R v Mihajlovic

Evidence in the Crown case

1. The first witness called on behalf of the Crown was Mr Nigel Noffke, who in 2016 was a Senior Constable of police and a highway patrol officer. On 16 November 2016 he was engaged in a traffic operation known as Northmore XIV on Merriwa Street, Boggabilla. That operation involved the stopping of vehicles travelling both north and south on the major highway through Boggabilla during the hours of 6am to 6pm on two consecutive days.
2. Mr Noffke gave evidence that his duties as a Senior Constable involved pulling vehicles over for the purpose of a RBT and RDT. He gave further evidence that if he suspected "reasonable cause", he would search any vehicle pulled over. Up to 40 officers were involved in the operation and he was working on the eastern side of Merriwa Street for traffic heading in a southerly direction.
3. Mr Noffke gave evidence that at 5.20pm a white Toyota Hi-Ace van, Queensland registration number 477 WCF was pulled over and the driver administered a breath test via Constable Lewis. That test was negative and the driver was then asked to move approximately 10 metres to undergo a RDT. Whilst the vehicle was in that position, Mr Noffke observed that the accused was the sole occupant of the vehicle and he had a conversation with Constable Lewis. Mr Noffke was subsequently informed that in that conversation the accused said he was driving to Melbourne to work, that he was a tradesman, and that there were no tools or luggage in the vehicle.
4. Mr Noffke gave evidence that he then asked a drug dog handler, Senior Constable Kotek, to come to the vehicle with a drug detection dog. Mr Noffke then spoke to the accused and informed him that he intended to search his vehicle using the dog. He gave evidence that he did so based on "reasonable cause" and the warrant, by which he meant the warrant to carry out Operation Northmore. When asked how he determined there was reasonable cause for a search, he gave evidence that he based that determination on the conversation he had been told about, that the accused was going to Melbourne to work, he had no tools and he had observed a large amount of rubbish inside the vehicle which indicated that the driver was doing an "express run" and not stopping. He also observed a mattress and small overnight bag in the vehicle and those matters provided his reasonable suspicion.
5. Mr Noffke gave evidence of the search of the vehicle, during which, the accused was outside the vehicle. He gave further evidence that the dog entered the back section of the vehicle, following which, he entered it and searched the cargo area. He gave evidence that based on his experience, he believed that if anything was to be found in that vehicle it would found in the cargo area.
6. Whilst conducting that search, Mr Noffke found a bag containing a large amount of cash under a false floor in the rear of the vehicle. He then instructed Constable Lewis to restrain the accused. A recording was made of the search. He recalled finding a large amount of fishing reels, between 30 and 40 in number, under the floor, but did not notice any other items.
7. In addition to the cash found in the cargo area, $800 was found in the driver's door of the vehicle in the map compartment. Exhibit A was a disk of the search of the vehicle which was played in court. It went for nine minutes. Having viewed that video, Mr Noffke gave evidence that there were a number of items observed by him on top of what he described as the false floor to the rear of the vehicle. There was a tool box fastened to the frame of the vehicle. Mr Noffke had no recollection of the contents of the backpack that was located inside the front of the vehicle.
8. In cross-examination, Mr Noffke identified his statement made on 18 November 2016. He knew the Northmore Operation was to take place approximately one week beforehand. It was identified by the numerals XIV and therefore there were 13 previous operations. He had been involved in similar operations since 2013. He disagreed that the intention of the operation was to stop virtually every car passing the RBT and RDT point. That was physically impossible because of the volume of traffic. He denied it was the intent of the operation to stop every car, however, he accepted that the Operational Order itself set out that a "concerted effort" was to be made to intercept the majority of vehicles. That meant as many as the police officers could within safety guidelines. He disagreed that that did not leave much scope for random stops. The mission of the operation was also read to Mr Noffke who agreed that it included not only traffic offences, but general criminal conduct. He agreed that amounted to a full ambit of policing and it was correct that police officers following those orders were to have in mind all of those offences.
9. On the question of reasonable suspicion as a basis for a search to be conducted, Mr Noffke gave evidence that he did not base his decision on s 36 of LEPRA. He believed at the time he had "reasonable cause" to search the vehicle.
10. He agreed that the warrant gave authority for the RBT and RDT to take place. It was put to him that once those tests were completed the driver should be required to be allowed to leave. Mr Noffke gave evidence that he made observations that led to his further investigation by way of searching the vehicle. It was put to him that he made deliberate observations to see if further investigations were warranted. He gave evidence that there were various indicators that he had been trained to look for over a period of 16 years in the police force. He disagreed that the accused should have been allowed to leave after the RBT. When asked what power he had to detain the vehicle following a negative result to that testing, he said: "My observations and warrant led to further investigations."
11. Mr Noffke gave evidence that a large majority of the vehicles were allowed to leave after testing. It was his observations which led this vehicle to being detained. He disagreed that the operational order required the vehicles, being vans, to be given priority for criminal investigation.
12. In respect of the vehicle, it was put to Mr Noffke that the rear of the vehicle was not constructed as a "false floor" so as to conceal anything, but that it was a common structure found in work-type vehicles. He said he could not comment, but when put to him that it was a raised floor, he said that it was a "false floor" because the floor of the van was underneath it.
13. Mr Noffke was challenged as to the observations he made of the vehicle and the hearsay evidence he relied on that the driver had told another police officer that he was going to Melbourne for work. That work involved him as a carpenter, plumber or tradie. When asked what type of work he believed the accused was to undertake, he said "tradie type work". When asked about the tools that were required, he said he assumed that he would require either carpentry tools or plumbing equipment. He did not search the toolbox inside the vehicle before deciding to search the vehicle, only after he had made up his mind to search the vehicle.
14. Mr Noffke gave evidence that the RDT would take approximately five minutes and it was during that time that the conversation took place between the accused and Constable Crandon. He had called over the drug detection dog and its handler before he had the results of the RDT. The reason for that he described as "professional interest". He did not want known the exact terms of the conversation. It was put to him that he was always going to search the vehicle, with which he disagreed. He was asked when he made the decision to search, and he gave evidence that it was following his observations of the vehicle and the conversation with Constable Lewis.
15. It was put to Mr Noffke that there was nothing unusual about an "express run". He said it was unusual with respect to truck drivers, as it gave rise to issues of fatigue management.
16. It was put to Mr Noffke that his observation that the vehicle may have been doing an express run had nothing to do with giving rise to a reasonable suspicion that there were drugs in the vehicle. He agreed that alone that would be the case, however, combined with his other observations, it gave rise to a reasonable suspicion.
17. When asked by what authority he put the drug detection dog into the van, he said: "There was a warrant in existence and together with reasonable cause to search, and the dog was available for that purpose."
18. It was put to him that many people travel with a backpack, and this was not a small backpack, but contained five compartments. The witness did not agree when asked what clothing he would expect to find. Mr Noffke gave evidence that a worker would need safety boots, work clothes, underwear, toiletries, towels, a safety vest and glasses if working on a construction site. He agreed that he did not ask him about what work he was going to, he did not feel that was necessary as he gleaned that information from other officers. When asked why he did not ask further questions of the accused, he said that he trusted other officers.

Evidence of Senior Constable Timothy McCarthy

1. Senior Constable McCarthy was the Officer in Charge. He had been involved in two previous operations nominated Northmore, of which there were two each year. His role in the operation carried out in November 2016 was criminal investigation. That involved anything involved in criminal investigation and most of the time that required vehicles to be searched. On 16 November 2016 at 5.20pm he was not involved in stopping vehicles for the purposes of RBT. He confirmed details in his statement made on 27 November 2016. He performed the RBT, however, when the vehicle was moved a distance of 10 metres for a RDT, he was away from the vehicle between 30 and 45 seconds conducting another test. He described the swiping process involved in the drug testing, which took a minimum of three minutes. When he returned to the van he overheard a conversation between Constable Crandon and the accused, and also made observations of the van. When the vehicle first pulled up for the RBT, he observed a drink bottle in the front passenger area and a backpack on the passenger seat. Whilst waiting for the drug test, he observed the floor in the back of the vehicle to be raised, and there was a mattress in the rear of the vehicle. Senior Constable Crandon had informed the accused that the police were going to search the van, to which the accused had stated "that's fine".
2. Exhibit B became the warrant authorising use of the drug detection dog. Senior Constable McCarthy gave evidence of the use of the dog to search the vehicle. He observed the dog to walk around the exterior of the vehicle, sniffing around the edges. The dog stopped at the sliding door to the rear compartment and loitered there. It did not indicate anything, meaning "sit and point" as it was trained to do. Senior Constable McCarthy could not recall if the dog entered the vehicle. However, he entered the vehicle to search it, together with Senior Constable Noffke. There were drawers in the raised floor area which were accessible from the side of the vehicle and from the rear of the vehicle. There were other areas which were not accessible and he and Senior Constable Noffke were responsible for lifting that part of the floor. They later learnt that there was a button in the front of the vehicle that enabled the floor to be lifted by way of gas struts hydraulically operated. The search revealed a mattress in the back and there "may have been a sleeping bag", but he was not certain. Under a section of the floor over the wheel arch, which could not be accessed by the drawers, the search revealed a black shopping bag with a quantity of Australian currency in it. Also revealed under the floor were fishing reels and tackle. The cash located in the black bag comprised 40 bundles of cash. Also found was $800 located on the driver's side map compartment. When that sum was found, the accused had said, "That's mine for fuel to Melbourne", and the cash was returned to the accused. When Senior Constable Noffke found the cash concealed in the back of the vehicle, the accused was arrested by Senior Constable Crandon and Constable Lewis and cautioned. The accused said: "I don't know. I didn't know it was there till you pulled it out. I'm as shocked as you are."
3. Later, in an ERISP interview, the accused offered no comment when the allegations were put to him and made no admissions.
4. The Officer in Charge was asked about a statement of Sergeant Mark Lyon made on 9 December 2016. When asked what was operating on his mind when the decision was made to search the vehicle, he said that the appearance of the accused when first stopped was of a person who was "a bit fidgety and nervous", his story of going to Melbourne to work, and the presence of only a small bag led Senior Constable McCarthy to believe that he would have required more clothing, belongings and tools to be with him for that purpose.
5. Senior Constable McCarthy gave evidence that the cash was examined for fingerprints and the bag was forensically examined, however, no fingerprints were detected and any potential DNA samples were too weak for analysis. The accused had consented to a buccal swab to enable DNA testing.
6. Senior Constable McCarthy gave evidence that he made enquiries of Scott Martins, the owner of the vehicle, who lived in Queensland. Attempts to obtain a statement from Mr Martins had been unsuccessful, however, he had received a Statutory Declaration from him by way of his solicitor's office. When served by email with a subpoena, Mr Martins had advised him that he had some work issues preventing him from attending at Moree District Court.
7. In cross-examination, it was put to Senior Constable McCarthy that Northmore was a combined operation involving traffic and criminal investigations. He agreed with that proposition "loosely", but said that the criminal investigation was a bi-product of the traffic enforcements involved in RBT and RDT.
8. The witness understood that the operational orders requiring a "concerted effort" meant that a detailed real effort should be made to pull over a majority of vehicles. Part of the orders have been redacted and when asked what vehicles were to be given priority, the Officer in Charge could not recall, and in any event, did not have authority to reveal what had been redacted from the document when it was produced on subpoena. The van was not the type of vehicle specified as more likely to be stopped. When asked whether the van was more likely to be searched, the Officer in Charge answered, "possibly". Whether the decision was to be made to search the vehicle depended on the whole set of circumstances. The Officer in Charge acknowledged that police would have to have a reasonable suspicion upon which to base a decision to search the vehicle.
9. It was put to the Officer in Charge that both Senior Constable Noffke and Senior Constable Crandon both claimed to have initiated the search.
10. The witness was shown his statement (marked MFI 3). In [5] of that statement he recorded the conversation that took place between Senior Constable Crandon and the accused. It involved the following: "Crandon: Where are you off to? Accused: I am off to Melbourne to do some work with a mate. I can't get much work around Brisbane. Crandon: How long are you staying? Accused: Depends how much work I can get, a couple of weeks. I'm only getting paid $4 or $5 an hour so I need to go and find some money. Crandon: Whose van is this? Accused: Scott's. He's a good mate of a mate's. I borrowed it cause it's got a bed in the back. Crandon: What's Scott's surname? Accused: I'm not sure, possibly Adams, he's a mate of a mate. I borrowed it because of the mattress in the back. I'm not earning enough in Brisbane. Crandon: What do you do? Accused: I'm an apprentice plumber working for my dad. I can make more corking in Melbourne. Crandon: Who is Scott? Accused: A mate of a mate. He owns or works at a fishing tackle shop in Brisbane. Crandon: What you're telling me doesn't add up. We are going to search your van because I think that you have prohibited drugs or other illicit items with you. We have a drug detection dog here and I'm going to get him to go over your van, okay? Accused: Yeah fine. I don't have anything on me."
11. Senior Constable McCarthy agreed that he had no knowledge of the detection dog's training. However, he gave evidence that rather than an indication, here there was a "soft indication".
12. The Officer in Charge agreed that he had taken the accused's licence from Senior Constable Crandon and conducted a number of checks. He did not see the accused have his licence returned to him. He was not in a position to disagree with a proposition that his licence was never returned to him before his arrest.
13. It was put to the witness that the backpack contained numerous items of clothing and toiletries. Following his arrest, the vehicle had been broken into whilst it was in police custody. The Officer in Charge was aware of that.
14. In respect to the clothing he observed in the vehicle, the Officer in Charge gave evidence that he would have expected "older type clothing". He said it was more likely that he would be involved with "caulking" or "sealing surfaces" rather than "corking". The Officer in Charge gave evidence that where the black bag was found was above the wheel arch, but not in an area of the false floor that was lifted by the hydraulic struts operated by a button in the front of the vehicle. There were brackets holding the floor down, and it took himself and Senior Constable Noffke quite a degree of force to lift the floor.

Evidence of Senior Constable Aaron Crandon

1. Senior Constable Crandon gave evidence via AVL. He was stationed at Moree Police Station in November 2016 and his role in Operation Northmore XIV was that of a member of the breath testing site team. He gave evidence that a number of police officers were involved including Highway Patrol and Criminal Investigation Police, including police from the Pro-active Crime Squad. The operation took place over two days between 6am and 6pm. At 5.20pm on 16 November 2016, a white Toyota Hi-Ace was pulled over with a number of other cars for a RBT. The accused was the only occupant of that vehicle. Senior Constable McCarthy conducted a RBT which was negative, and advised the driver to move the vehicle some 10 metres away for a RDT. That test involved a swab of saliva from the tongue of the driver being tested. The test took three minutes.
2. Senior Constable Crandon made a statement dated 7 December 2016, in which he recorded the conversation he had with the accused, which accorded with the conversation of which Senior Constable McCarthy gave evidence that he overheard. At the conclusion of that conversation, Senior Constable Crandon said to the accused: "So a mate of a mate let you borrow his van to travel to Melbourne for an unknown period of time, but you don't know his last name. What you're saying doesn't add up. I'm going to search your van because I believe there are prohibited drugs in it. I've got a drug detection dog here that I'm going to put through. Is the dog going to find anything?" The accused said: "No. That's fine. I don't have anything in here."
3. When asked what he based his decision to search the vehicle on, Senior Constable Crandon gave evidence that there were a number of factors, including the van itself, its Queensland registration, the fact that it was travelling south, and it was a big van with only one person in it. That person was being overly friendly and a little forthcoming with information people do not usually give. He was going to Melbourne with just a small backpack in the front of the car.
4. The search of the vehicle commenced almost immediately and within a couple of minutes of Senior Constable Crandon speaking to the drug detection dog officer. He gave evidence that he could not remember speaking to other police about the conversation he had with the accused.
5. During the search, the dog handler alerted Senior Constable Crandon to some cash that was located near the driver's seat compartment. The accused said that the $800 belonged to him, and Senior Constable Crandon handed the cash to him.
6. Senior Constable Crandon gave evidence that the drug detection dog and its handler searched the vehicle, and that after that search, other police, including Senior Constables Noffke and McCarthy, searched the vehicle. Senior Constable Crandon was not involved in the search but became aware that a quantity of cash was located under the floor near the rear of the vehicle. At that point, Senior Constable Noffke directed other police to arrest the accused. Senior Constable Crandon cautioned the accused and he indicated that he understood the effect of the caution. He was aware that fishing rods and tackle were found in the rear of the vehicle, but he did not search the backpack or see any other items in the rear of the vehicle.
7. During the RDT, Senior Constable Crandon gave evidence that he asked the accused to produce his licence. He recorded details of the licence in his police notebook, but did not know what happened to the licence. He was aware that checks were made on the licence, but could not recall what those checks involved.
8. Senior Constable Crandon was asked about what he meant when he said to the accused, prior to the search, "What you said doesn't add up". He gave evidence that that meant that what the accused had told him was not a reasonable explanation for his trip, and that he formed a belief that the vehicle may contain prohibited drugs, based on his previous experience and the size of the vehicle. His previous experience included a couple of the previous Operation Northmores conducted prior to Northmore XIV. One of those operations had involved an incident where a large quantity of cannabis was located. When asked what was it about the van that led to his belief, he said that it was "a large vehicle which could have concealed a large quantity of drugs".
9. In cross-examination, Senior Constable Crandon agreed that Northmore XIV involved both traffic and pro-active policing in the operation. Pro-active policing involved trying to stop crime before it occurred. He agreed that in accordance with the operation orders, a very large number of cars were pulled over in the operation. Those orders included an order to make a "concerted effort" to pull over the majority of vehicles. It was put to Senior Constable Crandon that those vehicles were pulled over for pro-active policing rather than random breath testing, to which he answered, "not necessarily". He agreed that there were 14 police officers working on the shift, some of whom were specifically engaged in pro-active policing, including investigating drug trafficking between Brisbane and Sydney. It was put to him that based on the mission statement, he was not just talking to the accused as a friendly guy, but as part of a pro-active policing policy. He agreed that was correct. Senior Constable Crandon did not tell the accused that he had a choice to speak to him because "I had no reason to tell him". It was put to him that it was better if he did not tell him he had a choice, and he agreed that his concerns would be increased if the accused had not spoken to him. He agreed that if the accused declined to talk to him, he would have become more pro-active.
10. It was put to the police officer that he had no lawful authority to pull over vehicles for pro-active policing. It was further put that the operation was designed to use the vehicle of RBT legislation to stop vehicles for that purpose. That was without telling drivers that police would avail themselves of the opportunity for criminal investigation, with which Senior Constable Crandon agreed.
11. He also agreed that motorists with no options are compelled by the operation to come into his presence for the purpose of pro-active policing. He agreed that he knew that without the RBT he could not have the van in front of him for that purpose. He also agreed that without the RBT, the police had no intelligence on this vehicle.
12. In taking the accused's licence, Senior Constable Crandon gave evidence that he relied on the power to require the driver to produce his licence. He could not recall whether he gave it back or whether he gave it to another police officer to carry out criminal checks. Paragraph [5] of the statement made by Senior Constable Anthony Lewis on 14 December 2016 (which was MFI 5 and became Ex F), was read to the witness. In it, Senior Constable Lewis stated that he took the licence from Senior Constable Crandon and returned to the parked police vehicle, a short distance away, where he conducted a number of checks upon the accused. Senior Constable Crandon gave evidence that he did not recall that. It was put to him that the operational orders provided for by State cooperation between the New South Wales and Queensland Police Forces, and it was well known that information could be expected to travel between the two police forces. Senior Constable Crandon was unable to comment on that proposition.

Other documentary evidence relied upon by the Crown

1. Exhibit B was the warrant authorising use of the drug detection dog to carry out general drug detection. That warrant authorised the use of a dog to carry out general drug detection in Merriwa Street, Boggabilla, and surrounding roads and area where vehicles are stopped in respect of this operation between Tuesday 15 November 2016 to 10am on Thursday 17 November 2016.
2. Exhibit C was the statement made by Sergeant Mark Lyon, who was the applicant for the drug dog detection warrant for Operation Northmore XIV. He was also present at the scene on Merriwa Street when the accused's vehicle was searched, and later was responsible for counting the cash found in the vehicle, which totalled $400,320.00.
3. Exhibit D was the operational orders for Nothmore XIV prepared by Sergeant Lyon and signed by the operation Commander, Superintendant Paul McDonald, on 14 November 2016.
4. Exhibit E was the Statutory Declaration of Scott Martins, in which he stated he was the owner of the Hi-Ace van. It also annexed documents showing ownership of the fishing rods and tackle.
5. Exhibit F was the statement of Senior Constable Anthony Lewis dated 14 December 2016.

Submissions on behalf of the accused

1. Learned counsel for the accused outlined the bases of the applicant's application by reference to the judgment of Judge McClintock in R v Buddee [2016] NSWDC 422
2. He referred to his Honour's reasons at [55] under the heading "The Relevant Law" in respect of the principles concerning the proper application of s 138 of the Evidence Act. Counsel also referred to [56] through to [59] and the relevant road transport provisions set out therein in respect of random breath testing and breath analysis. At [59] his Honour had said that the objects of that Act were to consolidate such provisions in relation to road users, road transport and the improvement of road safety in the jurisdiction and to provide assistance for the improvement of road traffic and safety and efficiency.
3. There is nothing to suggest that those powers have anything to do with matters other than road safety in offences committed under the Act relating to road safety. Counsel went on to refer to the factual findings made in that case by his Honour. Whilst I refer to this below, the case may be distinguished from the present circumstances because it involved what became referred to as a random crime stop of a vehicle under the guise of the random breath test legislation. That was not the case here.
4. Counsel also referred to the operational orders which became exhibit D in the proceedings. Page 2 of those orders set out the assumptions upon which the operation was based, namely that there would be offences against regulations of the Australian Road Rules that stolen property may be located in vehicles crossing State borders between New South Wales and Queensland, that prohibited drugs may be located in vehicles and in possession of persons crossing State borders between Queensland and New South Wales and that persons wanted for outstanding warrants and investigations may be located crossing between the States of New South Wales and Queensland. On page 3 of the document counsel referred to that part under the heading "Mission" as follows: "To foster and encourage a bi‑State cooperative approach to law enforcement with emphasis on speeding offences, drink driving offences, driving under the influence of drugs offences, restraint offences, driver fatigue offences, conveyance of illicit drugs between New South Wales and Queensland and in general criminal conduct."
5. It was submitted that it was telling police that they had lawful means of stopping vehicles and that in that context a concerted effort should be made, that included police officers being aware of the fact of conveyance of drugs and general criminal conduct. In that context counsel referred to the evidence of Senior Constable Crandon when confronted with a vehicle carrying Queensland numberplates driving along a particular route known as the Newell Highway, that vehicle was a van and in the constable's evidence capable of carrying a large amount of drugs.
6. It was submitted that any large vehicle would excite police interest, given the operational orders. The constable had referred to an earlier operation where there was a large amount of marijuana found in a four tonne truck. It was submitted that the operational orders told police what they were there for, namely a concerted effort, and that did not involve a great deal of randomness which led to an artificial use for the purpose of this operation of the legislation enabling random breath testing.
7. Counsel then referred back to the judgment of Judge McClintock in Buddee as to the general principles which are well known and set out by his Honour respectfully, appropriately between [88] to [97] thereof. It was submitted that in respect of the RBT the power to detain a driver for that purpose ended with the negative result. That also extended to the random RDT where there was a power to detain for the purpose of administering the test over a period of three minutes.
8. It was submitted by counsel that just because of that time delay the police were not authorised to engage in proactive policing and that interrogating was not permitted as the driver was detained only for traffic purposes. On the question of randomness of the testing, whilst the word random appears in the heading of the relevant legislation it was noted that it does not appear in the legislation itself.
9. Counsel also referred to that part of Judge McClintock's judgment under the heading "Statutory Interpretation Principles" from [98] onwards and in particular from [104] to [107]. In those paragraphs his Honour said as follows: "104. 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. 105. The authorities and statutory interpretation all point to the proposition that RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicle for crime detection. 106. That is what happened in this case. I do not find that there was a mixed purpose. 107. 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."
10. It was submitted that here there was a lawful power unlike in Buddee. In his oral submissions counsel stated that he did not rely so much on the reasonableness of the suspicion formed by the police to justify the search of the vehicle but that he was not abandoning it. He was relying on principles espoused by Smart J in R v Rondo [2001] NSWCCA 540.
11. Counsel submitted that here what police officers were doing amounted to a concerted effort bearing in mind the transportation of prohibited drugs from Queensland to New South Wales and Senior Constable Crandon was asked whether he told the accused he could go following the RBT. He said, "I didn't think I had to".
12. It was submitted that the vice here, namely the unlawfulness, arose as a result of "a pernicious tactic to continue the circumstances in which drivers were required to pull over and could not leave to enable proactive policing to take place. It was further submitted that Senior Constable Crandon had agreed that if the accused had said nothing to him that would have made him more determined to search the vehicle, something which the RBT legislation never countenanced.
13. On the question of the application of s 138 of the Evidence Act counsel referred to McClintock DCJ's decision in Buddee at [15] and the factors which his Honour found which led to the exercise of discretion in that case and in particular paras (f) to (g) thereof.
14. It was submitted that here because of Operation Northmore XIV the police officers had after the event reformulated the basis for their reasonable suspicion. It was submitted that the Court would doubt whether they had such a suspicion but if they did it could not have been a reasonable suspicion. It was based here on the fact that the van had capacity to hide a large amount of drugs. Further, what was described as the fake floor by police officers was merely a raised floor with noticeable drawers for the purpose of storage of items. It was not a secret hiding place designed to conceal anything.
15. Counsel submitted that the Court would doubt whether the police officers had any suspicions at all and in fact they would have believed that they did not need one because of the operational orders. The reasons outlined by Mr Noffke for his grounds for suspicion could not possibly amount to a basis for a reasonable submission. It was conceded that a police officer could rely on hearsay in making investigations and in arriving at a determination but here Mr Noffke was misinformed about the job that the accused was going to Melbourne to do. He did not take the opportunity to clarify it himself and his explanation for that was that he trusted his fellow officers. However, it was submitted that the law requires every police officer to form their own view.
16. It was submitted that his evidence hid the real answer, namely, he never thought about it and was going to search the vehicle anyway and that he reconstructed his evidence for that purpose for the purpose of giving evidence in court.
17. Further, there was a metal tool box in the back of the vehicle and no police officer looked in it before indicating to the accused that they were going to search the vehicle.
18. Another unsatisfactory aspect counsel submitted was that there was no clear evidence of what clothing the police officers say the accused had with him at the time and they never searched his back pack to find out. The vehicle had subsequently been parked behind the Boggabilla police station where it had been broken into and the contents of the back pack strewn over the vehicle.
19. Further doubt arose as to why no one in the police force knew whether the work that the accused was carrying out was either "corking" or "caulking", spelt differently.
20. On the application of s 138 counsel submitted that the charge pursuant to s 193C involved two levels of culpability depending on the amount of money involved. For an amount under $100,000 Parliament had imposed a maximum of three years imprisonment and for an amount above $100,000 the maximum penalty imposed was five years imprisonment. It was submitted that the section was inserted in the Crimes Act to take over from the previous s 527C which involved a maximum penalty of six months imprisonment.
21. It was submitted that the charge was almost at the bottom of the criminal calendar and was less serious than any drug charge. Counsel submitted that there are clear breaches on a number of levels to flaunt the law, to put the police officers in a position where they misuse the law to obtain this evidence. They did not have the power to stop and search the vehicle and this was a serious breach at a high level of the law. Further, it is relevant that there was no penalty to any police officer involved.
22. It was submitted that there should be no curial disapproval in this respect, that Northmore XIV was conducted on this basis and not one officer had been disciplined in respect of it. It was submitted therefore that would be seen as curial approval or acceptance of the police actions and that offends what Parliament had intended by its legislation.
23. Further submissions were made in respect of the drug detection dog by invitation by the Court. However, it was ultimately put that the role that the dog played was somewhat unclear given that the police were always going to search the vehicle anyway as part of Operation Northmore. In any event, the drug detection dog did not find anything.

Submissions on behalf of the Crown

1. The Crown submitted first that the drug detection dog was not critical to the proceedings and that there was nothing improper in employing the dog in these circumstances relying on s 146 subs (2) and s 149 subs (2) of LEPRA. Ultimately the Court would find that there was nothing improper by the use of the dog here given Senior Constable Noffke's belief that there was reasonable cause to search the vehicle and by doing so to use the dog.
2. The Crown did not accept the characterisation of Operation Northmore by counsel for the accused as a deliberate contrivance. The orders set out in exhibit D and the mission statement made it clear that there was a significant emphasis on traffic related offences. The reference in that mission statement to the conveyance of illicit drugs across State borders and general criminal conduct made it clear that this operation was for a mixed purpose. It was conducted over two 12 hour periods during which numerous vehicles were stopped.
3. The provision of powers to stop were pursuant to the road traffic legislation and the Crown submitted that that legislation and the powers in LEPRA could be used for a mixed purpose. Here the accused's vehicle had been stopped and he underwent an RBT which was negative. He was then moved approximately ten metres to the site where the RDT was administered. That took a number of minutes during which it was submitted that he engaged in conversation with Senior Constable Crandon which did not amount to an interrogation. It was submitted by the Crown that there was nothing to stop the officer from asking the accused questions in that context.
4. It was further submitted that if the accused had said nothing at all, the police officer would have had no basis for suspicion. It was the accused's answers and the police officer's experience which provided the police officer, Senior Constable Crandon, with the necessary basis to form a reasonable suspicion justifying a search of the vehicle. At the time of that conversation, there was nothing that the police officer could caution the accused about. It was submitted that this conversation took place not by question and answer but in a perfectly natural context. It was a conversation in a remote country location and on that basis the police officer arrived at his reasonable suspicion.
5. The Crown referred to Mr Noffke's evidence that he based his determination on his own observations and being told certain things by another police officer. Referring to the decision of Adamson J in Azar v DPP, supra, at [27], it was submitted that police may act on hearsay in arriving at a determination such as a determination to search a vehicle.
6. It was submitted that Mr Noffke was an experienced police officer at the time with 16 years in the police force. His suspicion was based on a number of factors taken together and it was submitted that notwithstanding his evidence, his power to search was exercised pursuant to s 36 of LEPRA. The Crown submitted that Buddee could be distinguished on the facts. That case involved a transparent use to use the RBT legislation to conduct proactive policing. The question here is whether the Court accepts whether a reasonable suspicion was formed and the Crown case was that it had been formed on the basis of the evidence of Senior Constable Crandon.
7. On the application of s 138 of the Evidence Act, the Crown highlighted the amount of money involved here discovered in the rear of the vehicle. That money was found in 40 bundles and it appeared to being transported and involved serious offending if proved. The probative value of that evidence was high in this trial. In fact, without that evidence it was conceded there would be no Crown case.
8. In terms of the gravity of the breach involved if one was found, the Crown submitted that it was not a deliberate contrivance, that is Operation Northmore set up to allow police to go snooping around vehicles and that if any impropriety occurred, it was not deliberate but rather reckless and should be regarded at the lower end of recklessness for such conduct.
9. Counsel for the accused made further submissions in reply, first in respect of the drug detection dog, which do not need to be rehearsed. Secondly in respect of the question of mixed purpose for the operation. It was submitted that parliament was entitled to do what it had done by differentiating the traffic legislation from criminal investigation legislation and it was submitted that a mixed purpose could not be achieved via the back door by the contrivance that was Northmore XIV.
10. Finally, in respect of the conversation that took place between Senior Constable Crandon and the accused, counsel for the accused submitted that the accused responded only to questions from Senior Constable Crandon. However, if he said nothing, the Crown had submitted that that would not justify a search. Counsel asked rhetorically if he had said nothing, would the Crown now be saying it was a legal search?

Determination

1. The application by the accused has three bases, namely: 1. The police conduct here became unlawful or improper when they used the random breath test power for an ulterior purpose of conducting a criminal investigation into the occupant of a vehicle which was not otherwise authorised by law, particularly by LEPRA. 2. Even if the initial stop was lawful, and the police were able to identify the driver and later conduct a criminal investigation: 1. They improperly or unlawfully interrogated the occupant, and 2. They improperly or unlawfully detained the occupant. 1. Even if the stopping of the motor vehicle was lawful, a subsequent search of the motor vehicle was unlawful because, the police made the decision to search the motor vehicle, there was no reasonable grounds for the exercise of the power to search, and accordingly, the search and subsequent seizure was unlawful.
2. The determination of each of the issues raised by the accused, requires a consideration of all of the evidence outlined above. As recently stated by Beazley P in Fletcher v New South Wales [2019] NSWCA 31 at [2], it will be a matter of evaluation of the factual circumstances in each case as to whether there has been conduct which entitles a police officer of New South Wales to exercise the powers conferred by LEPRA. Whilst her Honour's comments were made in relation to the question of whether police had properly apprehended a breach of the peace, the principle applies here.
3. As noted by Judge McClintock in R v Buddee, supra at [57]: "The police have wide‑ranging powers relating to stopping and searching motor vehicles."
4. His Honour also set out the relevant provisions under the Road Transport Act 2013, which provides power to conduct a breath test at [58]. There is no need to set out the legislation, other than to note that whilst Division 2 has the heading "Random Breath Testing and Breath Analysis", the word "random" does not appear within the body of the legislation itself. As His Honour stated at [59]: "The objects of the Act are to consolidate such provisions in relation to road users, road transport and the improvement of road safety in the jurisdiction and to provide assistance for the improvement of road traffic and safety and efficiency. There is nothing to suggest that those powers have anything to do with matters other than road safety and offences committed under the Act and relating to road safety."
5. I also respectfully adopt the general principles outlined by Judge McClintock from [88] to [97] of his judgment as to the genesis of police powers to detain in custody, question and arrest on reasonable suspicion. However, R v Buddee, supra, may be distinguished by its facts from the present case. I still bear these principles in mind in coming to my determination.

Findings of fact

1. I make the following findings of fact: 1. Operation Northmore XIV was an authorised joint police operation subject to Operational Orders contained in Ex D. Those orders set out assumptions for the operation which included offences against the Australian Road Rules, stolen property may be located in vehicles crossing State borders between New South Wales and Queensland, and that prohibited drugs may be located in vehicles and in possession of persons crossing the State border. Further, persons wanted for outstanding warrants and investigations may be located crossing the State border. The orders contain the following statement under the heading "Mission": "To foster and encourage any bi-State cooperative approach to law enforcement, with emphasis on Speeding Offences, Drink Driving Offences, Driving Under The Influence (Drugs) Offences, Restraint Offences, Driver Fatigue Offences, Conveyance of Illicit Drugs between NSW and Qld and in general criminal conduct. …" Under the heading "Execution", the orders set out that the operation was to take place between 6am on Tuesday 15 November 2016 and 11am on Thursday 17 November 2016. The site was located on the Newell Highway outside the Boggabilla Police Station that was targeting northbound traffic as the priority. It included the following: "A concerted effort shall be made to intercept the majority of vehicles seeking to traverse the stationery site on the Newell Highway …" 1. Operation Northmore operated between 6am and 6pm on 16 November 2016 at Merriwa Street, Boggabilla. 2. A Toyota Hi-Ace van driven by the accused, with Queensland number plates, travelling south on Merriwa Street, was pulled over for RBT at 5.20pm on 16 November 2016. 3. The RBT was negative. The driver was then asked to move the vehicle approximately 10 metres to a site for RDT. 4. During RDT, which took approximately three minutes, Senior Constable Crandon asked the accused a number of questions, which the accused answered voluntarily. 5. During that period, the accused was asked to produce his licence, which he did so. The licence was given to another officer and taken to a police vehicle for "checks", which undoubtedly included criminal history checks. 6. At the end of the conversation, Senior Constable Crandon said, "What you're telling me doesn't add up, we're going to search your van because I think you have prohibited drugs or other illicit items with you. We have a drug detection dog here and I'm going to get him to go over your van, okay?" The accused said, "Yeah fine. I don't have anything on me." 7. Senior Constable Noffke was told by another police officer of the conversation between Senior Constable Crandon and the accused. Relying on his own observations, he also gave evidence he formed an opinion that there was "reasonable cause" to search the vehicle and he spoke to the accused and told him he was going to do so, and asked the accused to get out of the vehicle. That evidence is inconsistent with the evidence of Senior Constable Crandon and I do not accept it. Senior Constable Crandon actually was questioning the accused and informed him that he was going to search the vehicle because what the accused was telling him didn't add up. 1. Senior Constable Noffke "introduced the drug detection dog and its handler to the accused". 2. The drug detection dog made no indication in accordance with its training that prohibited drugs were secreted in the vehicle. 3. Senior Constable Noffke and Senior Constable Crandon then proceeded to search the cargo area of the vehicle. 4. In that cargo compartment was a tool box, which was not the subject of the search either before or after the accused was informed of the police decision to search the vehicle. 5. Also included in the vehicle was a backpack containing clothing and personal items to the accused, which were not identified by the police search. 6. The police search located $800 in the driver's side map compartment, which the accused claimed was his own. 7. I find based on the evidence that in the front of the vehicle was located one empty drink container and one container containing tea. Otherwise the evidence established that there was some confectionary wrappers present. 8. I find that the floor in the cargo compartment was not a "false floor" designed to conceal contents beneath it. Rather, it was constructed to provide storage space in the cargo area of the vehicle and was accessed either by the drawers facing the side and rear doors of the vehicle, or by operation of hydraulic struts activated from the driver's position in the front of the vehicle.

The first basis of the application - Was it unlawful or improper for the police to use the random breath test power for an ulterior purpose of conducting a criminal investigation which was not otherwise authorised at law, particularly LEPRA?

1. I respectfully agree with the conclusions reached by Judge McClintock in R v Buddee, supra, at [104] and [105] that Parliament intended to distinguish motor traffic powers from criminal investigation powers given to police. The motor traffic powers for random breath testing are not part of the criminal investigations powers conferred by LEPRA and there may be inferred clear intention on the part of Parliament to delineate powers based on suspicion of the commission of crime from powers directed primarily at ensuring road safety and pro-actively preventing driving over the prescribed content of alcohol. Further, it is clear that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants, or searching vehicles for crime detection.
2. However, I find that the facts of this case may be distinguished from that of R v Buddee, supra. Here, there was an authorised joint operation, lawfully instigated by police. The stopping of the vehicles during that operation for the purpose of a RBT being administered to drivers was not unlawful merely because of the directive that a "concerted effort" should be made by police officers to test a majority of vehicles during the operation. Further, it was within the police powers to direct drivers to undergo a RDT as part of the same operation. I find that there was a mixed purpose for this operation, which was not the case in R v Buddee, supra. That mixed purpose was to police the conveyance of illicit drugs between New South Wales and Queensland, and also to police criminal conduct, as stated in the mission statement, but also to identify persons wanted for outstanding warrants and investigations.
3. I do not regard the establishment of the operation for those mixed purposes was unlawful per se, not do I accept the submission made on behalf of the accused that the operation amounted to "a deliberate contrivance to place drivers in a position for criminal investigative purposes". In carrying out the operation, police officers were still required to abide by LEPRA and act in accordance with the law.
4. I therefore find that the first ground relied on by the accused has not been made out.

The second basis - namely the police improperly or unlawfully interrogated or detained the accused

1. This ground relates to the administration of the RDT to the accused, during which time, Senior Constable Crandon spoke to the accused. What occurred was not a conversation, but rather questions asked by the police officer which were voluntarily answered by the accused. I find that there was no requirement at law for the police officer to caution the accused at that time. Further, I find that it was lawful for the police officer to detain the accused for the purpose of the administration of the drug test, which took some minutes.
2. I therefore find that the second ground relied on by the accused has not been made out.

The third basis - whether the subsequent search of the motor vehicle was unlawful because when police made the decision to search the vehicle, there were no reasonable grounds for the exercise of the power to search

1. First, having found that Mr Noffke did not in fact inform the accused of "reasonable cause" that he believed existed to justify searching the vehicle, the Crown cannot rely upon the evidence of Mr Noffke to establish that the search was lawful. In any event, Mr Noffke disavowed reliance on s 36 of LEPRA to conduct the search.
2. The matter must then be determined on the basis of Senior Constable Crandon's evidence that he suspected on reasonable grounds, based on what the accused had told him, that the accused may be in possession of prohibited drugs within the vehicle. This was based on Senior Constable Crandon's opinion that what he had been told "doesn't add up".
3. In assessing that evidence, I bear in mind what Lakatos DCJ said in R v Orm [2011] NSWDC 26 at [55]: "I pause to note that it is one thing for a police officer to use his common sense and experience to seek out and investigate leads in relation to an offence. In my view, it is quite another for an officer to make value judgments about the actions of a suspect and to translate those value judgments to the level of a reasonable suspicion of offending. This is especially so when the officer appears to make little effort to consider any innocent explanation for such actions. This approach may indicate a closed rather than an open enquiring mind and may suggest that the officer's intention was to gain evidence inculpating the accused."
4. I find that there was no reasonable basis for Senior Constable Crandon to form a reasonable suspicion to justify searching the accused's vehicle here. The accused had voluntarily answered his questions, which were of short duration. Other than not knowing the correct surname of the owner of the vehicle, there was little in that conversation which could give rise to any suspicion. The police officer did not avail himself to ask any further questions to clarify any of the things he had been told. Looked at objectively, that amounted to the accused telling the police officer that he was travelling to Melbourne to do some work, that he could not get work in Brisbane, that he was an apprentice plumber working for his father, and that he was able to earn more money doing "corking" (as recorded by police officer), which may more likely have been "caulking". Otherwise he correctly identified the Christian name of the owner and the fact that he owns or works at a fishing tackle shop in Brisbane. Each of those facts could have been easily verified as truthful. None of them, or any combination of them, could give rise to a reasonable suspicion that the accused was in possession of, or had in the vehicle, prohibited drugs. Nor could the van itself give rise to a suspicion.
5. Further, when the drug detection dog first walked around the vehicle, and later entered it, it made no indication that there were prohibited drugs in the vehicle.
6. I find that the evidence given by Senior Constable Crandon, based on what the accused told him, and on any observation he made of the vehicle, did not amount to a reasonable basis for reasonable suspicion that warranted a police search of the vehicle.
7. As outlined above, the evidence of Mr Noffke does not establish any basis for a search of the vehicle, particularly as he disavowed reliance on s 36 of LEPRA.
8. I therefore find that the accused has made out the third basis of his application, and I find that the search carried out by police officers on the accused's vehicle on 16 November 2016 at Boggabilla was unlawful. That leads to a determination whether the evidence obtained during the unlawful search should be excluded pursuant to s 138 of the Evidence Act (NSW) 1995.

Should the evidence be excluded?

1. Section 138 of the Evidence Act provides relevantly as follows: "(1) Evidence that was obtained: (a) Improperly or in contravention of an Australian law, or (b) In consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under ss (1), it is to take into account: (a) The probative value of the evidence, and (b) The importance of the evidence in the proceeding, and (c) The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, and (d) The gravity of the impropriety or contravention, and (e) Whether the impropriety or contravention was deliberate or reckless, and (f) Whether the impropriety or contravention was contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights, and (g) Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
2. In assessing the matters outlined in s 138(3), I accept the Crown's submission that the probative value of the evidence (namely the black bag containing over $400,000) is high in these proceedings, and is important evidence without which the Crown case cannot succeed. The relevant nature of the offence pursuant to s 193C(1) of the Crimes Act 1900, is dealing with the property, being Australian currency, which includes having it in the possession of the accused.
3. I must also take into account that the gravity of the impropriety of the police officers or contravention by the police officers of their statutory duties here. I find that it was a deliberate breach, driven by the mission statement of Operation Northmore XIV, and based on the assumptions outlined in the Operational Orders for that operation.
4. The gravity of the impropriety or contravention was significant here. I respectfully, like Judge McClintock, adopt what was said by Justice Penfold in the application of R v Huy Huu Lee [2009] ACTSC 98, to the effect that such investigative activity is objectionable because it "undermines the protections that benefit all members of society and particularly those innocent members who may find themselves wrongly suspected of criminal activity".
5. The impropriety or contravention here was also contrary or inconsistent with the rights of a person under the International Covenant of Civil and Political Rights, and in particular, article 17.
6. I further find that no other proceeding has been taken or is likely to be taken against the police officers involved in Operation Northmore who were involved in the search of the accused's vehicle.
7. Finally, in relation to the issue of the difficulty of obtaining the evidence without propriety or convention, I respectfully adopt what Judge McClintock said in R v Buddee, supra, namely: "There is no doubt that a lot of crime could be pro-actively prevented simply by providing the police the power to interfere with every citizen on every occasion in every place, to allow them arbitrarily to stop and search anyone on a hunch or a suspicion. That is not a power they now have and such a power is an antithetical to any free society."
8. In assessing the question of desirability of admitting the evidence as against the undesirability of admitting the evidence in s 138(1), I take into account that the police officers acted outside their lawful authority. Like Judge McClintock, I also take into account: "Disciplining police for illegality and impropriety, deterring future illegality, protecting individual rights and encouraging other methods of police investigation."
9. The amount of Australian currency here is very large. It must be taken into account in the balancing exercise that I have to undertake.
10. Further, in R v Em [2003] NSWCCA 374, Howie J (with whom Ipp JA and Hulme J agreed) said at [74]: "Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involve securing a fair trial for the accused."
11. This is not however a case where unlawfully obtained evidence would be unreliable which would give rise to unfairness to an accused as being a powerful consideration favouring exclusion of such evidence.
12. Whilst an offence pursuant to s 193C(1) of the Crimes Act may be towards the bottom of the criminal calendar, it still constitutes serious offending. For sum greater than $100,000, Parliament has proscribed a maximum penalty of 5 years imprisonment, and whilst such a penalty may be less severe than that imposed for drug offences under the Drug Misuse and Trafficking Act 1985, it still constitutes serious offending if proved by the Crown. The amount involved here was more than four times that amount.
13. Notwithstanding that I have found that the evidence was obtained improperly, as a matter of discretion, I find that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence pursuant to s 138(1), based on the amount of money involved, and the nature of the charge brought against the accused. In coming to that conclusion, having taken into account all of the matters outlined in s 138(3), this determination does not in any way condone the way in which police acted in carrying out their duties as part of Operation Northmore XIV.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2019