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[2018] NTSC 83
General information, not legal advice.
Supreme Court of the NT
2018-11-30
Barr J
Original judgment source is linked above.
The application of the rules [of interpretation] will properly involve the identification of a statutory purpose, which may appear from an express statement of the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit in may be identified by reference to common law and statutory rules of construction.
[34] Further as to the statement extracted at the start of the previous paragraph, it appears that his Honour may have had in mind the test for 'reasonable belief', rather than 'reasonable suspicion', or at least that he may have been conflating the distinct tests. His Honour's subsequent statement that there had been "no real follow up to this anonymous phone call ... to strengthen any idea or inference that these people had grog in their house" suggests that he was requiring confirmatory evidence of the information provided by the anonymous caller to Harden, which the law does not require.
[35] The information given to Harden by the anonymous caller, and relayed to Kennon, was very specific as to the alcohol storage location. Although the information was provided anonymously, that specificity would tend to make the information more credible. Kennon said that he was also influenced by the use of the word 'stored', which to him suggested quantity kept over a period of time. Kennon did follow up, in terms of reading a police intelligence report that similar information about the second respondent had been provided 12 months earlier. Moreover, Kennon's suspicion was increased (he used the word "furthered") by the information he received from Diamond at the briefing session referred to in [26], [28] and [29] above.
[36] The information available to Kennon thus comprised one report received two weeks before the search, another report received one to three months before the search, and a third report received some 12 months before the search. In addition to the specific facts reported on each occasion (in particular on the last occasion), the combination reasonably suggested a pattern of behaviour or a tendency, on the part of the second respondent at least, to have alcohol in his possession or control in an alcohol protected area. Kennon was justified in adding to the factual matrix his knowledge based on experience of the drinking/storage patterns of Caucasian people in remote communities, referred to in [23] above. Even if alcohol were consumed, the pattern of behaviour or the tendency referred to could well have involved the store of alcohol being replenished. For that reason, the possibility that the stored alcohol (the subject of the August 2017 report to Harden) might have been consumed in the intervening two weeks before the search did not undermine Kennon's suspicion so as to render it unreasonable.
[37] In this context, I repeat my observation in [14] above that the grounds for suspicion may leave some matters to surmise or conjecture.
[38] It is a question of law as to whether, on the facts as found or on the undisputed evidence, Kennon reasonably suspected the commission of a relevant offence,[31] the test being whether there were objectively reasonable grounds for Kennon's suspicion. As mentioned in [30], his Honour found the evidence of Kennon credible and reliable, and on the facts identified by me above, there was more than sufficient to reasonably ground a suspicion. It follows that his Honour erred in determining to the contrary. Because I have found that there were objectively reasonable grounds for Kennon's suspicion, it is not necessary to further analyse his Honour's reasons.
[39] My conclusion to this point is that the entry and search of the respondents' home was lawful.
Respondents' contention - evidence improperly obtained
[40] In their notice of contention, the respondents contend that the search was improper because it was a 'planned operation' carried out without a warrant, in breach of Police General Order "Search Warrants".[32] The argument proceeds that evidence of the respondents' possession or control of alcohol was "obtained improperly" and therefore, pursuant to s 138(1) Evidence (National Uniform Legislation) Act 2011 (NT), should not have been admitted.
[41] A party seeking to exclude evidence pursuant to s 138 Evidence (National Uniform Legislation) Act 2011 (NT) has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the Court that it should be admitted. There is thus a two stage process. The party seeking the admission of evidence obtained improperly or in contravention of an Australian law has the burden of proof of facts relevant to matters weighing in favour of admission. That party also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.[33]
[42] I turn to consider whether the evidence was obtained improperly. The meaning of the term "improperly" was recently considered by Grant CJ in The Queen v Layt,[34] and I do not need to repeat what was said there.
[43] It is not absolutely clear that the Police General Order applies to a search without warrant by a police officer who is acting as an inspector under the Liquor Act. The Liquor Act is not mentioned in par 5 of the General Order; nor is it mentioned in pars 16 and 17. However, the point has not been fully argued and, for the purposes of the present appeal, I will assume the General Order does apply.
[44] The respondents rely in particular on part of par 12 of the Police General Order, which reads as follows: -
The General Order should be considered in all circumstances or situations where members are empowered to execute a warrant, to search pursuant to a statutory power, or under a warrant of arrest. Members are to be mindful that different types of search warrants have corresponding legislative requirements which must be complied with to ensure admissibility of any evidence obtained.
[45] The respondents then rely on par 49.3 of the Police General Order which reads as follows:
Authority to enter - will normally be authorised under a Warrant to Search and/or Arrest. Unless serious or urgent circumstances exist, a warrant should be sought for all planned operations ...
[46] The respondents' contention is that, because the search was a "planned operation", and there was no urgency, par 49.3 of the Police General Order was breached, and the search therefore rendered "improper".
[47] It is important to consider the policy of the Police General Order in deciding whether non-compliance rendered the search of the respondents' home improper, or not.
[48] The policy statement in par 1 of the Police General Order states that the "conduct of thorough, objective and professional investigations in accordance with relevant legislative and procedural requirements is essential for achieving effective outcomes and reinforcing a professional image of the NTPF". The reference to "achieving effective outcomes" may be appropriately linked with the purpose stated par 12 of the Police General Order: "to ensure admissibility of any evidence obtained".
[49] I have concluded that a primary purpose of the Police General Order is to ensure that police officers obtain evidence which is admissible, that is, evidence which is not rendered inadmissible by statutory or regulatory non-compliance. Protection of the civil rights of members of the public is not a primary purpose, although it may be an incidental purpose.
[50] Par 13 of the Police General Order suggests a further purpose for the General Order, namely that compliance with its terms "provides a basis to assist members in carrying out their duties in this sometimes contentious area in a manner that will limit adverse public or media comments or complaints." That ties in with the reference in par 1 to "reinforcing a professional image of the NTPF". Those paragraphs indicate a concern with the reputation and image of the Northern Territory Police Force, consistent with the "overarching values" set out in par 20 of the Police General Order, which include professionalism, minimisation of confrontation, consideration and care, as well as risk management. Again however, the purpose of maintaining the reputation and image of the Northern Territory Police Force, laudable though it may be, is not concerned with the protection of the civil rights of members of the public.
[51] Par 13 of the Police General Order includes the following statement:
Members are expected to exercise initiative and take action according to the circumstances. Non-compliance with this General Order as with others will be viewed in the totality of the circumstances. Members will be required to provide sound reasoning and compliance with legislative requirements when deviating from this General Order.
[52] I reject the respondents' argument that the evidence in contention was obtained improperly, or as a result of an impropriety, the suggested impropriety being that it was contrary to the Police General Order. Even if the submission of Mr Murphy is accepted, that compliance with the Police General Order would have provided useful "checks and balances", the Police General Order cannot lawfully detract from powers given to a police officer under legislation. The Liquor Act trumps the Police General Order. Moreover, there is no reason why the powers of a police officer under s 95 Liquor Act should be subject to a non-statutory constraint which does not apply to an inspector who is not a police officer. Sgt Kennon had the power of search and seizure without warrant, pursuant to s 95(1) Liquor Act. Even if the Police General Order had some role to play, Kennon was able to demonstrate compliance with legislative requirements in support of his non-compliance.
[53] The criticism of Sgt Kennon, in par 15 of the respondents' written submissions, that he said in cross-examination: "This is General Orders; I was operating under legislation" is misconceived; the sergeant was correct.
[54] Mr Murphy submitted that, if this Court found for the appellant, it should apply the 'proviso' in s 177(2)(f) Local Court (Criminal Procedure) Act, and dismiss the appeal on the basis that no substantial miscarriage of justice has actually occurred. The difficulty with that submission is that justice was not done in the Local Court, because admissible evidence was not considered by the trial judge and the appellant's case was prematurely terminated. The trial effectively came to an end as a result of the judge's decision in the voir dire proceeding. In the circumstances, this Court cannot conclude that there has been no substantial miscarriage of justice.
[55] Pursuant to s 177(2)(d) Local Court (Criminal Procedure) Act, the appeal should be allowed and the case remitted to a differently constituted Local Court for hearing or further hearing.
[56] I direct the parties to submit a draft of the orders they contend should be made by this Court as a consequence of my decision. As found by me in [39] above, the entry and search of the respondents' home was lawful. I invite submissions from the parties as to the further orders (if any) I should make in relation to the evidence excluded by his Honour. If the parties are not in agreement, the matter can be listed for further argument.
[1] An offence charged contrary to s 75B(1) Liquor Act, read with s 8 Stronger Futures in the Northern Territory Act (Cth). The liquor the subject of the charge included a 30-pack carton of XXXX Gold beer cans, a further 10 cans of XXXX Gold beer, a bottle of rum and several bottles of liqueurs.
[2] I presume his Honour did so pursuant to s 138 Evidence (National Uniform Legislation) Act.
[3] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 115.8.
[4] Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 at 303.
[6] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112.3.
[7] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 116.4; Prior v Mole [2017] HCA 10; (2018) 261 CLR 265, at [73] per Nettle J.
[9] T 6.9. This was Kennon's evidence of what Harden had said to him.
[19] Prior v Mole [2017] HCA 10; (2017) 261 CLR 265.
[20] The context of their Honours' conclusion was as follows (at [18]), per Kiefel and Bell JJ: "Mr Prior was right to submit that Constable Blansjaar's belief about how he, Mr Prior, was likely to behave was informed at least in part by Constable Blansjaar's experience of other people. This is not to accept that it is irrational to take into account observed patterns of human behaviour in predicting the likely behaviour of an individual."
[28] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384 [78], per McHugh, Gummow, Kirby and Hayne JJ.
[29] Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at 455-456 [28].
[30] Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at 592 [44], per French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ.
[31] See, for example, Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7, per Mason J; Tiver Constructions v Clair [1992] NTSC 86; (1992) 110 FLR 239 at 245, per Martin and Mildren JJ; Dobbs v Ward [2002] QSC 109; (2003) 1 Qd R 158 at [21].
[32] Exhibit 2 in the Local Court proceeding.
[33] Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28], per French CJ. See also R v Sophear Em [2003] NSWCCA 374 at [63].
[34] The Queen v Layt [2018] NTSC 36 at [72] - [75].
Nicholas
Cann [2018] NTSC 83
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1; George v Rockett [1990] HCA 26; (1990) 170 CLR 104; Prior v Mole [2017] HCA 10; (2017) 261 CLR 265; Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446; Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573; Parker v Comptroller-General of Customs (2009) 83 ALJR 494, applied
Tiver Constructions v Clair [1992] NTSC 86; (1992) 110 FLR 239; Dobbs v Ward [2002] QSC 109; (2003) 1 Qd R 158; The Queen v Layt [2018] NTSC 36, referred to
Nicholas v Cann [2018] NTSC 83
(1980) 144 CLR 1
(1990) 170 CLR 104
(2017) 261 CLR 265
(2009) 239 CLR 446
(2011) 242 CLR 573
(2009) 83 ALJR 494
(1992) 110 FLR 239
(2003) 1 Qd R 158
(1966) 115 CLR 266
(2018) 261 CLR 265
(1998) 194 CLR 355