R v Large - [2019] NSWDC 627 - NSWDC 2019 case summary — Zoe

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R v Large

[2019] NSWDC 627

District Court of NSW|2019-03-29|Before: Smart J

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Source facts

Court

District Court of NSW

Decision date

2019-03-29

Before

Smart J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

INTRODUCTION

The accused was arraigned on Monday 25 March 2019 on 3 counts to which she has pleaded "not guilty" to permit resolution of 'pre-trial issues'. The allegations in essence are:
On 28 January 2018 at Paddington she did knowingly take part in the supply of a prohibited drug (12.41 grams cocaine);
At the same time and place she did knowingly take part in the supply of a prohibited drug (8.38 grams MDMA);
At the same time and place she did possess property where there are reasonable grounds to suspect the property is proceeds of crime ($13420 cash). 1. Six sitting days later after an initial day and a half estimate the evidence and the submissions were concluded. 2. The charges arose from the arrest of the accused and Matthew Copeland at about 12:45am on Sunday 28 January 2018 in Hopetoun Street Paddington after a search of the vehicle the accused was driving with Copeland as a passenger. The search revealed the prohibited drugs and cash identified in the counts.
Initially the matters identified for determination were: 1. The admissibility of evidence as a result of a search of a motor vehicle by the police which was alleged by the accused to be either illegal or improper. 2. The admissibility of evidence of opinion of the accused's demeanour. 3. The admissibility of SMS type messages through a "messenger app" retrieved from the phone said to be in the possession of a co-accused Mr Copeland. (This was widened to the admissibility of evidence in relation to the finding and examination of "the phones") 4. The admissibility of opinion evidence from the officer in charge of the case as to matters relating to the character and conduct of drug trafficking. The admissibility issue in relation to (c) above was widened to a challenge to the admissibility of evidence relating to the possession of particular phones and the derivation of evidence from the examination of those phones.
The court heard evidence from three police officers who are involved in the questioning and investigation of the accused and Mr Copeland from about 12:30 AM and following on 28 January 2018. They were Senior Constable Ward (then a Constable), SC Aston and then Probationary Constable Pranic. Another constable who attended subsequently and was responsible for placing for mobile phones in exhibit bags at Waverley police station (Constable Leary) gave evidence as did the instructing solicitor for the Solicitor Advocate representing the interests of the learned Director of Public Prosecutions. The accused gave evidence as well. The Exhibit list which forms part of the court papers sets out the documents that were tendered either during or in relation to, the evidence given by the witnesses. I will refer to particular exhibits on a needs basis although not all exhibits need to be specifically identified.

[2]

OUTLINE OF THE CROWN CASE AND SUMMARY OF SOME OF THE VOIR DIRE EVIDENCE

At about 12:30 AM on the morning of 28 January 2018 then Constable (now Senior Constable) Ward, Senior Constable Aston and Probationary Constable Pranic were patrolling in a marked police vehicle driving in an easterly direction on Glenmore Road. They followed for a period of time a dark grey Mazda 2. SC Ward was driving the police car. The course of the police car and the observed course of the Mazda are set out in Exhibit 2 and for the purposes of this judgment I have no reason to doubt that it is reasonably accurate. As the exhibit shows the police car turned off from its course behind the Mazda but when the police car was in Union Street Paddington, Constable Ward claimed that he saw the Mazda in his rear vision mirror travelling near the intersection of Broughton and Union Streets and saw it "from a stationary position accelerate harshly".
SC Ward did a U-turn and followed what he believed to be the course of the Mazda, coming upon it in a stationary position in Hopetoun Street just around the corner from where he saw it travelling in his rear vision mirror. He stopped the police vehicle behind the accused's car, turning on his blue and red lights and alighted from the police vehicle ostensibly to administer a roadside breath test. The evidence establishes that he was in possession of a relevant device for breath testing for alcohol that was in his possession but not engaged on this shift at any time. However he did not administer a breath test of the accused. The other two police officers also alighted and walked to the passenger side of the vehicle where Senior Constable Aston engaged in a conversation with the passenger whilst S.C Ward spoke to the driver. The Probationary Constable was apparently not involved in any discussions but was there to assist if needs be. He claims to have overheard snippets of the respective conversations.
SC Ward after talking to the accused for a period, identified inconsistencies in the accused's account as to her relationship with the passenger, where she had been earlier that evening and to where she was driving and also made observations of her demeanour that led him to suspect that the driver and the passenger were in the area to supply prohibited drugs.
SC Ward claims that the accused was holding a white Samsung mobile phone in her hand while she was sitting in the driver's seat. When she got out of the motor vehicle he said a white iPhone was found on the driver's seat. Copeland was alleged to be in possession of another white Samsung mobile phone alleged to be identical to that of the accused. A later check of the phone said to be in the possession of the accused revealed that its service number was listed under the contact name "Bubbles" in the phone said to be in the possession of Copeland which was decoded (by keying in the simple code 0000) and an examination of it revealed a number of "conversations" on a messaging app between the phone in Copeland's possession and the number for the phone alleged to be in the possession of the accused. The Crown case is that a number of the messages can be interpreted as related to deliveries for drug supply. A fourth phone was found in either a black laptop bag or in a woman's handbag found behind the passenger seat in the rear of the car, depending upon which version from the police officers one chooses to believe.
The Crown case is that both the accused and Copeland were removed from the car and cautioned. A search was conducted of the car and prohibited drugs were found in a brown wallet located in the compartment of the passenger side door and inside the black laptop bag three Brown wallets also containing prohibited drugs in various resealable bags. The sum of $13,420 was also found in a shaving kit style bag inside the laptop bag. The two accused were arrested and conveyed to Waverly Police Station.
Ultimately there were 88 capsules, weighing 8.38 grams, of MDMA and 18 clear resealable bags containing 12.41 grams of cocaine found in the laptop bag and in the other brown wallet. The accused in this matter declined to answer any questions when formally interviewed. Forensic procedures were undertaken in respect of each accused. Mr Copeland's DNA profile was found on some resealable bags containing prohibited drugs. I am not informed that any DNA profile of the accused was located on any item directly associated with the prohibited drugs or on any mobile phone found.
The accused in her evidence admitted driving the Mazda with Copeland from Darlinghurst and stopping in Hopetoun Street, speaking to SC Ward, not in exactly the same terms as he detailed, being in possession of the iPhone found, but stating that it was in her handbag which was behind the driver's seat, claiming no knowledge of any Samsung phone except for one that she saw in the possession of Copeland that he put on a magnetic holder on the dashboard when he got into the car at Darlinghurst five or 10 minutes before being spoken to by police. She denied at any time accelerating harshly or seeking to avoid the police as had been alleged in the evidence of SC Ward. She denied knowledge of the presence of the drugs and the cash and denied any involvement in delivery of any drugs, having only picked up Mr Copeland five or 10 minutes before being spoken to by police at 12:30 AM. She denied that she was ever "cautioned" by any police officer, claimed that she had been "intimidated" by the close physical presence of SC Ward, by things that he said to her and by his general conduct. She said that she had no prior criminal convictions. She denied being told she was placed under arrest.
In summary the key areas of dispute between the primary count given by SC Ward and the accused were: whether the accused gave competing versions as to her relationship with Copeland, whether the accused told SC Ward that she had earlier been at the Royal hotel (a hotel that she would have driven past on her trip along Glenmore Road to where she was spoken to by police), whether she was in possession of a white Samsung phone at any time, whether her iPhone was on the driver's seat, whether Ward had spoken to her and acted towards her in a manner that she regarded as intimidatory, whether she had the appearance described by SC Ward of being red-faced, watery eyed and having shaking hands when spoken to by him.
Some of the factual issues arising from the evidence that were related to the legality of the police conduct towards the accused and the searching of her car were: the circumstances of approaching the accused's vehicle in the manner described by the police, the purpose of the discussions had with the accused before she was cautioned, what was said or done by SC Ward and the accused to justify the decision to search the vehicle (as well as what was said or done in the interchange between Senior Constable Aston and Copeland) and the circumstances of the searching of the accused, the co-accused and the motor vehicle, the finding of particular items such as mobile phones and their retention, as well is the continuity in police possession of those items.
A number of matters were not in dispute. These matters included the fact that the accused was in control of the motor vehicle and was a driving Copeland at the time police spoke to them, relevant drugs and cash were all found on the passenger side of the vehicle in immediate proximity of Copeland, the accused knew Copeland, the accused had driven her vehicle along Glenmore Road from the Darlinghurst area, no alcohol breath testing occurred, Hopetoun Street is a relatively narrow street with parallel parking on the opposite side of the road in which the accused vehicle was facing and rear to front parking on the eastern side of the road adjacent to where her vehicle was stopped.
There are a number of other matters to note arising from the evidence of the police officers. Both SC Ward and SC Aston prepared detailed statements of conversations had with the accused, SC Ward on 30 January 2018 and Constable Aston between 30 January 2018 and 13 February 2018. Unlike Constable Pranic who prepared his statement some hours after the accused was charged in the early morning of 28 January with the aid of an occurrence pad entry prepared by SC Ward, they purported to record what they asserted was the entirety of the conversations they respectively had or heard in detail in the first person. None of these police officers had made any contemporaneous note of conversations and there were no recordings of those conversations. The closest to any contemporaneous record of what may have been said by SC Ward to the accused is to be found in the representations that he made to the accused in the course of the electronic interview conducted just after 3am that morning when he put particular matters to her as to what had occurred about 3 hours before and a "COPS" entry with which I was not provided.
Senior Constable Aston was present for this interview. It turned out that both police officers did not have "prodigious" or particularly good memories to the point where they either remembered things that were not in their statements as occurring when prompted, could not remember conversations that they had with one another outside court before giving evidence, remembered things differently from one another in terms of things that were done or said or gave completely contradictory accounts (particularly in the case of SC Ward) about matters of some importance, such as when the mobile phones seized were removed from exhibit bags that had been set up by Constable Leary (a female officer) to be examined by him. There was conflict in the evidence of Constable Ward and Constable Leary as to the character of the containers in which the mobile phones were placed at the scene for transfer to Waverley police station and the number of exhibit bags that were used to house the mobile phones seized at the place of arrest.
In particular, with regard to SC Ward's evidence there were a number of occasions where he changed his evidence from that contained in the statement or claimed that events occurred which were not contained within his statement of 30 January 2018. For example he was sure that he asked the accused when first speaking to her whether or not she had been drinking or how many drinks she had earlier. He said he normally said this or something like this. But there is no reference to the question in his statement. He expressed some doubt in his evidence about whether the accused had said she had been to the casino, although that is contained within his statement. He stated in his statement that he had asked Mr Copeland some questions, but said in his evidence in cross-examination that he wasn't asking Mr Copeland any questions. When he said that he had asked the accused whether there were any drugs in the car he had put in the statement that the accused had said "I don't want to say". But in the COPS entry authored by him he had recorded the accused had said "I don't want to say anything". There is a difference of substance in the assertions. He then suggested in his evidence that he must have been wrong when he put that in the COPS system. He did not give evidence or assert in his statement that he said to the accused words to the effect; "Paddington is a well-known area for drugs", but conceded the possibility that he did.
There were more substantial inconsistencies in his evidence. In his statement and in his initial evidence in chief he said that the "fourth phone" was located in the "black laptop bag", which was the bag that contained the drugs and the money. He then later in cross-examination doubted himself that the black phone was in the laptop bag, although he had a positive recollection that it was. Notes of his conference with the Crown Prosecutor were produced which showed that conflict in the evidence between himself and SC Aston was brought to his attention. Later he told the court that before he commenced his evidence on the voir dire, as he was "walking into court", he talked to SC Aston and from that conversation, realised that there was a possibility that he was wrong about the location of the phone. He then gave evidence that SC Aston told him that he was sure that the fourth phone had come from a handbag and that after that conversation he started to "doubt myself". He initially said that the discrepancy between his recollection and the recollection of other people he became aware of "a couple of weeks ago". Then he said that he had only become aware about the discrepancy or the possibility he was wrong "a week before" and then he said that it wasn't until "we actually walked in, I sat down here, that I realise that, I was possibly wrong". SC Aston gave a different account of that conversation outside court, but denying that he had discussed the "fourth phone". One of the two officers is not telling the truth about that conversation. SC Aston also asserted in his statement and in evidence that Ward administered a breath test on the accused of which there is no other evidence. That invention has the hallmark of justifying, falsely, the 'stopping' of the accused. He gave evidence that he 'remembered' Ward with the 'alcolizer' "pointing it towards the driver and saying 'count 1 to 5' ".
Another 'mistake' by SC Ward, and subsequent correction in his evidence, was his assertion in his evidence in chief that he had taken the four phones seized which were held in the exhibit room at Waverley Police Station from there to Rose Bay Police Station at the time that he prepared his statement on 30 January 2018. Photographs were produced to the court of the four exhibit bags and I asked the Crown to have produced to the court the original exhibit bags if they were still in police possession (which they are with the mobile telephones within them). These were to be produced to the court so I could see more clearly the dates and signatures of people that had access to the exhibits. SC Ward was recalled after the exhibit bags were produced to the court and confirmed that what was recorded on the bags showed that he and another police officer had inspected the bags on 21 February 2018. He said that he was 'incorrect' in his previous evidence as to the date that he inspected the phones. It also transpired that the exhibit register showed that he was not the officer that signed out for the exhibit bags, but another officer who was a work colleague but not involved in the investigation. He said on 27 March 2019 when he first gave evidence that he was "confident" that he inspected the phones on 30 January 2018. He would have been interested to inspect the phones "straight away". He later gave evidence to which I have referred on 29 March 2019 confirming that any such inspection that took place occurred on 21 February 2018. He also changed his evidence as to the time that he photographed the phones revealing their IMEI numbers (unique to each phone). He initially said in his evidence that that occurred on 30 January 2018, but later admitted he was wrong.
He had a memory that he had photographed two of the phones together at one point. However no such photograph was produced either under subpoena or to the court. The Crown concedes there is no photograph of two phones next to each other. In relation to the examination of the phones he also said that after he examined them they were returned to their exhibit bags. However, later he indicated that another officer had been given the phones to conduct a "Cellbrite" examination (a method of downloading data on a digital mobile phone). Having previously asserted his capacity to remember, word perfectly, conversations that occurred over a day before, he was asked by myself if that was correct that there were a couple of matters in his evidence that he conceded he either didn't remember when he prepared his statement or just got wrong. He asserted in reply that he only got "one thing" wrong. But was then drawn to other matters that reflected errors in his statement and/or his evidence.
Having regard to the manner of giving their evidence and the self-admitted mistakes they made, I do not have confidence that in preparing their statements they were able to remember word perfectly what had been said either by themselves or the accused, or the co-accused for that matter. There is some support for aspects of SC Ward's evidence in the representations made to the accused during the course of the electronic interview conducted in the early morning of 28 January 2018. I discuss that matter later..
As for SC Aston, he could not remember how much of the detail of the conversations that occurred at the scene of the arrest was prepared by him in his statement on 30 January 2018 before concluding his statement on 13 February 2018. In other words, neither he nor the court can know the proximity of the preparation of relevant parts of the statement occurred to the events at the scene of the arrest. It causes one to doubt his capacity in preparing his statement, to recall precisely what had been said or heard by him. He, like SC Ward, started off as a confident witness but wound up as an unimpressive witness. SC Ward's "mea culpa" presentation on the last occasion he gave evidence when he produced the original exhibit bags to the court at my request was delivered in a crest fallen apologetic manner. I had the uncomfortable feeling that he had changed his evidence as to when he examined the contents of the exhibit bags from his earlier confident assertions because of the realisation that if the court was to examine the exhibit bags the exact date of the examination he conducted would become self-evident. Though I note this was not put to him directly.
The accused's evidence was not satisfactory in some respects. Whilst she was a "steadfast witness" she denied particular conversations occurred the essence of which were put to her in the electronic interview a few hours after her arrest. Her evidence as to why she was driving in Paddington and how she came to meet Mr Copeland was unconvincing. Particularly when compared to the representations allegedly made by her that were put to her in the electronic interview.

[3]

CONTENTIONS OF THE ACCUSED

Given the detail of the accused's submissions I have set them out, as far as the legal issues are concerned, largely unedited in their written form. The emphases are those of counsel for the accused or her solicitor. I shall not repeat legislative provisions cited in the submission when I turn to them in my consideration of the issues.
It was submitted that the improper and unlawful conduct by police in this case arose from the following: 1. The unlawful, or at least improper, stopping of the accused's vehicle on the basis of the misuse of the power to conduct an RBT (that is, for the ulterior purposes of conducting an investigation, and not for the bona fide purposes of conducting an RBT); 2. The unlawful questioning of the accused and co-accused; 3. The unlawful detention of the accused and co-accused; 4. The improper exercise of the power to search the vehicle in the absence of reasonable grounds for so doing.
The bases upon which the application were: 1. Evidence as to the search was obtained in the consequence of an impropriety and/or contravention of an Australian law in respect of the stopping of the motor vehicle because the court would be satisfied that the vehicle was not actually stopped for the lawful purposes of undertaking a random breath test (as claimed by the police); 2. In the alternative, even if the court is satisfied that the stopping of the vehicle was for the purposes of undertaking an RBT, then the stopping of the vehicle was "unlawful" in that that RBT was used for the basis of carrying out pro-active policing duties, namely to create an opportunity for "pro-active crime team" police to conduct questioning, investigation and search, without a proper power to do so, as opposed to a genuinely utilising the RBT provisions for their road safety purpose; 3. In the further alternative, even if the court is satisfied that the vehicle was pulled over for the bona fide purposes of undertaking a RBT and no other purpose, then the subsequent search of the vehicle arose from impermissible detaining (sic) and questioning of the occupants of the vehicle; 4. In the further alternative, even if the court finds that the questioning and detaining of the occupants of the vehicle was permissible, at the time the police determined to search the vehicle they still had no reasonable grounds to do so
It was submitted that the police conduct was for the purposes of an unlawful "random crime stop", as referred to in R v Buddee [2016] NSWDC 422 (at [60]-[62]).

[6]

The LEPRA power

The power to stop, detain or search a motor vehicle without a warrant for the purposes of conducting a search is allowable under s 36 and 36A of LEPRA: S 36 LEPRA: power to search vehicles and seize things without warrant (1) A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exists: (a) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained, (b) the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence, (c) the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence, (d) the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence, (e) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985, (f) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk. (3) A police officer may seize and detain: (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) 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 (c) any dangerous article, and 33. A further power is provided more generally under s 36A of LEPRA: 36A Power to stop vehicles A police officer may stop a vehicle if the police officer suspects on reasonable grounds that the driver of, or a passenger in or on, the vehicle is a person in respect of whom the police officer has grounds to exercise a power of arrest or detention or a search power under this Act or any other law. (That matter does not arise here)
A power is provided under s14 of LEPRA for the questioning and disclosure of identity of a driver or passenger, where the police suspect the vehicle was used in connection with an indictable offence. (That does not arise in the context of the facts in this matter)

[7]

The law in respect of questioning

There is no power contained in LEPRA that provides for questioning of citizens prior to arrest. A person has a right to silence. There is no power to arrest or detain someone for the purposes of questioning. Further, a person must be cautioned before being questioned by police (as is required by Part 9 of LEPRA when a person is detained, and statements made while under arrest are obtained improperly without a caution being administered in accordance with s139 of the Evidence Act 1995).
The admissibility of the evidence of the ensuing search are objected to on the basis that they took place in consequence of the contravention of the unlawful stopping, questioning and detaining of the occupants. There is a clear chain of causation between the contravention of the power to stop and/or search and the obtaining of evidence within the car. The subsequent search could not have taken place but for the stopping. (Rondo (2001) 126 A Crim R 562, at [5] and [50]).
It was submitted that if the motor vehicle was not pulled over (although it had already been pulled over) for the purposes of an RBT, then there was no lawful basis for pulling over the car, as no evidence has been adduced as to the basis for a suspicion under s 36 or 36A of LEPRA for the stopping of the motor vehicle.
Further it was submitted that if the Court was satisfied that the motor vehicle was pulled over using the RTA power to conduct an RBT, but for the real purpose of conducting an investigation, then that evidence is tainted by the unlawful exercise of the power under the RTA.
If the Court was satisfied that the car was pulled over for the lawful purpose of conducting an RBT, and that the search took place thereafter on the basis of the questions asked of the occupants, then it is submitted the search of the vehicle is unlawful as the questioning and detention of the occupants of the vehicle was unlawful and improper.
If the Court was satisfied that the car was pulled over for the lawful purpose of conducting an RBT, and satisfied that the questioning and detention of the occupants was lawful and that a search took place thereafter, then it is submitted that the search was unlawful as at the time the decision was made to search the vehicle there were no reasonable grounds upon which any suspicion was based.

[8]

Reasonable suspicion

The propositions concerning the basis upon which a suspicion might be considered to be reasonable were summarised in Rondo[2001] NSW CCA 540 by Spigelman CJ (at [53]) as follows : 1. A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E [the predecessor to s 36 of LEPRA]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. 2. Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. 3. What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. (emphasis added)
Reliance was also placed upon Hyder v Commonwealth (2012) 217 A Crim R 571, at [15], where McColl JA, in addition to those matters above substantially reflected in the Rondo judgment, noted: 1. What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time"... and determined not according to the subjective beliefs of the police at the time, but according to an objective criterion (see [15] at (7)); 2. Suspicion may be based on hearsay information, and it can be based on information that is given anonymously or is wrong. However, whether a belief is reasonable will depend on the source of the information and its context, seen in the light of the surrounding circumstances (see [15] at (8)); 3. The identification of the particular source (of information) who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and therefore to determine that reasonable grounds for [it] exist (see [15] at (9)).
It was acknowledged in Rondo (at [55]) that it does not necessarily follow that just because stopping of the motor vehicle was unlawful that the evidence of the search should automatically be excluded. Spigelman CJ held that police having unlawfully stopped a vehicle were not precluded from investigating, and "much will depend on the offence alleged and its relative seriousness as well as other circumstances" (at [56]). As was found in Streat v Bauer; Streat v Blanco (unreported) NSW Supreme Court, Smart J 16 March 1998, police radio reports that the car pulled over by police "may be used for break and enter offences" was considered "nebulous" and not sufficient upon which to base a reasonable suspicion given its lack of specificity, without information as to whom the information had emanated or their reliability, and was speculative (Streat at page 12-13).
At [55] in Rondo Spigelman CJ cited some examples of what might be considered to be the basis of a reasonable suspicion: "they may see something which reasonably makes them suspect that a serious crime has been committed such as a balaclava with eyeholes, a knife with blood or a housebreaking implement". In that case the sighting of the driver leaning over and appearing to place something in its glove box (later found to contain several bags of marijuana), was not sufficient to base a reasonable suspicion in the circumstances of that case.
R v Buddee [2016] NSWDC 422, Judge McClintock SC dealt with a similar issue as to admissibility after a random breath test, referred to in that case as a "random crime stop". His Honour said at [104]-[108]: Applying these principles, it is clear that Parliament intended to distinguish motor traffic powers from criminal investigation powers. The random nature of the motor traffic powers is a very significant interference in the liberties of citizens lawfully going about their business. They are not part of the criminal investigation powers conferred by LEPRA. There was a clear intention to delineate powers based on suspicion of the commission of crime from powers directed primarily at ensuring road safety and proactively preventing driving over the prescribed content of alcohol. The authorities and statutory interpretation all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection. That is what happened in this case. I do not find that there was a mixed purpose. It may be added that the police cannot rely on a statutory RBT power to engage in "proactive" policing or satisfy a curiosity or hunch not amounting to a specific state of mind as required by LEPRA. At no time, of course, prior to the stop and detain, did the police claim to have any relevant reasonable suspicion. Nor, prior to the elicited admission, was there any material available upon which a suspicion could have been based.
It is submitted by the accused that the evidence in this case leads to an inference that the decision to investigate the car was made prior to the motor vehicle being stopped. If that is not accepted, then the decision to search the car was made shortly after the car was stopped, as a result of engaging in unlawful questioning and improper detention of the occupants. This is a case where police engaged in "proactive policing" to satisfy a curiosity or "hunch" not amounting to a specific state of mind as required by LEPRA and a case where at no time prior to their interrogation of the accused and the co-accused was there any material available upon which a suspicion to search the car could have been based.
The accused's counsel sought to summarize the relevant evidence to the matters above at [27]-[62] of the written submissions and I have taken that summary and particular evidence into account, and have taken into account particular evidence identified by the Crown in its submissions.

[10]

The stopping of the vehicle

The police officers involved in the stopping and searching of the motor vehicle do not claim that they stopped the motor vehicle as a result of a suspicion as contained in LEPRA, that is, a suspicion based upon reasonable grounds that the persons within the car had items in their possession unlawfully obtained or that the vehicle contained a relevant prohibited drug. SC Ward agreed that at the point when he stopped the vehicle, what he had observed was not suspicious enough to arrest either the driver, or the passenger, nor to search the car.
On this basis the Crown cannot, and do not, assert that the police were exercising a lawful power to stop the motor vehicle under s 36 (or 36A) of LEPRA. Rather, the Crown relies solely upon the "stop" power under s.3 of the RTA to undertake a RBT.
It is submitted that, in the present case, the police did not properly exercise the power pursuant to s.3 of the RTA to undertake an RBT, but rather, used such a power to justify what was otherwise a pro-active and investigative "sussing" out of the occupants of the vehicle. In other words, the RBT power was used as a "ruse" to facilitate the investigation of the occupants of the vehicle. The purpose of the RBT power is the maintenance of the road safety system, not for the purposes of investigation, citing R v Buddee, at [104]-[105] earlier quoted:…… The random nature of the motor traffic powers is a very significant interference in the liberties of citizens lawfully going about their business. They are not part of the criminal investigation powers conferred by LEPRA. There was a clear intention to delineate powers based on suspicion of the commission of crime from powers directed primarily at ensuring road safety and proactively preventing driving over the prescribed content of alcohol. The authorities and statutory interpretation all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection.
While SC Ward said that there was a "possibility" that the driver was intoxicated, it is submitted the Court would not accept that the officer formed the view that an RBT was required for that purpose, based on what is described of the accused's driving. That is, moving from a stationary position on the corner of Union and Broughton St when the accused says that a car was reversing towards her and SC Ward agreed he could not see what was occurring in front of her car; coupled with the accused attempting to park lawfully on Hopetoun St by slowing down/stopping, with brake, head lights, and indicator on).
Further, SC Ward's immediate conduct is inconsistent with his claimed state of mind. He did not, in fact, conduct the RBT. Had this actually been the officer's intention, one would expect him to have conducted the RBT within close proximity to stopping the vehicle. The officer's complete failure to conduct the RBT is more consistent with a focus upon "pro-active" policing and investigation. The officer did not even conduct the procedure he said he intended to conduct. Whilst it has been claimed by SC Ward that other matters "took over", those matters only came into existence as a direct result officer's unlawful investigative questioning.
In these circumstances, the strongest indicator of intention is action; the action being, not conducting a breath test for a long enough period to conduct questioning of both the driver and the passenger that "built" "slowly, slowly, slowly" towards the possibility of some offence being committed. The conduct in which the officer actually engaged was entirely consistent with investigation at large. Further, SC Ward's evidence that his questions to the accused were for the purposes of finding out whether it was "more than just a random breath test" suggests that the officer had an ulterior purpose in mind when deciding the stop the accused.
If this Court is satisfied (on the balance of probabilities) that the police did not stop the motor vehicle for the purpose of undertaking a RBT per the RTA, but rather were doing so for investigative purposes, then there is no other lawful basis for the stop.

[11]

The questioning of the occupants

If the Court is satisfied that the police did stop the vehicle lawfully, for the purpose of undertaking the RBT, the Court would be satisfied that the ensuing conduct was not lawful.
Both SC Aston and SC Ward acknowledged they did not have the power to ask questions of the accused nor the passenger. There is no such power in LEPRA, nor in the RTA, to ask questions of the driver and passenger of a vehicle in the way that was done in the present case. It is submitted that SC Ward's questions were clearly investigative, and the Court would not accept that the questions were simply "light-hearted", "a little bit of a joke" and "general chit chat", in circumstances where the questions were geared towards finding out where the accused had been, what she was doing, whether she could be "caught out" on any lies and whether it was "more than just a random breath test". SC Ward also said that the purpose of keeping it "light-hearted" was to assess demeanour, see if there are any lies, and because "I want the opportunity to ask a few extra questions that I won't get to". It is submitted that SC Ward deliberately conducted unlawful questioning, acknowledging "I don't have the power to ask anyone anything" yet persisted in doing so, for the purposes of investigation (despite as he said under cross-examination being "uncomfortable" with using the word "investigation").
SC Ward accepted that in order to determine whether someone had been drinking, he could ask a person whether they had consumed any alcohol that night, which would also give him an indication as to whether the person was telling the truth or lying about their intoxication. While in retrospect SC Ward appeared to justify his questioning by adding to his evidence that he "definitely would have" asked whether she had consumed any alcohol, he then conceded that it may be a question that had "merged" into other cases. This is an example of SC Ward giving evidence of his conduct framed in terms of what he understands he would be expected to do, rather than giving evidence of what he positively and actually remembered doing.
SC Ward also said that his "light-hearted" questions, at one point, turned into "serious questions" when he asked "are there any drugs in this vehicle" the first time. It is submitted that there was nothing to distinguish "light-hearted" questions from "serious questions" other than what is said to have been in his mind at the time. The "serious questions" still enquired as to where the accused was going (i.e. why she was parking).
While the unrecorded conversation with the accused is not sought to be led at trial, the Court can take into account the police's failure to record the admissions as improper (in circumstances where SC Aston had at his disposal a notebook, PC Pranic had a "Mobipol" device and SC Ward had at his disposal a mobile phone). This is also a factor relevant to the Court's assessment of the police's attitude towards their obligations and exercising of powers that night.

[13]

The grounds for the search

It is submitted that, even if the Court finds that the stopping of the vehicle, and the questioning and detention of the accused, was lawful or proper, the Court would still not be satisfied that there were reasonable grounds to conduct the search of the vehicle.
The grounds said to be relied upon by SC Ward are that the accused avoided him, lied to him, and was extremely nervous. Presumably, this is relied upon to justify a search pursuant to s36 of LEPRA, that, the police officer suspected on reasonable grounds that the vehicle is being, or was, or may have been, used in or in connection with the offence of drug supply, or contained anything used or intended to be used in connection with an offence of drug supply (s.36(1)(c) or (d)).
It is submitted that such grounds are not "reasonable" in accordance with the principles in Rondo, on the following bases: 1. The Court would not accept the evidence of SC Ward that the accused was avoiding him, particularly in circumstances where the accused's stop/start motion at the corner of Union and Broughton St were not unusual (particularly in light of the accused's explanation, both to the Court and at the scene), and also in circumstances where the act of parking said to be in avoidance of the police was administered carefully, with the use of an indicator and headlights; 2. The Court would not accept the evidence of SC Ward that the accused had "lied" (in what is submitted to be unlawful questioning in any event), in circumstances where the accused provided an explanation (to the Court and at the scene) as to where she had been, where she was going, and why she had stopped; 3. The Court would not accept the evidence of SC Ward that she was "nervous" in circumstances where SC Ward had never met the accused and made some limited observations at night-time; 4. Further, even if the officer's observation of the accused being "nervous" was accurate, it is submitted that this is not a reasonable ground for the suspicion said to be held by police. The Court would find that it would be commonplace for citizens to appear nervous in the presence of police, particularly in the present case where the accused was being asked multiple questions in the presence of three police officers; 5. Further, even if the court was to accept that the accused avoided police, lied to police, and was extremely nervous, there is no rational basis on the evidence to justify SC Ward specifically suspecting that the occupants were engaged in anything to do with drugs. All that could be said was that they were people who did not wish to engage in persistent and unsanctionable "friendly" "light-hearted" "chit-chat" with police after being stopped in the middle of the night. If this can justify a search, it places an obligation on citizens to co-operate and comply with police, and do so comfortably without any fear or nerves, at risk of be subject to the coercive investigative powers of police.

[14]

The balancing exercise of the discretion under s 138 (1) by reference to s 138 (3) considerations

It is contended that the following matters are relevant in exercising the discretion as to whether to allow or reject the evidence concerning the results of the search of the motor vehicle under s.138(3): 1. The probative value of the evidence: The evidence of the search, is probative of the finding of the items the subject of the charge, and the finding of phones. Without the search, there is no evidence of the items. However, the strong availability of an inference consistent with the innocence of the accused, as opposed to her passenger, reduce the probative value of the evidence. 2. The importance of the evidence in the proceedings: Taken at its highest, the evidence is capable of supporting an inference that the items found in the search are in the possession of the accused and co-accused. This must be considered in light of the element of knowledge that must be proved in the proceedings, and evidence given by the accused in the voir dire: in short the conviction of the accused on the admission of this evidence is not certain. 3. The nature of the relevant offence (c): The offence of drug supply is generally considered a serious offence, but whilst the quantity of drugs is an indictable quantity, they are quantities that under the most recent amendments to the Criminal Procedure Act can be dealt with summarily in the Local Court. This must be measured against the gravity of the impropriety, and the public policy issues that arise. 4. The gravity of the impropriety or contravention and whether it was deliberate or reckless (d) (e and (f)): Assuming a finding that the motor vehicle was not stopped for the purposes of an RBT as claimed, or alternatively that it was carried out for the ultimate reason of investigation/searching the vehicle it is submitted that the gravity of the unlawful conduct and impropriety was significant, involving a breach of the laws in respect of the power to stop vehicles. Given that the stopping of the vehicle occurred in the context of "pro-active policing", and given the evidence of the officers, it is submitted that there was deliberate improper and unlawful conduct, particularly in questioning the accused and the passenger. It would appear to be at least "reckless". Should the court find the stopping was unlawful, or if the evidence was obtained in consequence of an impropriety, then the stopping of the vehicle and detaining of the occupants amounted to an unlawful interference with the accused's freedom of movement and freedom from harassment. Spigelman CJ considered these matters "important" in Rondo at [60]. They are a breach of Common Law rights and of Article 9 of the International Covenant on Civil and Political Rights. It is submitted, that any infringement of a fundamental right or liberty ought to be regarded as significant. The test as to the reasonableness of the suspicion grounded in the statutory provision providing for the power to stop, search and detain, is recognition of the fact that officers with such powers are to be accountable reflective of the compromise reached within the legislative provision between "the values of individual liberty and public order" (see [15] Hyder citing Ohara v Chief Constable of Royal Ulster Constabulary). It is disputed that any impropriety was small: the contraventions were cumulative. There are significant public policy considerations in ensuring that police are not subjecting citizens to routine searches or deprivation of their liberty. 5. The difficulty of obtaining the evidence without impropriety or contravention of an Australian law (h): Evidence of this nature should be obtained within the safeguards of the ample powers according to the safeguards in LEPRA.
The criteria as set out in Bunning v Cross (1978) 141 CLR 41 is also a useful articulation of the principle public interests that must be balanced in the exercise of the discretion to exclude. The High Court indicated that the court must weigh competing requirements of public policy: "the desirable goal of bringing to conviction the wrongdoer" on the one hand and, on the other the avoidance of "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" (at 74, per Stephen and Aicken JJ, and at 77-78). Those comments are apt in this case.
In Buddee, His Honour states the following in undertaking the assessment pursuant to s138 to exclude the evidence of the search: I also take into account and note that the court should refrain from being seen to unjustifiably condone police misconduct. There was some argument following my questions relating to the repeated observation by this court that the RBT power was being used for criminal investigation. I asked whether I could take into account the anecdotal material that appeared before me and which I have made previous decisions in respect of and whether this could be regarded as a routine abuse of power. I have been persuaded not to take judicial note of these matters. In particular, I have referred to my judgment in Pizarro where police random breath test powers were being used as a transparent ruse to pull over persons where their number plate was the subject of a return from an electronic number plate recognition system but where there was no reasonable suspicion. In that case I, having undertaken the balancing exercise, admitted the evidence. Obviously there is a desirability and public interest in punishing possession and potential supply of illegal drugs and in crime prevention generally. However the amount in this case is relatively small, as I have indicated. The matters that I have pointed to suggest to me that, in the exercise of this power, and having regard to the factual findings and the nature of the fundamental interference in fundamental rights, it is desirable to indicate that those rights are protected and that police are generally deterred from a cavalier attitude being taken to those rights.
In conclusion the court would be satisfied that the police acted both unlawfully and improperly, and the evidence of the search would be excluded pursuant to s138.

[16]

CROWN CONTENTIONS

The Crown made oral submissions in response to the detailed written submissions of the accused counsel. The Crown reminded the court of the onus being upon the accused in respect of s.138(1) Evidence Act 1995. In respect of s.36 LEPRA of the Crown referred to Schedule 3 of the Road Transport Act quoted by the accused's Counsel and submitted that the police had power to "stop" the vehicle in the manner they did in order to administer a breath test.
So far as differences between the evidence of the accused and the Crown witnesses, the differences in their evidence were acknowledged minor. It was clear that the accused was followed along Glenmore Road. On her own admission she had driven from Darlinghurst. In respect of the circumstances of her meeting Copeland it was submitted the court would find her account unreliable as it lacked sufficient detail. Also the court would not accept her account of believing that she was driving in the direction of Waterloo at Copeland's direction, would not accept that she didn't notice a police car behind her and that she needed to park her car to look at Mr Copeland's phone for a map. She was vague as to how she got on to Glenmore Road. The court could conclude that she understood what the constable was talking about when he put to her "that she had driven off so fast" to get away from him, as judged by her response explaining her conduct. The police officer had power to "stop" the accused's car pursuant to the RTA.
She submitted that the account of the police officers was entirely consistent with them administering a roadside breath test but at the same time involved "small talk" from which they were able to "build blocks" that ultimately led to the relevant reasonable suspicion. I take that to be an acknowledgment that there was no basis for "reasonable suspicion" up until the caution was administered. There was nothing unprofessional about the conduct of SC Ward. The court would not accept that no caution was administered, nor that either person in the accused car was relevantly arrested. The references to "beautiful girl" and leaning across the car seat were not truthful statements by the accused.
The decision to caution and search arose out of a combination of the events that happened in the presence of the police, including the accused referring to Copeland has her boyfriend and then referring to taking him to see his girlfriend, claiming to drive to Waterloo but heading in the opposite direction, her demeanour, looking to Copeland for support in what she said, claiming that she had been to the Royal Hotel (a hotel that she had driven past) and confusing accounts as to her movements. He had formed the view from her conduct of the vehicle that she was trying "to avoid" him. She identified the matters of dispute between SC Ward and other police and the accused, on her account, as; not referring to Copeland as a boyfriend, not saying she was driving to Waterloo, not being aware of the direction of Waterloo, not being cautioned, being referred to as "beautiful girl", having a red face shaky hands and watery eyes, not saying that she'd been to the Royal Hotel, amongst other matters.
These matters in combination provided a reasonable basis for forming the relevant suspicion required under s36 LEPRA. The Crown Prosecutor submitted that the accused gave an explanation for her conduct in her manner of driving and allegedly trying to avoid the police, which reflected an acknowledgement on her part of her manner of driving which SC Ward had said drew her car to his attention.
The Crown acknowledged that within the Crown case there were conflicts. These included Mr Ward's statement that he put two mobile phones in the one exhibit bag. However, the Crown said the Court would be satisfied by reference to Exhibit 12 that relevant phones were in single exhibit bags eventually and that the relevant phones were seized, had been taken back to the police station and were properly identified by their respective characteristics. The three critical identifiers were the triple 000 password for the phone that was in Copeland's possession (a Samsung), the relevant phone number for the phone said to be in the possession of the accused being on Copeland's contacts (another Samsung of the same size) and the iPhone being the only iPhone found. The fourth phone was distinguished by its size although it too was a Samsung.
The Crown pointed to the connection between the two Samsung phones by reason of the messages and the number to and from which they had been sent shown in the photographs in Exhibit 1 on the voir dire. By reference to Exhibit 14 it was clear that there were four separate phones all with different IMEI numbers registered to different people.
By reference to Exhibit 14 the prosecutor said photographs 1 and 2 of that exhibit identified the phone called the "Bubbles" phone, photographs 3 and 4 identified the iPhone, photographs 5 and 6 showed the "fourth phone" as was described found by SC Aston in the back of the car, and photographs 7 and 8 showed the phone located in Copeland's pocket.
The evidence of the identification of the phones had cogency and the messages in their terms, given the timing of messages and the link between the two Samsung phones, linked the accused to Copeland. The Crown case was that the accused was taking part in the supply of drugs by picking Copeland up and dropping him off, thus taking part in the supply. In the context of the messages received the driver must have been in possession of the "Bubbles phone". It was reasonable to conclude that Mr Copeland was not messaging himself and that the only other person could have been in possession of the phone with whom he was communicating was the accused. The timing of the messages in this context was inconsistent with her account of the time that she met up with Mr Copeland. The Prosecutor submitted that her self-admitted exercise of her "right to silence" was consistent with her having been cautioned.
With regard to the questioning of the accused there was no specific power required to simply ask questions. There was a query as to the power to detain, but the detention was not obvious. SC Ward was doing nothing illegal by simply asking questions. The admissibility of the conversations was not relevant to the issue of whether the search was lawful or not. She said in her submissions that the suspicion that he formed was slowly formed but not improper. As earlier mentioned he was "building blocks". Such de facto detention was for a very limited period of time. The reasonable belief that he had was based upon the evidence available to him. She referred the court to s.202 (LEPRA) and the decision in Rondo at [53], where reference is made to a need to consider the matter by reference to "all the surrounding circumstances". Ultimately the Crown submitted there was nothing unlawful or improper of the search.
It was submitted that even if there was an illegality or improper conduct, by reference to s.138 (3), the balancing of considerations militated in favour of admission. By regard to the matters therein to be considered the Court should bear in mind that the evidence was crucial to the Crown case, there was a public interest in investigating crime, drug dealing was hard to detect. It was further submitted that the purported impropriety was not so serious, neither intentional nor reckless.

[17]

THE ACCUSED'S REPLY

A number of matters were raised in reply. It was submitted that nothing could be inferred as to any "consciousness of guilt" about her conduct from her giving some explanation to the police officer about her manner of driving because the conversation with the police officer on her account had "several elements" to it and that her explanation was in response to questions asked of her by the police officer.
Her evidence about the conduct of her vehicle, when viewed accurately, shows her responding on her account to an assertion by the police officer that she had accelerated quickly and thus was being accused of avoiding the police officer. It did not reveal an acceptance of the truth of SC Ward's allegation to her. There was nothing unusual about her exercising her right to silence, because she said she was aware that she had a right to silence and the character of the questions had become interrogative or "investigative". It was submitted further that Constable Ward was obliged to caution the accused earlier because the questioning from the outset was of an investigative nature.
It was submitted that her earlier conduct, where she had been how she picked up Copeland and the like was only relevant to her credibility. The version she gave of her earlier movements was "consistent with innocence" which was relevant to considering the "probative value" of the evidence in the context of the terms of s.138 (3). Further submissions were made in relation to the reliability of the identification of Mr Copeland's phone.
It was further submitted in reply that it was "powerful" evidence of the fact that the police were conducting an investigation that there was no RBT test administered. It was also submitted in response to a question asked by the bench about the representations made to the accused by Constable Ward in the electronic interview that the assertions by him of what had occurred earlier in the night at the site of the arrest was no more probative than the matters contained within his statement.

[18]

CONSIDERATION OF THE ISSUES RAISED

The relevant statutory provisions that arise in this matter are ss.36 and 200 (LEPRA), Schedule 3 Ss3 & 4 RTA and s.138 Evidence Act 1995. I will turn to those provisions in due course. I do not need to set them out unless necessary. Ss 14 and 36A LEPRA appear irrelevant to the issues in this matter.
I have already made some general observations about aspects of the evidence given by the police. The critical evidence in relation to the treatment of the accused by police up until her arrest is found in the evidence of Senior Constable Ward although some evidence from Senior Constable Aston is relevant, bearing in mind he is the police officer who found the prohibited drugs and cash relevant to the specific charges in the indictment.
In the context of the evidence given as to the purpose of the police driving in the Paddington area prior to speaking to the accused, that is performing "proactive" policing duties, particularly having regard to the evidence of SC Ward that he was patrolling his command looking for anyone committing an offence or offences and deterring crime, there are good reasons for accepting the submission of the accused that the 'stopping' of the vehicle was for a purpose beyond simply administering a roadside breath test. This was demonstrated by the fact that all of the police officers in the police car got out of their car and approached the vehicle of the accused from both sides. Both SC Ward and SC Aston proceeded to question the driver and the passenger about matters relating to their previous movements and the like (not their consumption of alcohol) whist at the same time endeavouring to elicit information from them. I bear in mind the claim of ensuring the security of the officer administering the "breath test", but that doesn't explain PC Pranic getting out of the car nor the detail of the conversation claimed by SC Aston to be had with Mr Copeland. Bearing in mind I do not regard the two senior police officers as reliable historians, PC Pranic's very junior position and his lack of involvement directly in the contact with the passengers, SC Aston's attention to events is so 'incomplete', or false, he swears to a breath testing of the accused that did not occur, I do not accept the precise detail of their evidence as to what was said to and by the accused.
I do not accept the evidence of the accused as to the circumstances occurring immediately before she was spoken to by police. For example, her evidence as to meeting with Mr Copeland and the reasons that she was driving in Paddington in the direction in which she was heading, when first seen by police, do not accord with objective reality of the geography of Sydney. In the context of her claim that she was being directed by a person who had a connection with the address to which she said she was driving heading away from Waterloo. From the position in which I understood she picked up Mr Copeland all she had to do to travel to Waterloo, if that is where Mr Copeland wanted to go, was do a U-turn or else otherwise turn the car around and drive back past St Vincent's Hospital onto South Dowling Street and drive directly to Cleveland Street, turn right and then turn left at Elizabeth Street. I would have thought anyone with a basic understanding of the geography of inner-city Sydney would have known this. In this context I do not accept the evidence of the accused that she was so completely unfamiliar with the area that she did not know in which direction to drive to get from Darlinghurst to Waterloo and that she was so unfamiliar with inner Sydney that she did not know where Taylor's Square was. It is to be borne in mind that her motor vehicle driver's licence reflected her current address as in Elizabeth Bay, a suburb in the inner Eastern suburbs of Sydney, adjacent to Paddington and Darlinghurst and King's Cross. Her explanation for that address being on a licence was unconvincing.
In relation to this aspect of the matter, in order to get to where the police eventually spoke to her, having driven along Glenmore Road Paddington, it would appear that she drove through an area called the "Five Ways" which by definition has a number of roads leading into and out of it, which need to be chosen to further one's journey travelling from west to east. In other words at that intersection there are a number of options which need to be exercised in order to take the "correct" route. The accused gave no evidence of Mr Copeland giving any instruction as to which of the numerous options she should take as she either approached that intersection or pass through it.
It is clear, on any understanding of her evidence that she did drive past the Royal Hotel before she was spoken to by the police. It is apparent from Exhibit 2 that the police vehicle ceased travelling behind her vehicle for some time before her vehicle was seen again. Accepting as I do the fact that the police were driving behind the accused's vehicle I do not reject the accused's evidence that she did not see that vehicle whilst it was behind her. Even marked police cars at night with headlights on are difficult to identify by looking into a rear vision mirror. But accepting the route explained by Exhibit 2 it is obvious to me that something attracted the attention of the accused's car to SC Ward as his vehicle was driving in Union Street away from the intersection of Union and Broughton Streets. There would be no other reason for doing a U-turn to drive back to that intersection to see where the grey Mazda had gone. Whether it was a harsh acceleration as such is not that important. It may have been something other than simply seeing the accused's car again in the rear vision mirror of the police car. It may have been simply the fact of seeing the car previously followed in Glenmore Road (of which SC Ward obviously took notice) again in another part of Paddington with nothing else to do than check it 'out'.
It is admitted as such by the police that there was nothing about the vehicle driven by the accused or its manner of driving that provided a reasonable suspicion that the motor vehicle was connected with the commission of any offence or any other matter that might arise for consideration under s.36 LEPRA. This matter is conceded by the Crown. However, there was a lawful power to "stop" the accused's motor vehicle to administer a roadside breath test (RBT) whether there was something observed of the driving or not. There is no requirement under the RTA 'Schedule 3' clauses or sections that the relevant police officer should suspect the commission of the particular offence or be concerned with any aspect of the control or management of the vehicle before exercising the power to stop a vehicle for the purposes of a RBT.
The court is not privy to the conversations that occurred within the police vehicle from the time that a decision was made to do a U-turn in Union Street up until the time the police alighted from their vehicle having come across it in Hopetoun Street. SC Aston said in evidence that SC Ward said something about his belief that the Mazda was or may have been trying to avoid the police. I doubt that nothing was said about the reasons for doing a "U turn" and backtracking. I point out, whatever view be taken of the accused's explanation for stopping, given her vehicle was already stopped by the time the police car stopped behind it and given the relatively brief distance it had travelled before stopping, there was no reasonable basis for concluding that the occupants of the car were trying to avoid the police by reason of the movement of the vehicle. The conclusion suggested by SC Ward relies upon an assumption that the accused saw the police car at the other end of Union Street, driving in the opposite direction from where her car was travelling and recognised from that distance it was a police car. Further, having regard to the distance her car had travelled there is no evidence of excessive speed in its journey to the point where it was stopped. Given the parking arrangements in the street the accused's vehicle had to stop in order to undertake a reverse park into a space which required rear to kerb parking. The physical evidence of the movement of the accused's vehicle and its position when seen by police is consistent with the accused stopping to park. Headlights and blinker were on, and the car had not been driven the full length of the street.
Whilst it was lawful for SC Ward to "stop" the accused's vehicle in order to administer a breath test, I am not satisfied that the primary purpose for speaking to the driver at the time SC Ward approached the vehicle was to administer a roadside breath test. It is clear having regard to the fact that he did not get around to administering the test and his own evidence of the purpose of his prolonged "chat" with the accused, in conjunction with SC Aston's similar "chat" with Mr Copeland, that an "ulterior" purpose was to make inquiry of the occupants of the car in order to ascertain whether they were involved in criminal activity, including drug supply. For example, I accept the account given by the accused that there had been reference made by SC Ward to the fact that "Paddington is a very well-known area for drugs". He confirmed, but a later time, that he had referred to the fact that in cautioning her he told her that he "suspected that she was in this area to supply drugs". This to my mind was a reference to the purpose of the "proactive policing" in which he was involved with the other police.
More important than semantics was the fact that he took the licence from the accused for the purpose of doing a licence check, giving it to PC Pranic, the Probationary Constable has no recollection of having done so although he was in possession of a "Mobipol device" while standing near the car. He may have done so, but in the evidence of SC Ward and of the Probationary Constable there is no reference to the outcome of any check or of the Probationary Constable communicating the outcome of any check. No random breath test was administered. No reference is made in the evidence of SC Ward to looking for, or seeking to detect matters that might be consistent with alcohol or drug consumption. He "forgot" to put the relevant question that he usually asked about drinking in his statement of 30 January 2018. SC Ward understood that he had no power to detain the driver and the vehicle after he had finished administering a roadside breath test which would take 10 or 15 seconds to complete. He said that examining the licence was something he would do before he administered a 'breath test', but it appears clear that asking for the licence was for no purpose associated with breath testing, nor any other matter other than taking time to do it. Certainly, without a licence check on the Mobipol device which itself would only take a brief period of time, it would not take long to check the appearance of the driver as against the photograph on the licence. No suggestion is made the licence was not genuine.
With regard to PC Pranic, who was being trained that night presumably in "proactive policing" about which he had little experience, he understood and had been told by the police officers that, when speaking to people in this sort of situation that he should "ask as many questions as possible and record the answers… Not record, but memorise their answers… don't be afraid to ask people questions which you may think may assist in forming reasonable suspicion".…. "for the purposes of investigation.." This was part of the training he was receiving from SC Ward and SC Aston and reflects a mechanism for pursuing an investigation without a reasonable basis for doing it. This is precisely what SC Ward and SC Aston did even on their own account without regard to the primary purpose they claimed that they were concerned with "stopping" the vehicle for an RBT.
The two senior police officers had a suspicion about the accused and her passenger in the context of the command in which they are operating being an area where drug supply regularly occurred, it was early in the morning and they had a captive audience for as long as the pretence of the need to administer a random breath test was being played out.
Whilst I am not satisfied of the accuracy of the statements prepared by the two senior police officers it is clear that a number of questions were asked of both the passenger and the accused. Confirmation of the topics addressed in SC Ward's discussion with the accused while she was sitting in the driver's seat in my view appear in the questions that were asked of the accused in the course of the interview with the accused that was concluded by 3:50 AM on 28 January. SC Ward asked these questions of the accused amongst others not pertinent to this issue (in the order in which they were asked): Do you agree that when I originally stopped you he told me that you had been to the Royal Hotel tonight? Do you agree that you told me that you'd been at several hotels tonight? Do you agree that you told me that you had been at the casino tonight with Michael Copeland? Do you agree that when we stopped you, you told us that you were driving (Copeland) home to Waterloo? Do you agree that when you exited the vehicle you handed me a white Samsung phone? Do you agree that you told me that you are the owner of the white Samsung phone and the iPhone? Do you agree that when we first stopped you, you led us to believe that you and Michael (sic) were a couple?
A number of these representations are contained within the questions asked of the accused and the answers given set out in the statement of Mr Ward of 30 January 2018 at paragraphs 8 - 10. I note from that statement that there is no reference by the accused to going to hotels other than the Royal Hotel. She never said, on the police account, that she had just left the Royal Hotel. Not all the representations claimed in the statement to have been made by the accused in Mr Ward's statement have found their way into the questions asked of the accused during the course of the electronic interview. To the extent that I have doubts as to the accuracy of the recollection SC Ward, who prepared a statement claiming to state exactly what had been said, or done for that matter. The only confidence I can have in his recollection is to the extent that the representations made in the interview were made at a time more recently within the memory of the investigator than the later preparation of the statement. However, several of the representations put back to the accused contradict her version of the earlier conversation.
The further continued detention of the vehicle to permit further questioning of the accused (and Mr Copeland) occurred in circumstances where neither police officer suspected on reasonable grounds that are set out in s.36(1) (a)-(f), but particularly (e). The Crown in submissions conceded the "detention" was not justified (ie lawful) but was for a relatively brief period.
The opportunity to detain the vehicle and its occupants for what the defence submits to be "investigative questioning", which in my view the questioning clearly was, provided the opportunity to obtain information upon which the reasonable suspicion required to conduct a "search" was based.
Whilst the accused denies being red-faced, having watery eyes and shaking hands, she admits to being "frightened" by the presence of in the conduct of the police, but not "nervous". This fear of which she spoke was because of her former abusive partner claiming to have contacts within the New South Wales police that potentially could lead to further harm to her. In my view the basis of her fear as she explained it was not reasonably available in the circumstances of this matter. No suggestion arises from either version of the conversation that occurred between the accused and SC Ward that his or the other police officers' presence was in any way associated with her former partner. Nothing was done towards her to indicate any physical threat to her safety. There is a clear denial regarding undoing the accused's seatbelt as she claimed (one of the few things SC Ward was adamant about). If in fact the words "beautiful girl" were said, whilst inappropriate, there was no reasonable basis for fear, although the conflict in relation to this matter is not something I can resolve nor feel the need to. Her claimed fears were in context, illusory. In this regard there is some reliance in the submissions of the accused as to a throw-away line by SC Ward in cross-examination about the accused's appearance, however in context that part of his evidence is of no moment in the determination of the issues here. Even in the context of continually saying "no comment" to all the questions asked of her in the electronic interview, she made no complaint of any misconduct when given the opportunity.
With regard to the issue of the lawfulness of the stopping of the car, in the sense of purporting to exercise the power to administer a random breath test pursuant to the RTA, there are some features of this matter very similar to those identified by His Honour Judge McClintock SC in the decision of Buddee, referred to in the written submissions of counsel for the accused. His Honour pointed to circumstances in the matter before him that "point away" from the purpose of the stop being a "real RBT" and that it was not a stop for a "motor traffic purpose". Those features his Honour identified were common to the matter before this court 1. a coordinated approach of all the officers exiting the police motor vehicle 2. the coordinated interrogation of the driver and the passenger 3. the requirement of the passenger to identify himself and 4. the requirement that the driver and the passenger remain whilst their identities and background checks were carried out (allowing for the fact that Mr Copeland had no particular identification document)
I accept the proposition reflected in Magnus Kaba [2014] VSC 52 that the curtailment of liberty can only occur by specific provision of the law. At common law unlawful interference of any kind with personal liberty creates an action in damages and "even apparently minor deprivations of liberty are viewed seriously by the common law" grounding monetary compensation. There are also the obiter observations in Cleland v The Queen of Dean J, approved by Justices Mason and Brennan in Williams v The Queen (1986) 161 CLR 278 that: "it is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed". To this their Honours added the observation: "The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes".
In Hyder v Commonwealth of Australia (earlier cited), McColl JA , in respect of Commonwealth legislation relating to powers of search, reflected on the high-value of personal liberty and the strict approach required in interpreting and applying laws that restrict liberty at [13]-[14]. Her Honour also reflected upon the public interest in detecting crime and other policy considerations which are obviously relevant when dealing with the issues that arise in this matter.
Reviewing authorities involving the interpretation of legislative provisions relating to the powers of police his Honour Judge McClintock SC concluded that they "all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping vehicles interrogating of occupants or searching of vehicles for crime detection". He also went on to say, "it may be added that the police cannot rely on a statutory RBT to engage in "proactive" policing or satisfy a curiosity or a hunch not amounting to a specific state of mind as required by LEPRA ". In this matter the police were involved in proactive policing acting on a "hunch" without any reasonable basis for suspecting that matters arising under s.36 LEPRA arose
His Honour concluded in that matter that there was no power to detain the driver and the passenger once the driver had complied with the provisions relating to the production of her licence, nor, power to restrain any further movement, apart from that available under statutory powers. In that matter the half illegal detention of the driver and the passenger elicited the opportunity for admissions to be made which were not satisfactorily proven in any event.
Importantly s.138(1) Evidence Act provides that evidence that is obtained improperly or in contravention of Australian law "is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence in the way in which it was obtained"
I have concluded that the accused has established that the "stopping" of her motor vehicle and her continued detention up until the caution was administered was certainly improper and likely unlawful having regard to the legislative provisions in Schedule 3, s.3 and 4 of the RTA. I am satisfied on balance that the power exercised purportedly in furtherance of authority under the Schedule to the RTA was ostensibly exercised, the primary purpose was for investigating matters relevant to the exercise of power to stop detain and search pursuant to s.36 LEPRA which the police officers knew they could not do at that stage. I am mindful of the provisions in Part 15 of that Act, particularly s.202, to which I was drawn by the Crown. In respect of that provision SC Ward was in uniform, clearly indicating he was a police officer (as with the other two police officers) and gave his name but he did not on his own version explain to the accused the real reason for his approach and her continuing detention up until the time he administered the caution that he alleges he issued to the accused. He indicated at an early stage that he suspected that the accused as the driver of the vehicle had been trying to "avoid" him. He recognised in his own evidence, correctly so, that even if that assertion was true it did not ground a "reasonable suspicion" for the purposes of s.36 LEPRA.
There were three specific matters that arose from his evidence that reflect his non-compliance with the RTA. He did not conduct a "preliminary assessment". Although this is not mandatory he had the equipment to undertake that task (Schedule 3 s.3(2) RTA. He did not record any statement that he had asked the accused if she had been drinking alcohol. Notwithstanding his claim that he would usually say this I have no confidence that it was in fact said by him as I have no confidence that his evidence in his statement accurately reflects all of the conversation that he had with the accused. Finally he did not administer, or cause to be administered, a "breath test" (Schedule 3 s.3(1) RTA). Even if there had been compliance with the relevant RTA provisions, the power of detention or arrest under that provision only arises if a breath test proves positive for alcohol (Schedule 3 s.4 RTA).
The questioning of the accused up until administering the caution was for the purpose to obtain information that might assist a wider investigation in relation to matters consistent with "proactive policing" and then using that information obtained to justify a search of the vehicle which was not otherwise permitted up to that point of time by s.36 LEPRA or pursuant to the RTA.
Constable Ward admitted that he did not regard the questioning as "official" but he said that any information provided to him was "information to look into the possibility of an offence"… providing "building blocks" as he put it, to determine the "possibility of an offence" having been committed by the accused. But Mr Ward and Mr Aston agreed in their evidence that neither had any power to ask the passenger any questions. Even the request for his ID was not lawful or justified.
The available evidence on this matter does not establish the basis for exercising power pursuant to s.36 LEPRA. The accused had been unlawfully detained to elicit information upon which Mr Ward expressed the basis for his reasonable suspicion to detain the accused further and conduct a search. Whilst a reasonable suspicion may have existed at the time the accused was removed from the vehicle, it came from information obtained from unlawful and improper conduct. It is acknowledged in submission that in Rondo, Spigelman CJ observed that simply because the stopping of the vehicle was "unlawful" it did not preclude police from investigating (at [55]). His Honour observed that "… Much will depend on the offence alleged and its relative seriousness as well as other circumstances (at [56]).
It has been observed that even "intelligence" linking a particular vehicle to crimes may not be sufficient for a reasonable suspicion (Streat op. cit.). The conduct of the accused in Rondo (handling transpired to be prohibited drugs) was not of itself deemed in that matter to be sufficient to warrant the powers under identical legislation at an earlier time.
As to whether there existed at any time before the search a "reasonable suspicion" it is important to reflect upon the words that were actually expressed by SC Ward immediately before he cautioned the accused, when he articulated on his account the basis of his reasonable suspicion: "I suspect that you are in this area to supply drugs. You tried to avoid me on two occasions. You have lied to me on a few occasions and you are extremely nervous".
These representations are, on his account or by reference to other evidence, not particularly reliable. I can only identify one occasion on which it could be said fairly that the police officer held the belief that the accused, as the driver of the Mazda, caused him to believe that she was avoiding him and his colleagues. That was the occasion when he claimed that from the other end of Union Street he observed the accused car accelerate "harshly". When he came upon it only a very short time later it was sitting in the middle of another street, with its lights on and a blinker on, hardly an avoidance technique. Neither could be said that the observed driving of the accused car along Glenmore Road constituted attempts to avoid the police. There is no evidence she was indicated to stop or that there was anything erratic about her driving. The claim of being told "lies" could be an exaggeration. Certainly on his account there were two contradictions in the answers she gave to him but whether one or other was a particular lie would not be within his knowledge. Finally, nothing was said in the subsequent electronic interview about the demeanour of the accused to the effect that she was "extremely nervous". This is a matter denied by the accused in any event. Mr Aston said to the passenger "Due to your demeanour and the area being well known for drug use and supply I believe there may be an illegal substance in the car". He said in cross-examination that this statement reflected the fact that he thought "something was up", that he hadn't at that stage detected "an offence", but that he was "only suspecting" that there were drugs in the car. The accused's demeanour providing the relevant suspicion. In fairness he also asserted that he was observing the accused and heard parts of the conversation between her and his colleague. In the context of the discussion in Rondo and the decision of Streat, his basis for undertaking the search, following upon what had been passed between his colleague and the accused, could scarcely be considered in context a reasonable suspicion.
Putting aside the issue of whether in fact the basis of his suspicion was ever articulated to the accused by SC Ward, there is a doubt existing as to whether the basis for his claim to suspicion actually existed as he expressed it. I have already expressed my reservations as to the reliability and perhaps truthfulness of his account of the conversation he claimed he had with the accused. Parts of it are confirmed both by the accused and by the officer's subsequent representations to the accused in the electronic interview.
It is in these circumstances by regard to the foregoing that I have concluded that the search that was conducted was not permitted by s.36 LEPRA and there was no other statutory empowerment operating that has been brought to my attention.
I appreciate there are disputes in the evidence between the accused and SC Ward as to whether any caution was administered. It is a dispute that I do not need to resolve. But I note that there is a conflict in the evidence between SC Ward and SC Aston as to the circumstances in which any caution had been administered to the accused by SC Aston as he claims. The fact that the accused at one point commenced exercising a right to silence to my mind is not explained away by the accused as being a matter within her knowledge. It seems consistent with some caution being administered. But whether a caution was administered to her in precisely the terms and circumstances outlined by either of the two senior officers is a matter incapable of resolution given other unreliabilities in their recollection. By this stage in any event the relevant unlawfulness and/or improprieties had achieved their own aim. That is providing an opportunity to conduct the search that both officers understood could only be undertaken in limited circumstances provided by the legislation to which I have referred.
With regard to the consideration of s.138(3) there were, as earlier noted, a number of particular submissions made by the accused and some specific submissions by the Crown but not in the same detail. If a determination is made favourable to the applicant in respect of s.138(1) I am required to take into account without limiting other matters, those matters in s.138(3).
With regard to the matters identified in that subsection I am required to have regard to, without limiting the matters that may be taken into account, they are: (i) The probative value of the evidence The probative value of the evidence as to what was seen and found in the motor vehicle, including the observations of the alleged possession of particular mobile phones is the foundation for the proof that the accused was "taking part in the supply" of prohibited drugs and in possession of "proceeds of crime". Thus, the evidence is highly probative. The evidence of the "admissions" made by the accused is not as probative and certainly standing alone in the admissions there is no admission of guilt. I do not agree with the submission of the accused that there is a "strong availability of an inference consistent with the innocence of the accused", although the evidence of observation and search in conjunction is much stronger as against Mr Copeland. The probative value of the evidence, apart from placing the drugs and cash in Copeland's possession, is to establish the link between the accused and Copelands prior activities of alleged delivery of prohibited drugs. (ii) The importance of the evidence of the proceedings As earlier stated the evidence caught by the objection is the basis upon which the Crown brings its case against the accused and thus is of high importance. The characterisation of the evidence in the submissions of the accused counsel understates its importance, although it is correct that establishing relevant issues of knowledge and participation would require the drawing of relevant inferences beyond reasonable doubt and would need to be considered with the evidence of the accused on the voir dire and the 'confusion' as to the location and identification of the mobile phones seized. (iii) The nature of the relevant offence The allegations are consistent with drug trafficking to a substantial degree by Copeland. It may appear on the available evidence that the principal person involved was Mr Copeland and that the accused's role was a lesser role (if established), where there may well be a reasonable doubt as to whether the accused on the Crown case was aware of the character of the particular drugs purportedly supplied, the extent of supply of prohibited drugs and the financial reward purportedly reflected in the substantial sum of cash in the possession of Mr Copeland. (iv) The gravity of the impropriety or contravention The very uncomfortable impression made upon the court from the evidence of the two senior police officers, the manner in which they conducted themselves both in the giving of evidence and on this evening, as well as the 'revealing' understanding of the process in the evidence of the Probationary Constable, was that this random stopping of vehicles under the pretence of administering a random breath test, taking the opportunity to ask a series of questions for the purposes of developing a suspicion that might justify a search that was not permitted at law, was a 'modus operandi' regularly practised although not admitted. It was clear from SC Ward's evidence that he had a "patter" which he euphemistically described as keeping the conversations going before administering a breath test, light-hearted et cetera. The police officers clearly understood the line that was required to be crossed before a search could be justified under the legislative powers available to police. To paraphrase the words of Justice Penfold in The Application of HH Lee [2009] AC TSC 98, an attempt to avert clear rules as understood by the police lay down by the legislature that permit particular kinds of police investigation in certain circumstances, while prohibiting certain other kinds of investigative activity in order to protect the civil rights of members of the community may be more objectionable than an impropriety that involves police engaging in or provoking criminal activity. (v) Whether it was deliberate or reckless The conduct was at least reckless but in the context of being a modus operandi it was deliberate, for the purposes of detaining improperly for questioning a person to develop the basis for claiming a reasonable suspicion for the purposes of powers the were understood to be available under the relevant legislation. The false assertion of SC Aston that he saw a breath test administered has the hallmark of an ex post facto justification for conduct that was otherwise illegal or improper in the minds of the officers. (vi) Whether the impropriety or can contravention was contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights The conduct was potentially inconsistent with the protection proclaimed in Article 9 of the Covenant protecting individuals from arbitrary arrest and/ or detention, but not in a significant way. (vii) Whether any other proceeding (whether or not in court) has been or is likely to be taken in relation to the impropriety or contravention There is no other proceeding that has been or is likely to be taken (viii) The difficulty of any of obtaining the evidence without impropriety or contravention of an Australian law There are obstacles to permitting detention and powers of search of citizens to satisfy the holding of a speculative belief that a crime has been committed. As Judge McClintock said in Buddee, earlier cited, there is no doubt that crime can be proactively prevented simply providing police with the power to interfere with citizens and permit them to be arbitrarily stopped and searched on a mere suspicion. The legislature however has not permitted this power because such a power is atypical to a free society. The difficulties of obtaining such evidence by complying with the law is a difficulty that police and a free society must tolerate, notwithstanding the public interest in detection of crime and bringing those who commit it to justice, as noted by McColl JA in Hyder v Commonwealth of Australia, citing Lord Diplock in Holgate-Mohammed v Duke [1984] AC 437, at 445.
The evidence here raises issues that leave the resolution of the objection as an exercise not without difficulty. Modern police powers are dependent upon legislative fiat and constraint, which must be strictly observed not just by the police but by courts. I appreciate that if I determine that the evidence of the interaction with the accused, the searching of the car and related matters the subject of objection should be excluded then the Crown's case against this accused "collapses". This is in the context of a stronger Crown case against Mr Copeland who has been dealt with by the courts, though not by me. I appreciate as I earlier noted the importance of this evidence in the Crown case. However it is also important that courts not only give "lip service" to the legislative protections of the rights of the citizen, but also enforce them. It is important that police who have considerable responsibilities and powers not be permitted to take shortcuts to satisfy legitimate investigative purposes. It is also important that courts do not give their approval to illegal and/or improper practices or conduct, but rather identify it, censuring such conduct where appropriate and endeavour deter such behaviour from occurring in the future.
Taking all matters into consideration identified by the accused's counsel and the prosecution I have concluded that evidence of the questioning of the accused in Hopetoun St. Paddington and that of the search of the motor vehicle driven by the accused, as well as the "product" of that search, not be admitted because the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence obtained in the way in which it was obtained.
I have prepared a judgment determining the three other issues raised. I shall not publish that judgment now. Counsel for the accused submitted that I need not resolve those matters if I found in favour of the accused on the first issue. Therefore I will retain that further judgment and publish it if required at a later date.