R v Rondo

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

Judgment 1 SPIGELMAN CJ: I have read the judgment of Smart AJ in draft. Subject to the following observations I agree with his Honour's reasons and the orders his Honour proposes. I wish to emphasise that it is the cumulative effect of the defects in the investigative process that have led me to the conclusion that the appeal should be allowed. 2 The defects his Honour identifies in the criminal investigation procedure would only lead to the Appellant's acquittal if a trial judge exercises the discretion under s138 of the Evidence Act 1995 to exclude the evidence found at the Appellant's home. This Court cannot and does not purport to undertake the balancing exercise for which s138 of the Evidence Act calls. However, given the number and nature of the defects in the investigative procedure, the trial and appeal to which the Appellant was subjected and the suspended sentence, this is not a case in which the Court should order a new trial. 3 Section 138 of the Evidence Act 1995, relevantly provides: "138(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 a way in which the evidence was obtained." 4 As Smart AJ indicates, Judge Gibson did not take into consideration the contravention of s357E of the Crimes Act 1900 constituted by the act of stopping a vehicle without any proper basis for doing so. Accordingly, when his Honour came to undertake the balancing exercise under s138 with respect to the admissibility into evidence of the items found in the glove box, his Honour did not have in mind that particular contravention "in consequence of" which evidence was obtained. 5 Similarly, when his Honour came to undertake the balancing exercise under s138 with respect to the evidence found at the home, his Honour did not have in mind the fact that that evidence was obtained "in consequence of" the contravention of s357E constituted by the act of stopping a vehicle. There is a clear chain of causation between the contravention of s357E and the obtaining of the evidence at the home which satisfies the "in consequence of" requirement of s138. 6 When undertaking the balancing exercise under s138 with respect to the evidence at the home, his Honour did have in mind the contravention of the law in the issue of the search warrant. His Honour did not, however, have in mind any contravention with respect to the detention warrant. It was during the period of detention as extended under the warrant, that a number of steps in the chain of discovery of the evidence at the home occurred. In this regard also I am of the view that the evidence was 'obtained' "in consequence of … a contravention of an Australian law", namely, the provisions of Pt 10A of the Crimes Act 1900. 7 With respect to the contravention of s357E of the Crimes Act 1900, Smart AJ sets out the reasons given by Judge Gibson as to why he would have concluded, under s138, that the evidence in the glove box should be admitted if, contrary to the view he took, he had identified a contravention of s357E. The passage quoted by Smart AJ follows upon his Honour expressly making the assumption that there had been such illegality. However, the illegality that Judge Gibson had in mind was the illegality constituted by the search, on the basis that the act of reaching towards the glove box was not a proper basis for suspicion. 8 Judge Gibson did not have in mind the illegality associated with the stopping of the vehicle as an alternative or additional basis for a conclusion that s357E had been contravened. This additional or alternative basis for a finding of a contravention is not, in my opinion sufficiently distinctive from the illegality which his honour assumed, to justify intervention by an appellate court with the formulation of his Honour's judgment under s138, to the effect that evidence would be admitted notwithstanding the identification of a significant contravention. I would not have found this to be a miscarriage of justice if it stood alone. However, it does not stand alone. 9 With respect to the detention warrant I do not think it necessary to express a concluded view that the Custody Notice Report was not admissible. It was tendered only on the voir dire and not before the jury. 10 With respect to the issue of validity of the detention warrant it is appropriate to set out the relevant provisions of Pt 10A of the Crimes Act 1900. "354 The objects of this Part are: (a) to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's involvement in the commission of an offence, and (b) to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a justice, Magistrate or court without delay or within a specified period, and (c) to provide for the rights of a person so detained. … 356 (1) This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State. (2) This Part does not apply to a person who is detained under the Intoxicated Persons Act 1979. … 356D (1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period. (2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.

356E (1) In determining what is a reasonable time for the purposes of section 356D(1), all the relevant circumstances of the particular case must be taken into account. (2) Without limiting the relevant circumstances that must be taken into account, the following circumstances (if relevant) are to be taken into account: (a) the person's age, physical capacity and condition and mental capacity and condition, (b) whether the presence of the person is necessary for the investigation, (c) the number, seriousness and complexity of the offences under investigation, (d) whether the person has indicated a willingness to make a statement or to answer any questions, (e) the time taken for police officers connected with the investigation (other than police officers whose particular knowledge of the investigation, or whose particular skills, are necessary to the investigation) to attend at the place where the person is being detained, (f) whether a police officer reasonably requires time to prepare for any questioning of the person, (g) the time required for facilities for conducting investigative procedures in which the person is to participate (other than facilities for complying with section 108 of the Criminal Procedure Act 1986) to become available, (h) the number and availability of other persons who need to be questioned or from whom statements need to be obtained, (i) the need to visit the place where any offence concerned is believed to have been committed or any other place reasonably connected with the investigation of any such offence, (j) the time during which the person is in the company of a police officer before and after the person is arrested, (k) the time taken to complete any searches or other investigative procedures that are reasonably necessary to the investigation (including any search of the person or any other investigative procedure in which the person is to participate), (l) the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation. (3) In any criminal proceedings in which the reasonableness of any period of time that a person was detained under this Part is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the period of time was reasonable. … 356G (1) A police officer may, before the end of the investigation period, apply to an authorised justice for a warrant to extend the maximum investigation period beyond 4 hours. (2) The person to whom an application for a detention warrant relates, or the person's legal representative, may make representations to the authorised justice about the application. (3) The authorised justice may issue a warrant that extends the maximum investigation period by up to 8 hours. (4) The maximum investigation period cannot be extended more than once. (5) An authorised justice must not issue a warrant to extend the maximum investigation period unless satisfied that: (a) the investigation is being conducted diligently and without delay, and (b) a further period of detention of the person to whom the application relates is reasonably necessary to complete the investigation, and (c) there is no reasonable alternative means of completing the investigation otherwise than by the continued detention of the person, and (d) circumstances exist in the matter that make it impracticable for the investigation to be completed within the 4-hour period. 356H (1) An application for a detention warrant may be made by the applicant in person or by telephone. (2) An application for a detention warrant made in person must be made in writing in the form prescribed by the regulations. The authorised justice must not issue the detention warrant unless the information given by the applicant in or in connection with the application is verified before the authorised justice on oath or affirmation or by affidavit. An authorised justice may administer an oath or affirmation or take an affidavit for the purposes of an application for a detention warrant. (3) An authorised justice must not issue a detention warrant on an application made by telephone unless satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person. An application for a detention warrant made by telephone must be made by facsimile (instead of orally) if the facilities to do so are readily available for that purpose. (4) If it is not practicable for an application made by telephone to be made directly to an authorised justice, the application may be transmitted to the authorised justice by another person on behalf of the applicant. (5) An authorised justice who issues a detention warrant on an application made by telephone must: (a) complete and sign the warrant, and (b) furnish the warrant to the person who made the application or inform that person of the terms of the warrant and of the date and time when it was signed. (6) If a detention warrant is issued on an application made by telephone and the applicant was not furnished with the warrant, the applicant is to complete a form of detention warrant in the terms indicated by the authorised justice under subsection (5) and write on it the name of that authorised justice and the date and time when the warrant was signed. A form of detention warrant so completed is taken to be a detention warrant issued in accordance with this section. (7) A detention warrant issued on an application made by telephone is to be furnished by the authorised justice by transmitting it by facsimile, if the facilities to do so are readily available. The copy produced by that transmission is taken to be the original document. (8) As soon as practicable after a detention warrant is issued, the custody manager for the person to whom the warrant relates: (a) must give the person a copy of the warrant, and (b) must orally inform the person of the nature of the warrant and its effect. (9) In the case of an application for a detention warrant made by telephone, the applicant for the warrant must, within one day after the day on which the warrant is issued, give or transmit to the authorised justice concerned an affidavit setting out the information on which the application was based that was given to the authorised justice when the application was made. (10) In any criminal proceedings, the burden lies on the prosecution to prove on the balance of probabilities that the warrant was issued. (11) In this section, 'facsimile' includes any electronic communication device that transmits information in a form from which written material is capable of being reproduced with or without the aid of any other device or article. 356I (1) An authorised justice must not issue a detention warrant unless the application for the warrant includes the following information: (a) the nature of any offence under investigation, (b) the general nature of the evidence on which the person to whom the application relates was arrested, (c) what investigation has taken place and what further investigation is proposed, (d) the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation, (e) the extent to which the person is co-operating in the investigation, (f) if a previous application for the same, or substantially the same, warrant was refused, details of the previous application and of the refusal and any additional information required by section 356J, (g) any other information required by the regulations. (2) The applicant must provide (either orally or in writing) such further information as the authorised justice requires concerning the grounds on which the detention warrant is being sought. (3) Nothing in this section requires an applicant for a detention warrant to disclose the identity of a person from whom information was obtained if the applicant is satisfied that to do so might jeopardise the safety of any person. … 356L (1) An authorised justice who issues a detention warrant is to cause a record to be made of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the warrant. (2) The regulations may make provision for or with respect to: (a) the keeping of records in connection with the issue and execution of detention warrants, and (b) the inspection of any such records, and (c) any other matter in connection with any such records. (3) Any matter that might disclose the identity of a person must not be recorded under this section if the authorised justice is satisfied that to do so might jeopardise the safety of any person. (4) A detention warrant must be in the form prescribed by the regulations. (5) A detention warrant is not invalidated by any defect other than a defect that affects the substance of the warrant in a material particular. 356M (1) As soon as practicable after a person who is detained under this Part comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing: (a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and (b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised justice and that the person, or the person's legal representative, may make representations to the authorised justice about the application. (2) The giving of a caution under subsection (1)(a) does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer. (3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given." 11 Section 356H(2) authorises regulations and prescribed forms. This power was exercised in the Crimes (Detention After Arrest) Regulation 1998. By cl 30 of that Regulation a Form 1 was prescribed for an Application for Detention Warrant. It was this form that was filled out, in part, in the present case. 12 The purpose of a Form 1 is to enable the magistrate to whom the application is made to formulate in his or her own mind the state of satisfaction which s356G(5) mandates. Specifically, s356I imposes mandatory requirements for the contents of an application. It is, accordingly, surprising that the Form 1 specified by the Regulations does not precisely follow the paragraphs of s356I(1). 13 For example Form 1 requires in par [1] that the Applicant set out the offences for which "the detained person was arrested". The requirement in s356I(1)(a) is in different terms: "the nature of any offence under investigation". There are two kinds of offences capable of answering this description. First, the offence for which a person is arrested, referred to in s356C(2). Second, there is any further offence, not being an offence for which the person was arrested but with respect to which a police officer "forms a reasonable suspicion as to the persons involvement", pursuant to s356C(3). Form 1 does not contain any provision for identifying an investigation under s356C(3). It refers only to the identification of the offences for which a person was arrested, which is referrable only to the investigation permitted under s356C(2). 14 Similarly, there is not an identity of expression between par [6] of the Form 1 and s356I(1)(d). The former requires the applicant to state "the grounds on which" he or she has "formed a belief that the investigation period should be extended beyond four hours". Section 356I(1)(d) requires the application to state: "the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation". The Form 1 does not necessarily direct the attention of an investigating officer to the matters required to be placed before the magistrate in this regard. 15 Part 10A of the Crimes Act seeks to reconcile in a balanced manner the conflicting interests involved in ensuring the efficacy of police investigations, on the one hand, and respecting the rights of citizens, on the other hand. Its origins can be traced to the decision of the High Court in Williams v The Queen (1986) 161 CLR 278, where the Court affirmed the common law position that an arrested person is required to be taken before a justice as soon as practicable. This decision posed significant difficulties for the conduct of police investigations. An integrated scheme was first proposed by the New South Wales Law Reform Commission in its report Criminal Procedure: Police Powers of Detention and Investigation After Arrest Report LRC 66, December 1990 esp Ch 3. The legislation was supported by Justice Wood, the Royal Commissioner into the New South Wales Police Service. (See Royal Commission into the New South Wales Police Service Final Report vol 2 May 1997 esp at pars [7.123]-[7.131].) Part 10A was introduced into the Crimes Act 1900 by the Crimes Amendment (Detention After Arrest) Act 1997. 16 The content of an application is of central significance for the operation of the Pt 10A scheme in terms of ensuring that the balance between the requirements of police investigation and the rights of citizens is maintained. The investigating officer must fill out the form accurately in order to enable the magistrate to perform his or her critical checking functions, for which the Act makes mandatory provision. 17 Whether or not an error leads to invalidity of the warrant will depend on all of the circumstances of the case, specifically the nature and significance of any inaccuracy or inadequacy in the contents of the application. It is not every error which will lead to the conclusion that there is no valid warrant and, accordingly, that the maximum investigation period was not extended under s356D(2), with the consequence that detention was not authorised after the period of four hours for purposes of s356C(1). This would be a contravention of the law within s138 of the Evidence Act 1995 "in consequence of which" evidence may have been acquired. 18 The Appellant was not legally represented on appeal. He was, however, represented at the trial and a number of criticisms of the Detention Warrant were made on his behalf. On the appeal he focused on two issues. First, the fact that the application was unsigned and secondly the provision of inaccurate information, specifically with respect to par [6] of the Form 1. 19 I agree with Smart AJ that the absence of a signature on the application is not a breach. 20 Section 356H(1) makes provision for an application to be either "in person or by telephone". By s356H(2) an application "in person" must be in writing in accordance with Form 1. Pursuant to s356H(3) an application "made by telephone must be made by facsimile (instead of orally) if the facilities to do so are readily available for that purpose". That does not convert an application by means of "facsimile", which is defined in s356H(11), into an application in writing. It remains an application by telephone, which does not require a signature or, incidentally, compliance with a Form 1. Nevertheless, an application by telephone (including by facsimile) is required to satisfy the provisions of s356I. It is understandable why, as in this case, a facsimile confirmation of an application by telephone adopts the Form 1 prescribed for purposes of an application "in person". 21 In the present case the Appellant placed particular reliance on the error in par [6] of the application that there was "no explanation". The answer suggested that the suspect was being evasive and refused to answer questions. This was an incorrect impression to give. It would have been more accurate, in accordance with the evidence given before Judge Gibson, if the police officer had said that there was an explanation, but that the investigating officer did not find it credible. I would interpret the words used in this way. It would not, of course, be a proper use of the power to detain, for it to be exercised for the purpose of keeping a person in custody until he or she offered an explanation. 22 If this error had stood on its own, as I interpret it, only an infelicity of expression, I would not have reached the conclusion that this was a failure of sufficient significance to conclude that the mandatory requirements of s356I(1)(d) were not satisfied in the present case, with the further consequence that the magistrate could not properly reach the stage of satisfaction required under s356G(5). Nevertheless, in view of the combined effect of this error and other errors, which are plain on the face of the documentation, I am satisfied that invalidity of the requisite character occurred. 23 The Crown is required to establish on the balance of probabilities that a warrant was issued pursuant to s356H(10). As Smart AJ concludes, in the present case there was no affidavit verifying the facts placed before the magistrate in the application made by telephone, i.e. by facsimile, in accordance with the requirements of s356H(9). The requirement of verification, whether at the time of an application in person, or within a day of an application by telephone, is not a mere formality. 24 Furthermore, par [4] which requires an answer to the question "The following investigation has taken place to date" is left blank. This par [4] is in the same terms as the introductory words of the mandatory requirement in s356I(1)(c) to the effect that a warrant must include the information as to "what investigation has taken place". Some aspects of the investigation conducted are found in the answer to pars [6] and [7] in the Form used in the present case. However, the requirements of the Act have not been addressed in terms. 25 The cumulative effect of all of these deficiencies is such as to satisfy me that in the present circumstances of the case the Detention Warrant was not valid. 26 SIMPSON J: I agree with the orders proposed by Smart AJ and, generally, with his reasons. I also agree with the additional observations of the Chief Justice, particularly with regard to Part 10A of the Crimes Act, and the various defects in the issue of the Detention Warrant, in part brought about because of the misleading nature of the Form which an applicant for such a warrant is required to complete. To the extent that there is a difference of opinion between the Chief Justice and Smart AJ, with respect to the effect of the illegality constituted by the initial stopping of the Appellant's vehicle, had it stood alone, I do not find it necessary to express an opinion. Such a circumstance gives rise to a classic exercise of discretion, which, in the relevant circumstances, could reasonably go either way. The fact is that this contravention did not stand alone. 27 SMART AJ: John Rondo appeals against his conviction by a jury in the District Court of supplying a prohibited drug (cannabis leaf - 224 grams) and cultivate prohibited plant (59-63 cannabis plants). The supply charge arose out of his possession of the cannabis leaf. He was acquitted of offering a bribe to a police officer. He was sentenced to imprisonment for 2 years but this was suspended upon him entering into a bond to be of good behaviour for two years. 28 The grounds of appeal challenge a number of rulings of the judge admitting evidence and his decision that a detention warrant was valid. It is contended that the appellant's counsel was incompetent and that as a result the appellant did not receive a fair trial. The appellant further complains that the trial judge was biased against him. 29 In outline the police stopped a vehicle being driven by the appellant, searched it and allegedly found $860 in the console and some cannabis leaf in the glovebox. The appellant was arrested and taken to Chatswood Police Station but he refused to answer questions. The police obtained a detention warrant and a search warrant to search the home where he lived with his mother. Upon searching, they allegedly found some cannabis leaf and some cannabis plants. It will be necessary to outline the facts in greater detail as the various grounds are considered. 30 Appeal Grounds 1 and 2 read:

"1 … the trial judge erred in finding that the provisions of s.357E of the Crimes Act 1900 were established [satisfied ?]by the arresting Police officers, thereby making the stopping and searching of the appellant's vehicle lawful … the trial judge erred in determining that the detention of the appellant was thereafter lawful." "2. … the trial judge erred in exercising his discretion to admit the evidence pursuant to s.138 of the Evidence Act 1995 with respect to Ground 1." 31 The judge first held a voir dire on the lawfulness of the stopping and searching of the vehicle. The material before the judge when he gave his ruling on that issue and the admissibility of what happened and was found on the search comprised statements of Constables Gautier and Barnes and some concessions made by the legal representatives of the parties.

32 According to the constables, about 7pm on 19 February 1999 Cons Barnes was driving a police vehicle east along Epping Road Lane Cove with Cons Gautier in the passenger seat., They noticed a navy blue Toyota Supra coupe (a sports car) with panel damage to the driver's side travelling east in lane 1 of Epping Road. The vehicle had a smart appearance and appeared capable of travelling at fast speeds. Cons Barnes noticed the vehicle enter Epping Road from another busy road, Centennial Avenue. Cons Barnes drove the police vehicle alongside the Toyota Supra coupe. Cons Gautier said to the appellant, the driver, "Is this your car?" He replied, "No". Cons Barnes moved the police vehicle behind the Supra coupe and engaged the police beacons and siren. The coupe was pulled over into Parklands Avenue about 30 metres north of Epping Road. The police vehicle stopped behind the Supra.

33 Cons Gautier said that Cons Barnes walked up to the driver of the Supra while he (Gautier) remained in the police vehicle and carried out a registration check. Cons Barnes said that as he walked up to the Supra he noticed the appellant lean across to the passenger side of the vehicle and place something in the glovebox. Cons Barnes said he approached the vehicle and asked the appellant for his driver's licence. Cons Barnes returned to the police vehicle and spoke with Cons Gautier who told him something.

34 Cons Barnes said that he returned to the Supra and asked the appellant whose car it was. He replied: "My mum's". Cons Barnes detailed this conversation: I said: "John I believe something to be in your car that is stolen or otherwise unlawfully obtained, do you mind if I search your vehicle? Appellant: 'Yes, last time they searched it, they damaged my mum's car".

I said: "I am going to search your car with or without your consent. I am letting you know if I find anything which I believe to be stolen or otherwise unlawfully obtained you will be placed under arrest and conveyed back to Chatswood Police Station, do you understand that?" Appellant: "Yes"

I said: "Is there anything in the car you wish to tell me about?" Appellant: "No".

35 Cons Barnes said that on searching the centre console of the Supra he found a bundle of notes folded in half, which on later counting amounted to $860. He detailed this conversation:

I said: "What is this money for?" Appellant: "I got paid from a job today".

I said: "What do you do?" Appellant: "I am a contractor, it was for editing a film." 36 Cons Gautier said that he saw Cons Barnes searching the Supra and speaking with the appellant. Cons Gautier said that he got out of the police vehicle and walked up to the appellant. Cons Barnes produced a bundle of bank notes, saying, "I found this in the centre console" Cons Gautier recounted this conversation:

I said: "Where did you get this money from?" Appellant: "I just got paid." I said: "In cash." Appellant: "Yes, I'm a contractor." I said: "Do you have a pay slip or any receipts to support that?" Appellant: "No, they just pay me cash in hand." 37 Cons Gautier counted the cash in front of the appellant and then returned to the police vehicle. Cons Barnes continued to search the Supra. He attempted to open the glovebox but it was locked. Cons Barnes stated that this conversation occurred:

"I said: "Can I have the key to the glove box." Appellant: "Come on, you know can we work this out, can't we work something out."

I said: "Can I have the key?" Appellant: "I don't have the key it is my mum's car and she has the key at hone." 38 Cons Barnes said that he removed a single silver key attached to an alarm from the appellant's hand. Cons Barnes said that the appellant appeared nervous and was pacing on the spot. Cons Barnes said that on unlocking the glovebox he found inside it a brown paper bag containing three small resealable plastic bags containing green vegetable matter, and another brown paper bag containing a larger clear plastic bag with green vegetable matter. Cons Barnes said that he showed these to Cons Gautier and Cons Gautier confirmed this. Cons Gautier and Barnes detailed this conversation:

Gautier: "You are not obliged to say or do anything unless you wish. Do you understand that?" Appellant: "Yes."

Gautier: "What is that?" Appellant: "It's marijuana."

Gautier: "Where did you get it from?" Appellant: "From two blokes at the Great Northern. " (The judge was prepared to exclude the last question and answer but they were led at the trial without objection). 39 Cons Gautier said that while Cons Barnes was continuing with his search of the Supra the appellant's mobile phone rang several times. Cons Gautier recounted this conversation

Gautier: "You are under arrest for having cannabis in your possession. You are not obliged to say or do anything unless you wish to do so. Do you understand that? Appellant: "Yes"

Gautier: "As anything you say or do may be used in evidence: Do you understand that?" Appellant: "Come on we can work something out."

Gautier: "What do you mean?" Appellant: "You've seen what I've got, the ball is in your court, lets work something out."

(According to Cons Gautier, the appellant pointed towards his car and smiled) Gautier: "I don't understand what you mean sir?" Appellant: "You know the ball is in your court, if you want to work something out." 40 Cons Gautier handcuffed the appellant and searched him. Cons Gautier said that the appellant declined to repeat what he had said in front of both Cons Gautier and Cons Barnes adding "You know what I mean". Cons Barnes and Gautier said this conversation occurred:

"Gautier: "Do you agree that you just told me that we could work something out." Appellant: "I don't want to say anything else."

41 The appellant was placed in the rear of the police vehicle.. A short time later two further police officers arrived with a video camera and a short video sequence of the scene and the vehicle were recorded. There was a re-enactment of what had taken place on the search including the finding of the bundle of notes in the console, the opening of the glovebox, the finding of the marijuana and Cons Gautier counting the bundle of notes.

42 The Crown Prosecutor told the judge that the Crown evidence as to what Cons Gautier said to Cons Barnes would be in these terms: "… Gautier would say that when he did a police check the only information that came over the radio was that that car had previously been involved in some traffic matter, and I expect though that when if you asked Barnes what it was that he was told by Gautier he would say that he was told that the information over the radio that the car had previously been involved in some drug matter. Then I asked why then if that's right … he made reference to some things stolen or otherwise unlawfully obtained. He said he was just using it to … (not transcribable)." Later it was explained that the words used were police jargon. Counsel for the appellant accepted that the Crown's evidence would be as stated by the prosecutor and the matter proceeded on that basis. 43 In argument the judge expressed the view that the Crown case was "fairly thin". This elicited the following response from the Crown Prosecutor:

"Up until they found the drugs. Frankly… there's not a great deal - they were suspicious because a fresh faced young man in a fast car with damage to it is driving down the road and asked him who owned it, he said it wasn't his and then he reaches across to the glovebox and in their mind that's enough to search the car. It turned out they were right." The appellant was aged 20.

44 After having heard detailed argument on s.357E of the Crimes Act 1900 the judge sought submissions in relation to s.138 of the Evidence Act 1995. 45 In his reasons the judge recorded that the actions of Cons Barnes in particular and Cons Gautier were purportedly exercised (sic) under s.357E of the Crimes Act 1900. The judge summarised the facts as follows: "The evidence, as I understand it, is that the vehicle was seen being driven by the accused. It was an open vehicle and upon pulling alongside he was asked if it was his vehicle. He said no it was not. He was thereupon requested to pull over and the basis of the search is contained in the affidavit [statement] of Constable Barnes, as I understand it, that he saw the driver when he alighted, he was behind the vehicle and after he was stopped he saw the driver lean across to the passenger side of the vehicle. As the driver did this he appeared to be placing something in the glove box. He then approached, there was some conversation and the accused said it was his mother's car and he said 'I believe there is something in your car that is stolen or otherwise unlawfully obtained, do you mind if I search it' and the defendant said 'yes, the last time they searched it they damaged my mum's car.' The constable said 'well I'm going to search your car with or without your consent' and proceeded as he says to exercise his powers under section 576E to search." 46 The word "requested" is not apt. It should read "required" as the evidence is that the appellant was required to pull over and stop. There was no "affidavit" of Cons Barnes. The word "statement" should be substituted. The reference "under section 576E" is a slip. There has never been a s.576E. It should read "under section 357E." 47 The judge after referring to a number of authorities said: "The factual basis that the Crown says is shown is set out in the affidavit or statement of Constable Barnes that he appeared to be placing something into the glove box at the time he pulled up and he was approaching the vehicle. One might think that in those circumstances it would be like suspicion in the mind of the police officer that something was being put away from his view and that being so it would be in my view sufficient to ground a suspicion in the mind of the police officer that something was being put away from his view and that being so it would be in my view sufficient to ground a suspicion that would bring into play the provisions of section 576 and in my view it did cause such a suspicion and I accept that it caused such a suspicion to enter the mind of the police officer and I am satisfied that he did hold that suspicion honestly in his mind. Could an ordinary person in the position of the police officer hold such a suspicion, in my view he could." "Whilst it might be very close to the bone in relation to the matter, in my view, it falls on the side of the prosecution in this case and I take the view that the evidence is properly admissible and the suspicion was properly held and could have been properly held not only by the police officer but by an ordinary reasonable person in the position of the police officer having the information that he had." The reference to s.576 is a slip. That section, which was repealed by Act 94 of 1999, dealt with exposure of the person.

48 There was no suggestion before the judge that the police were doing other than purporting to exercise their powers under s.357E. There was no reference to any other section. Section 357E provides: "357E A member of the police force may stop, search and detain: (a) any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence; or (b) any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence." 49 The initial question was whether at the time Cons Gautier and Cons Barnes stopped the appellant either reasonably suspected the appellant of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence or either reasonably suspected that in the vehicle being driven by the appellant there was anything stolen or otherwise unlawfully obtained or anything used or intended to be used in the commission of an indictable offence.

50 The judge did not canvass the legality of the police, particularly Cons Barnes, requiring the appellant to stop his vehicle. This was the primary focus of the appellant. If there was no lawful stopping of the appellant and his Supra it was submitted that the subsequent search was illegal. The subsequent search could not have taken place but for the stopping.

51 The evidence that the police had to support stopping the vehicle was that a young fresh faced man was driving a smart fast open coupe with some panel damage along Epping Road and when asked if the car was his, he replied "No". He was not asked to whom it belonged. The mere fact that the appellant was driving a car which he did not own or lease or hire is not sufficient to give rise to a reasonable suspicion. Many late teenagers and young adults drive cars belonging to a parent or a sibling. Alternatively, the car may be that of an employer or a friend. At the time of stopping the appellant and the Supra Cons Barnes did not have any material on which he could form any of the reasonable suspicions referred to in s.357E. Nor did Cons Gautier

52 In Streat v Bauer; Streat v Blanco (16 March 1998, CLD, unreported) I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects", namely Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266 at 303 per Kitto J, George v Rocket (1990) 170 CLR 104 at 115-116, R v Armstrong (1989) 53 SASR 25 at 27; O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 2 WLR 1 at 5 and 11 and Anderson v Judges of the District Court (1992) 27 NSWLR 701.

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. 54 On the information which Cons Barnes had he did not have reasonable grounds to form any of the suspicions mentioned in s.357E. It was not open to him to "reasonably suspect" any of the matters referred to in s.357E. Hence the stopping of the appellant and his vehicle was unlawful. 55 The appellant contended that as the stopping was unlawful the evidence as to the search should not be admitted. That followed upon an illegal act and the prosecution should not be able to enjoy the fruits of its own illegal conduct. It does not follow that because the police have unlawfully stopped a vehicle they are precluded from investigating whether any offences have been committed. For example, they may see something which reasonably makes them suspect that a serious crime has been committed, for example, a balaclava with eye holes, a knife with blood or a housebreaking implement. 56 Where a vehicle has been unlawfully stopped it becomes a matter for the Court's consideration whether evidence obtained as a consequence revealing a criminal offence should be admitted: see s.138 of the Evidence Act 1995. Much will depend on the offence alleged and its relative seriousness as well as all the other circumstances. 57 Where a vehicle has been unlawfully stopped it is of importance where a search is subsequently conducted that such search be one that is lawful. The judge directed his attention to that issue rather than whether the appellant and the Supra had been lawfully stopped. 58 As appears from the passage quoted from his reasons, the judge took the view that the appellant's alleged actions, after the Supra had stopped and the police had stopped behind it, in reaching across to the passenger's side of the Supra and appearing to place something in its glovebox might reasonably raise a suspicion within s.357E to enter the mind of the police officer and that he honestly did so. The judge recognized that this was a borderline case. Placing an item in a glovebox at any stage is a very routine matter. Mostly it would be an innocent everyday act not calling for comment. A glovebox is also a place in which stolen or illicit items can be put as numerous cases in the courts have revealed. The Crown relied on the time at which the item appeared to be placed in the glovebox, that is just after the vehicles had stopped and Cons Barnes was leaving the police vehicle to go to the appellant in the Supra. My mind has fluctuated as to whether the appellant's alleged actions were sufficient to ground the reasonable suspicion alleged. Not without doubt I have concluded that it was open to the judge to find that they were. Both the amount of money found, namely, $860 and the quantity of cannabis leaf found, namely 9.4 grams were small. 59 The judge gave these reasons as to the exercise of his discretion: "If the evidence was simply as to the possession of this particular amount of cannabis, which is between 8 and 9 grams, then it would be very slight in relation to the charge of possession. The importance of the evidence in the proceeding is that it leads into a series of situations in which (1) there is alleged to be an offer of a bribe; and (2) as a result of further investigation there were found in the premises in which it is alleged that the accused resides a further larger amount of cannabis and indeed some being cultivated. So it appears to me that it is important and of probative value in these proceedings, being the proceedings under the indictment which carry these three counts. I have encompassed in that the nature of the relevant offence. The gravity of the impropriety of course varies in accordance with whether it is in complete disregard of the rights of the citizen in the circumstances or whether the constable acted in a belief that he was exercising a power which he had under section 576. In other words he was not acting capriciously. I have accepted the evidence that he believed and held this suspicion and that being so it seems to me he was not acting capriciously or had that been so the gravity of the impropriety is not as great as would be under other circumstances. There is no suggestion that it was contrary or inconsistent with the rights under any international covenant. There have been no proceedings taken against the constable and there are indeed not any likely to be taken in relation to the impropriety or contravention and the fact is that the incidents would not have occurred or come to the notice of the police and the second one arises directly out of the finding of the material. Weighing all these matters up it appears to me that the totality of the circumstances while one has to also look at the rights of the citizen not to be harassed and to be wrongly dealt with by the police officers as against the rights of the community to expect those that commit offences to be properly dealt with and to be prosecuted. Weighing all those matters, as I am required to, it seems to me that the desirability of admitting the evidence in this case outweighs the undesirability of admitting evidence that has been obtained in the way in which this evidence was obtained and I propose to exercise my discretion and admit it under that section."

60 In the exercise of his discretion the judge did not take into account that the Supra was unlawfully stopped and that all else flowed from that. That stopping of the vehicle amounted to an unlawful interference with the appellant's freedom of movement and harassment. The failure to take such an important matter into account vitiates the judge's exercise of his discretion. Section 138 refers to evidence obtained "in consequence of" an impropriety or of a contravention of an Australian law. The words "in consequence of" are important in the present case. 61 The finding of $860 and 9 grams of marihuana led to the alleged offer of a bribe and police investigating the source of the appellant's supplies and whether he had further cannabis leaf at his home. Without the evidence of the alleged finds it was hard to give any meaning to the words allegedly uttered by the appellant and said to constitute the offer of a bribe. The words uttered were ambiguous at least. It is not surprising that the jury acquitted the appellant on the charge of offering a bribe. 62 The Crown coupled in the one charge the 9 grams of cannabis leaf allegedly found in the glovebox with that found in the appellant's family home. A charge based solely on the possession of the 9 grams would have been a minor matter and that would have had to be taken into account in the exercise of the discretion under s.138 of the Evidence Act 1995. The unlawful stopping was the start of a number of unlawful acts by the police. As the exercise of the judge's discretion on the point in issue was flawed and other challenges have been made to the police investigation and conduct it is appropriate to evaluate these before reaching a final conclusion as to what should be done. I do not overlook the Crown prosecutor's engaging summary that the police were suspicious because a fresh faced young man in a fast car with damage to it said that it was not his.

63 At the request of the Court the Crown supplied a list of statutory provisions enabling the police to make arrests and to stop motor vehicles. None of these were relied on by the Crown before the judge. I have set these out in a Schedule to these reasons. With the exception of s.352(2)(a) of the Crimes Act 1900 none of them bear upon the present case. Section 352(2)(a) provides that any constable or other person may without warrant apprehend any person whom the constable, with reasonable cause, suspects of having committed an offence punishable, whether by indictment, or on summary conviction, under any Act.

64 Once the police officer found $860 in the console and the marihuana in the glovebox, he had reasonable cause to suspect that the appellant had committed an offence, albeit a relatively minor one. The subsequent arrest of the appellant and taking him to Chatswood Police Station were not unlawful nor was his detention for four hours: see sections 352 and 356C of the Crimes Act 1900. However, the police officer did not become aware of any offence until after he had stopped the Supra unlawfully and searched it.

65 Appeal Ground 3 reads: "… the trial judge erred in exercising his discretion in admitting into evidence the following alleged oral admissions:

(i) Conversation at the point of arrest in relation to the possession of a prohibited drug (ii) Conversations in relation to the alleged bribe." I have earlier set out the conversations. 66 It was submitted to the trial judge that s.424A of the Crimes Act 1900 rendered the conversations inadmissible. The judge admitted the evidence of a caution being given to the appellant. That is unobjectionable. The judge admitted the question which followed immediately thereafter and the answer: Cons Gautier: "What is that Appellant: It's marijuana" 67 The judge gave no reasons for his ruling. However, from his comments during argument the judge thought that this question and answer were admissible because "the questioning related to an indictable offence that could be dealt with summarily without the consent of the accused … at that time." The judge also commented that the situation had to be looked at at the time the admission was made. 68 It must however be remembered that the Crown wished to lead the evidence in relation to an indictable offence which had to be and was tried before a jury. The evidence was not led in summary proceedings.

69 Section 424A of the Crimes Act 1900 was repealed on 8 December 1999 by the Crimes Legislation Amendment (Sentencing) Act 1999. Equivalent provisions now appear in s.108 of the Criminal Procedure Act 1986. It was common ground that s.424A applied in the present case. 70 Section 424A of the Crimes Act 1900 relevantly reads: "(1) This section applies in relation to evidence of an admission within the meaning of this section. (2) Evidence of an admission is not admissible unless: (a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or (b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made.

… (4) In this section: 'admission' means an admission: (a) that was made by a defendant who, at the time when the admission was made, was, or ought reasonably to have been, suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence other than an indictable offence that may be dealt with summarily without the consent of the accused.

… "reasonable excuse" includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. ..."

71 In R v Rowe (2001) NSWLR 510, Rowe was arrested and charged with knowingly harbouring an escaped prisoner. The police took charge of his wallet which contained two Queensland pensioner rail travel passes and one pensioner concession card, all in the name of another person. In answer to a series of police questions Rowe said that his solicitor and barrister told him to get a new ID and that he got the ID (the passes and the card) from them. He declined to furnish their names. He was convicted at the Local Court of an offence against s.527C of the Crimes Act 1900 in that he had in his custody the passes and card which might reasonably be suspected of being stolen or otherwise unlawfully obtained. He was fined and ordered to pay court costs. The police questioning as to the passes and cards took place during or in association with the official questioning by the police of Rowe as to the charge of harbouring. 72 Fitzgerald JA, with whom Ireland AJ agreed, said at 514:

"Having regard to the policy underlying s 424A of the Crimes Act, the words 'relates to' in s 424A(4)(c )should be construed liberally. In my opinion, answers given to questions asked in relation to an offence by a person who is officially questioned 'relate to' that offence within the meaning of s 424A of the Crimes Act." and "Fitzgerald's questioning of the appellant related to the offence of knowingly harbouring a prisoner, for which he had been arrested, and was undertaken despite his request to speak with his solicitor before he spoke to police. Section 424A of the Crimes Act expresses a plain legislative policy, which Fitzgerald disregarded, that official questioning in relation to such an offence should be tape-recorded. His lack of suspicion that the appellant had also committed another, less serious offence, could not provide a 'reasonable excuse' for his obligation to comply with s.424A in relation to the indictable offence to which his interrogation of the appellant related." 73 I took the view at 521 that in the prosecution of a summary offence, an admission made as to the commission of such an offence or of facts constituting such an offence does not have to be tape recorded. I added: "The fact that in a prosecution for an indictable offence evidence could be led of the admission as to the summary offence, if tape recorded, does not render that admission if not tape recorded, inadmissible on the hearing of the summary charge. They are different exercises." In DPP v Farr (2001) NSWSC 3, her vehicle was stopped for a random breath test which she cleared. There was evidence that the police officer reasonably suspect that there were drugs in the vehicle. He searched her bag and found 60 grams of cannabis, some electronic scales and a wad of $20 notes and $50 notes. She was arrested and charged with possession of drugs. She was subsequently also charged with goods in custody, i.e. $2750 reasonably suspected of being stolen or otherwise unlawfully obtained. It was common ground that these charges could be dealt with summarily. While she was at the police station the police obtained a warrant to enter and search her motel room and found about 292 grams gross of cannabis. She was charged with supplying a prohibited drug. It was classified as an indictable offence to be dealt with summarily unless the prosecutor or the person charged elected otherwise. It was common ground that s.424A applied to the supply charge. 74 In para 31 of Farr I pointed out that the question of the application of ss.424A can arise in a variety of circumstances. In some cases the summary offences come first and the indictable offences arise at a later stage. These may or may not be connected with the original summary offences or be a progression from them. As in Rowe the summary offences may come to the notice of the police after action has been taken in relation to the indictable offence. I adhere to these views which I expressed in Farr: "Section 424A operates in these situations. Subject to s424A(2)(c) the section precludes evidence being led of an admission of facts constituting an indictable offence or of the offence itself unless the requisite tape recording has been made. However, the section has a wider reach because of the words, "relates to an indictable offence." On trials of indictable offences the section prohibits the reception of admissions made as to other offences (usually related) whether indictable or summary if no tape recording was made even though such admissions would have probative value at such trial. This case is a good example. The admissions made as to the goods in custody and possession of cannabis would have significant probative value on the trial of the charge of supply. Section 424A does not prohibit the reception of admissions which have not been the subject of a tape recordings on the hearing of the summary offence proceedings where such admissions go to the commission of the summary offence charged. The purpose of s 424A is to prohibit the reception of admissions relating to indictable offences but not those relating to summary offences when a tape recording has not been made. In some instances the initial arrest will be in respect of a summary offence and it will only be later that it will become apparent that an indictable offence has been committed. The police officer has to make a decision as to recording an admission at the time it was made (or, perhaps, immediately beforehand) and when he or she suspects that a summary offence (and no more) has been committed. It was not intended by the legislature that admissions as to summary offences (usually the less serious ones) had to be recorded before they could be received into evidence. [on the hearing of the summary offences] The roadside admissions were admissible on the charges of goods in custody and possession and cultivation but not on the supply charges. The matter will have to be remitted to the magistrate with this expression of opinion." I have added the words in brackets for the sake of clarity.

75 As the judge remarked in the present case and as is common knowledge there was no reason why the police officers could not have had a tape recorder at the place where the car was stopped. From many cases this Court is aware that police officers frequently have hand held tape recorders with them. They are readily available. The evidence disclosed that there was a tape recorder at the scene within twenty minutes of the search and that nothing was done to interview the appellant at the scene. 76 The alleged admission "it's marihuana" was not admissible on the hearing of the trial of the indictable offences.

77 Three further points need to be made. Firstly, the judge took the view that the admissions that the substance was marihuana and that the money was that of the appellant led into the second charge of offering a bribe. On this approach the admissions "relate to" an indictable offence and were not admissible unless tape recorded. Secondly, once the judge ruled that the statement "it's marihuana" was admissible there was little point in excluding the evidence that it had been purchased from two men at the Great Northern Hotel. Thirdly, the objection to admissibility also extends to the implied admission that the $860 belonged to the appellant, albeit that he said that he had earned this sum. This also was inadmissible on the trial of the indictable offences as it was not tape recorded.

78 As to the alleged conversations relating to the alleged bribe, the judge stated that he would not reject the evidence of the alleged offer of a bribe because it related to the questioning of the appellant "in relation to that minor matter."

79 The minor matter relates to the possession of 9 grams of cannabis and possibly goods in custody ($860). After further debate the judge seemed to accept the Crown submission that what occurred was not an admission but the commission of the offence itself. What was said was part of the overall offer of a bribe. As the appellant was acquitted on the bribery charge this point is academic.

80 The judge was correct in ruling that the alleged initial offer of a bribe was not an admission but part of the alleged commission of an offence. However, the attempts to have the appellant repeat what he had earlier allegedly said were attempts to obtain an admission. Neither that question nor that answer were admissible as there was no tape recording of them.

"… the trial judge further erred in admitting the alleged oral admissions said to have been made by the appellant outside the appellant's home prior to the search." 82 The Crown pointed out that this point was not raised by either of the appellant's counsel during the voir dire or the trial. The Crown submitted that r.4 applies. There is the further problem that in R v Reid [1999] NSWCCA 258 this Court held that the words "not admissible" in s.424A(2) in the phrase "Evidence of an admission is not admissible unless" mean "not admissible over objection." Reliance was placed on the usual practice of the Court not to reject evidence led by a party until a legitimate objection is taken by the other party. However, the procedure recommended in Reid was not observed.

83 After Cons Barnes had read the search warrant to the appellant at the police station he was taken to his vehicle in Parklands Avenue, Lane Cove where, at the request of the police he retrieved the keys to his mother's house at 28 Mindarie Street, Lane Cove and handed them to Cons Gautier. Cons Gautier and Barnes then took the appellant to those premises staying at the rear of the vehicle vehicle with him. The constables gave evidence of this conversation while there: Gautier: "Is there any more cannabis in the house?" Appellant: "Yes there is, there's about five small plants and some heads"

Gautier: "Will you show me where it is? Appellant: "Yes." That was not recorded. Cons Gautier said "the whole of the search warrant was recorded on video tape by Cons Sutherland. That does not reveal the whole picture. Cons Sutherland, who operated the video and audio machine, said that there were times when it was switched off. The bedroom was too small to keep filming when there were four or five people in the room. He stopped filming and moved back to get a good shot of the search as it took place. He also switched the machine off as he went from one place to another. It appeared that the house was that of the appellant's mother. What is recorded on the audio tape is, in places, a little hard to follow and at times somewhat fragmentary. In response to police questions the appellant said over and over again that he did not wish to answer. However, repeatedly the police persisted with their questions and did so excessively. 84 Cons Gautier said, "I entered the house and walked up to a locked door. The lock on the door was of a different kind to those in the rest of the house and appeared to be new. I unlocked and opened the defendant's bedroom door with one of the keys on the defendant's key ring." The transcript of the audio tape contains references to the defendant (appellant) confirming that a particular room was his room.

85 Cons Gautier described what he saw in the appellant's room and what the police found. That included green vegetable matter and six plants. Other items including drug equipment and paraphernalia were also found in this room and elsewhere in, under and around the house. There were further plants. According to Cons Gautier and Barnes when they walked past the rear of the house they saw a small locked door with light coming from underneath. Cons Gautier stated that using one of the defendant's keys he opened the door and saw a plate containing green vegetable matter. Other police who entered the area, which was under the house, described plants and items of equipment there which could be used to help plants grow. In total the cannabis leaf found in and around the house totalled about 215 grams. There were 59 plants.

86 I have referred to the alleged admissions in some detail because of the terms of the summing-up. Relevantly it read (SU 10-11): "And evidence has been given by the police officers Gautier and Barnes that the accused made certain admissions. The admission is alleged to have been made at the car concerning the knowledge that the marijuana was in the car, in effect, because he said it was his and that he bought it earlier. That he knew it was there in the car, he bought it, it was his pot and the money which he had said he had received as a result of some work that he had done. It is further alleged that admissions were made as to the ownership of the keys and the possession of the keys with which the key was used to open the door of the room at the house in which he lived and ultimately to open underneath the house. And that it was his bedroom I think was the third admission outside the house in the presence of Barnes, but it was his bedroom that they subsequently went into and that there was some marijuana an amount of marijuana in that room. And all these were made either to Gautier and Barnes or just to Gautier and Barnes separately, but they were admissions which the Crown relies on. The accused has put to the witnesses that these admissions were never made. And so it comes upon the Crown to prove them. They have to prove that they were made and that they are truthful and they say they were made. And the counsel for the accused has suggested to you that this evidence has been fabricated or is false. Now before you can find the accused guilty in this case you must be satisfied that he made those admissions to the police officers as they say he did. The Crown must satisfy you beyond reasonable doubt that the accused did make the admissions as the police officers say. " 87 I have earlier dealt with the admissions allegedly made in Parklands Avenue after the Supra was stopped and not recorded. There was no recording of admissions allegedly made upon return to the appellant's car by him and Cons Barnes and Gautier en route from the police station to the house where the appellant lived. This is where the police alleged that the appellant identified his key ring containing keys which gave access to the house, his room and the small door to the area under the house. These are admissions which should have been recorded if they were to be led in evidence. They formed an important part of the Crown case.

88 As earlier mentioned there is support in the audio tape that the appellant indicated which room was his room. The Crown submitted that the alleged admission outside the house prior to entry that "there's about five small plants and some heads" was supported by the video and audio tape of the search. The actual oral admission was not supported but cannabis leaf was found in various parts of the house in which the appellant lived. The transcript reveals that the appellant declined to say what the plants in the house were. The transcript does however reveal that after being pressed the appellant said that two plants in pots in the garden were marihuana plants. The appellant declined to identify other plants in other pots. The transcript also reveals that a little later he was required to look at three plants and asked "What type of plants are these?" He replied "They look like marijuana plants."

89 The Crown relied on the appellant kneeling down in his bedroom opening a cupboard door and pulling out a white plate containing green vegetable matter later found to contain cannabis leaf. The Crown relied heavily on what the video showed. As the judge remarked during the voir dire, if a word had not been said the video was strong evidence. In addition to the vegetable matter in the house there was strong evidence of the cultivation of a small number of plants. I agree with the judge that based on the video alone there was little doubt as to what was happening.

90 Based on the video evidence there was a strong Crown case. Had it not been for the terms of the summing-up as to the oral admissions I would not have placed so much weight on them. They do, of course, help to establish knowledge and intent on the part of the appellant. It is disturbing that the correct procedures were not followed by the police as to the oral admissions when they wished to give evidence of them. The admissions allegedly made outside the house should have been recorded if they were to be led in evidence but no objection was taken to their admissibility at the trial.

92 Appeal Grounds 5, 6 and 7 read: "5. …the trial judge erred in exercising his discretion to admit into evidence the Custody Management Report. (sic). 6. … the trial judge erred in determining that the Detention Warrant (issued pursuant to s.356E) of the Crimes Act) was valid.

7. … the trial judge erred in not exercising his discretion pursuant to Sections 136 and 138 of the Evidence Act to reject the evidence in ground 6." 93 Admission of Custody Management Record At the voir dire hearing before the judge the Crown relied primarily on the evidence of Cons Gautier. None of the police officers who were involved in charging the appellant or making entries in the Custody Management Record of the appellant were called. That record covers, inter alia, various events which occurred while the appellant was in custody and the times when they occurred. It contains a time record. 94 The Custody Management Record as it stood up to 0143 hours on 20 February 1999 was forwarded to the justice asked to issue a detention warrant at his request at 0150 hours. The later entries were not before the justice but they were before the judge.

95 The judge took the view that the complete Custody Management Record was a business record and therefore admissible in evidence. The document was a business record within s.69(1) of the Evidence Act 1995 and cl.1, Part 2 of the Dictionary. Section 69(2) and (3) provide: "69 Exception: business records … (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made. (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding." 96 Cons Gautier gave evidence that he reported matters to Sgt Taylor, the custody manager, from time to time so he could make entries in a record of time relating to the detention. Cons Gautier believed the actual entries were made by Sgt Taylor. Cons Gautier had personal knowledge of what was happening. Section 69(2) applies. However, s.69(3) also applies. The various representations were made in connection with an investigation relating and leading to a criminal proceeding. The words "in connection with" have a wide import. Accordingly, the Custody Management Record was not admissible under s.69 of the Evidence Act 1995. 97 Section 60 of the Evidence Act 1995 provides:

"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation." It was correct to put before the judge the Custody Management Record up to 0143 hours because that was part of the material before the justice and he took that into account prior to issuing the detention warrant. It was a sensible precaution for him to want to see that. Accordingly, under s.60 the Custody Management Record was admissible and proof of the facts intended to be asserted by the previous representation. 98 Evidence Supporting Extension of Investigative Period

Apart from the complete Custody Management Record there was admissible evidence from Cons Gautier and from other materials of many of the facts the Crown needed to prove. He gave evidence of the arrest of the appellant at 7.15pm and his arrival at the police station at 7.25pm. The application for a detention warrant stated that the applicant is Christopher Gautier and that the times not to be taken into account under s.356F were:

"10 minutes conveying to Station Charge person - 1 hour 40 minutes". 99 This meant that the investigation period would expire at 0005 hours if that was all that was involved. In cross-examination there was some evidence that the charge process commenced at 2235 hours. Cons Gautier also stated in cross-examination that during the period from 2235 hours to 0015 hours he made the relevant COPS entry, a precursor to charging, prepared four charges, namely, goods in custody, offer a bribe (2 counts) and possession of a prohibited drug, and the application for a search warrant. He explained what was involved. It is also apparent that the application for a detention warrant was prepared during part of this period and probably beyond this period. 100 The justice recorded that he received the application for the search warrant at 0103 hours and the application for the detention warrant at 0110 hours. Section 356F(1)(l) and (m) provide that any time that is reasonably required to prepare, make and dispose of any application for a detention warrant or any application for a search warrant and to carry out charging procedures shall not be taken into account in determining how much of an investigation period has elapsed. 101 A copy of the Fax Cover Sheet reveals that at 0150 Con Gautier sent a copy of the Custody Management Record up to 0143 hours to the justice. The justice has recorded that he issued the search warrant at 0200 hours on 20 February 1999. As to the detention warrant the justice has recorded as to the appellant: "No relevant objections - 'Why,' 'What for.' Process explained - No representation made for delay in investigation or complaints about treatment." The justice has recorded that he issued the detention warrant at 2.20am on 20 February 1999. It is apparent that from 1.03am to 2.20am the justice was considering the applications, requiring further material, speaking to the appellant and making his determinations. He extended the maximum investigation period for 8 hours. 102 The judge rejected the contention that the time taken was not reasonably required. He was satisfied that it was reasonably required. There was ample evidence on which the judge could reach that conclusion irrespective of the admissibility of the Custody Management Record including the Time Record. Two further points should be noted. Portion of the time record up to 0143am supports that the time taken was reasonably required. The appellant's counsel cross-examined in some detail on the Custody Management Record and effectively adduced much of it in evidence. 103 While I consider that the judge erred in admitting in the Crown case that part of the Custody Management Record post 0143 hours it is not an error of consequence. Even if I am wrong in the view I take of the admissibility of the use of the time record section up to 0143 hours there has been no error of consequence.

104 The appellant contended that the detention warrant was invalidly issued for the following reasons: (a) the application for a detention warrant was not signed by any police officer ` (b) it was applied for and granted after the investigation period of four hours permitted by s.356D of the Crimes Act had expired. The Crown had not proved on the balance of probabilities that the investigative period taken by the police was reasonable. (c) the justice issuing the detention warrant was provided with inaccurate information and in any event, should not have issued the detention warrant when he had two warrant applications (detention and search of house) before him with contradictory reasons for the applications. (d) Eight hours extra investigative time authorised under the detention warrant was excessive considering the amount of time the appellant had already been in custody and the charges that the appellant was being held on. 105 The Statutory Framework for Detention Warrants Section 356C(1)-(4) provides: "356C (1) A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided by section 356D.

(2) A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.

(3) If, while a person is so detained, the police officer forms a reasonable suspicion as to the person's involvement in the commission of any other offence, the police officer may also investigate the person's involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.

(4) The person must be (a) released (whether unconditionally or on bail) within the investigation period, or (b) be brought before a justice, Magistrate or court within that period, or if it is not practicable to do so within that period, as soon as practicable after the end of that period." 106 Section 356D provides: "356D (1) The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.

(2) The maximum investigation period is 4 hours or such longer period as the maximum investigation period may be extended to by a detention warrant." 107 Section 356E(1) provides that in determining what is a reasonable time for the purposes of s.356E all the relevant circumstances of the particular case must be taken into account. Section 356E(2) sets out a non-exhaustive list of matters (if relevant) to be taken into account. Section 356E(3) provides that the burden lies on the prosecution to prove on the balance of probabilities that the period of time was reasonable. 108 Section 356F lists times which are not to be taken into account in determining how much of an investigation period has elapsed. Section 356G provides:

"356G (1) A police officer may, before the end of the investigation period, apply to an authorised justice for a warrant to extend the maximum investigation period beyond 4 hours.

(2) The person to whom an application for a detention warrant relates, or the person's legal representative may make representations to the authorised justice about the application.

(3) The authorised justice may issue a warrant that extends the maximum investigation period by up to 8 hours.

(4) The maximum investigation period cannot be extended more than once

(5) An authorised justice must not issue a warrant to extend the maximum investigation period unless satisfied that:

(a) the investigation is being conducted diligently and without delay, and (b) a further period of detention of the person to whom the application relates is reasonably necessary to complete the investigation, and (c) there is no reasonable alternative means of completing the investigation otherwise than by the continued detention of the person, and (d) circumstances exist in the matter that make it impracticable for the investigation to be completed within the 4-hour period." 109 Section 356H (1)-(4) provides:

"356H (1) An application for a detention warrant may be made by the appellant in person or by telephone.

(2) An application for a detention warrant made in person must be made in writing in the form prescribed by the regulations. The authorised justice must not issue the detention warrant unless the information given by the appellant or in connection with the application is verified before the authorised justice on oath or affirmation or by affidavit. An authorised justice may administer an oath or affirmation or take an affidavit for the purposes of an application for a detention warrant.

(3) An authorised justice must not issue a detention warrant on an application made by telephone unless satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person. An application for a detention warrant made by telephone must be made by facsimile (instead of orally) if the facilities to do so are readily available for that purpose.

(4) If it is not practicable for an application made by telephone to be made directly to an authorised justice, the application may be transmitted to the authorised justice by another person on behalf of the applicant." 110 Section 356I(1) relevantly provides:

"(1) An authorised justice must not issue a detention warrant unless the application for the warrant includes the following information: (a) the nature of any offence under investigation, (b) the general nature of the evidence on which the person to whom the application relates was arrested, (c) what investigation has taken place and what further investigation is proposed, (d) the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation, (e) the extent to which the person is co-operating in the investigation." Section 356I(2) provides that the applicant must provide (either orally or in writing) such further information as the authorised justice requires concerning the grounds on which the detention warrant is being sought. Cons Gautier said that when he spoke to the justice on the phone he did not supply any further information. 111 The Crimes (Detention after Arrest) Regulation 1998 cl 15 provides that a separate custody record must be opened as soon as practicable for each detained person. It must be in writing or in electronic form. Clause 30 provides that an application for a detention warrant is to be in Form 1 in Schedule 2 to the Regulation. That form requires a considerable amount of information to be supplied including the details of when the detained person was arrested and the times which are not to be taken into account under s.356F in determining how much of the investigation period has elapsed. 112 Unsigned and Unverified Application

The copy of the application in our papers has not been signd or verified. Section 356H(1) provides for two methods of application, namely in person or by telephone. By virtue of s.356H two types of telephone application are envisaged, namely orally or by facsimile. Where facsimile facilities are readily available that type of telephone application must be made. There is no requirement that the application be signed when it is made by facsimile. Of course, when an application is made by telephone that application may be signed and verified before it is transmitted by facsimile.

113 Section 356H(2) provides that a justice must not issue a detention warrant where the application is made in person unless the application is verified. Section 356H(9) provides: "(9) In the case of an application for a detention warrant made by telephone, the applicant for the warrant must, within one day after the day on which the warrant is issued, give or transmit to the authorised justice concerned an affidavit setting out the information on which the application was based that was given to the authorised justice when the application was made." Section 356H(10) provides: "(10). In any criminal proceedings, the burden lies on the prosecution to prove on the balance of probabilities that the warrant was issued" 114 There was no evidence that the affidavit required by s.356H(9) had been given or transmitted to the justice within one day after the day on which the warrant was issued. On its face the facsimile application transmitted to the justice by Cons Gautier was not verified by oath or affirmation. Detaining a person for investigation purposes is a serious inroad upon a person's freedom of movement. Verification of the information on which the application is made is required. The effect of the lack of the required verification is to render the detention warrant unlawful. 115 Requisite Information Lacking: Section 356I(1) prohibits the issue of a detention warrant unless the application includes specified information. Section 356I(1)(c) requires specification of what investigation has taken place. Paragraph 4 in the application form provides space for detailing the investigation. This space was left blank. Section 356I(1)(d) requires that reasons for believing continued detention is reasonably necessary to complete the investigation be stated. The form does not specifically provide for such information and it was not given. Instead the form asks for the grounds on which the belief was formed that the investigation period should be extended beyond 4 hours. The answer provided was that the appellant had failed to give an explanation for his possession of money and drugs. This is not a reason for believing continued detention is reasonably necessary to complete the investigation. The form should be amended so that the questions seek the information required by the Act.

The issuing justice was not authorised to issue the detention warrant because of inadequacy of information. 116 Further, s.356G(v) prohibits the issue of a warrant unless the authorised justice is satisfied of four matters. These include that the investigation is being conducted diligently and without delay; that the further period of detention is reasonably necessary to complete the investigation; that there is no reasonable alternative means of completing the investigation otherwise than by continued detention; and circumstances exist making it impractical for the investigation to be completed within the four hour period. The justice declared himself satisfied that the investigation was conducted diligently, investigation was ongoing with earlier issue of search warrant and requirement to take offender to premises during conduct of search.

Subject to what was contained in the custody management record, there was no evidence before the justice to enable him to be satisfied that the investigation was being conducted diligently and without delay; that further detention was reasonably necessary to complete the investigation; that there were no reasonable alternative means …; or that circumstances existed making it impractical …

The detention warrant was unlawful. 117 Alleged Expiry of Investigative Time As to the point that the detention warrant was not valid as it was applied for and granted after the 4 hours investigative time in s.356D had expired I have earlier set out the time history. That demonstrates that the investigation time of 4 hours had not expired when the detention warrant was sought and later granted. The charge process time of 1 hours 40 minutes was held by the judge to be reasonable and I do not disagree especially as it is apparent that the applications for a search warrant was also being prepared. There was also the preparation of the application for the detention warrant. I reject this challenge. 118 Provision of Inaccurate Information In the application for the detention warrant Cons Gautier has stated: (1) the appellant was arrested for the following offence/offences:

Goods in custody and possession of prohibited drugs (2) the evidence on which the appellant was arrested is as follows:

Vehicle Search revealed (?) $860 in cash and 8 grams of cannabis heads

(5) Further investigation of the offence/those offences is proposed as follows:

Search warrant on 28 Mindarie Street Lane Cove, defendant's place of abode As earlier indicated Cons Gautier did not complete the section of the form requiring him to state what investigations had taken place to date. There was no assertion anywhere in the form that the police wished to investigate another or other offences. The form does not provide for this to be stated. It should. The grounds on which Cons Gautier had formed a belief that the investigation period should be extended beyond 4 hours were stated thus:

"The defendant has offered no explanation as to where the $860 have (sic) come from and where the cannabis has come from." This statement is inaccurate and provides no justification for extending the time. Cons Gautier should have disclosed the explanations which were offered by the appellant for consideration by the justice.

119 Cons Gautier thought that the possession of a wad of notes totalling $860 and the particular packaging of the marihuana found in the glovebox were not consistent with the appellant purchasing the marihuana at the Great Northern Hotel. He also thought that the appellant was probably coming from his mother's home in Mindarie Street; it was close to Centennial Avenue and the appellant had entered Epping Highway from Centennial Avenue. Cons Gautier suspected that the marihuana came from the home where the appellant lived and that he had more there. This material does not appear in either application. 120 The justice was asked to act on the incorrect statement that the defendant had offered no explanations as to where the $860 and the cannabis had come from. He had offered an explanation. No other ground was advanced before the justice for the issue of a detention warrant. The real grounds were not placed before the justice. The justice can only act on the material placed before him. Accordingly the detention warrant was invalidly issued. 121 The appellant also relied on what he claimed was the contradictory version of the facts appearing in the application for the search warrant. The grounds of that application were stated thus:

"The defendant was stopped with $ 860 in cash in the centre console of Japanese sports car. Also found in the vehicle were two bags containing a total of 12 grams of Cannabis heads estimated value of $500. The Cannabis was separated in 4 bags. Three small resealable plastic bags and one large plastic bag containing the majority of the Cannabis. The defendant was also in possession of a mobile phone which rang constantly whilst police spoke to the defendant at the scene. At the scene the defendant offered police monetary and drug bribes but contradicted this statement by saying that he had was not currently working. (sic) When questioned at the scene the defendant stated that he had purchased the drugs at the local pub. Later at the station the defendant denied any connection with the drugs. At the scene the defendant stated that he obtained the money from a cash job that he had just finish (sic) as a film contractor but contradicted this statement by saying that he had (sic) was not currently working."

122 This is a further version of the facts and was in support of Cons Gautier's stated belief in the search warrant application that there was on or in the premises known as 28 Mindarie Street, Lane Cove "cannabis plant, leaf and related items." The versions are contradictory to the extent that in the detention application it was stated that no explanations had been offered, whereas the passage quoted summarises the explanations offered. The words "at the local pub" are an inadequate but not inaccurate description of the Great Northern Hotel. I do not see any contradiction in the alleged statement by the appellant that he had obtained the money from a cash job he had just finished as a film contractor and that he was not currently working. In the preparation of the application for a detention warrant the constable was not careful and accurate. 123 Section 138 Discretion As the detention warrant was invalid the question arises whether the evidence subsequently obtained should be admitted, despite it being unlawfully obtained. The justice in issuing the search warrant made this note:

"Police requested to escort defendant/occupier back to premises." This the police did as they had the detention warrant. I have earlier referred to the justice's note to similar effect on his record of application for a detention warrant. The police took advantage of the appellant being in their custody to take him back to the Supra and retrieve his set of keys to the house and question him there and at the house and obtain admissions which the judge told the jury the Crown would have to prove beyond reasonable doubt. If the detention warrant had not been issued it is probable that these admissions would never have been made and evidence of them would not have been led. 124 The discretion under s.138 is one which should have been exercised by the trial judge. On the view he took of the contravention in question it was unnecessary for him to consider s.138. The discretion is not one which this Court can exercise as part of its appellate jurisdiction. Further, this is not a case where this Court can say that if the judge had come to exercise his discretion under s,138 he must have admitted the evidence subsequently obtained. This is, at least, a new trial point. 125 Extra Investigative Time Whilst it is unnecessary for me to decide the point, if the detention warrant had been validly issued, I would reject the contention that the extra 8 hours investigative time granted by the detention warrant was excessive considering the amount of time the appellant had already been in custody and the charges on which the appellant was being held. The police had to attend and search 28 Mindarie Street and seize any prohibited plants and drugs, collate the materials and carry out any consequential investigations involving any question of who was in possession of any prohibited drugs or plants which were seized.. 126 Appeal Ground 8 reads: "… the trial judge failed to take into account the appellant's complaint of illegal acts by arresting police officers made pursuant to an international covenant." In support of this ground the appellant has written: "His Honour made reference to an international covenant on page 4 of his judgment on 15/8/00 and made the assumption that no such complaint was made without reference to the appellant or his counsel." 127 The judge said: "There is no suggestion that it was contrary or inconsistent with the rights under any international covenant."

That is unobjectionable. The judge was merely recording the position as it had been argued before him. This ground lacks validity and must be rejected. 128 Appeal Grounds 9 and 9A read: "9 …the trial judge after correctly finding that the search warrant purporting to allow Police to search the appellant's premises was improperly issued and invalid, erred in the exercise of his discretion pursuant to s.138 of the Evidence Act to allow into evidence all that which flowed from the search. 9A. … the trial judge erred in not finding that an additional reason for the search warrant being invalid was the false and misleading information provided to the justice by the applicantt police. … the trial judge further erred in the exercise of his discretion pursuant to s.138 of the Evidence Act to allow into evidence all that which flowed from the search."

129 The judge did not turn his attention to whether false and misleading information had been provided by the applicant police to the justice. If it had been that would be relevant in considering whether to admit the evidence pursuant to s.138 of the Evidence Act 1995. I confine myself to the material provided in support of the application for a search warrant. As earlier stated I regard the information supplied as inadequate in some respects but not false and misleading. Again the contradiction asserted by the appellant does not exist. I do not think that the judge can be criticised for not taking into account the matters mentioned in Ground 9A. 130 In the Justice's Record of Application for a Search Warrant the following appears:

"3. The relevant particulars of the grounds on which I relied to justify the issue of the warrant are as follows: Person in custody is unco-operative with Police Sufficient drugs on person to 'Deem Supply' Every probability further drugs within the premises. Fear if released will destroy/dispose of any evidence." The judge ruled: "It is my view that one has to look at the particulars relied upon by the magistrate as justifying the issue of the warrant and there is simply no evidence that there was sufficient drugs on person to deem supply, that is incorrect and wrong. The fact that the person is in custody and unco-operative does not to me qualify as a reason simpliciter for a warrant to issue and the others in my view are not sufficient to justify the issue of a warrant. So in my view the warrant was improperly issued and is invalid."

131 The judge then considered whether the evidence of what was found on the search should be admitted. He added that the justice, on the face of the warrant, completely misinterpreted the evidence, and the facts upon which he purported to act were not open to him on any evidence that was before him. The judge then considered whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained in the way the evidence in question was obtained. 132 The judge held that the evidence had a strong probative value. The video shows the alleged set-up in the appellant's room and the finding of various amounts of marihuana and cannabis plants. There was equipment used in connection with prohibited drugs. The judge noted that the first count of supply cannabis leaf took into account both the eight grams found in the glovebox of the Supra and the cannabis leaf found in the house the appellant occupied. 133 The judge noted that the police had applied for a search warrant which the justice had issued. The police were not responsible for the justice misunderstanding or misreading the evidence. The judge continued: "This is not a case of police going into premises and just searching it, purporting to have no warrant, or knowing that they had a warrant that was completely invalid or wrongly issued, or was searching outside the scope of a particular warrant. They complied with the warrant, it was videoed. Everything was done, one would think, to protect the accused in relation to what the police officers did in the premises."

The judge acknowledged that it was a grave impropriety to search a citizen's premises without a valid warrant. 134 The judge concluded that as it was unlikely that there will be any proceedings in relation to the warrant, the evidence was strongly probative and was not obtained by the police deliberately or recklessly breaking the law, the desirability of admitting the evidence outweighed the undesirability of admitting the evidence obtained in the way it was. That was a ruling under s.138 of the Evidence Act. The judge held that there was no unfair prejudice under s.137. He also considered s.136 but declined to limit the use of the evidence. 135 The appellant contended that there were insufficient grounds for the issue of the search warrant and that this should have been apparent to the police. The grounds set out in the search warrant application are insufficient to constitute reasonable grounds for the police officer believing that there were on the premises at 28 Mindarie Street some cannabis leaf. There has to be a belief, not merely a suspicion. A hunch is insufficient. (see ss.5 and 6 of the Search Warrants Act 1985). Facts which may ground a reasonable suspicion are often not sufficient to ground a reasonable belief. 136 The appellant relied on the decision of the Supreme Court of the United States in Nix v Williams 467 US 431 for the proposition that evidence obtained as a result of illegal police conduct or police misconduct should not be admitted as it allows the police to profit by such conduct or misconduct. The position in the United States including the constitutional guarantees differs from that in New South Wales. The position here is governed by s.138 of the Evidence Act 1995, Nevertheless, under that section evidence obtained improperly or unlawfully is a significant matter and it is not to be admitted unless the desirability of admitting evidence that has been obtained in the way in which the evidence in question was obtained outweighs the undesirability of doing so. 137 In this case not only should the individual acts of illegality be carefully and separately assessed but regard should be had to the combined effect of all three aspects, namely, the unlawful stopping of the Supra, the invalid detention warrant and the invalid search warrant including the applications disclosing no sufficient ground for the issue of the warrant. The amount of illegal conduct in obtaining evidence is significant. In so concluding I have not taken into account Ground 3A because the evidence the subject of that ground was not objected to. However, the police failure to tape record admissions on which they relied indicated further non-compliance with the law. 138 In exercising his discretion under s.138 as to the evidence obtained on the execution of the search warrant the judge does not appear to have had regard to the unlawful stopping of the Supra, the invalid detention warrant and the pattern of unlawful conduct which emerged all of which resulted in the obtaining of evidence which the Crown used, It cannot be said that the desirability of admitting the evidence improperly and unlawfully obtained outweighs the undesirability of admitting that evidence. Appeal Ground 10 reads: "… the trial judge erred in admitting into evidence the Certificates of Analysis in respect of the prohibited drug the subject of the trial when such certificates were flawed and defective." The appellant advanced these arguments: a) The exhibit bags that were alleged to contain cannabis plants were destroyed without an order from the court permitting the destruction of these exhibits. This denied the Appellant an opportunity to have the exhibits independently analysed. Due to the inconsistency of the Analysis Certificates the Police obtained, the Appellant should have had an opportunity to have the exhibits analysed by an independent analyst.

b) The analyst certificates are unreliable and should not have been admitted into evidence. There are discrepancies as to the number of plants contained in the exhibits and as to how many plants could be identified as cannabis. c) As the search warrant was executed, plants were bagged as they were found - room in the house, backyard, shed and then the under house area. The analysis certificates cover all bags on the one certificate. Due to the inconsistent number of plants contained in the exhibit and because some plants were not identifiable as cannabis this has created an unfair prejudice to the Appellant. Each exhibit bag should have had an independent certificate. Without this it is impossible to determine where the uncounted and unidentifiable plants were found. The Crown submissions provide a complete answer to the appellant's claims: There is no evidence that the Certificates were 'flawed and defective'. No such instructions were put in cross-examination by Mr McGrath of Constable Gautier and there was no cross-examination of the exhibits officer, Sergeant Minard: T 23.8.00, p 70.5

The alleged 'inconsistency' of the number of plants was a counting error by an officer at NSW Agriculture - 63 plants instead of 59 plants: T 22.8.00, p32.

Senior Constable Layton gave evidence of the location of plants in the back yard and under the house, drafted a sketch of the area under the house and took photographs of the plants. These exhibits were tendered and admitted into evidence without objection by the appellant's counsel (Exhibits C12-14): T 23.8.00, p61

There was no cross-examination of Senior Constable Layton: T 23.8.00, p66.

No error is demonstrated in the scientific evidence in the Certificates that the green vegetable matter submitted for analysis contained cannabis leaf and that the plants and seeds submitted for analysis were Cannabis (Cannabis sativa): Exhibits C16-20. The appellant's submissions go principally to the weight of the evidence rather than its admissibility. 139 Appeal Ground 11 reads:

"The Accused did not receive a fair trial due to the incompetence of Defence Counsel."

This applied to counsel who appeared at the trial before the jury and not to counsel who appeared for the appellant on the voir dire. The applicant relied on the points below in support of this Ground. a) Defence Counsel refused to follow instructions. When Officer Barnes said in cross examination that he saw the Appellant put something in the glove box through the roof of the car, the Appellant gave Counsel photos of the car and instructed him to show the photographs to the Officer such as to advance the argument that the Officer could not have seen through the roof of the car. The Appellant also instructed Counsel to question Officer Barnes further as to how he could have seen through the roof. This was not done . Counsel did not think the photos would help. It was enough if the officer saw a movement by the appellant towards the glove box. Counsel is given a measure of discretion as to how he cross-examines. This was an issue to be dealt with on the voir dire rather than at the trial. b) The Appellant instructed Counsel to tell the jury in closing address that they would need to find that all of the plants were exclusively owned or possessed or cultivated by the Appellant for them to find him guilty. This was not a matter for address. Questions such as this are best covered in the summing up to the extent that they arise. c) Defence Counsel failed to cross-examine Detective Ross as to the location of the 'seven various pieces of paper with writing on them' being the seven various pieces of paper the subject of a question from the Jury and a subsequent re-opening of the Crown case. There was an inconsistent version between the evidence of Sergeant Waites and that of Officer Ross on the finding of the 7 bits of paper. Sergeant Waites should have been cross examined as to her version of how the 7 bits of paper came into her possession and as set out in her statement as opposed to what she said in the witness box where she involved Officer Ross. Officer Ross was called to give evidence which was contrary to what was in Sergeant Waites statement.

This was not a central matter. In the light of the video it would have been open to counsel to regard it as unwise to pursue this. d) Counsel failed to make submissions on Section 138 relating to the validity of the Search Warrant when invited to do so by His Honour the trial judge (see pg 5-6 of the transcript on 21/08/00). The test to be applied is well known. Fresh counsel had only just come into the matter but he was aware that the judge was fully seized of the matter. Fresh counsel was not. Submissions as to s.138 had been made by counsel who appeared on the voir dire. This does not amount to incompetence e) Failure to cross-examine Officer Barnes on: i) Whether he could see through the roof of the vehicle the Appellant was driving and therefore whether he could see something placed in the glove box; and

ii) Failure to show the photograph provided by the Appellant to his Counsel to disprove the Officer's evidence in chief that he could see the Appellant place something in the glovebox which Barnes added in cross-examination.

These were matters to be dealt with on the voir dire when different counsel appeared. They were not matters of importance for the trial and were, in any event, matters falling within counsel's discretion. He did not think that they would help. f) Counsel failed to cross-examine Officer Waites and other Officers to establish the continuity of the 100.4g quantities said to have been found under the house and which was placed in a paper bag and taken back to the Police Station. The analysis certificate for this quantity was not signed until the 22/04/00 where as the other quantities were signed on the 22/03/00. This quantity was not placed directly into a drug security bag (see pg 89 of the transcript on 23/08/00).

These were matters of detail of little consequence and were matters of judgment for counsel. The cross-examination suggested was unlikely to advance the appellant's case in any real way. g) The Appellant instructed Counsel to cross-examine Officer Gautier on who would use the word 'heads' other than Police in the alleged oral admissions outside the premises being search. (sic) It was the Appellant's contention that only Police Officers use that word. Counsel determined not to cross-examine but indicated to the Accused that he would use this point in submissions. Counsel neither cross-examined nor used this argument in his submissions to the Jury. The gravity of this is that His Honour instructed the jury that to convict the Accused they would need to be satisfied that he made the admissions that contained the word 'heads' in order to find him guilty. Counsel exercised his judgment not to cross-examine. Whether the word "heads" was used or the word "cannabis" or some other word was not important so long as the effect of what was allegedly said was captured. Counsel was correct in thinking that this was not a point to highlight.

h) Officer Gautier said he took the Appellant to the nature strip away from people. This was where the alleged bribe occurred. The nature strip to which Gautier said he took the Appellant was in fact closer to the people. The Appellant provided Counsel with a photograph to assist in this regard and Counsel failed to examine Gautier as instructed or show him the photograph. Counsel exercised his judgment. This point was unlikely to make any impact. It is academic as the appellant was acquitted upon the count of offering a bribe. i) Counsel failed to listen to the tapes of the voir dire hearing and the rulings that flowed there from. These matters were relevant to the manner in which the trial was conducted and in particular the cross-examination of those witnesses who were the subject of cross-examination in the voir dire hearing. Counsel agreed that he had not listened to the taped of the voir dire hearing conducted by other counsel. Counsel at the trial proper relied on what the appellant and the judge told him. This probably explains why counsel allowed an admission into evidence at the trial which the judge had indicated he would reject. This related to the appellant saying that he had obtained the cannabis leaf from two men at the Great Northern Hotel. In view of the other evidence admitted this was not important.

j) In the first ERISP there were parts that were inadmissible and the interview tape was edited. The resulting video with the edited parts omitted, and which was played to the jury, disadvantaged the Appellant in its form and was highly prejudicial.

There is insufficient detail provided. At the trial there was no protest at the editing. The video was prejudicial to the appellant's interests but not unfairly so. k) Counsel failed to object to the alleged oral admissions outside the house that were not recorded. These were not admissible by virtue of s.424A of the Crimes Act and should have been the subject of an objection. There was no good reason why these should not have been tape recorded. This is a mistake of consequence as the judge told the jury that they had to be satisfied beyond reasonable doubt of the admissions made outside the house but I do not regard this mistake as amounting to incompetence. l) Counsel failed to object to analysis certificates.

These related to the certificates for the alleged cannabis plants. The applicant submitted that the certificates did not distinguish each evidence bag and contained errors and that the location of plants which were not identified as cannabis could not be distinguished from those that were so identified. The certificates were admissible. Their weight was another matter. All the certificates as to the vegetable matter record that the security bags submitted by the police contain cannabis leaf or cannabis leaf seeds (in one instance). As to the plants the Regulatory Officer of NSW Agriculture reported that of the 63 plants 36 were cannabis plants and 27 were unidentified due to lack of leaves. This is not an example of incompetence. Appeal Ground 11 has not been established.

"… the trial judge was biased against the appellant." The appellant claimed that this affected the judge's judgment and was demonstrated in his judgment on the legality of the detention warrant. In his judgment dealing with the detention warrant the judge stated that he found the appellant a very unconvincing witness and did not accept the evidence that the appellant gave on certain matters. The judge did not regard him as to those matters as a witness of truth.

Non-acceptance of limited evidence does not amount to bias. The record of the trial does not support this ground which fails. Conclusion 141 The offences alleged in Counts 1 and 3 of the indictment are towards the bottom of the criminal scale. The appellant received a suspended sentence. The case does not warrant a retrial.

142 I propose that the appeal against convictions be allowed and that verdicts of acquittal be entered.

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