the purposes of this definition. "official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. "reasonable excuse" includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. "tape recording" includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. (5) This section does not apply to an admission made before the commencement of this section. 20 In R v Horton (1998) 45 NSWLR 426 Wood CJ at CL with whom Sully and Ireland JJ agreed held that in ascertaining the meaning of the word "admission" in s 424A of the Crimes Act 1900 it was necessary to have regard to the meaning of the word in the dictionary to the Evidence Act 1995. It includes "any form of representation, whether by conduct or by oral or written statement, so long as it is 'adverse to the (maker's) interest in the outcome of the proceedings.'" (437G) Horton was applied in R v Reid (1999) NSWCCA 258. Untrue exculpatory statements relied upon as evidencing a consciousness of guilt are capable of being implied admissions. 21 At the hearing before the magistrate Mrs Farr based her objections to the admissibility of the evidence upon the failure of the police to comply to comply with s 424A(1)(b), that is the failure during the recorded interview to confirm what had been earlier said by her in response to the police questions. The reason for this was that at the time of the roadside conversation there was only a small quantity of cannabis, namely, about 60 grams and the arrest was for possession of cannabis and it was not until the recorded interview that the matters of supply and cultivation emerged. Reliance does not appear to have been placed upon s 424A(1)(a). 22 The Magistrate's Ruling

The magistrate found that Snr Const Fitzsimons forgot to turn on the tape recording device and that having occurred the correct procedure was for the police to have put to Mrs Farr in the recorded interview at the police station what they alleged had been earlier said by her in response to the police questions. That had not happened except in a few instances where no objection was taken to the admissibility of the conversation which had been put to Mrs Farr in the recorded interview. Further, there was no reasonable excuse why a tape recording covering these matters had not been made. For these reasons the magistrate determined that the parts of the conversation prior to the recorded interview which constituted admissions and which Mrs Farr had not been asked to confirm in that interview should not be admitted. 23 The four charges were heard together. From the record of the argument in the transcript it seems that not a great deal of attention was given to admitting the conversations on the goods in custody, cultivation and possession charges and not on the supply charge. An all or nothing approach seems to have been taken. 24 The magistrate declined to admit the following parts of the statement of Snr Const Anderson, a copy of which is set forth in the First Schedule, namely: Para 6 "I said: You have smoked cannabis. I can smell it. She said: No.

I said: Well I have been around a bit; I think you have."

(It was the police contention that Mrs Farr's answers were deliberately untruthful)

The whole, except the four lines at the top of page 4 of his statement. The magistrate noted that the police relied on the parts specified in paras 6 and 7 to justify their search.

"I said: You did smoke some cannabis, didn't you? She said: Yeah, I had a smoke at a friend's place.

I said: Who was that? She said: I'd rather not say.

I said: Is this cannabis yours? She said: Yes.

I said: Are these scales yours? She said: Yes. I said: Are you a drug dealer? It certainly looks that way. She made no reply.

I said: We will take your car back to the station for a more thorough search, is there any more drugs in the car? She said: No, that's it."

25 A copy of the statement of Snr Const Fitzsimons is set forth in the Second Schedule. The magistrate declined to admit those parts of his statement which corresponded with the rejected parts of the statement of Snr Const Anderson. He did, however, admit the words in para.8. "Senior Constable Anderson said: Are the scales yours? She said: Yes". 26 This was upon the basis that this matter was sufficiently covered in Question 56 of the recorded interview when regard was had to the earlier questions and answers. That ruling should result in a modification of the earlier ruling as to para 8 of Const Anderson's statement. The magistrate probably intended that. The markings on the statements of Const Anderson and Const Fitzsimons should be ignored. 27 The Crown Arguments

The Crown correctly submitted that the admissions made at the roadside related to the summary offences of possession of cannabis (about 60 grams) and goods in custody. The admissions made there did not relate to the charge of supply cannabis or that of cultivate cannabis. Those matters emerged later. The Crown made these further points: (a) Parliament has attached the qualification that the section only relates to an indictable offence (other than one that may be dealt with summarily without the consent of the accused) to the definition of "admission". The qualification was not attached to the proceedings or the nature of the proceedings, for example, by inserting words such as "except in summary proceedings" in 424A(2). (b) Parliament has selected as the critical time for the applications of s 424A of the Crimes Act the time when the admission was made. That is the time at which the defendant was, or ought reasonably to have been suspected by an investigating official of having committed an offence. A police officer is an investigating official. In other words the sequence envisaged is that the police officer forms his suspicion that the defendant has committed an offence, asks the relevant questions and the defendant makes admissions. (c) The police officer has to make an on the spot decision whether to record the conversation or admission. He has to decide what offences he suspects. If they are not indictable offences (subject to the exception mentioned earlier) the conversations or admissions do not have to be recorded. It is unlikely that Parliament intended that a police officer making on-the-spot decisions would have to look at incidental effects and what may subsequently eventuate. In the present case the police officer did not use a tape recorder as the offences were obviously summary offences. (d) Parliament must be taken to be aware of the course of criminal proceedings. Frequently a number of charges are heard together as a matter of convenience and with the consent of the magistrate, the prosecution and the defence. (That happened in the present case). A magistrate is well able and capable of admitting evidence as to one charge and not as to another. When dealing with the supply charge the magistrate would put out of his mind the admissions made on the summary offences at the roadside. (e) Parliament does not require a recording to be made in respect of admissions when what is charged is a summary offence. 28 During discussion with counsel for the DPP I enquired as to the weight to be given to the words "that relates to an indictable offence" in the definition of an "admission" in s 424A(4)(c). Counsel replied that the key was to be found in the fact that the relevant time was when the admission was made. In other words, the admission had to relate to an indictable offence at the time it was made. It was not to the point that at a later point in time the admission could be seen to relate to an indictable offence. 29 Counsel for the Crown submitted that on a trial for an indictable offence, for example supply cannabis, the roadside admissions could be used by the Crown as, at the time they were made, they were in respect of summary offences. It did not matter that they could be useful, if not cogent, in the Crown proving the indictable offence. Counsel drew attention to the various discretions in the Evidence Act 1995 which the Court could exercise to prevent the use or admission of evidence which would operate unfairly.

(a) The offence which called s 424A of the Crimes Act 1995 into operation was the supply of 210 grams of cannabis (the quantity under the bed). That matter may be dealt with summarily in the absence of an election by either party. Neither party elected to have the matter dealt with on indictment in the District Court.

(b) If the statutory pre-conditions are met and s424A applies then the admissions must be excluded. In the events which happened the admissions made related to and could be used to prove an indictable offence.

(c) It was impossible as a practical matter in the present the present case for evidence to be admitted on just the offences of goods in custody and possession when all the charges were being heard together. This raised the undesirable possibility of inconsistent credibility findings or inconsistent factual findings.

(d) The amount of cannabis found in the bag in the car and in the motel totalled 323 grams. This is in excess of the trafficable quantity. There was an indictable offence. The correct approach was to look at the total quantities. It was all uncovered by the police within a few hours consequent upon the arrest on the possession charge.

(e) The Court should not allow the effect of s 424A to be avoided by permitting the Crown to charge a series of summary offences and deal with them separately when it was apparent on the materials held by the Crown that an indictable offence had been committed.

(f) Section 424A is protective legislation, that is protective of an accused when he is confronted by a number of police and designed to ensure the integrity of the police evidence and to avoid disputes as to what was said. The present case was a bad example, in that the officer had a tape recorder but did not switch it on.

(g) In the definition of admission in s424A(4)(a) the words used are "an offence" and in s 424A(4)(c) "an indictable offence". In the present case the admission related to an indictable offence. 30 The Second Reading Speech of the Attorney General, Hansard, Legislative Council, 24 May 1995 at 117 contains the passage:

"It [Evidence (consequential And Other Provisions) Bill] also makes an amendment to the Crimes Act 1900, making the tape recording of admissions to police compulsory where an accused person is suspected of an indictable offence that may not be tried summarily without the defendant's consent". 31 The question of the application of s 424A of the Crimes Act 1900 can arise in a variety of circumstances. In some cases the summary offences come first and indictable offences arise at a later stage. These may or may not be connected with the original summary offences or be a progression from them. The summary offences may come to the notice of the police after action has been taken in relation to the indictable offence. 32 Section 424A(4) covers not only an admission made by a defendant who at the time when the admission was made was suspected by an investigating official of having committed an offence and that admission relates to an indictable offence but also an admission made by a defendant who, at the time when the admission was made, ought reasonably to have been suspected by an investigating official of having committed an offence and that admission relates to an indictable offence. 33 The words "ought reasonably to have been suspected" are significant. If at the time the admission was made the investigating official ought reasonably to have suspected that the defendant had committed an offence and that admission relates to an indictable offence then the admission is not admissible unless tape recorded or the prosecution establishes that there was a reasonable excuse as to why the tape recording could not be made. This covers the situation where the investigating official did not in fact suspect that the defendant had committed an offence but should have done so and it was an admission relating to an indictable offence. Without such a provision there would be a serious gap in the legislation and the accused would not receive the protection which was intended. 34 Section 424A(4) draws a distinction between summary offences and indictable offences. Admissions which do not relate to an indictable offence do not have to be tape recorded. In other words admissions as to the commission of summary offences do not have to be tape recorded. What do the words "relates to" mean in the context? What work do they do? 35 Section 424A operates in these situations. Subject to s424A(2)(c) the section precludes evidence being led of an admission of facts constituting an indictable offence or of the offence itself unless the requisite tape recording has been made. However, the section has a wider reach because of the words, "relates to an indictable offence." On trials of indictable offences the section prohibits the reception of admissions made as to other offences (usually related) whether indictable or summary if no tape recording was made even though such admissions would have probative value at such trial. This case is a good example. The admissions made as to the goods in custody and possession of cannabis would have significant probative value on the trial of the charge of supply. 36 Section 424A does not prohibit the reception of admissions which have not been the subject of a tape recordings on the hearing of the summary offence proceedings where such admissions go to the commission of the summary offence charged. 37 The purpose of s 424A is to prohibit the reception of admissions relating to indictable offences but not those relating to summary offences when a tape recording has not been made. In some instances the initial arrest will be in respect of a summary offence and it will only be later that it will become apparent that an indictable offence has been committed. The police officer has to make a decision as to recording an admission at the time it was made (or, perhaps, immediately beforehand) and when he or she suspects that a summary offence (and no more) has been committed. It was not intended by the legislature that admissions as to summary offences (usually the less serious ones) had to be recorded before they could be received into evidence. 38 The roadside admissions were admissible on the charges of goods in custody and possession and cultivation but not on the supply charges. The matter will have to be remitted to the magistrate with this expression of opinion.

Section 138 of Evidence Act 39 Mrs Farr challenged the legality of the search carried out by the police after they stopped the car and carried out a random breath test. There was a contest as to what was said and whether Snr Const Anderson could, as he claimed, smell smoked cannabis on her breath and clothes. 40 To justify the search Snr Const Anderson asserted that he did so because of the smell of smoked cannabis upon her clothing and upon her breath. He described the smell as quite strong and distinct. He said that he was interested in her undergoing an assessment under s 5AA of the Traffic Act, that is, whether her driving ability was impaired by the use of cannabis. He did not require her to undergo any testing because he did not see her drive in an abnormal way and she was not overly affected by the drug. Accordingly, he did not cause blood and urine samples to be taken. He believed that tests of her would not come back with a high enough cannabis impairment. The constable was aware that a pharmacologist could ascertain easily the approximate time of the last smoking of cannabis. He explained that in the past when samples had been taken there had been a delay of 5 months in receiving the results back from the pharmacologist and the police doctor, Dr J Perl. She had thought that the impairment was not high enough to support a charge. He was not satisfied, in the present case, that Mrs Farr's impairment was high enough to warrant the taking of samples under s 5AA of the Traffic Act. 41 Const Anderson agreed that at night people's pupils expand. He also agreed that eyes being bloodshot and glazed were symptoms of tiredness. It was 9.50pm at night. He said (T13) "… I was certain that that smell and I've smelt the cannabis smoke before on people in the air and I've got no doubt that was the smell, that distinct smell I smelt." 42 Const Anderson agreed that during the recorded interview he did not put to Mrs Farr that in answer to his question, you did smoke some cannabis didn't you?, she replied "Yeah, I had a smoke at a friend's place." 43 Const Anderson believed that the symptoms which he saw and smelled were sufficient for a search. He also relied on what Const Fitzsimons told him in relation to two drug intelligence reports, one relating to heroin and one relating to cannabis. He said that they compounded his reasons for searching. He did not ask for details, for example when, where or what. 44 It was put to Const Anderson that there was no distinct odour of cannabis on Mrs Farr's breath but he asserted that there most certainly was. 45 This passage appears in his cross examination (T 22 of 8/6199): Q. You see what I'm suggesting to you is that rather than there having been a situation of you saying to her "Well I want to smell your breath" and so on that basically you just searched it. There was no question about it. No explanation given? A. No I made it extremely clear the reason for the search and I did ask her questions in relation to her use of the drug and I believe she was left in no doubt as to the reason why we searched the car and her. Q. There's nothing abut any of this conversation or any reason for a search at all in the notebook is there? A. No that's correct.

Q. There's no reference to it in the facts sheet is there? A. Constable Beattie prepared the facts sheet and I haven't read it since the day so I can't tell you exactly what's in it.

Q. You briefed him did you not? A. Yes.

Q. You see what I'd suggest to you the facts sheet says is 'About 9.50pm Wednesday, 19 August police stopped the defendant driving NKA 613 at the corner of Anne and Auburn Street, Moree regarding an RBT. A search of the vehicle was subsequently made'. Full stop? A. And I'd have to agree with you that if I did the facts I would've definitely included, for the court's information and yours as well sir, that the reason for search. Unfortunately, Constable Beattie didn't include that, perhaps due to all the other matters involved and making the facts shorter, quicker. Q. Again in relation to the COPS entry the COPS entry is virtually in the same terms. Are you aware of that? A. Once again I'll accept what you're saying there, as it's in front of you. I can't recall the wording of that now." 46 The cross examination continued (T23): "Q. None of this alleged conversation with the defendant is recorded anywhere until you made, your statement on 21 August. Correct? A. I'd agree with that then." 47 Const Fitzsimons said that Mrs Farr appeared to be sedated, relaxed and calm. There was nothing unusual or out of the ordinary. It was the decision of Const Anderson, the senior officer, to search. Const Fitzsimons did not notice the vehicle driven by Mrs Farr swerve before the police stopped it. 48 Const Fitzsimons said that he assisted in the search because of the stated observations of Const Anderson and the intelligence data relayed over the police radio. Const Fitzsimons agreed that he did not record in his notebook much of the conversation which allegedly took place at the roadside stop. He was unaware of the conversation alleged to have taken place between Const Anderson and Mrs Farr in the police vehicle on the way to the police station. Const Fitzsimons drove her vehicle back to the police station. 49 In response to the suggestion that there had been no conversation at the roadside between Const Anderson and Mrs Farr as to the reason for the search Const Fitzsimons said (T34 of 8/6/99): "He [Anderson] did inform the defendant that he had spoken to her whilst I was away. He had told me that she had smoked yarni [cannabis] and he could smell it and he intended to search it [the car] once he found out what I had told him." 50 Mrs Farr said that as she was driving her motor vehicle in Moree a police officer instructed her to "pull over". He said that he asked her to do so because her vehicle had swerved. He asked her to do a random breath test and if she had had any intoxicating substances. She replied in the negative. She took and passed the test, sitting in the driver's seat. Const Anderson asked to search her coat. She handed it to him, he did so and handed it back. 51 Const Anderson asked about the contents of an esky. It contained fish. He went around to the passenger side of the car, opened the door and picked up the black bag. He verified with Mrs Farr that she owned it. He emptied the bag on the road near the driver's side door. Const Anderson then questioned her about the marihuana and the scales. Mrs Farr explained that her pupils were enlarged because it was night-time and that she was tired from driving a long distance. That would explain her eyes appearing bloodshot and glazed. Mrs Farr denied that Const Anderson said that he wanted to smell her breath. 52 Const Anderson told her that her car was going to be searched. She was given no say in this. She said that her answer in the recorded interview that she had last smoked cannabis that afternoon was correct. It was about 1 or 2pm. She had sandwiches for lunch and probably drank some coca-cola during the afternoon. She said that she also smoked tobacco regularly. She denied that her breath smelt of cannabis smoke at 9.50pm. She had not had a recent smoke. Nor did her clothes smell of cannabis. She asserted that the police officer had not smelt her breath. She denied that she had lied to the police when the officer asked her "Have you had any drugs, smoked anything?" and she replied "No". She explained that she had not had a recent smoke at the time the question was asked nor was she under the influence of drugs. She confirmed the answer given in the record of interview that she smoked cannabis daily. She said that she was having 2 joints daily prior to 19 August 1998 as she was stressed. On that day she had about half a joint at lunch time. She rejected the suggestion that she may not be aware of the smell of cannabis on her body. She gave evidence of having a cup of coffee on arrival at the motel earlier in the evening and a cup of tea with a friend at the Mehi Aboriginal Reserve. 53 Mrs Farr agreed that the police officer remarked on being able to smell cannabis on her. She said that he was lying, re-iterating that he neither asked to smell her breath nor leant over to do so. She said that Const Anderson did not ask if he could search her bag. He opened the car door, took the bag out and searched it. She allowed him to look in the bag. She said that he made no reference to being able to smell cannabis and that therefore he was going to search the car. He did not ask to search the car she was driving but she allowed him to do so in that she did not stop him. She agreed that Const Anderson asked her what she used the scales for? She said that she replied "To weigh my sapphires up." She said that she was a fossicker and bought and sold sapphires.

Powers of Search and Detention 54 Section 37(4) of the Drug Misuse and Trafficking Act 1985 provides: "(4) A member of the police force may stop, search and detain - (a) any person in whose possession or under whose control the member reasonably suspects there is, in contravention of this Act, any prohibited plant or prohibited drug; or (b) any vehicle in which the member reasonably suspects there is any prohibited plant or prohibited drug which is, in contravention of this Act, in the possession or under the control of any person. 55 There will be circumstances where the member of the police force reasonably suspects that a person has in his or her possession or under his or her control a prohibited drug and that in the vehicle in which the person is travelling there is a prohibited drug in the possession or under the control of that person or another person. Thus a search of the person and a search of the vehicle may be warranted and permitted.

The Magistrates Decision 56 In the course of his extensive reasons the magistrate, after summarising the evidence, stated: "It is up to the prosecution to prove that the search was legal." 57 The Magistrate set out the terms of s 37(4) of the Drug Misuse and Trafficking Act 1985 and analysed the evidence in terms of whether it was capable of giving rise to a reasonable suspicion on the part of Const Anderson. The magistrate noted that Const Anderson has been a police officer for 13 years and had worked on the highway patrol for 10 years. 58 The magistrate took into account the reasons advanced by the constable for not arresting Mrs Farr immediately upon smelling her breath and person and noticing the symptoms mentioned as to her eyes and taking her to Moree Hospital or some other suitable place for the purposes of testing for drugs under section 5AA of the Traffic Act. Const Anderson had referred to the difficulties he had experienced in the past and his view that she was not affected enough to cause him to arrest her. The magistrate found: "I have inordinate difficulty in accepting that that was the reason that Miss Farr wasn't arrested then and there, and for the purposes of 5AA taken to the Moree Hospital or some other place for the purpose of doing that testing." 59 As the parties did not canvass this finding I will not do so. However, ss 5AA(2) and (3) require certain conditions to be met and there is room for debate as to whether they were satisfied. The magistrate explained that one reason for his conclusion was that nothing was mentioned in the Fact Sheet as to why the vehicle was searched. He was also influenced by the absence of any relevant note in the constable's notebook. The magistrate said: "… if one is to accept that these events occurred first then … Anderson would have made some mention in some shorthand of some way of that fact in his notebook. It didn't have to be in detail. It didn't have to be anything other than the words "smelt cannabis on breath, smelt cannabis on hair, smelt cannabis on whatever." Intel reports. There is no mention … in … Anderson's notebook … of his observations, of his assessment, of him exercising his power to search or the reason why he merely records vehicle - brief search. Bag front passenger side." 60 The magistrate referred to the conflict in the evidence between the police and Mrs Farr. She denied that she smelt of cannabis, that her breath in fact smelt and that she was out of the car when the random breath test was administered. She passed her jacket out while she was in the car. She explained why her pupils were enlarged and her eyes were bloodshot and glazed. He thought that the evidence had to be scrutinised carefully. The magistrate was obviously concerned about the lack of acceptable evidence (probably expert evidence) that cannabis does smell and that its consumption causes enlargement of the pupils and the eyes to become bloodshot and glazed. The magistrate said "… there is no evidence before me … that cannabis does smell" and causes the symptoms mentioned. Technically, there was evidence to that effect from Const Anderson but it is a fair inference that the magistrate did not accept that evidence. It seemed to be based largely on assertions. The magistrate said: "… there is no evidence of either of those two things as far as I can see, but because the case is being fought on different grounds, I'm not going to base any decision on that aspect." 61 The magistrate declined to accept that because Mrs Farr had consumed half a joint at lunch time there would be a smell to her breath many hours later. The magistrate was of the view that there should have been some acceptable evidence of the effects of smoking cannabis especially as to smell and symptoms and that the matters should not be regarded as common knowledge. He remarked that it was up to the prosecution to prove these matters. 62 However, the magistrate did not decide the case on the basis of the lack of evidence as to smell and symptoms. He said: " However, turning back to the essence of what … I was saying earlier … if those things had occurred … they rated a mention somewhere and they're not mentioned in the notebook … they're not mentioned in the record of interview …"

and "… when the onus falls upon the prosecution to establish the admissibility of the evidence it has been hampered in essence by the failure to mention anywhere either in the record of interview or in the notebook, or in some other way such as on the COPS report …" 63 He concluded: "… unless the criteria in s. 37(4) are met, the search is illegal … because of the reasons that I've addressed … there was no reasonable ground … for Anderson to form the opinion that he did and therefore to search the vehicle in the manner that he did … the existence of the intelligence reports could not … in the form … that they were conveyed to … Anderson could not form in any legitimate way … part of his reasons for coming to the conclusions that he did."

and "… it is not sufficient to leap to a substantial conclusion on the basis of a couple of drug intel reports, one heroin, one cannabis, and thereafter ground an invasion of a person's liberty on that basis. The fact that the intel reports weren't mentioned and the fact that the observations and smell weren't mentioned … in the notebook or … in the record of interview, and given the fact that the statements came into existence two days or so after the record of interview, … leads me to the conclusion that the onus cast on the prosecution has not been discharged by the prosecution, and consequently I'm satisfied that the search was one which attracts the terminology in section 138 of the Evidence Act, and it is evidence that was obtained … improperly at the lowest end, it may be in contravention of an Australian law but I don't need to go that far." 64 The magistrate noted that s 138 provides that evidence obtained improperly is not to be admitted unless the desirability of doing so outweighs the undesirability of admitting the evidence. The magistrate found that the bag was taken out of the car without permission and searched on grounds that were not reasonable. The magistrate appears to have reached this conclusion even if Const Anderson had made the observations he deposed to and relied upon the summary of the intelligence reports conveyed to him by Const Fitzsimons. The magistrate held that the searching of the bag was improper as it flowed from the unreasonable conclusions of Snr Const Anderson. 65 The Magistrate had regard to the relevant matters listed in s 138(3) of the Evidence Act 1995, namely, the probative value of the evidence, the importance of the evidence in the proceedings, the nature of the relevant offence, the gravity of the impropriety or contravention, whether the impropriety or contravention was deliberate or reckless and the difficulty of obtaining the evidence without impropriety or contravention of an Australian law. 66 The magistrate held that the probative value of the evidence was "without question," that the evidence was important in the proceedings and that the charge of supply a prohibited drug was a serious one. The magistrate held that there was no difficulty in obtaining the evidence without impropriety and that the police officer had not even asked Ms Farr the question "Do you have any objection if I search this bag?" The magistrate stated that the crucial point in deciding whether to admit the evidence was the gravity of the impropriety and whether it was deliberate or reckless. 67 The magistrate stressed the importance of the rights of the citizen to be able to go about his or her business without arbitrary interference by the State by way of search or arrest or other arbitrary intervention by any agent of the state unless good grounds exist. The magistrate held that the impropriety involved in the arbitrary search of the black bag and the car was a grave one as there was a deliberate interference with the right of Mrs Farr to go about Moree. The magistrate further held that while the impropriety may not have been deliberate it was reckless. This was because there was no critical analysis of the intel reports, there was a failure to make the basic enquiries about them, the details involved and their true effect, there was no recording of the reasons for or the genesis of the search by Snr Const Anderson and no addressing of such issues by the police (Anderson and Detective Snr Const Beattie) during the recorded interview. 68 The magistrate found that Snr Const Anderson "was prepared to act on the receipt of two ambiguous minimalist pieces of information as well as the observations that he says he made that I find have, for the reasons already indicated, he was not entitled to rely upon to form the opinions that he did." 69 The magistrate concluded: "So therefore the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence … so the evidence is rejected or not admitted basically." 70 Consequent upon the magistrate's rulings the police prosecutor submitted that the charges of supply a prohibited drug and cultivate a prohibited plant could and did stand independently of the alleged illegal search. Similar considerations applied to the large quantities of cannabis found in the motel room and the subject of the possession charge. The police sought to have the magistrate admit those parts of the recorded interview which dealt with these matters as they contended that these were discrete and severable parts of the interview. 71 The magistrate ruled: "… the proper question to be asked is how was it that Miss Farr was interviewed in the first place."

and "Miss Farr only came to be at the station under arrest because of the illegal search of her car. It seems to me to be artificial then in these circumstances to be able to cut away or pick the eyes out of a record of interview and say these matters had nothing to do with the illegal search …" 72 The magistrate concluded: "Essentially, if it was not for the illegal search, Miss Farr would have wended her merry way on somewhere else. There would have been no record of interview. There would have been no information garnered from that, the information being against self interest, information and admissions and the admissions certainly against self interests. There would have been no logical basis then to contact the after hours justice for the issuance of a search warrant. There would have been no legitimate basis for the search warrant to be granted and there would have been no legitimate basis for the execution of that search warrant on a room at the Winchester Motel. All of those things were as a consequence of the illegal search of Miss Farr's motor vehicle. I cannot see logically how they can be surgically removed from that illegal search and given life of their own to stand independently. In those circumstances in my opinion they must therefore fall into the same basket as the evidence excluded previously and I proposed not to admit the record of interview or anything that flowed from it, that being the application for a search warrant and the search of the room at the Winchester Motel." 73 The Magistrate then endorsed the court papers: "Due to Exclusion of Evidence No Prima Facie Case."

The Crown Argument 74 The Crown submitted that the magistrate had placed the onus on it under s 138 and that this was incorrect. The Crown relied on this passage in the judgment of Hunt CJ at CL in Coulstock (1998) 99 A Crim R 143 at 146-147: "The High Court has recently discussed the close relationship between s 138 and the common law in Swaffield and Pavic (1997) 96 A Crim R 96. It is clear that the onus still lies on the accused to establish the impropriety or illegality before any onus is place upon the Crown to persuade the trial judge that the evidence should nevertheless be admitted: ALRC 26 Vol 1, para 964; C (1997) 93 A Crim R 81 at 95; Salem (1997) 96 A Crim R 421 at 429-430. The discretion is therefore to admit the evidence notwithstanding the impropriety or illegality." 75 Thus the onus lies on the accused to establish the impropriety or illegality but once established the onus is on the Crown to satisfy the court that it should exercise its discretion to admit the evidence. In view of the authorities Mrs Farr did not argue to the contrary. 76 The magistrate was under the mistaken impression that the prosecution had to prove that the search was legal. As earlier noted he said, "It is up to the prosecution to prove that the search was legal." He also said, "the onus cast on the prosecution has not been discharged by the prosecution and consequently I'm satisfied that the search was one which attracts the terminology in section 138 of the Evidence Act." 77 In his submissions (which could have been clearer) counsel for Mrs Farr addressed the Local Court on the basis that there was in effect, a two stage process. Firstly, it had to be established that there was an unlawfulness or impropriety. Secondly, the prosecution must then show that the desirability of admitting the evidence outweighs the undesirability of admitting the impugned evidence. The magistrate appears to have elided the distinction between the two stages and treated the Crown as bearing an overall onus. 78 The Crown next submitted that the magistrate before considering and acting under s 138 of the Act, should have made a determination under s 90. That reads: "In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 79 The Crown submitted that the magistrate should not have gone to s 138 which raises a public policy issue before making a ruling under s 90 which raises an individual unfairness issue. This was because a determination favourable to the prosecution under s 90 to the effect that the admissions were given freely and voluntarily under s 90 would be a relevant factor in the exercise of the discretion under s138. The Crown relied on Nabalarua, CCA, unreported, 19 December 1997. McInerney J, with whom Sully and Abadee JJ agreed held that s 90 had not affected the common law principle that the burden of establishing that it would be unfair to admit the admissions made to the police during an interview was on the accused: McPherson (1981) 147 CLR 512 at 519-520. 80 In Van den Meer (1987) 35 A Crim R 232 at 248 Wilson, Dawson and Toohey JJ said: "In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him. Unfairness, in this sense is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement." 81 In Pollard v The Queen (1993) 67 ALJR 193 at 206 Deane J said: " Cleland v The Queen established that, in a case where a voluntary incriminating statement has been procured by unlawful conduct on the part of the police, a trial judge should, if objection to its reception it taken on behalf of the accused consider whether evidence of the statement should be excluded on either of two discretionary grounds. The first of those grounds is that reception of the evidence would be unfair to the accused. The second is that considerations of public policy require that it be excluded. The considerations relevant to the exercise of the two discretions overlap: the unlawfulness of the police conduct will be relevant to the question of unfairness to the accused and, since it is the policy of the law that a criminal trial be fair, considerations of actual or possible unfairness to the accused are likely to be relevant to the question of public policy. Ordinarily, it will be convenient for the question whether the evidence should be excluded on either ground to be dealt with on a single voire dire hearing since any evidentiary material will commonly be relevant to both grounds. Nonetheless, the two discretions are distinct and independent." 82 At 207 Deane J quoted this passage from the judgment of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 69: "What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration." 83 Later at 207-208 Deane J continued: "Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process. In that balancing of policy considerations, the relevance and importance of fairness or unfairness to the particular accused will depend upon the circumstances of the particular case." 84 At 208 he observed: "The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" with the law or some applicable judicially recognised standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it." In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence." 85 In s 138(3)(e) with the reference to whether the impropriety was deliberate or reckless there is almost an echo of the considerations discussed by Deane J in Pollard. 86 Sections 90 and 138 cover the two discretions which existed at common law to reject evidence on the unfairness and public policy grounds, although s 138 would seem to go further than the common law. Although unfairness to the accused is not listed in s 138(3) as one of the factors to be taken into account that does not mean it should not be taken into account. The introductory words of s 138(3) make it clear that the list in that sub-section is not exhaustive. In Pollard, Deane J indicated the approach which should usually be taken to the exercise of the public policy discretion. 87 In the present case the police did not submit to the magistrate that a determination under s 90 should be made before exercising the discretion under s 138. At no stage did the appellant contest that the bag in the front passenger seat area of the car belonged to her. She conceded it. Nor did she dispute that drugs, and a substantial sum of money belonged to her. Questions of the unreliability of the evidence and unfairness did not arise. The defence case was simply that the court should prefer her evidence to that of the police as to what occurred and hold that the search was illegal. On the defence case Const Anderson had no reasonable grounds to form the suspicion which he alleged he had. He acted on a hunch and not on a suspicion formed on reasonable grounds. The Local Court focussed on whether the impropriety in going ahead and making the search was deliberate or reckless. In the circumstances of the present cast the magistrate did not err in confining his attention to s 138 which was the issue which the parties chose to litigate. If the magistrate preferred the evidence of Mrs Farr, it was open to him to hold that the search was illegal, that the impropriety which occurred was reckless and that the desirability of admitting the evidence did not outweigh the undesirability of admitting the evidence. 88 The Crown submitted that the magistrate erred in holding that there was no evidence that smoked cannabis smells and that it causes enlargement of the pupils of the eyes and the eyes becoming bloodshot and glazed. Const Anderson gave evidence that smoked cannabis had a distinctive smell and that this smell came from the breath and clothes of Mrs Farr. He also relied on the condition of her eyes. Const Anderson relied on his experience. 89 I am a little surprised by the magistrate holding that there was no evidence of these matters as he had earlier in his reasons (p2, lines 15-24) summarised Const's Anderson's evidence including that he had leant forward and smelt the distinct odour of cannabis smoke. From the tenor of his reasons, it seems likely that the magistrate did not accept the evidence of Const Anderson and preferred that of Mrs Farr. However, he did hold that there was no evidence of the matters in question and that was incorrect.

The Defence Arguments 90 Mrs Farr submitted that she was originally stopped for the purpose of a random breath test for alcohol. On this showing that she was not affected by alcohol the police conducted a general investigation. That included an arbitrary search conducted without sufficient and reasonable grounds and on the hunch of Const Anderson. She said that the RBT was administered while she was still sitting in the car. That is the usual practice. At the hearing before the magistrate the primary issue was a factual one. Should her evidence be preferred to that of the police as to the circumstances in which the search took place? She submitted that the magistrate answered that question in the affirmative. 91 The magistrate was troubled by these factors:

(a) The failure to arrest Mrs Farr and have the tests in s 5AA of the Motor Traffic Act carried out to establish whether she was affected and, if so, sufficiently affected by the ingestion of drugs;

(b) the absence from the Fact Sheet, Const Anderson's notebook and the Cops Entry of any reference to the smell of smoked cannabis on Mrs Farr or her breath and his observations as to her eyes and of him exercising the power to search;

(c) her evidence which contradicted that of the police officers in significant respects and her explanation of why her eyes may have been affected;

(d) the absence of evidence - I think that the magistrate meant the absence of acceptable evidence - as to the distinct smell of smoked cannabis and its effect on the eyes. 92 Ultimately, the magistrate concluded that "there was no reasonable ground for Snr Const Anderson to form the opinion that he did and therefore to search the vehicle in the manner that he did." The magistrate further concluded that the sketchy information conveyed by Const Fitzsimons to Const Anderson could not form any legitimate part of his reasons for deciding to search the car and its contents. 93 The argument advanced on behalf of Mrs Farr has considerable weight. However, in a number of places during his reasons, the magistrate during or after referring to the unsatisfactory features of the police evidence states that the onus was on the prosecution, meaning that the onus was on the prosecution to prove the legality of the search. There was also the mis-statements that there was no evidence that smoked cannabis had a distinctive smell. These considerations lead to the conclusion that the matter should be remitted to the magistrate to be further heard. 94 The magistrate should proceed on the basis that the onus rests on Mrs Farr to establish that the search was illegal. If he takes the view that her evidence should be preferred to that of the police as to the circumstances of the search (and there are good reasons for doing so as the magistrate's judgment reveals) then the magistrate would be entitled to hold that the evidence as to the search and consequent upon it should be rejected. As to the smell and the condition of the eyes the magistrate will again have to decide whether he prefers the evidence of Mrs Farr or the police on the balance of probabilities. If he prefers the evidence of Mrs Farr that there was no such smell and he accepts her explanation as to the condition of her eyes that will be an end of these issues. It will be a matter for the magistrate to decide whether he accepts the police evidence that cannabis has a distinctive smell and causes the eyes to be affected as testified to by Const Anderson. 95 Depending on the magistrate's view of the critical facts it may well be that the questions raised as to section 138 of the Evidence Act 1995, the question of onus and the mis-statement of the position as to the evidence are of academic interest only. 96 The magistrate and the parties in the Local Court worked under considerable difficulties. The questions involved were of some complexity and the court with the concurrence of the parties sat late on the hearing dates to complete the matter. The defendant and her counsel had travelled considerable distances and expense was obviously a factor. This was a case where the bench, counsel and the police prosecutor laboured hard. It is possible that the mistakes I have indicated as to s 138 are slips in expression but the transcript does not entitle me to proceed on that basis. It is with regret that I have felt obliged to remit the matter for further hearing. I gratefully acknowledge the assistance which I received from both counsel on the hearing of this application. 97 I order that the order of the magistrate dismissing the informations laid against Karen Gail Farr for the offences of goods in custody, cultivate prohibited plant, supply prohibited drug and possess prohibited drug be removed into this court and quashed and that the matters be remitted to the magistrate to be further heard in accordance with these reasons and according to law. 98 My provisional inclination is to make no order as to costs because of the different ways the Crown case was presented to the magistrate and this court. I am however, prepared to hear argument on the question of costs. There may also be a question whether a certificate should issue in respect of Mrs Farr's costs. Liberty is given to both parties to list the matter for hearing on the question of costs by arrangement with my Associate. oOo

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