R v Rondo

R v Rondo - [2001] NSWCCA 540 - NSWCCA 2001 case summary — Zoe

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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.

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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:

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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.

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(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."

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"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.

[56]

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.

[65]

"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.

[83]

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.

[95]

"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."

[100]

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.

[107]

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.

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Judgment (119 paragraphs)

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Cases Cited (6)