The accused, Robert Cramp, is charged on indictment with one count of supplying a prohibited drug namely methylamphetamine contrary to section 25 (1) of the Drug Misuse and Trafficking Act. The amount of the drug concerned is 41.46 g so that in accordance with the schedule to the act it is greater than the indictable amount and less than a commercial quantity. A further count of possessing a prohibited drug is a backup offence and there is a related offence of dealing with the proceeds of crime.
These reasons determine an objection taken by the accused to the admissibility of evidence found upon the search of a motor vehicle. The accused argues the evidence was obtained improperly or in contravention of an Australian law and that it should not be admitted in accordance with section 138 of the evidence act. That is to say should the contravention of an Australian law be made out the accused says the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence.
The accused argues that a search of a motor vehicle that was carried out without a warrant was carried out in contravention of the provisions of the Law Enforcement (Powers and Responsibilities) Act (NSW) 2002 ("LEPRA"). This argument has two bases. The first is that the relevant provisions of LEPRA permitting a search without a warrant are not applicable once the person connected to the search is arrested. The second is that if those provisions do apply following an arrest, the police officer who carried out the search did not have the necessary suspicion on reasonable grounds that any of the circumstances specified by the provisions existed.
The Crown argues that the search was carried out as permitted by either or both of sections 21 and 36 of LEPRA. The Crown initially submitted that the relevant section to consider is s21, but also made submissions concerning s36; in my view nothing turns on which of these sections is being considered. They both require a suspicion on reasonable grounds, and both extend to apply to searches of vehicles. The circumstances the sections refer to are not exactly the same, but the differences do not change the result of the question being considered.
The Crown further submits that if that is not so then the court should exercise its discretion to nevertheless admit the evidence on the basis that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way it was obtained.
The first argument of the accused asserting a contravention of an Australian law is essentially one of statutory interpretation. Sections 21 and 36 of LEPRA permit a police officer without a warrant to search a person and anything under the control of the person (section 21) and to search a vehicle (section 36) in certain circumstances. Arguably both the sections apply to the search of motor vehicles due to the definitions.
The question raised and which I am told has not been the subject of authority in the now almost 20 years of LEPRA's operation, is whether these sections can only operate prior to a person's arrest.
It will be necessary to deal with the facts in some greater detail below but for present purposes in considering the statutory interpretation point the following will suffice. The offender was pulled over due to the nature of his driving bringing him to the attention of police on 5 November 2019. After having stopped he then contrary to the directions and efforts of the police sped off and could not be apprehended on that occasion. A warrant was issued for his arrest and a Court attendance notice was filed. On 19 November 2019, he was identified by police in the Grafton hotel. Additional police were called and he was arrested in the Grafton hotel on 19 November 2019. Subsequent to his arrest an officer was handed some car keys said to be those of the accused. The officer located the vehicle to which the keys belonged and searched the vehicle and located a case with methamphetamine in plastic bags within it. It is that methamphetamine in those plastic bags which are the basis of the charges against the accused under section 25 (1).
The accused's argument is that Sections 21 and 36 of LEPRA only authorise a search where there has not been an arrest. It must follow that the argument is that after arrest in order to conduct a search a warrant should have been applied for pursuant to section 47. I note that on the facts of this case section 27 has no application as it talks of the power to carry out a search on a person upon arrest. In this case what was searched was a motor vehicle and not the person.
It appears that the closest this question has come to being judicially considered was in the case of Azar v DPP [2014] NSWSC 132. The first point to note about Azar is that it is readily distinguishable on its facts from the present because in that case the person searched was not under arrest. Indeed the case establishes that the powers to detain under section 21 and section 36 do not amount to arrest. Broadly stated the facts of Azar were that police had noticed a man in a car using his mobile phone, the car was seen to pull to a kerb, the police saw a man get in the passenger seat where he stayed for a short time and then walked away quickly. The police suspected a drug transaction. Their suspicions were heightened by the fact that the car was revealed by enquiries to be a hire car and that the area was where drug transactions were known to take place. A breath test was performed and on the basis of the suspicion of drugs being possessed a search was carried out and drugs were indeed found. The point of the appeal was to argue that the suspicion of drugs being possessed was not held on reasonable grounds.
The relevance of this case to the current issue is that a sensible reading from paragraph 47 dealing with ground 2 of the appeal suggests that had there been a finding that the appellant was under arrest then section 21 would not have a role to play.
At paragraph 49 this was further explained as being an argument that being under arrest and no caution having been given then the subsequent conduct by police was unlawful. Just what caution was being referred to here is not clear and did not need to be determined because the finding was that Mr Azar was not under arrest. The need for a caution emerges perhaps under the provisions of part 9 in section 122 and not under part 8, or perhaps it is a reference to a regulation. The submission does bring to mind however the need under section 202 that when exercising a power of search a police officer must provide the person subject to the exercise of the power the reason for the exercise of the power. In the present case there is no evidence of the police at any stage telling the arrested person the reason they were exercising a power to search his vehicle without a warrant.
Returning to Azar, the argument for the appellant in that case was that once the police had stopped the car he was driving he was under arrest because he was not free to go. The DPP conceded that the appellant was not free to go. At paragraph 52 it was said that the difficulty with the argument that not being free to go meant that the appellant was under arrest was that it ignored the powers of detention found in sections 21 and 36 which are separate and distinct from the power to arrest a person. Her honour considered that had Parliament intended these powers of detention to amount to an arrest it would have made that clear by using the word "arrest".
The position we are dealing with here is the reverse. That is here there is a clear arrest by the execution of the warrant upon the accused when in the hotel. My view is that Azar certainly supports the argument for the accused but this clear factual distinction means the question has not been decided.
By section 35 of the Interpretation Act headings to chapters, parts, divisions or subdivisions are taken to be part of the Act. I note the heading to part 4, division 5, which includes section 36, is "vehicle stop, entry, search and roadblock powers". In the present case there was no search warrant. There was at tab two of the Crown bundle a warrant to arrest Robert Cramp. The heading to division 5 emphasises the "vehicle stop" aspect of that provision, and of course section 21 uses the expression "stop, search and detain" in the same way as section 36. The heading to part 5 is "Search and seizure powers with warrant or other authority". The headings, as do the provisions themselves, reflect that, unsurprisingly, they address different situations. For reasons that hopefully become clear below these headings support the accused argument more than the Crown's. It is relevant to note the amount of information required to obtain a warrant under section 47 by section 61. That such requirements exist show the significance with which the legislature treats the power of search and in my view supports an interpretation that the search without warrant provisions only operate in circumstances having a characteristic that if the search is not conducted then, the investigation of the reasonable suspicion will likely be hindered.
None of the provisions under consideration state in express terms that a search without a warrant cannot occur after the arrest of the person connected with the search. Here, there has been an arrest of a person for whom a warrant had issued but there has also been at that same time a search of a motor vehicle for which there was no warrant. In my view whilst it remains an issue as to whether a power to search the vehicle without a warrant existed under the relevant and various sections of the act I do not think the fact that an arrest has occurred in and of itself means there cannot be a search without a warrant subject of course to the other conditions being met.
The opening words of section 36 (1) are "a police officer may without a warrant stop search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exist…". The argument for the accused is that expressed this way suggests that the power is to be exercised at the beginning of the investigative process, that is when the possibility of some offending first emerges, for example as occurred in this case on 5 November by the manner of driving of the accused. The accused further argued that in order to carry out a search pursuant to section 21 or 36 there needs to occur a stop a search and a detention of the vehicle. This submission may have been a little more flexible but it certainly extended to arguing that the section required the police to cause the vehicle to stop or at the very least to prevent it from leaving. My view is that the expression "stop, search and detain" is what might be called an omnibus expression. For example, consider if police came upon a parked car in which two people were sitting and who were of the appearance of being affected by drugs and each with a bag of a white crystallised substance on their lap. Clearly the police would be able to search that vehicle. Carrying out the search of the vehicle necessarily involves detaining it for at least the time of the search. In our present case the police came upon the vehicle and on the Crown argument based on information allegedly available to them at that time formed the view that the vehicle contained "anything used or intended to be used in or in connection with the commission of a relevant offence" (section 36 (1) (c)).
Accepting for the purpose of argument that the police had a suspicion on reasonable grounds to that effect what then is the purpose of section 47? In order to apply for a search warrant under that section the police officer must believe on reasonable grounds that there is or within 72 hours will be in or on the premises (which includes a vehicle) a thing connected with a searchable offence in relation to the warrant. A searchable offence includes an indictable offence as here.
The difference in the threshold question of section 36 and section 47 is that section 36 requires that the police officer "suspects" on reasonable grounds one of a number of circumstances, whereas section 47 requires the police officer "believes on reasonable grounds" "a thing connected with a searchable offence" is on the premises or will be within 72 hours. My view is that if the requirements of section 47 are satisfied then it must be almost a certainty that the requirements of section 36 or 21 will be satisfied because to have a belief means you have a suspicion and beyond.
Put another way the structure of the act is that the more progressed an investigation becomes the need for a warrant heightens. In this regard it pays to remember some fundamental principles not the least of which is the liberty of the individual and freedom from tyranny. In Donaldson v Broomby [1982] FCA 58 in the judgment of Deane J of the Federal Court as he then was, it was noted in powerful terms the significance of arrest, including "the customary companions of arrest are ignominy and fear" and "a police practice of arbitrary arrest is a hallmark of tyranny"
To the same effect is the well-established approach to construing the powers of search. Justice Adamson in Azar considered it entirely orthodox that there is a great necessity to construe strictly the powers conferred upon the police in respect of searching persons not under arrest. That power namely the power at large to search persons not in custody is one which calls for the clearest authority.
In my view the same guarded and cautious approach should be adopted in interpreting laws allowing the search of a person's property without a warrant.
In our present case one argument for the Crown was that section 21 and section 36 did apply here because whilst the accused was under arrest he was, so the argument went, at the same time being detained in respect of a suspected drug offence.
It certainly cannot be said that the provisions canvassed above make it plain that a person may not be searched or their vehicle may not be searched without a warrant after his arrest. That said, there is section 27 expressly providing for a power to carry out a search on arrest which suggests that it is providing some power beyond that which is provided by section 21. This adds to an argument that section 21 is a section that operates prior to the arrest of a person. The provisions of section 21 and 36 are very similar with the difference being one applies to persons being searched and the other to premises being searched which by definition includes vehicles.
The above discussion shows that on one view there is an absence from sections 21 and 36 of the need for there to have been no arrest at the time of the search without a warrant. It shows on a different view that the broad interpretation of section 21 and 36 argued for by the Crown renders other sections such as section 47 and section 27 otiose.
In keeping with the references above to Deane J and Adamson J, is the statement of the Attorney General when introducing this legislation that it is aimed to make the law easily accessible to all members of the community. In part of that speech the Attorney General Mr Debus spoke to part five of the Act though not in a way that gives much assistance to the present issue. Later in dealing with crime scene warrants which are dealt with in part seven he stated "the exception to the requirement for a warrant before the exercise of certain powers is vital. For example, police may need to immediately take a photograph if a crime scene is being flooded or gain access to a room that is on fire and which police suspect contains evidence of an offence. In these circumstances waiting for a crime scene warrant to be issued would not be practicable as the evidence would be destroyed". While these remarks were directed at provisions other than those now being considered, they reflect an expectation that a requirement for a warrant would ordinarily be expected and exceptions exist to preserve evidence that may not survive till the issuing of a warrant. Applying this here the position is that by the time a person is arrested police must have reasonable grounds to believe an offence has been committed. Put another way the powers of section 21 and section 36 to some extent could be seen to assist in determining whether to arrest the person. On this view the need for the searching of person or place without a warrant logically precedes arrest so that an arrest having been achieved it would be unlikely for there then to be further powers of search without a warrant.
The following conclusions can be stated from the above discussion:
1. The authorisation of a search of a person or property is contrary to the freedom of the individual and provisions creating such an authorisation must be clear.
2. Neither section 21 nor section 36 expressly prohibit a search without a warrant where the person connected to the search is under arrest.
3. Azar is readily distinguishable from the present case but supports a view that sections 21 and 36 operate prior to arrest of the person connected to the search.
4. Other sections of LEPRA specifically deal with the power of search upon arrest, eg section 27, suggesting sections 21 and 36 are not addressing the power to search at that time.
5. If the threshold for conducting a search under section 47 has been met, it will necessarily be that the threshold for a search under sections 21 and 36 has been met. The reference to a future possibility in 72 hours in section 47 does not affect this view.
6. The words "stop, search and detain", appearing in both sections 21 and 36, and not section 47, show that the sections relate to the initial phase of a police investigation of possible offending.
7. The requirements to obtain a warrant set out in section 61 reflect the seriousness with which the legislature regards the conducting of a search. It supports the view that a search without a warrant is to be limited to circumstances where if a search is not carried out, the reasonable suspicion of the police officer will not be able to be explored.
8. The second reading speech does not address these provisions specifically but does support the above analysis.
On the above basis, the argument for the Crown that a person may be under arrest and at the same time may be detained under sections 21 or 36 is possible. That argument however amounts to saying no more than that the search powers under section 21 and 36 may be exercised when the person connected to the search is under arrest. I accept that to be so, namely, that on the basis of the above considerations the mere fact of the connected person being under arrest does not deny the sections of any application.
The view I have come to however is that when the other provisions of the Act are considered, and when an approach to the legislation is adopted in keeping with the principles seeking to guard against the erosion of fundamental rights, sections 21 and 36 properly interpreted allow for a search to occur in the initial stages of an investigation and where if the search is not carried out the suspicion of the police officer will not be able to be tested.
I consider this the correct conclusion of the above argument, which on one view is unsatisfactory. It is unsatisfactory because one of the aims of LEPRA, as shown by the second reading speech, was to make the rights of the citizens and the powers of the authorities clear; the conclusion I have reached means that whether the provisions allow for a search will need to be determined on a case by case basis, and will involve circumstances in which minds may differ. The interpretation argued for by the accused is the far more desirable one because it gives certainty to the situation. It also has no clear detriment to any police investigation; if a person is under arrest, it is difficult to see how in the vast majority of cases some evidence suspected of being in a vehicle or home may somehow vanish. The prospect of accomplices disposing of evidence is a possibility but the process of obtaining a search warrant is not lengthy, and this should be seen as the cost of preserving the rights of the individual.
Applying this interpretation to the present facts results in the search occurring in contravention of sections 21 and 36. The circumstances that existed at the time of the search were not such that those sections authorised the search. This is because the vehicle was under the control of the police; the police knew where the car was, the police had the keys to the car, those keys had been taken from Mr Cramp, and Mr Cramp was under arrest. There was no realistic prospect of whatever may have been suspected of being in the vehicle being lost to the police investigation if a warrant was sought before the search occurred.
This means there has been a contravention and it remains to consider the further limb of section 138. I consider this below, but before doing so, given the difficulty in interpreting the sections, I consider it prudent to further consider whether, assuming the sections do apply to the situation being considered, did SC Venn have the requisite suspicion on reasonable grounds?
[2]
Reasonable grounds
The officer who carried out the search was SC Venn. SC Venn made two statements, one dated 7 January 2020 and the second dated 29 October 2020. The search occurred on 19 November 2019.
SC Venn conceded that in breach of the recommendations in the relevant police handbook he made no contemporaneous notes of his actions leading up to, at the time of or immediately following the search of the vehicle.
SC Venn also accepted in cross examination the need to be as complete as possible when making a statement.
SC Venn was shown exhibit VD2, which was a series of emails passing between the officer in charge SC Waddell and various officers involved including SC Venn. In one of those emails dated 26 December 2019 addressed to SC Venn, SC Waddell thanked him for his statement which the evidence showed he had provided on 25 December and saying that in his statement SC Venn said that he had left the sunglasses case under the driver's seat. SC Venn said that SC Waddell was wrong in making this statement. A difficulty here is that there is no statement before the court dated 25 December 2019. Either the statement of 7 January 2020 is a development of that statement or there is some other statement. It may be that little significance should be given to these circumstances but it is not irrelevant to considering the reliability of the evidence of SC Venn.
In the first statement of SC Venn he sets out the circumstances of the arrest of Mr Cramp. He then sets out that he was given a Mitsubishi car key and was told it was in the possession of the accused, he then went to the car park at the rear of the hotel and located a car that unlocked with the key. He unlocked the car and carried out a search. That term is not used in the statement but what is set out at paragraph 19 clearly is a search for he opens the car sees a black case partly under the front driver's seat and opens it. On then seeing clear resealable bags with a white crystallised substance, he puts it on the front seat and secures the vehicle. The vehicle was then taken to the Grafton police station and a further search was carried out. Nowhere in this statement dated 7 January 2020 does the officer set out any factual matters on which may be based a suspicion on reasonable grounds of any of the matters set out in sections 21 or 36. The statement does not establish any such grounds. Nor does the statement give any indication as to why at a time when the police had secured the vehicle and had the key to it it was thought appropriate to proceed without a warrant.
Between the time of 7 January 2020 and SC Venn's statement of 29 October 2020 the officer in charge (SC Waddell) became aware that the accused was challenging the legitimacy of the vehicle search and he informed SC Venn of this; see VD 5, and exhibit VD 3 suggests this was known before 4 August 2020. Exhibit VD 4 shows the officer in charge researching section 36 of LEPRA. This in isolation is perhaps a good thing but it does suggest that where the police have not prepared statements supporting a justifiable use of section 36 or section 21 the fact that at some later time they are researching what they need to prove and there are communications passing between the officer in charge and SC Venn is another matter that generates some potential disquiet with the reliability of the evidence.
The second statement of SC Venn concludes with him saying that based on all the information available to him he formed the opinion the accused's vehicle may contain drugs and may have been the vehicle used in a police pursuit. I note that the warrant authorising the arrest of the accused states the reason as being that a Court attendance notice had been filed but the offences the subject of that notice did not include any drug offences. The evidence does reveal that at the initial traffic stop Constable Clifford observed green vegetable type matter in a clear plastic bag.
In the statement of 29 October 2020 SC Venn refers to paragraph 17 of his earlier statement and to being spoken to regarding the accused's vehicle key. Paragraph 17 so far as it refers to conversation states "I was told the key was in the possession of the accused". In this statement of January 2020 so much closer in time to the conversation being referred to there is absolutely no suggestion of anything else being told to SC Venn other than the key was in the possession of the accused. That statement which SC Venn admitted should be as full as possible leaves little room for any more expansive conversation to have occurred on other topics. Yet paragraph 5 of the statement of 29 October 2020 sets out five matters in indirect form summarising what SC Venn now says he was made aware of from that conversation.
The first matter was that he was made aware that the accused was driving a white sedan hire vehicle when he was involved in a police pursuit days earlier. The statement of SC Clifford states that the car involved at the initial traffic stop was a Toyota Corolla.
The second matter stated was that the vehicle the key belonged to was a white sedan hire vehicle matching the description used by the accused in the police pursuit days earlier. Given the statement of SC Clifford I infer that the information as to the model and make of the vehicle was readily available to any police officer making a relevant enquiry. It was not reasonable in my view to assume that one white car of mass manufacture was sufficiently similar to another white car of mass manufacture to justify a search in the circumstances, particularly as an easily made inquiry would have revealed the cars to be different.
The third matter is that police had information the accused was selling drugs to a patron of the pub. The fourth point expanded on this saying that a female the accused accompanied inside the poker machine area had drugs located in her bag and that this female referred to the accused as being the supplier of her drugs. This is a very significant matter about which could be expected a contemporaneous note to be made, and which would be expected to be included in the initial statement. In the first statement of the officer in charge dated 15 January 2020 there is reference to the officer in charge speaking briefly with a female accomplice of the accused at paragraph 7. That statement contains no record of what it is that the female accomplice said to the officer in charge.
In evidence as exhibit V D6 was a Court attendance notice in respect of the female accomplice charging her with possession of a prohibited drug namely cannabis. The exhibit included the facts sheet. That fact sheet refers to a conversation by police with the female accomplice. There are in fact 3 paragraphs, being the third, fourth and fifth complete paragraphs on page 2 of the facts, dealing with conversations between the accomplice and the police. Those paragraphs record that she made admissions including stating "there's cannabis and a pipe in my bag"; of making admissions to the possession of cannabis for her personal use; and that she had used the pipe to smoke ice that morning and intended to use it again in the near future to consume prohibited drugs. The date that fact sheet was created according to the date on the bottom right hand corner on page 2 would seem to be 20 November 2019, so the day after the search we are considering and the day after this alleged conversation. At the latest it was created before 16 December 2019 when it appears the matter was before the court based on the front page of the Court attendance notice. Thus this very contemporaneous record concerning conversations between police and the female accomplice gives no indication of a conversation in which she told police that she attended the hotel for the purpose of purchasing ice from the accused. The most precise this allegation appears to be is in paragraph 11 of the statement of the officer in charge dated 8 October 2020 which again is in summary form and not using any direct speech apart from the reference to a "point" of ice, and this also appears to be the first record of this conversation. There is no statement from the female accomplice to the effect asserted by police.
This is a further matter giving some disquiet to the reliability of this evidence. As was noted at the conclusion of the evidence I considered that the officers presented well and struck me as well meaning officers seeking to carry out their duties effectively. Whilst my overall impression of their evidence giving was favourable in terms of their integrity, that was not my universal view and there were aspects of the evidence that I found unpersuasive. This point is the most unpersuasive of them all. The total absence of any evidence prior to October 2020 of this alleged conversation accusing the accused of a drug offence so as to justify arguably the search in itself is unconvincing. There is no reference to it in any notebook, there is no reference to it in the initial statements and there is no reference to it in the fact sheet. It is even more unconvincing when it was tested because the officer in charge was challenged as to why no reference was made to this conversation in the fact sheet. The answer given was that the female accomplice had been arrested for possession of cannabis notice and it was not sought by the police to make the matter appear more serious than what it was. Having reflected on this answer and despite my otherwise favourable overall view of the manner of giving evidence by the officer in charge this answer cannot be accepted. It catches one's attention to begin with by reason of the idea that a police officer setting out in a statement of facts of drug offending is seeking to minimise the illegal conduct of the accused person. But what convinces me that it is thoroughly unreliable is the numerous references in the facts sheet to matters beyond the mere possession of cannabis. These are that Mr Cramp was arrested and a large volume of prohibited drugs were seized from him; that the female accomplice is known to police for drug related matters; that the female accomplice admitted to having a pipe in her bag; that the pipe appeared to be well used; that she had smoked ice that morning and intended to do so in the near future. All these matters go beyond the mere possession of cannabis and count strongly against the fact that this alleged conversation had occurred but was not disclosed by police in the interest of minimising the criminality of the accomplice so as to only focus on her cannabis possession.
This leaves the fifth matter relied on by SC Venn which is that the accused had a "recent drug supply related police intelligence". Just what that means is not clear. Most likely it means that the police had reason to believe that he was involved in drug supply. The information however is too imprecise to know whether that justifies the search that is sought to be justified. It may well be that police intelligence which I take to mean uncharged matters and not matters of criminal history could well support a basis for a suspicion justifying a search. That intelligence however is not stated. For completeness I find paragraph 4 of the 29 October statement and its reference to par 5 of the 7 January statement unpersuasive for the same reasoning. That is, the initial statement suggests nothing more than that the accused is in the hotel, and had the conversation included reference to drug selling it would be expected to be stated. For completeness I find par 4 of the 29 October statement and its reference to par 5 of the 7 January statement unpersuasive for the same reasoning. That is the initial statement suggests nothing more than that the accused is in the hotel and had the conversation included reference to drug selling it would be expected to be stated.
On my findings the basis of the necessary suspicion remaining is at best some unspecified intelligence, a criminal history involving drugs, the possibility that the car was the same car as on 5 November, which the officer ought to have known was not so. Given he did not know it was a different car, it is unlikely he knew the first car had what appeared to be cannabis in it, which in any event he did not state. This amounts to no more than saying the accused was for reasons not stated a person of interest, and had a record. This does not constitute reasonable grounds. The position remains the same if allowance is made for the accused having $1200 in cash, which in any event SC Venn did not refer to.
The result is I am satisfied there were not reasonable grounds for the relevant suspicion required by sections 21 or 36 and that the accused has established the evidence was obtained in contravention of an Australian law.
It should be noted that I do not accept the submission made for the accused that the conversation involving the female accomplice has been proven to be a recent invention. Certainly I am not at all satisfied that it occurred however as already noted I found both the police officers who were cross-examined to be earnest and in some respects impressive witnesses. That I have found their evidence to be unreliable does not equate to a finding that they made it up. One of the difficulties that appears to be present in this case is an assumption made by the police perhaps, that having found the prohibited drugs in the motor vehicle that the matter would proceed in an uncontested fashion. This would perhaps explain but not justify the lack of contemporaneous records and detailed statements. It also means that by the time detailed statements were prepared some 10 months later and in the absence of contemporary notes to assist them a large degree of reconstruction was engaged in. There may well have been a predisposition of the police adverse to the accused in which it may well be their belief, in their efforts to shore up the circumstances of the search so as to show it was legitimate, that there was such a conversation involving the female accomplice. On my findings even if this supposition on my part has been correct the fact remains the evidence is unreliable with the above result.
[3]
Section 138
It remains to consider the tailpiece to section 138(1) which provides in respect of evidence that has been found to have been obtained in contravention of an Australian law, as I have found above that such evidence "is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". Subsection 3 of section 138 sets out a range of matters the court is to take into account under subsection 1 in a nonexhaustive way and I deal with them each in turn.
(a) The probative value of the evidence. The evidence here is crucial to the Crown case and I suspect without it will result in no case proceeding. That said reference was made in submissions to there being a Fillipetti argument given that the car was a hire car and it may be that there is an argument as to whether the accused was in possession of the drugs found in the car. There has been no suggestion in the conduct of the matter to date that there was any planting of this evidence. It is therefore of high probative value. I would note however that this consideration flows both ways. In my view the more significant a piece of evidence the greater the argument for it being obtained legally and in accordance with law given the severe consequences that may flow to the citizen as a result of a breach of that law.
(b) The importance of the evidence in the proceeding. For the same reasons just set out it is very important evidence.
(c) The nature of the relevant offence. These proceedings concern drug supply an activity which contributes significantly to damage in the community both physically and emotionally financially and criminally. That said, whilst the amount of the drug is far from minimal it is significantly below a commercial quantity which is the next level beyond indictable.
(d) The gravity of the impropriety or contravention: The view I take of the contravention of LEPRA that has been established is that it is more a reflection of a systemic deficiency due to the seeming lack of awareness of the officers involved of the fact that they were contravening the section or sections. It is nevertheless a significant contravention disregarding as it does the rights of Mr Cramp. It would be easy to identify a great many more serious contraventions under LEPRA and examples concerning the unlawful obtaining of admissions comes to mind, so I would not put this in the highest category or even perhaps in the middle category gravity of contravention. I do consider it however, a significant one.
(e) Whether the impropriety or contravention was deliberate or reckless. In my view the contravention was reckless. I do not find that on the facts it could be found to have been deliberate but there was clearly a lack of awareness of circumstances requiring a warrant to be obtained. Even allowing for the difficulty in interpreting the relevant sections the facts were that the motor vehicle in question was not going anywhere and was under police control and the obtaining of a warrant should have been apparent to the police. This point is also demonstrated by the consideration by SC Venn that the Mitsubishi may have been the Toyota a simple enquiry could have clarified that. I note also that there has been a breach of section 202 of LEPRA which demonstrates that there simply has not been an awareness on the part of the police as to the powers that they were exercising and their obligations when exercising them.
(f) Whether the contravention is contrary to a right recognised by the International Covenant on Civil and Political Rights. I accept the submission of the accused that the search was contrary to Article 17 in that it was an unlawful interference with the accused's privacy.
(g) Whether any other proceeding has or will be taken in relation to the contravention. As I understand the submissions from the Crown there will be no action in this regard. That is, if allowed into evidence, there will be no sanction for this contravention.
(h) The difficulty in obtaining the evidence without the contravention. There was no difficulty in obtaining the evidence without the contravention. The evidence amply showed that it was a short walk to the courthouse to obtain the necessary warrant and indeed it was conceded by the Crown that a warrant could in any event be obtained over the phone.
In considering this aspect of the case I bear in mind the judgement of justice Wood in R v Phung & Huynh [2001] NSWSC 115 where the Chief Judge at common law excluded an ERISP interview. That case concerned the application of the LEPRA regulations when interviewing a vulnerable person. In the judgment the following was said as to that particular regime, which I consider is as applicable to the requirements of LEPRA being considered above:
It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations, as well as the protection of individual rights, of some significance, which attach in particular to children. Those rights, obviously, are of great importance when a child is facing a charge as serious as murder or armed robbery.
The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP, or the product of an investigative procedure, which is undertaken in circumstances where there has not been proper compliance with the law.
Justice Wood went on to say, again in respect to the vulnerable person regulations, but again in my view equally applicable here:
Moreover, it is important for investigating police to give full effect to the legislative regime now in force, and to ensure that not only do they understand and comply with it, but also to see that the custody manager does what is expected of him or her. Had contemporary records been kept or statements prepared concerning the relevant dealings with the accused and with the support persons, it may well have been the case that some of the matters, identified as problems in this case, would have been answered.
In R v FD [2013] NSWSC 1692 Justice Adamson was dealing with an application to exclude an ERISP interview as being improperly obtained pursuant to section 138 of the Evidence Act. In deciding that case Justice Adamson adopted the first of the passages from Phung at paragraphs 34 and 38.
Although in a different context I would also note the comment made in Adams v Kennedy (2000) 49 NSWLR 78 at 87 at paragraph 36. That was a case of wrongful arrest and some behaviour of police officers which was described as reprehensible. In assessing damages the court stated:
"the amount should also be such as to bring home to those officials of the state who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that the abuses of the kind that occurred in the present case do not happen".
The known risk to the authorities of not complying with the law is the exclusion of the evidence that may be obtained.
R v Phung & Huynh was decided in 2001. LEPRA has been part of the police investigative landscape for almost 20 years. That it is contravened in the way that it has been contravened in this case adds weight to a view that if the evidence obtained by the contravention is not excluded, is to continue if not encourage continued non compliance.
For these reasons the desirability of admitting the evidence is not outweighed by the undesirability of admitting the evidence.
[4]
ORDERS
The application to exclude the evidence obtained from the search of the motor vehicle on 19 November 2019 succeeds. The order is therefore that the evidence obtained from that search is excluded.
[5]
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Decision last updated: 06 April 2021