Solicitor: C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s): 2015/00153467
[2]
Judgment
Khoder Addouj (the appellant) appeals against conviction entered by her Honour Magistrate Keogh at the Downing Centre Local Court on 30 October 2015. The appellant pleaded not guilty to one count of resisting police in execution of their duty contrary to s. 546C Crimes Act 1900. The appellant was convicted and fined the sum of $600.
At about 9.50pm on 22 May 2015 the appellant was observed by police in the vicinity of the Beresford Hotel in Surry Hills where he spoke to another male. He got into a car and drove a short distance. The appellant was stopped by the police in Oxford Street. He was asked to get out of the car and the police searched it. The police located some steroid cream and the appellant was arrested for possession of that item. At that time the appellant was handcuffed. The police called for a caged police vehicle to attend and the appellant was strip searched in the rear of the caged vehicle. In the meantime, the police continued to search the car.
In the car the police located the sum of $3,700 in cash. Of that sum, $1,400 of it was in the console of the car and the appellant told the police it was his. That sum was later returned by the police to the appellant. The police located a further $2,300 in cash and a Nokia mobile phone secreted under the dashboard of the car. The appellant told the police that he did not own the car and that he had no knowledge of the origin of the $2,300 in cash or the Nokia mobile phone. He told the police that he owned a Samsung mobile phone. The police noticed the Samsung mobile phone in the possession of the appellant when they stopped him. When he got out of the car after being stopped by the police the Samsung phone remained on the front passenger seat of the vehicle. During the course of the search the police observed that it rang a number of times and that the appellant received multiple text messages.
It is unclear from the evidence as to how long the appellant had been detained by the police before he was subjected to the strip search, but he was kept in the caged police vehicle for approximately 30 minutes while the strip search was undertaken.
After a further period, Sergeant Wall (the informant) told the appellant that he was seizing the cash and that he was no longer under arrest. The appellant protested and asked the informant for the names of all of the police involved. He was then released from the police vehicle. He retrieved the Samsung mobile phone from the car and unlocked it.
The informant asked the appellant to hand over the phone. At the same time, the informant put his hand on the Samsung mobile phone, which was still in the appellant's hand. The informant also said, "You are still being searched. Hand over the phone". The appellant moved his hand back causing the informant to lose his balance. Other police came forward and restrained the appellant and they all fell to the ground. The informant forcibly removed the Samsung mobile phone from the appellant's grip and he was placed under arrest for resisting a police officer in the execution of his duty.
The appellant did not put in issue the legality of the search of the car or of his person. The appellant accepted that the police had the power to do so by reference to sections 21 and 36 Law Enforcement (Powers and Responsibilities) Act 2002 (the Act). At the time the appellant's person was searched he was under arrest and the police also had the power to search him pursuant to sections 23, 23A and 24 of the Act.
The only issue in the appeal was whether I was satisfied beyond reasonable doubt that the informant was acting in the execution of his duty when he requested and took hold of the phone without first giving a warning that the appellant was required by law to comply with the request in compliance with section 203(1) of the Act.
The prosecution contended that a warning was not required because the appellant had already complied with or was in the process of complying with the direction, requirement or request: section 203(2) of the Act. The appellant's contention was that the police officers requirement that the appellant be detained for the purpose of a search of the car and his person ended with he was told he was no longer under arrest and could leave.
[3]
The relevant law
The applicable principles to be applied in determination of the appeal are as follows.
Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31];
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22];
Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24];
The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
Section 21 of the Act relevantly provides
21 Power to search persons and seize and detain things without warrant
1. A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:
1. the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
2. the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
3. the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
4. the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
1. A police officer may seize and detain:
1. all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
2. all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
3. any dangerous article, and
4. any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
Section 203 of the Act relevantly provides
203 Police officers to give warnings when giving or making directions, requirements or requests that must be complied with
1. A police officer who exercises a power to which this Part applies that consists of a direction, requirement or request must give a warning to the person subject to the exercise of the power that the person is required by law to comply with the direction, requirement or request.
Note. A failure to comply with the direction, requirement or request does not constitute an offence unless a warning under this section has been given - see section 204B.
1. A warning is not required if the person has already complied with or is in the process of complying with the direction, requirement or request.
2. A police officer must comply with this section as soon as is reasonably practicable after the direction, requirement or request is given or made.
3. If 2 or more police officers are exercising a power to which this Part applies, only one officer present is required to comply with this section.
The power of entry, search and seizure are an interference with the rights of a person to resist against conduct that would amount to trespass to the person and or a trespass to property.
When a power of search is given by statute the exercise of that power must be strictly in compliance with the statutory power and with the clearest of authority: Henderson v O'Connell [1937] VLR 171 at 176 and applied by the Full Federal Court in Noordof v Bartlett (1986) 12 FCR 209 and cited with approval by McHugh J in Coleman v Power (2004) 220 CLR 1 at [118]-[120].
The requirements in sections 202 and 203 of the Act are conditions of a police officer's power to search a person both under the Act and at common law: section 201 of the Act.
The police do not have a common law right to commit a trespass by continuing their investigations when their statutory power that authorises the commission of a trespass comes to an end: Kuru v State of New South Wales (2008) 236 CLR 1.
[4]
Material considered on the appeal
Tendered before me were the police statements and the transcript of the proceedings in the Local Court.
In the Local Court the police statements were tendered without objection. Only four of the officers were required for cross-examination.
[5]
Analysis of the magistrate's reasons
On the relevant issue, the magistrate found that the informant was entitled to hold a reasonable suspicion for the search of the phone. She concluded that the reasonable suspicion had not been extinguished by the search of the car and the appellant's person.
Whilst I would agree with the magistrate's conclusion on this point that the informant had the proper basis for conducting a further search of the appellant, it does not in my view deal with the argument that was advanced on behalf of the appellant.
The question was not did the informant have a proper basis for conducting a further search, but rather did the informant make it clear to the appellant by observing the requirements of sections 203(1) of the Act that he was obliged by law to comply with the request because either that the initial search was continuing or that a new search was being initiated.
[6]
Consideration
The evidence clearly established that the police detained the appellant for the purpose of searching the car and his person. Those searches took about 1 hour. The appellant was clearly informed after the search of the car commenced that he was under arrest. There was no evidence to suggest that he acted in anyway inconsistently with that. He was subjected to a very lengthy strip search in the rear of a caged police vehicle that was parked in a public street. There was no evidence to suggest that he was other than co-operative in the police undertaking that search. There was evidence that he was angry at the end of that process. That is hardly surprising.
The police had clearly delineated up to that point that he was not free to leave. He complied with their requests to search him. At the time his person was searched he was under arrest for possession of the steroid cream.
During that extensive period of time the Samsung mobile phone was in the effective possession and control of the police on the front passenger seat of the car. Constable Gordon tried to access the phone but could not because it was locked. The police had the power to request that the appellant give them the PIN code during that period. They had the power to seize the phone and to have it examined.
The informant expressly told the appellant that he was no longer under arrest and that he was free to leave. The actions and words of the informant made the situation patently clear. The appellant was no longer under arrest, no longer being detained and the search of his person was over.
The informant's direction to hand over the phone was a new direction requirement or request. The informant could not rely on the appellant's prior co-operation with the earlier search of his person to excuse his failure to warn the appellant, in reliance on section 203(2) of the Act. The informant was required to make it clear to the appellant that he wanted to further search his person and warn the appellant in terms of section 203(1) to make the new search of his person lawful.
The informant's direction to the appellant to hand over the phone was simultaneous with the informant's attempt to take the phone from him. That act involved a trespass to the person of the appellant and a trespass to the appellant's property.
I am satisfied that that the informant acted unlawfully by failing to warn the appellant and by committing a trespass to his person and his property and thereby I cannot be satisfied beyond reasonable doubt that the informant was acting in the execution of his duty. The appellant is entitled to be acquitted
[7]
Orders
Orders I make are as follows:
1. The appeal against conviction is allowed.
2. I set aside the conviction and the penalty imposed by the magistrate.
[8]
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Decision last updated: 11 April 2016