That the Magistrate erred in law in holding that the consent given by the defendant to the police officer to search his vehicle was not a valid consent because it was not an informed consent.
46 As I have already indicated, the Magistrate, citing what Kirby P said in Anderson v Judges of the District Court held that, even if there were not reasonable grounds for Constable Barnes to form a suspicion that there were prohibited drugs or prohibited plants in the defendant's vehicle, so that the search was not authorised by s 37(4) of the Drug Misuse and Trafficking Act, nevertheless the search would not have been illegal, if the defendant had consented to the search. Both before the Magistrate and before me counsel for the defendant accepted that this was a correct statement of law.
47 In Anderson the defendant had been charged with an offence of goods in custody under s 527C of the Crimes Act, after the vehicle in which he had been travelling had been stopped and searched by police officers and goods consisting of banknotes had been found in the vehicle. In his judgment Kirby P noted that it had not been submitted that the search had been illegal. His Honour said "the basis of the authority for such a search may have been the Drug Misuse and Trafficking Act 1985, s 37(4) or the Crimes Act, s 357E. It may have been the consent of the claimant (Anderson)". As the legality of the search was not in issue, it was unnecessary for Kirby P to explore what were the requirements for a valid consent.
48 In his judgment in the present case the Magistrate considered the question of "what is required to be established for proper consent". Earlier in this judgment I quoted some of what the Magistrate said on this question.
49 Although the Magistrate said that there were a number of factors to be taken into account and although he said that knowledge on the part of the person giving consent of the right to refuse to give consent is "not necessarily an all-controlling factor," I consider that, when the Magistrate's judgment is read as a whole, including the general part of the judgment, the part of the judgment dealing with Lazenby's case and the part of the judgment dealing with the defendant's case, it is clear that the Magistrate did proceed on the basis that knowledge, on the part of the person giving consent of the right to refuse to give consent, was a critical or controlling factor. In the general part of his judgment, the Magistrate said that, unless it can be demonstrated that the person giving consent had knowledge of the right to refuse consent, it is "very difficult" to argue that a consent is voluntary, that is, valid. Although the Magistrate said that knowledge of the right to refuse to consent may have less weight, if the person requested to consent is legally trained or a police officer or some other person familiar with the drug laws, the basis for this remark would appear to be that such a person would already, by reason of his training or experience, be aware of the right to refuse consent, without having to be told of the right to refuse consent by a police officer requesting consent to a search, and not that, in such circumstances, knowledge of the right to refuse consent would have less weight. A little later in the judgment the Magistrate said that what Constable Barnes had told the defendant about the purpose of the proposed search, while relevant to the question the Magistrate had to decide, did not refer to "the very core of the individual's rights, that is, that he or she is entitled to refuse consent".
50 In dealing with Lazenby's case the Magistrate said that the apparent consent given by Lazenby was not a valid consent because it was not an informed consent, in that Lazenby had not been made aware that he had an absolute right to refuse consent. In dealing with the defendant's case the Magistrate said that the consent given was not an "informed consent".
51 Whether a person requested to consent to a procedure which police wish to carry out, is aware of his or her right to refuse consent, can be a factor in determining whether an apparent consent should be regarded as a valid consent. However, in my opinion, in elevating this factor to the status of a critical or controlling factor, such that, if it is not present, it will be "very difficult" for an apparent consent to a procedure to amount to a valid consent, the Magistrate was committing an error of law.
52 As counsel for the Director of Public Prosecutions submitted, the decision of White J of the Supreme Court of Western Australia in Wineburg v Stafford (unreported, 22 July 1997) is directly in point. The Magistrate in the present proceedings was not referred to Wineburg v Stafford.
53 In Wineburg v Stafford a police officer stopped the defendant's vehicle. The police officer asked if the defendant was carrying any drugs or firearms and the defendant answered "no". The police officer then said "Do you mind if I have a quick look in your vehicle then?" The defendant replied "No, go ahead". On a search of the defendant's vehicle the police officer found a bong for smoking cannabis. The defendant was later charged with a drug offence.
54 On an appeal from a magistrate White J identified as an issue for determination by him, whether the failure by the police officer to caution the defendant that he was not obliged to permit a search of his vehicle rendered the defendant's consent nugatory, with the result that the search was unlawful. White J held that the search of the defendant's vehicle was not unlawful. His Honour held that the police officer had asked for, and had been granted, permission to search the vehicle and there had been no finding by the magistrate, nor was there evidence to support a contention, that the permission had been obtained by coercion.
55 In his judgment in Wineburg v Stafford White J referred to the decision of the High Court in Bunning v Cross and observed that there were analogies between the case before him and Bunning v Cross. In Bunning v Cross a motorist (Mr Bunning) had been stopped by a police officer on highway patrol duty. The evidence, the admissibility of which was in issue, was the result of a breath analysis test of a breath sample supplied by Mr Bunning at a road patrol station.
56 In Bunning v Cross there were a series of proceedings, before a magistrate, before a single judge of the Supreme Court of Western Australia, before the magistrate again, before the Full Court of the Supreme Court of Western Australia on the return of an order nisi and then, finally, before the High Court. The single judge held that the administration of the breath analysis test had been unlawful, in that it was not authorised by Western Australian legislation. The finding that the administration of the test had been unlawful was not challenged on the hearing before the Full Court of the Supreme Court of Western Australia.
57 Most of the judgments of the judges of the High Court are devoted to the discretion at common law to exclude evidence which has been unlawfully obtained. However, at pages 63-64 Barwick CJ said:-
"The learned judge in the first instance held the administration of the breathalyzer test to be unlawful in the sense that a coercive demand for the taking of the test was not authorised by the Road Traffic Act under the provisions I have quoted. The judge did not consider whether the test was taken voluntarily and not under the coercion of a demand by the police officer.
There was material on which that question could have been considered. It appears, in my opinion, from the transcript of the magistrate's notes that the patrolman did not cause the applicant to engage in the breathalyzer test by any direction or command, or by any representation or any trick or improper behaviour. Nor did the authorized person who operated the breath analysing equipment by any such act cause the applicant to co-operate in the operation of that equipment. Nothing in ss 63 to 73 inclusive of the Road Traffic Act in my opinion, precludes the voluntary submission of a person to the breathalyzer test or makes the validity of such a test voluntarily undergone dependent upon an antecedent use of the preliminary test. What s 66 does is to empower the patrolman to require or command submission to the preliminary test and to provide a sample for analysis by the breathalyzer apparatus or, in appropriate circumstances as stated in the sections, to require or command the provision of a sample of breath without there having been a preliminary test. Failure of compliance with the patrolman's requirement made in conformity with the provisions of the Act attracts the penalties provided by s 67. But nothing in the Act precludes a patrolman or an authorized person from asking for a sample of breath of a person willing to give it or from operating the breathalyzer apparatus in relation to such a sample. There is, in my opinion, nothing unlawful in the making of such a test with the co-operation of a person willing without being required or commanded to take it.
Of course, a fine line divides such a willingness from a willingness the product of coercive conduct: and in deciding whether the willingness was uncoerced, it is proper to remember the apparent authority of a patrolman and the situation of the motorist who has been "taken" to the police station. But, in this case, there is no finding of any coercive conduct on the part of the patrolman or authorized person: nor, in my opinion, ought there to have been. Rather, the impression the magistrate's notes creates in my mind is that the applicant, confident of his own innocence of wrongdoing, was quite willing if not anxious to take the test which, it seems to me, it was likely that he believed would clear him.
However, no appeal having been brought from the first decision of the Supreme Court, it must now be accepted, when considering the propriety of the magistrate's exercise of discretion, that the administration of the breathalyzer test was enforced by the officer in virtue of his office as a constable of police and that the officer's demand that the applicant undergo the test was not warranted by the statute and thus was without legal authority".
58 In their joint judgment Stephen and Aickin JJ noted at p 67 that: -
"… the Full Court, which apparently heard argument not only upon the manner in which the magistrate exercised his discretion and the criteria he employed in doing so but also upon the quite distinct question whether or not, when the appellant took the "breathalyzer" test, he did so quite of his own volition; if so, no question would have arisen of his being unlawfully required to submit to the test and hence no question of there being any discretion to reject evidence because it was the product of an unlawful police requirement".
59 However, their Honours considered that the grounds of the order nisi before the Full Court were not wide enough to include a ground that the evidence had not been unlawfully obtained because the appellant had taken the breathalyser test of his own volition.
60 Jacobs J said in his judgment at p 82 that the High Court was not bound to proceed on the basis that the evidence had been unlawfully obtained and his Honour held that what had happened was that the appellant had been asked for a sample of his breath and had been willing to give it, with the consequence that the evidence of the result of the test had not been unlawfully obtained.
61 Murphy J held that the appellant had not acted voluntarily. His Honour said at p 84:-
"Mr Bunning was at a police station (presumably under arrest); he was required several times to take the test and declined; but finally agreed. The police officer required him to do so in the belief that he was lawfully requiring him to do so. In these circumstances, it is idle to regard Mr Bunning's submission as voluntary".
62 It is clear that Mr Bunning was not told that he was not required to take the test. Indeed, as Murphy J pointed out, the police officer believed that Mr Bunning was required to take the test. However, none of the High Court judges suggested that whether Mr Bunning had been told that he had a right to refuse to take the test was critical, or even material, to whether he had taken the test voluntarily, that is, had consented to take the test. According to Barwick CJ, the material matters were whether Mr Bunning had undertaken the test as a result of a direction or command or as a result of a misrepresentation, trick or other improper behaviour on the part of the police.
63 Counsel for the Director of Public Prosecutions referred to what Gleeson CJ said, with the concurrence of other members of the Court of Criminal Appeal, in R v Azar (1991) 56 A Crim R 414, regarding whether a statement made to police had been made voluntarily under the principle at common law that evidence of a statement which contains an admission is not admissible unless the statement was made voluntarily. In his judgment Gleeson CJ enunciated a series of propositions, two of which were:-
"8. It is also important to note that what is involved is an inquiry as to the accused's will, rather than as to the accused's state of knowledge, including knowledge of his legal rights. What a person knows or does not know may be relevant, as an evidentiary fact, to the question whether the person's will has been overborne, but knowledge or belief, on the one hand, and will, on the other hand, are different concepts.
9. There is no justification for the proposition that a statement is voluntary in the relevant sense only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. Indeed if, as has been noted above, a statement may be voluntary even though made pursuant to a legal obligation, a fortiori a statement made be voluntary even though the maker is unaware of what the law requires".
64 I accept that these propositions stated by Gleeson CJ support a conclusion that a person may consent to an investigative procedure taking place without being aware that he has a right to withhold his consent to the procedure taking place. This conclusion is, of course, subject to any statutory provision to the contrary.
65 It is apparent from the transcript of the hearing of 5 February 2001 and the terms of his Worship's judgment of 6 March 2001, that the Magistrate was referred to, and that the Magistrate consulted, a textbook Tronc Crawford and Smith Search and Seizure in Australia and New Zealand (1996). The statement in the Magistrate's judgment that knowledge of the right to refuse consent is not necessarily an "all controlling factor" (although I have held that the Magistrate did in fact regard it as the controlling or critical factor), would appear to have been derived from this textbook. However, what the Magistrate said in his judgment does not accurately reflect the terms of the text. At pp 89-91 the authors list what they consider to be "relevant factors regarding voluntariness". Before listing the factors the authors say "no one factor by itself conclusively determines the voluntariness of a consent". The fifth factor listed, after coercion, a threat in bad faith to obtain a warrant, a show of force and a person being in custody when he consents, is "knowledge of the right to refuse". The authors say at p 90:-
"5. Knowledge of the right to refuse
While a person's knowledge of his or her right to refuse to give consent is a factor to consider, it is not the controlling factor. A police officer who seeks a consent to search need not inform the person of his or her right to refuse: Schneckloth v Bustamonte (1973) 93 S Ct 2041; Pearce v Button (1986) 60 ALR 549; see also Anderson v Harper [1982] Qd R 105".
66 The case of Schneckloth v Bustamonte cited at p 90 of Search and Seizure in Australia and New Zealand is a decision of the United States Supreme Court and is reported at 412 U.S. 218. The case is complicated by aspects of American constitutional law; nevertheless, the case is in point and is a persuasive authority. The headnote to the report in the United States reports, which accurately summarises the decision of the majority of the Court, is as follows:
"During the course of a consent search of a car that had been stopped by officers for traffic violations, evidence was discovered that was used to convict respondent of unlawfully possessing a check. In a habeas corpus proceeding, the Court of Appeals, reversing the District Court, held that the prosecution had failed to prove that consent to the search had been made with the understanding that it could freely be withheld. Held: When the subject of a search is not in custody and the State would justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntary; voluntariness is to be determined from the totality of the surrounding circumstances. While knowledge of a right to refuse consent is a factor to be taken into account, the State need not prove that the one giving permission to search knew that he had a right to withhold his consent".
67 It may be that this statement is actually more protective of the person consenting than is the position under Australian law, in the absence of any statutory provision.
68 Pearce v Button, the second of the cases cited in Search and Seizure in Australia and New Zealand, which is a decision of Pincus J in the Federal Court, is particularly relevant, because of a comment made by Pincus J about the judgment of Cook J of the Supreme Court of New Zealand in Meates v Attorney-General (1981) 2 NZLR 335, a case cited by the Magistrate in his judgment and relied on by counsel for the defendant before me.
69 In Meates v Attorney-General Cook J held that the removal of documents by Customs officers was not authorised by the New Zealand Customs Act and that there had been no valid consent to the removal of the documents. On the subject of consent Cook J said at p 346:-
"… it should be noted that, while consent may include acquiescence, it must be a genuine consent and not a mere acquiescence in what a person believes to be another's lawful right".
70 At p 347 his Honour said:-
"By the same token it seems that, before true consent can be given in the situation which is under consideration, there must be knowledge of all the material circumstances and these would include an understanding of the rights of Customs officers in the absence of consent. To give consent means to agree that a particular thing be done and the person so agreeing must understand that his consent is necessary".
71 Pearce v Button was a case under the Australian Customs Act. Pincus J held that certain searches by Customs officers were not authorised by the Customs Act. However, his Honour held that Mr Pearce had consented to the searches. On the subject of consent, Pincus J referred in his judgment to Ghani v Jones (1970) 1 QB 693 and Meates v Attorney-General. His Honour criticised the second passage in the judgment of Cook J which I have quoted. Pincus J said at p 550-551:-
"It is not clear to me why it is necessary, in order that true consent may be held to exist, that one must be able to find that the person, the subject of the search, accurately understood the rights of Customs officers in the absence of consent, as Cook J held. That appears to be a test which would but seldom be satisfied. If, lacking such an understanding, a person whom it is proposed to search takes the warrant as read and displays anxiety to assist, not being overborne or bullied in any way, then I find it difficult to see why his consent should necessarily be disregarded. Here no pressure appears to have been placed on Mr Pearce".
72 I would adopt the criticism made by Pincus J of Cook J's judgment, which appears to me to be well founded.
73 Meates v Attorney-General was not referred to in the later New Zealand case of Werner v The Police (High Court of New Zealand, Gallen J, 16 April 1986), which is discussed in Search and Seizure in Australia and New Zealand at p 86. In that case Werner was stopped at random by a police officer and searched by the police officer. In the course of the search the police officer found a bag containing cannabis and Werner was charged with, and convicted of, possession of a drug. On appeal, it was argued that the search was not authorised by the New Zealand Misuse of Drugs Act 1975. However, Gallen J dismissed the appeal on the grounds that the police officer had given evidence, and the judicial officer at first instance had found, that Werner had consented to being searched. The only relevant evidence given by the police officer was:-
"I asked his full name and address and he gave me this information. I then asked the defendant if he would consent to a search being made of his person. The defendant agreed to this".
74 The magistrate in his judgment and counsel for the defendant in argument referred to s 139 of the Evidence Act and the law about the administering of a caution before a person under arrest or under suspicion of having committed an offence is questioned by police. However, I do not consider that the law which has developed in that special context and which is the subject of special statutory provisions, should be applied generally in determining whether an apparent consent to an investigative procedure by a person not under arrest is a valid consent.
75 I consider that the Magistrate erred in law in holding that the consent given by the defendant to the police officer to search his vehicle was not a valid consent, because it was not an informed consent.