The defendant has been charged with a series of offences and has entered a plea of not guilty to two sets of charges. The first set arises out of a series of events of 20 April 2016, and the second is a single charge arising out of events of 14 July 2016. I note that there is a drug driving charge arising out of events of 14 July 2016 to which the defendant has pleaded guilty.
These proceedings have been delayed considerably by successful Supreme Court action by the defence. The first set of charges arise out of the execution of a search warrant by the police at two addresses in northern NSW (which have been anonymised for the purposes of this decision). The defence challenged the validity of the search warrant and on 8 July 2017 the Supreme Court made orders that the search warrant with respect to '74 Smith Street' was invalid and the decision to issue the search warrant was quashed. Further, the Supreme Court order declared that the search warrant did not authorize the search of premises at '72 Smith Street'. Costs were awarded in favour of the plaintiff, Ms Cook, in those proceedings.
[2]
Facts
The police sought warrants from the registrar at Lismore Court for 74 (a house) and 76 (a café) Smith Street. When they arrived at the site ready to exercise the warrant the police first went to 76, and whilst there it became apparent that the house was in fact 72 not 74. The informant, Detective Pitt, organised for another officer to ring the registrar. The information that was conveyed to her was that the registrar had approved the change, and she altered the address from 74 to 72 on her paperwork. There is no issue that the informant believed that the process and the change were lawful, and she then executed the warrant at 72. She is aware now that the process to alter the warrant was flawed and resulted in the Supreme Court orders.
Detective Pitt has been a police officer for 15 years, and had once before altered a search warrant to correct an error by telephoning the registrar. She was under the impression that the warrant could lawfully be varied in that way.
According to Detective Pitt, the defendant was cooperative and compliant during the search at 72. She confirmed that the premises were consistent with a hoarder's house and that it took many hours to search it thoroughly. Located at that address were all of the items the subject of the first set of charges. There were four bullets located in a draw resulting in a charge of possession of ammunition. There was 1.87kg of cannabis leaf which is the basis of a possession and a deemed supply charge. There were also possession-only charges relating to amphetamines, cannabis cookies and cannabis seeds.
[3]
The Section 138 Issue
The defence bear the burden of satisfying the court that the evidence was obtained in consequence of an impropriety or contravention of an Australian law. This part of the test was properly conceded by the prosecution given the orders of the Supreme Court.
The burden then shifts, and the prosecution bear the burden of satisfying the court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. Section 138(3) of the Evidence Act 1995 (NSW) is a non-exclusive list of matters that the court may take into account in determining that balancing test.
In this case the prosecution contend that the evidence is of high probative value - without admission of the evidence of the items seized during the search warrant the charges must fail. The prosecution contend that the deemed supply charge is serious, carrying a significant term of imprisonment and that drugs are a blight on the community. The prosecution contend that the breach of law was minor and technical, and that the officer acted in good faith without any desire to flaunt the law. Indeed, reference was made indirectly by the informant back to the registrar to clear the change of address. The prosecution concede that the rights of the defendant were infringed, but that this was not intentional or reckless.
It is fair to assume (given the level of cooperation of the defendant) that there would have been other ways of fixing the address issue had the registrar refused the request to vary the warrant, and that this could have been done without fear of destruction of evidence or escape of suspects. No action is likely to be taken against the informant for her inadvertent error.
The prosecution referred the Court to two cases which supported their submissions.
In R v Sibbraa [2012] NSWCCA 19 the magistrate inadvertently omitted to insert the date on which the warrant would issue. The prosecution conceded that the warrant was invalid and provided no entitlement to enter the property. In the District Court trial, the judge had ruled that the police in executing that warrant were reckless, and this formed a key aspect of his decision to exclude the evidence. On appeal, the Criminal Court of Appeal was unanimous that the finding of recklessness could not be made out on the evidence, and the matter was returned to be dealt with according to law. Whealy JA and Hidden J specifically declined to make any determination as to whether the evidence ought to have been admitted, and that it was an appropriate matter for the trial judge to determine. Hulme J went further and found that evidence ought to have been admitted. He quoted from Bunning v Cross (1978) 141 CLR 54 at 78:
Moreover, the Courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand, it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.
In Sibbraa, the charge was one of possession of child pornography which extended across each of the five categories in R v Oliver [2002] EWCA Crim 2766. The prosecution conceded that within those categories, the offences fell at the lower end of the range of seriousness.
Hulme J described the result of the execution of the warrant as a serious intrusion upon the rights of the occupiers, and that the primary fault for the error lay with the magistrate. He also found it relevant that (at [20]):
The origin of the impropriety was merely the accidental omission of a date and this by the issuing magistrate and that the intrusion was of a nature that, but for the defect in the warrant, would have been legal and not an impropriety and, had the defect been noticed, the intrusion could and in all probability would, have been authorised.
In R v Poulakis (No 1) [2015] ACTSC 189 the defendant was charged with six counts relating to the importation of drugs, each of which carry a maximum penalty of 25 years imprisonment. The warrant failed to name an executing constable, and it was common ground that it was thus invalid. It was conceded by the defence that the officers' conduct fell short of recklessness. Murrell CJ characterised the police conduct as careless. The evidence was admitted.
I note that in each of these cases the error was initially and primarily with the authorising court official, and that the failure to check was seen to be a relatively minor blemish by the police.
The defence submissions stress the sanctity of the home, the trespass as a result of the Supreme Court orders, that the charges are relatively minor, that it is not the first time that this erroneous process has occurred, the need to show the courts displeasure at such shortcuts and the importance of police following correct procedure when such fundamental rights are to be abridged by force and threat of arrest. The defence contends that there was no urgency, and that the rights of the defendant were arbitrarily infringed. The defence contend that to allow the evidence might be construed as the Court condoning the unlawful conduct of the police.
The defence rely firstly on the unreported Local Court decision of Magistrate Grogin in the matter of R v Paul Kenneth Rowley (Unreported, Local Court of New South Wales, Grogin LCM, 22 January 2015). The transcript of that hearing and decision was handed up to the Court and evidences a remarkably similar case to the present. This is highly persuasive, in the sense that the doctrine of precedent is based on the principle that like cases ought to be determined in a like manner so that the law provides certainty and clarity.
In that case the police attended at an address they thought was number 12. After purportedly executing the warrant the defendant produced documentation to show it was number 11. The informant rang the registrar who varied the warrant to number 11. The search continued and located a firearm and drugs. Among the charges were possession of the firearm and an actual supply of prohibited drugs being 1.248 kg of cannabis. The officer concerned was not aware of the procedure for applying for a telephone warrant and was concerned to leave the premises to apply for a fresh warrant.
An order from the Supreme Court was an exhibit, which declared the warrant invalid, and the first limb of section 138 was conceded by the prosecution. The charges were marginally more serious than in the current case, and there was some urgency as the defendant had run and tried to conceal evidence on police arriving.
Grogin LCM accepted that there was no recklessness by the police, but nevertheless excluded the evidence. The judgment was delivered extempore.
At 52:40 of the transcript, Grogin LCM found:
This is a matter which goes to the minimum standard which a society such as ours should expect and require of those entrusted with powers of law enforcement. A search warrant authorises police and other officers to enter upon and into a person's home….it is not a power which is to be used lightly, and it is not a power which is to be used flippantly. It became quite apparent at the early stages of the attendance of police at the defendants home on that day that the warrant was inaccurate. Whilst Detective Martin indicates that he was not aware of the procedure for a telephone warrant, that then does not allow the next step to be taken. Ignorance of the law is no excuse, a telephone warrant if there was an urgency attracted to that situation could have been obtained at the time and no attempts to do so were made…I find that the continued execution when the wrong address was found on the search warrant was of such a nature that would amount to grave impropriety or contravention. Certainty is required by the law when a person's liberty, their freedom and their property is to be breached…
In George v Rockett [1990] HCA 26 at 4 the High Court found:
A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s.679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions… in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.
In Plenty v Dillon [1991] HCA 5 the police unlawfully entered premises to serve a summons. The case was about the quantum of damages that ought to apply, and the court found at 24:
The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr Geoffrey Samuel has pointed out in another context, the "right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric": "The Right Approach?" (1980) 96 Law Quarterly Review 12, at p 14, cited by Lord Edmund-Davies in Morris v. Beardmore, at p 461. If the courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.
I recently had cause to read the dissenting judgment of Brandeis J of the Supreme Court of the United States in Olmstead v United States (1928) 277 US 438. That case was primarily about whether to admit evidence obtained by way of illegal wiretap. His Honour found:
In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law: it invites everyman to become a law unto himself: in invites anarchy. To declare that in the administration of the criminal law the end justifies the means - to declare that the Government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
In R v Buddee [2016] NSWDC 422 the defendant was charged with supply amphetamines after her car was unlawfully searched by police. This case has much more relevance to the second charge discussed below. However of some relevance is that the charge in issue was deemed supply of 6.76 grams of methylapmhetamine at an approximate purity of 80%. At [115], the Court described that as follows:
If it were proved, would be at the bottom range of seriousness for such an offence.
In terms of the seriousness of the crime in this case, I note that the charge is one of deemed supply cannabis, where the maximum penalty is less than for other illicit drugs. Cannabis supply can be dealt with in the Local Court in circumstances where all other prohibited drugs must be dealt with on indictment. This is legislative recognition that offending with respect to cannabis is less serious than, for example, amphetamines, cocaine or heroin.
This is a case where the competing considerations of section 138 are difficult to reconcile, and the situation is finely balanced. In my view, the cases of Sibbraa and Poulakis can be distinguished in that the primary and initial error was by the magistrate, not the police. In this case and in Rowley the police did not prepare the warrant correctly, or carry out preliminary investigations that could have led to the properties being properly identified. It seems to me that fairly basic police work could have ensured the correct address was identified in applying for the initial warrant. In Sibbraa, Poulakis, and Rowley the crimes were significantly more serious than in the present case. Whilst the police officer in this case was not reckless, her degree of carelessness regarding the address was significant. There was no urgency and she easily could have properly sought a fresh search warrant by lawful means had she addressed her mind to it. I am mindful of the approach of the High Court in strictly construing statute regarding search warrants and also protecting the property rights of landholders.
On the other hand, the informant's error was compounded by the approach of the registrar, and there is little doubt that had a fresh search warrant been sought it would have been granted.
Had this case been characterised by an initial error by the registrar, a sense of urgency or a more serious offence such as child pornography or importation of significant quantities of drugs the outcome may well have been different. On balance the prosecution have failed to satisfy me that the evidence ought to be admitted notwithstanding the illegality and thus the order of the Court is that the evidence is excluded.
[4]
Facts
On 14 July 2016 the defendant was driving her motor vehicle in Nimbin and the vehicle was stopped by police. As a result of this stop, she was charged with driving with an illicit drug present in her blood, and also with possess prohibited drug, being a small amount of cannabis. She pleaded guilty to the driving matter, but not guilty to the possession charge, and the proceedings commenced by way of voir dire on the issue of the legality of the search.
The only witness was Senior Constable Plichta, the informant in the proceedings. In evidence in chief he describes seeing the car travelling in the opposite direction to his unmarked police vehicle. He recognised the car as belonging to the defendant, but did not see who was driving. He then conducted a U-turn, with a view to carrying out a random breath test and drug test. He applied the lights on the police vehicle, pulled over the car and approached the driver's window.
The subsequent events are of marginal relevance to the current section 138 issue, in the sense that the challenge is to the legality of the stop. When he pulled the car over the window was wound down and he noticed a strong cannabis smell coming from the vehicle. Further, he noticed that the passenger in the vehicle was subject to bail conditions and that by being in Nimbin she was in breach of those bail conditions. Accordingly, the police arrested and detained the passenger, searched the vehicle and secured the cannabis located and then undertook the breath and drug tests. The breath test was clear, the drug test was not, and the defendant was arrested for the purposes of undergoing the second test in Lismore.
In cross examination the officer agreed that he was present at the execution of the search warrant the subject of the first set of charges discussed above. He knew the defendant and he knew her car, and had previously had other contact with her in drug related matters. Senior Constable Plichta was then asked a series of questions with respect to the decision to conduct a breath and drug test.
The prosecutor at 24:5 of the transcript of these proceedings asked the officer:
Q: Can you tell the Court why you stopped the defendant's vehicle?
A: Initially it's for just a random breath test and drug test.
At 25:20 the officer identified those powers as under the Road Transport Act 2013 (NSW).
At 28:25 the officer was asked:
Q: In fact, when you recognised the registration as belonging to Rebecca Cook that's when you started to have some suspicion about that vehicle?
A: Yeah correct
Q: Indeed what you engaged in is what is known I think as a bit of proactive policing, pull the car over to search the car for some drugs?
A: Not at that stage no.
Q: You just gave evidence that you recognised the registration and that it was for Rebecca Cook and that gave you some suspicion, yes, that was your evidence?
A: Yeah well there's some suspicion, still there's other powers that we exercise.
Q: That was the main reason for doing the U-turn and doing an RBT wasn't it?
A: Well, I wouldn't say the main reason but it was part of my reason to stop the car, yes.
Q: Well, I'll put it to you that it was the main reason and that's why you went to such great lengths to do a U-turn to follow the car, you were concerned that there may be some drugs in that car weren't you?
A: At that stage I didn't know there were drugs in there, no.
Q: But you were suspicious that there probably would be?
A: Well I don't know 'probably would be', this was a possibility.
The officer clearly drew a distinction between his powers under section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), for which he needed reasonable grounds to believe that there were drugs in the vehicle, and his powers to stop under the traffic laws. He exercised the LEPRA powers once he had stopped the vehicle and could smell cannabis coming from the vehicle. That excited the reasonable grounds to believe, and this is not controversial. However the totality of the officers' evidence shows he did not purport to have the reasonable grounds to believe any offence had been committed at the time he exercised his powers to stop the vehicle. That was based merely on identifying the vehicle as having connection to the defendant and in turn her involvement with prior drug matters. In effect that was a suspicion, but one that the officer knew would not meet the section 36 LEPRA test. In affect it was a hunch, or as he later described, 'a possibility'. Clearly, there was nothing 'random' about the stopping.
[5]
The Section 138 Issue
The defence bear the burden of satisfying the court on balance of probabilities that the actions of the police were illegal or improper.
The defence relied primarily on the case of R v Buddee [2016] NSWDC 442. The facts of that case are lengthy and do not need to be repeated here in detail. The police were engaged in a proactive police operation which was described in the transcript as follows:
Q. Does proactive policing mean going out and stopping cars ostensibly for RBT and then seeing whether there's anything to be suspicious about?
A. I would say that falls within the scope, I wouldn't say it's all about that but I guess that comes along with it.
At [81] the Court found:
The totality of the evidence inevitably leads to the conclusion that the road safety power to pull people over randomly for a breath test was in fact being selectively relied upon to pull people over on a hunch or mere suspicion that they might be involved in crime. I am satisfied that this was occurring.
At [90], the Court considered the general principles applicable to interpretation of provisions that grant police powers:
In Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, the High Court was concerned with the extent of police powers to detain in custody for questioning someone who had been lawfully arrested. Justices Mason and Brennan referred with approval to the statement of Deane J in Cleland v the Queen in which he said:
"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."
They concluded:
"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 Buddee at [57], the Court considered in detail the provisions empowering police to undertake stop and searches of motor vehicles, and the power to conduct random breath tests.
The police already have wide ranging powers relating to stopping and searching motor vehicles. I note the sections of the LEPRA, in particular s 21: the power to search and seize and detain things without warrant; s 36: the power to search vehicles and seize things without warrant; s 36A: the power to stop vehicles; and s 37: the power to stop vehicles at road blocks. I also note the power under the LEPRA in respect of making particular sites the subject of searches with drug dogs and the capacity to declare various areas in respect of searches for drugs. There is a power under the Act for controlled operations which can authorise otherwise illegal behaviour. I also note the power of a police officer to request disclosure under s 14 of the driver or passenger's identity in certain circumstances, none of which applied here.
The Road Transport Act provides a power to conduct a breath test:
SCHEDULE 3 - Testing for alcohol and drug use
…
Division 2 - Random breath testing and breath analysis
3 Power to conduct random breath testing
(1) A police officer may require a person to submit to a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that:
(a) the person is or was driving a motor vehicle on a road, or
(b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or
(c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.
(2) Before requiring a person to submit to a breath test under subclause (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person's breath by requiring the person to talk into a device that indicates the presence of alcohol.
(3) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle.
(4) A person must comply with any request or signal made or given to the person by a police officer under subclause (3).
Maximum penalty: 10 penalty units.
There is an identical provision for random drug testing in clause 6 of the same Schedule.
The Court in Buddee at [59] concluded that there was no power in the above provision that enabled the police to utilise the RBT provisions for non-road safety matters:
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.
Following an exhaustive consideration of the authorities in Australia and overseas, the Court concluded 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.
At [112] his Honour concluded that the purpose for stopping the vehicle was not to conduct a random breath test, and thus the stopping was illegal and accordingly the evidence of drug possession was obtained unlawfully as a consequence of a contravention of Australian law.
I note that within the judgment of Buddee, there are repeated references to an unreported decision of R v Pizarro (Unreported, District Court of New South Wales, 20 October 2015) which came to the same conclusion regarding the illegal use of random breath test powers, but nevertheless the Court admitted the evidence on the balancing test of section 138.
It is arguable that decisions of the District Court are not binding on the Local Court. Technically that is correct. However the District Court is the principal appeal court from this Court, and where there are reported, unambiguous, repeated, un-appealed decisions then the Local Court must regard them as being very highly persuasive.
I did also consider the findings in Buddee are obiter dicta, in the sense that the Court found that the evidence that a random breath test took place was unacceptable, and there were other serious problems of police conduct once the stop had occurred. However, on careful reading, the purported use of RBT was the stated purpose for the stopping of the motor vehicle, and this was crucial to the consideration of section 138.
In my view the very definite conclusions drawn by the court in Buddee are convincing, although not unreservedly so. Although it was not raised in this case (and thus not determined here), the empowering legislation only mentions the word 'random' in the title of the division and section, not in the body of the section itself. Subsection 35(2) of the Interpretation Act 1987 (NSW) excludes headings as being a part of the Act. On the other hand, section 35(5) provides that the heading can be utilised in assessing the intention of parliament under section 34. I share the view that if parliament wanted to create a power so far reaching beyond those in LEPRA, then it would have made that clear. Further, parliament has not acted to overcome the effect of the decision in Buddee and its predecessors.
I note further that 'Random' is defined in the Macquarie Dictionary as "without definite aim, purpose, or reason…not according to a pattern or method".
The defence also referred me to the decision of DPP v Kaba [2014] VSC 52. I have read this judgment and reject its usefulness for consideration in New South Wales as the different traffic provisions, and the unique Charter of Human Rights, makes the foundation for comparison extremely shaky, particularly with reference to the contended illegality in the stopping.
In the current case I am satisfied that there was nothing random about this stop at all. It was done to further a hunch or a possibility. Accordingly, in the light of the authority of Buddee, I am satisfied that the stopping was illegal, in the sense that it was not a proper use of the random breath or drug test powers. I note that this decision is based on these facts, and the similarity to the facts in Buddee. This decision is not authority for the proposition that, for example, targeting all truck drivers at a stop for amphetamines or placing testing stations at known offence points would necessarily be considered objectionable.
This was the specific targeting of a known motor vehicle on a hunch that there may be drugs or other offences being committed and then using the RBT powers to explore that possibility. That is not empowered by LEPRA and the traffic provisions do not make what would have been unlawful, lawful.
I now turn to the second part of the section 138 test where the prosecution bear the burden of satisfying the court that the evidence ought to be admitted, in that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. Section 138(3) is a non-exclusive list of matters that the court may take into account in determining that balancing test.
Obviously the evidence is crucial to proving the prosecution case. The offence, possession of a small quantity of cannabis is at the low end of the criminal calendar being a summary offence with a maximum penalty of two years imprisonment. I note further that this offence is unique in that there is a statutory cautioning system for those without a prior criminal record.
To the extent that it is relevant (given that there is a plea of guilty), the offence of driving with a detectable level of drug is at the very low end of seriousness. Affectation is not an element of the offence, and there is no evidence of that. The maximum penalty does not include a term of imprisonment.
In my view the breach of the law by police is serious, in the sense that if road safety rules are used for an ulterior motive then it brings into question the community acceptance of such provisions. I refer again to the cases of Plenty v Dillon and Olmstead v United States. In my view random breath testing is seen as a necessary infringement on the rights of drivers provided it is utilised for road safety purposes. The courts in decisions such as Buddee, determined that the practice of utilising RBT powers for another purpose is illegal. That is not to suggest that the officer involved was deliberately flouting the law. The officer involved was clearly unaware that he was doing anything wrong. He was honest and forthright in answering the questions. In particular, he made genuine concessions on matters which could have helped his case if he chose - for example recognition of the passenger. He appeared surprised that his use of the RBT powers in this way was in issue. He is unlikely to face any punishment for his digression.
There is an issue as to whether the conduct represents a pattern or as put in Buddee at [117]-[118]:
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.
In my view it is not appropriate or necessary to consider in this case whether the use of RBT in this manner is common in my experience. There were no submissions by the parties on this matter, and either way it would not make a significant difference to the outcome in this case given the nature of the charge.
The defendant's rights were significantly infringed by having her vehicle targeted in this way.
On balance, I am not persuaded to admit the evidence. The charge is particularly minor and the infringement by police serious. The law on this issue has been stated repeatedly in the intermediate courts, and ought to be well known and adhered to by the police. The evidence is excluded under section 138.
Magistrate David Heilpern
[6]
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Decision last updated: 22 March 2018