The King v Amital [2022] NTSC 74

EVIDENCE - Discretions - Exclusion of evidence - Improperly or illegally obtained evidence - Whether forfeiture offence under the Liquor Act was 'about to be' committed - Meaning of 'about to be' committed - Approach to interpretation of statutes that impair rights.

The King v Amital [2022] NTSC 74 | Case summary | Zoe

[22]

[1] James Amital ('the applicant') is charged on indictment with one count of supply of a Schedule 2 dangerous drug, namely cannabis that was less than a commercial quantity, and the dangerous drug was supplied in an Indigenous community, contrary to s 5D(1) of the Misuse of Drugs Act 2017 (NT). He is also charged with one count of possess a traffickable quantity of the same, contrary to s 7A(1) of the Misuse of Drugs Act. The date of the alleged offending was on or about 6 June 2021.
[2] The applicant seeks exclusion of the evidence sourced from a police search of the car he was driving under s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) 'UEA'.
[3] Under s 138 of the UEA, evidence obtained or received as a consequence of an impropriety or contravention of an Australian law is not to be admitted unless on balance it is desirable to admit it. The section sets out the factors a court may take into account in determining whether to admit the evidence.
[4] Broadly, the facts which will be alleged by the Crown should the matter proceed to trial are as follows:[1] The applicant collected $8000 from the Wadeye Community. He came to Darwin and purchased 400 grams of cannabis for $8000 from an unknown source. He placed the cannabis into a cloth bag and attached it under the rear bumper of his black Kia Sorrento. On the evening of 5 June 2021, he left Darwin with passengers Patrick Amital/Jongmin, Eva Bunduck, Danielle Bunduck and began driving back to Wadeye.
[5] It is alleged that at around 11:30pm the applicant was stopped at a Random Breath Testing ('RBT') station on the northern side of Adelaide River. He provided a negative result when a random breath test was administered. He also tested negative when a random drug test was taken. When a police sergeant asked him where he was going, the applicant said they were travelling back to "Port Keats". In response to questioning, one of the occupants, Patrick Jongmin told police he had recently used cannabis. The Crown case is that police then formed a reasonable suspicion there were drugs in the car, on the basis of the conversations with the applicant and Jongmin. Additionally, suspicion was raised as it was late at night for travel from Darwin on a common supply route to Wadeye. The police officers concerned knew there was a high prevalence of cannabis use at Wadeye.
[6] A search of the car, the applicant and other occupants was conducted, purportedly under s 120C of the Police Administration Act 1978 (NT). As well as other potentially relevant items associated with cannabis use and supply, under the car, 400 grams of cannabis was located in clip seal bags in a small cloth bag.[2] No alcohol was found.
[7] The application for exclusion of the evidence is framed as follows:[3]
1. That all evidence obtained as a consequence of the continued detention and search on vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer is objected to and should be excluded from evidence pursuant to section 138 of the Uniform (National Evidence Legislation) Act.
[8] There was some modification of the grounds of objection towards the end of the voir dire, though principally the grounds are:
1. That the continued detention of the vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer pursuant to s 238 of the Liquor Act 2019 (NT) was unlawful; and
2. That the continued detention and search of vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer was improper as it began with police using the Liquor power for the ulterior purpose of investigating suspicions around drug offending, and that this ulterior use of the Liquor power is improper; and
3. That the continued detention and search of the vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer pursuant to s 120C of the Police Administration Act 1978 (NT) was unlawful as there were no reasonable grounds for the continued detention or search of the vehicle or the continued detention of both James Amital and Patrick Jongmin.
[9] The Crown opposed exclusion of the evidence on all of the grounds advanced by the applicant. Counsel for the Crown submitted: evidence on the voir dire would show the applicant was stopped by police at a random breath testing station at Adelaide River; that police indicated the car would be searched, and as a result the occupants were removed from the car.[4] The applicant returned a negative test to both the random breath test and saliva drug test. The Crown relied on the police powers contained in s 29AAB of the Traffic Act 1987 (NT) to stop the car and require the tests and on ss 237-239 of the Liquor Act (2019) NT which allows police to stop, search and detain a vehicle or person, if it is suspected on reasonable grounds that a forfeiture offence is or is about to be committed. Police may do the same with no suspicion on a random basis. Further, s 120C of the Police Administration Act 1978 (NT) permits the search of a vehicle if 'reasonable grounds' exist to suspect the presence of a dangerous drug.
[10] Evidence was taken to determine whether the grounds for impropriety or contravention of an Australian law were made out and if so, whether there were any factors relevant to the exercise of the discretion under s 138 UEA.

[26]

[12] In his evidence, Sergeant Bradshaw outlined his considerable experience investigating alcohol and drug trafficking, including trafficking to remote communities.[6] This included identifying involvement in drug trafficking, distribution in remote communities, conducting random operations for drug detection, operations at remote airports and working closely with the Drug Detection Dog Unit.[7]
[13] On 5 June 2021 Sergeant Bradshaw was tasked to assist with policing work at the Adelaide River races, to prevent anti-social behaviour and conduct RBT stations.[8] He and other attending officers set up the RBT in a safe, well lit open road area with a left hand turn lane to stop vehicles "travelling south." By "travelling south" he meant that the RBT was set up before traffic reached the town centre.[9]
[14] The car driven by the applicant along with Patrick Amital,[10] and two female occupants, arrived at the RBT at 11:30pm, travelling south from Darwin.[11] Sergeant Bradshaw conducted the breath test on the applicant.[12] It was after he administered the RBT that the applicant told him in response to questions, he was travelling to Port Keats.[13] The applicant's licence was valid and in order.[14] Sergeant Bradshaw had the applicant's licence in his possession before he asked him to pull over further.[15] He asked the applicant about liquor, and to pull over to a verge on the side of the road. The applicant told him he had no alcohol with him. He had earlier told him he did not drink alcohol.
[15] Sergeant Bradshaw said his intention was to conduct a search under ss 238-239 of the Liquor Act.[16] He said that after the breath test, when he directed the applicant to pull over, the applicant could not have known the result of the breath test.[17] He said he did not think he needed to let the applicant know the result of the breath test because he had not committed an offence.[18] He would have informed him of the result if he had committed an offence. When he asked the applicant to pull over onto the verge, the applicant complied.
[16] Sergeant Bradshaw said it was common that people did not tell him the truth. At first he only spoke to the applicant. He thought it was quite possible other occupants had liquor with them. He stated s 238 allows him to search at random for the detection of a forfeiture offence that has, is being, or about to be committed. He said he was "looking to detect an offence that's about to be committed by transporting liquor to Port Keats."[19]
[17] Asked if the fact the applicant said he was travelling to Port Keats raised concerns about drugs and alcohol, he said it was not only that factor, but also the time of the travel. In Bradshaw's experience people used the hours of darkness, particularly late at night to travel to remote communities as they are less likely to be stopped by police.[20] Port Keats was a community where cannabis use was prevalent.[21] Asked why he conducted a liquor search, Sergeant Bradshaw said it was for the safety of the community, to enforce the powers under the Liquor Act and prevent liquor from getting into the community and causing damage.[22]
[18] Sergeant Bradshaw also gave evidence of some recognition of the applicant or his name. The name "Amital" was "kind of familiar" to him, and he "looked him up" to check his identity and his history. He saw he had multiple convictions. At least two convictions were for cannabis, the most recent was 2014 for supplying cannabis in an Indigenous community. There was also a relevant conviction from 2005 or 2006, although there remained uncertainty about the details.[23] He said he checked the applicant's record after he stated he would search the vehicle. His inkling that he may have recognised the applicant was not crystallised until he saw the applicant's criminal history.[24] It was then that his suspicions turned to drugs. He had not completed the salvia test to detect drugs at that time, although it was administered before he directed the applicant over to the side of the road.
[19] He knew he had the authority under the Traffic Act 1987 (NT) to administer the drug test at random.[25] He asked the applicant whether there were drugs in the car and the applicant said there were none.
[20] After speaking to the applicant, Sergeant Bradshaw spoke to Patrick Amital, the front passenger. Asked if it was standard procedure to have a conversation with a passenger, Sergeant Bradshaw said "I was trying to build my grounds to search the vehicle under s 120 of the Police Administration Act." During the course of Sergeant Bradshaw's conversation with Patrick, Bradshaw asked him about drugs and Patrick indicated he was a cannabis user. Bradshaw believed Patrick said the last time he used was in Darwin, and he thought Patrick said something that indicated he was in possession of drugs. Bradshaw said Patrick then effectively recanted that potential admission.[26]
[21] Sergeant Bradshaw said it was after the conversation with Patrick that he decided he would search the car. He had reasonable grounds to suspect there were drugs in the vehicle and on the occupants.[27] In terms of "building [his] grounds to search the vehicle" he referred to the time of travel and the applicant's history but he said he was not at the point where he had reasonable grounds to search under s 120C of the Police Administration Act until he had the conversation with Patrick. The conversation with Patrick gave him reasonable grounds to suspect and enabled the search.[28] He informed the occupants of the car about his intention to search the vehicle after the conversation with Patrick.[29]
[22] Sergeant Bradshaw accepted English "certainly" was not the first language of people living at Wadeye. He acknowledged Murrinh Patha was their first language.[30]
[23] Sergeant Bradshaw said he searched Patrick and the applicant but did not find anything. He turned his attention to the back of the vehicle and started searching.[31] When he searched the floor of the boot, he noticed a very strong smell of cannabis and it was evident to him that cannabis was concealed underneath the vehicle, where it was found in a coloured cloth bag. Fourteen ounces of cannabis with receipts and paperwork were in the bag.[32]
[24] He said he spoke to Patrick and the applicant separately. He cautioned the applicant after the search. The USB of Sergeant Bradshaw's body-worn video was tendered and shown during the voir dire.[33] Relevant parts of the conversations captured on body-worn video will be set out later in these reasons.
[25] Sergeant Bradshaw accepted that in the exercise of the power to conduct a random search, he was relying on a 'forfeiture offence' under the Liquor Act 'being or about to be committed.' When the applicant was directed from the road over to the nearby grass verge, Sergeant Bradshaw agreed the applicant was not free to leave, he was detained.[34] The car and all passengers were detained under the Liquor Act.[35]
[26] Sergeant Bradshaw agreed the applicant was not cautioned. The right to silence was not explained. He did not explain the conversation would be captured on body-worn video.[36] He was asked about police 'General Order Q1 Questioning and Investigations.' He agreed the General Orders would have applied to him at that time. In re-examination he was taken to a portion of 'General orders Q2 Questioning people who have difficulties with the English language: the "Anunga" Guidelines,' in particular 2.2: 'Investigators must determine, as part of the investigation whether or not a particular suspect is entitled to the benefit of the guidelines.' Sergeant Bradshaw said the applicant was very well spoken, responsive and there were no issues around understanding him. He accepted the guidelines referred to suspects but when he was talking to the applicant, he was not a suspect.
[27] He said Patrick Amital was not a suspect until he told him he used drugs.[37] He thought Patrick Amital was evasive, his questions to Patrick were not complicated. Patrick Amital's responses indicated that he understood what was being asked.
[28] Sergeant Bradshaw agreed that Wadeye was approximately 291 kilometres from Adelaide River; that it is a four hour drive; that it is legal to possess and purchase alcohol in Adelaide River and that between Adelaide River and Wadeye there are also areas where it is legal to possess alcohol, as not all areas are general restricted areas.[38] Sergeant Bradshaw asked the applicant where he was going and he said Port Keats. Bradshaw did not ask if he was stopping at Adelaide River or anywhere between Adelaide River and Wadeye.
[29] He agreed that certain answers the applicant gave were verified. For example, the applicant said he had not been drinking which was verified by the breath test. He said that he had not smoked cannabis which was confirmed by the salvia test. Sergeant Bradshaw thought that when he asked the applicant if he had a criminal history, the applicant said "no." It was suggested to him that what the applicant actually said was "a long time ago."[39] The later suggestion is confirmed by the body-worn video. He agreed there was nothing about the applicant's demeanour that made him suspicious of cannabis.[40] He stated "Nothing about his demeanour, no", the implication being there were other factors that made him suspicious.[41]
[30] It was while Acting Sergeant Green was conducting a drug test on the applicant, that Sergeant Bradshaw walked around the car to Patrick. He agreed Patrick gave him his date of birth. He had no relevant history. He agreed he did not caution Patrick, did not tell him he had the right to remain silent and did not tell him or any of the occupants that their answers were being recorded. Asked if he had any power to look up Patrick's history, given he was a passenger, Sergeant Bradshaw said he could look up anyone he liked when he was conducting an investigation. Patrick was an occupant of the vehicle at the time when Sergeant Bradshaw was about to conduct a search under the Liquor Act. He said his grounds for conducting a search under s 120C of the Police Administration Act had not evolved at that point, but Patrick was still in custody.[42]
[31] Sergeant Bradshaw acknowledged s 239 of the Liquor Act gives the power to "stop, detain and search." He agreed the section does not say "question." He said that when he spoke to Patrick he was suspicious as to the presence of cannabis and said "I was concerned about it, yes." That was why his first question to Patrick was "do you smoke ganja Patrick?" He said he was questioning Patrick as to his knowledge of cannabis in the vehicle. He said he heard himself say on the body-worn footage "I'm not worried if you smoke ganja." He disagreed he was misleading Patrick into divulging information. He confirmed that he was trying to establish his grounds to enable a s 120C search. He disagreed it was his intention to mislead or that Patrick was in fact misled. He agreed it was after asking about Patrick's use of "ganja" and some further questions, that Bradshaw told them he was going to search the vehicle; and he agreed he said words to the effect of "I'm going to search you because you've told me you smoke ganja" and that he was worried that Patrick smoked ganja.[43]
[32] Sergeant Bradshaw agreed that the passengers were speaking in a language that was not English and that police General Orders required him to make enquiries as to a person's capacity to understand the English language. He said he believed Patrick understood what he was asking him. Patrick did not indicate any difficulty in understanding what Bradshaw was saying, nor did Bradshaw get that impression. He said his focus was on getting information as to the presence of cannabis and Patrick responded to a question from him that indicated he was in possession of drugs, although he could not remember "word for word" what was said.[44]
[33] In re-examination Sergeant Bradshaw was asked whether, when he exercised the power to call the applicant over, he had suspected that an offence against the Liquor Act was committed. He said "no, it was a random search." He said he stopped the vehicle for a random breath test and when the applicant said he was going to Port Keats, it turned into a random search for liquor. At that time the applicant was not a suspect.
[34] Sergeant Bradshaw was taken to Q1 of the General Orders, para 2.2 which he read out: "During the investigation - investigatory stage, members are entitled to put questions to any person, whether suspect or not, from whom they believe useful information may be obtained. If, however, the person being questioned is a person suspected of having committed a relevant offence, regardless of whether they are in custody the interviewer must electronically record the conversation if practicable for any confessional material to be admissible. See s 143 of the Police Administration Act." Sergeant Bradshaw acknowledged that a relevant offence was an offence punishable by imprisonment of more than two years. In that case, conversations must be electronically recorded. He said the applicant was not a suspect at that time and at the point of asking Patrick about drugs, Patrick was not a suspect.[45]
[35] Senior Constable Green assisted with the search of the vehicle. He was tasked to administer the saliva test on the applicant and then took names from some of the passengers.[46] Asked if it was common practice to administer the saliva test after a random breath test, he said it was "on occasion" but they would not test every person. In this case, the vehicle had been directed from the road for further actions in order to conduct a liquor search on the basis that it was travelling to Port Keats. Green was only aware of the applicant's vehicle being searched that night, no other vehicle was. He said there were two ladies and two children in the back. The children were laying across the rear seat on the laps of the adults. The children were asleep.[47]
[36] Once everyone was out of the vehicle, Senior Constable Green assisted Sergeant Bradshaw with the search of the car by providing light. At the time he did not know what power was being exercised to search, though his understanding when giving evidence was that he was using s 120C of the Police Administration Act.[48] He said he did not know why the vehicle was being directed off the road but he would have assumed it was for a liquor search. He assumed when he was asked to conduct the saliva drug test that the random breath test would have already been done. He was not familiar with the applicant, nor did he know his destination at the time. He said the applicant was present when he stated the drug test was negative, as the applicant had heard him announce the result in response to a question from Sergeant Bradshaw. The test takes five minutes to develop. He agreed all occupants of the car were being detained at the time and none were free to leave.
[37] Officer Jimmy Parimeros saw Sergeant Bradshaw speaking with Patrick in the context of conducting a traffic apprehension and the RBT. Officer Parimeros spoke to the other occupants, not to the applicant. They told him they were "going towards Port Keats."[49] He said he could hear Sergeant Bradshaw talking with the applicant and explaining he would do a search under s 120C of the Police Administration Act. He then assisted with the search of the car and located some of the items. He heard Sergeant Bradshaw tell the applicant that he had reason or grounds to suspect there were drugs inside the vehicle. Officer Parimeros agreed that when the vehicle pulled over to the side of the road he could not say anything about the circumstances of the people in the vehicle.[50] At that point he did not know why the vehicle was being detained. He agreed it was not until Sergeant Bradshaw announced the search that he was aware of the reason the car was detained and became aware that it was a search under s 120C of the Police Administration Act.
[38] Constable Gemma Farmer was also on duty. She noticed other police officers at the back of the applicant's vehicle. She assumed they were going to conduct a search so she assisted by removing items from the back of the boot. At that stage she noticed a strong smell of cannabis, so she assumed it was a s 120C search. She said she removed a jerry can and the smell of cannabis became overpowering when Sergeant Bradshaw lifted the plastic flooring from the boot.[51] Asked if she was told at any time why she was searching the vehicle; she said she had assumed and recalls Sergeant Bradshaw saying that the applicant had a history for drug supply, but did not recall him saying a date.[52]

[43]

[48] It is agreed by both parties that there was no impropriety or contravention of an Australian law when Sergeant Bradshaw required the applicant to pull over and stop for the purpose of administering a breath test. Section 29AAB of the Traffic Act allows police to direct a driver to pull over 'without' reasonable suspicion of an offence, for the purpose of requiring a breath test and a saliva test. Once pulled over, the power to conduct a breath test, breath analysis or saliva test is covered by s 29AAC of the Traffic Act. As mentioned, both tests returned negative results.
[49] Section 29AA provides that a person who is required to submit to a breath test, must comply with the directions given by police. The requirement to submit to a breath test must take place within four hours of either a specified event (which is not relevant here) or from being directed to pull over.[64]
[50] In certain circumstances, none which apply here, a person may be arrested after being directed to pull over and directed to submit to a breath test.[65]
[51] Similar provisions with adaptions for context apply to the requirement to pull over and submit to a salvia test to determine whether there is a prohibited drug in the person's body.[66]
[52] Unless there was some other power to hold the applicant, passengers and car, the applicant was free to leave at the conclusion of both tests returning a negative result. Without any further lawful authority to hold them, the applicant, passengers and car would have been free to leave.
[53] After considering all of the evidence, I find that after the breath and salvia tests were completed, attending police then detained the occupants and car in order to search the car for alcohol purportedly under the Liquor Act. After telling Sergeant Bradshaw he was going to Port Keats, and the associated conversation, Bradshaw told the applicant to pull off onto the verge. Sergeant Bradshaw began to investigate whether any drug offences were committed when the applicant and others were detained under the Liquor Act. After a conversation with Patrick, Sergeant Bradshaw concluded he had reasonable grounds for a drug search under s 120C of the Police Administration Act.

[60]

[59] An exercise of power under s 237 (search on the basis of suspicion) and s 238 (search on a random basis) is conditioned inter alia on a 'forfeiture offence' that 'was committed, is being committed or is about to be committed'.
[60] The forfeiture offence which was potentially open was an offence against s 173 of the Liquor Act, namely bringing liquor into a general restricted area. The applicant was not in or near a restricted area at the time of apprehension so it could not be said that a forfeiture offence was or is being committed in the terms of s 238. Whether it was "about to be committed" requires further analysis.
[61] As s 238 of the Liquor Act permits a search on a 'random basis' to detect whether a forfeiture offence is being committed or is about to be committed, no 'suspicion on reasonable grounds' nor any suspicion at all need be held by the police officer. However, if the appropriate suspicion is held and other conditions are met, it seems police could rely on both sources of authority. Whatever the case, the legislative requirements for each power to be exercised must be strictly observed.
[62] In terms of an approach to the construction of a statutory provision such as s 238, it is important to bear in mind that a random search represents an intrusion into common law or basic rights, consequently such a provision should be read or construed strictly.[69] To subject a person or their property including as here, a car containing personal items, to detention or a search represents a general interference with those rights. In Babui v O'Neill,[70] Grant CJ said an interference by way of search of a person requires "scrupulous observance" of the conditions imposed on the exercise of the power.[71] The exercise of the power on this occasion under ss 238-239 of the Liquor Act resulted not only in the search of some of the occupants but also detention of all occupants and the car. Those actions are clear intrusions into basic rights.
[63] The Crown argued the threshold for police to lawfully use the powers in s 238 is low;[72] and that all that is required under s 238 is a reasonable suspicion the vehicle is headed towards the general restricted area. The officer need not have a reasonable suspicion in relation to a forfeiture offence being committed.
[64] As is evident from the agreed facts, while the Crown agrees that the surrounds of Adelaide River and the township itself is neither a general restricted area nor a special restricted area, Sergeant Bradshaw was told by the applicant that he was headed to Port Keats. The Crown submitted that as a result, and given Sergeant Bradshaw's experience about late night travel to communities, it can be concluded a forfeiture offence against the Liquor Act was likely to be committed.[73] Accordingly, in the Crown's submission police had the power to search the applicant for alcohol.[74]
[65] When ascertaining the objective intention of the legislature, I am mindful of the fallacy pointed out by Griffith CJ in Richardson v Austin:[75]

[62]

[66] If the Crown's construction of s 238 is correct, it does lead to some extreme results. It would mean that every driver in the Northern Territory could, for example be apprehended at any point along the Stuart Highway, and if their final destination was a community or town covered by a general restricted area or a special restricted area, the driver, car and occupants could be subject to a random search. This would apply no matter how far away the community was from the point of the random search. There are alcohol restricted areas over many parts of the Northern Territory. A person driving to Maningrida from the NT/SA border could be liable to a random search, even though the destination of Maningrida is likely to be days away. Of course if the text of the Liquor Act clearly provides for random searches hundreds of kilometres from the targeted general or special restricted area, the legislation prevails and searches of this kind would be lawful. However, the rules of statutory interpretation require strict adherence to the words in context and would prevent a result of that kind.
[67] In my view the proper construction of ss 237 or 238 does not lead to such a result. These reasons will concentrate on s 238, search on a random basis, as that is the section Sergeant Bradshaw relied on to search the applicant, passengers and the car,[76] after administering the RBT and drug test.
[68] To exercise the powers of search authorised by s 239 of the Liquor Act, both ss 237 and 238 require the search must be to detect 'whether a forfeiture offence was committed, is being committed or is about to be committed.' It is difficult to accept here that such an offence was 'about to be committed' when the general restricted area of Wadeye/Port Keats was 291 kilometres from the RBT and the stop and search point.
[69] The conditions set out in s 238 of the Liquor Act which permit the exercise of search powers contained in s 239 requires first that the search be on a random basis; second that it be conducted 'to detect whether a forfeiture offence was committed, is being committed, or is about to be committed' (emphasis added); and, relevantly (b) in relation to a vehicle 'that the inspector or officer suspects on reasonable grounds to be travelling to a general restricted area or a special restricted area.'
[70] There were some foundational facts on which to conclude conditions (1) and (3) were made out, but not, in my view condition (2) that a forfeiture offence 'is about to be' committed. The applicant's car was on the northern side of the Adelaide River township, it was not in a restricted area, nor was it in common parlance, 'about to go' into a general restricted area.
[71] Travelling in the night to Port Keats/Wadeye was likely to have made Sergeant Bradshaw somewhat suspicious given his experience of grog and drug runners late at night, but the place where he exercised the Liquor Act powers was still 291 kilometres away from Port Keats/Wadeye, a drive which would take approximately four hours.[77] Alcohol may be purchased and consumed during specified hours in Adelaide River, [78] and according to Sergeant Bradshaw's evidence, there are other points on the road to Port Keats/Wadeye which are not general restricted areas.[79] The fact the destination was Port Keats/Wadeye, or "towards Port Keats" as some of the passengers stated does not seem on a plain application of s 238 to amount to a forfeiture offence 'about to be committed.' 'About to be committed' means just that. In my view it refers to potential offenders who are much closer to 'the limit' as it is referred to in some communities. In other words, closer to the start of the delineation of the general restricted area from the unrestricted areas, or some other indication that a forfeiture offence is 'about to be committed'.
[72] I do not think, as the Crown has submitted that the only information about destination Sergeant Bradshaw had to rely on was the stated destination of Port Keats. The Crown pointed out that the applicant offered no further information to Sergeant Bradshaw such as whether he was stopping somewhere on the way or even drinking or hiding alcohol somewhere along the way. In my view the stated destination was hours away which tends to detract from any notion the applicant was 'about to' commit a relevant offence. The conversation set out above in these reasons between Sergeant Bradshaw and the applicant has little detail, as might be expected in the circumstances. The applicant had no alcohol with him in any event. To talk to Sergeant Bradshaw about whether he would stop, drink it or hide it along the way, would not have made any sense. It is unremarkable that there was no further information forthcoming on that point.
[73] As mentioned, the Crown contended the only test that must be met in order to exercise the powers of search under the Liquor Act was that Sergeant Bradshaw suspected on reasonable grounds the car was travelling to a general restricted area.[80] The Crown relied on the following passage from Smart JA in R v Rondo:[81]

[79]

[84] The statement assesses the human rights implications on an interpretation of the Liquor Bill which proceeds on the basis that the powers are limited to offences the person has committed, is committing, or is about to commit; but also on the basis there is a reasonable suspicion that the vehicle is travelling to a restricted area.
[85] Although not expressed as common law rights, the statement is also concerned with basic, internationally accepted rights under the ICCPR, Article 12: freedom of movement and choice of residence; Article 17: Freedom from arbitrary or unlawful interference with privacy. In terms of the International Convention on the Elimination of All Forms of Racial Discrimination, the statement recognises the Bill continues and creates substantial liquor restrictions, and provides more intrusive powers to enforce those restrictions. It acknowledges the restricted or controlled areas targeted by the scheme are primarily Aboriginal communities and public spaces, which will have the effect of impairing the enjoyment and exercise of the rights and freedom of Aboriginal persons to privacy and freedom of movement to a greater degree than non-Aboriginal persons. However, reliance is placed on special measures and the statement provides 'these measures are taken for the sole purpose of securing adequate advancement of these same persons, who are disproportionately affected by alcohol-related harm.'[94]
[86] The statement indicates the legislature has had some regard to the intrusion into basic rights in some parts of the Liquor Act. The intrusion into those rights should not be expanded by a broader reading of the search provisions, which would disregard the phrase 'about to be committed'. In line with the authorities already cited, such a broad reading of the section which would authorise random searches to take place whenever a person is travelling to a general restricted area, should not prevail. To attribute a meaning of the kind urged by the Crown would require 'clear and unambiguous words,'[95] 'irresistible clearness,'[96] or 'with a clearness which admits of no doubt.'[97]
[87] Police authority to stop a driver and randomly check a licence and car registration have been held to require consideration of the rights to liberty, freedom of movement and privacy.[98] Further, an aspect of the common law right to freedom of movement includes a qualified right to drive on public roads. The right must be exercised according to law.[99] All rights can be qualified or abrogated by legislation but in order for a court to comply with the principle of legality, when a constructional choice is open, statutes must be construed to avoid or minimise their encroachment upon basic rights and freedoms.[100]
[88] If the legislature had intended to authorise inspectors or police officers to randomly search any vehicle travelling to a general or special restricted area, the statute would have said so. It would then be perfectly lawful for police to randomly stop a driver and search a vehicle 271 kilometres from a general restricted area. Indeed it would be lawful for police to search a vehicle entering the Northern Territory via the NT/SA border town of Kulgera travelling to Maningrida, a general restricted area about 2000 kilometres away, or from Kulgera to Wadeye/Port Keats, a slightly shorter distance. The Court must strive to give meaning to every word of a provision.[101] The statute does not provide for random searches for travelling to any general restricted area, the random search can only take place 'to detect whether a forfeiture offence was committed, is being committed or is about to be committed.'[102]
[89] The words detect whether a forfeiture offence 'is about to be committed' must be given meaning. As indicated, in my view on a plain reading this cannot mean a person is hundreds of kilometres away and hours away from the scene of the potential offending. The phrase implies some immediacy. The applicant argued it is a matter of fact and degree. The applicant referred to the Macquarie Dictionary entry for 'about to' which is defined as 'on the point of (doing something)': about to leave.
[90] Stroud's Judicial Dictionary of Words and Phrases entry 'about to' states:

[81]

[91] Parts of R v Goodwin ('Goodwin') have been applied in Australia without criticism, although none of the statutes discussed in the Australian cases, use the phrase 'about to commit'.[104]
[92] In Connor v Pittaway Mendes v Pittaway,[105] Pape J dealt with a case stated about the interpretation of the offence of loitering 'with intent to commit a felony' under the Vagrancy Act 1966 (Vic). Reliance by one party on Goodwin was not successful, in part because Pape J said Goodwin required that 'The evidence must show that the accused was then and there about to commit an offence'. Pape J said it would be quite wrong to rely on that statement with respect to a charge of frequenting or loitering with intent under the Vagrancy Act as Goodwin was concerned with the Prevention of Crimes Act 'which specifically requires proof that the defendant was about to commit an offence,' which was not a requirement under the Vagrancy Act. All of this leads to the conclusion that 'about to commit an offence' must be given meaning.
[93] The powers of search of vehicles, persons and other relevant things under the previous Liquor Act of 1978 ('previous Act') were predicated on an inspector or police officer reasonably suspecting a relevant offence 'has been, or is being or likely to be, committed.'[106] The previous search powers were therefore conditioned on broader criteria than the current Liquor Act. The conditions contained in the previous Act are not as strict as the current Act and do not require that an offence is 'about to be committed', but rather 'likely to be committed'.
[94] The parties drew attention to cases under the previous Act. Differences in the previous Act and facts of the cases are readily distinguishable from the facts and circumstances here. Not a great deal can be drawn from those cases when considering this matter. However, for completeness those cases will be outlined briefly.
[95] Henwood v Balchin was an appeal against a Magistrate's ruling rejecting a submission that cannabis found in two cars, the product of a search for alcohol was unlawful.[107] Initial inquiries on whether alcohol or drugs were in the car was denied by the occupants. Police informed the occupants they would search both cars. The prosecution relied on s 95(2) of the previous Act which as mentioned was expressed differently from the current act. At that time the Act relevantly provided:

[83]

[96] Section 101AN(2) was a search provision in similar terms. There was no requirement that an offence was 'about to be committed.' When searching for alcohol, police came across cannabis, thus it was held upon finding some cannabis they had a reasonable belief there were illicit drugs in the cars and so could lawfully continue to search in bottles and containers.[108] In any case it may be noted that in Henwood v Balchin,[109] the appellants' cars were required to stop 30 kilometres from Maningrida. On the facts, that is distinguishable from the current matter.
[97] In Babui v O'Neill,[110] police officers in Wurrumiyanga attended the wharf to conduct a search of people arriving on the ferry from Darwin to determine whether any had alcohol in their possession. The officers had no 'reasonable suspicion' within the meaning of the previous s 95(1) that a relevant offence had been, was being, or was likely to be committed by any particular person on the ferry. The searches were conducted 'on a random basis for the detection of a relevant offence' pursuant to power conferred by s 95(2). As passengers alighted from the ferry, adult passengers were searched on the beach.[111] Grant CJ held that the search was randomly, and thus lawfully conducted. There was a strong nexus between search powers being executed and the ability to detect prescribed offences. In Babui the passengers had already arrived in a restricted area. Under both the previous Act and the current Liquor Act a random search in the actual restricted area is likely to comply with the Act. Babui is quite removed from this case on its facts.
[98] The applicant submitted 'about to be committed' is a matter of fact and degree. While that may be so, in my view that phrase means what it says 'about to be committed'. It is on the point of offending. In the context of how offences of this kind can take place, such a meaning makes sense. As an example, many communities have markers for the beginning of a general restricted area, colloquially known as 'the limit'.[112] Some people drink at 'the limit' and wander or drive through the restricted area with drinks in hand or in their vehicles. Some go backwards and forwards. When intending to go home from 'the limit', with alcohol, they are about to commit the offence. There are doubtless other examples of how offences of this kind are 'about to' be committed, but that is one example of how this offence may be committed.
[99] The phrase 'about to be committed' is reminiscent of the discredited 'last act' test in the common law of attempt, and was applied in some Griffith Code States until it was criticised and fell into disuse.[113] Criminal responsibility for offences under the Liquor Act, is governed by Part IIAA of the Criminal Code 1983 (NT).[114] An attempt under s 43BF(2) of the Criminal Code occurs when the person's conduct is 'more than preparatory' to the commission of the offence. Essentially what is required is that the accused does acts which are 'sufficiently proximate to the intended commission of the crime'.[115] Intention to commit the offence must be proven.[116] In my view the phrase 'about to commit an offence' covers acts which are more proximate to the offence being committed than does the law of attempt. If the objective intention was to allow random searches whenever a car was heading to a general restricted area with the requisite intent, the legislature could have provided for a random search whenever an offence under the Liquor Act was 'attempted'.
[100] The police power to arrest a person without warrant under s 123 of the Police Administration Act is enlivened when police believe on reasonable grounds that a person has committed, is committing or 'is about to commit an offence' I could not find case law on 'is about to commit an offence' in the context of s 123, though it would be highly unlikely if arrests which relied on the words 'about to commit an offence' were permitted in anything other than reasonably immediate circumstances of an offence about to be committed.
[101] The detention of the applicant, other occupants and the car in order to 'search' was an impropriety as the conditions of ss 237-238 were not complied with.

[118]

[107] The first part of the conversation took place when the applicant, Patrick, the other occupants and the car were detained, purportedly under Liquor Act powers, even though the random search powers could not have been exercised at that time. Using the search powers under the Liquor Act to investigate, or in Sergeant Bradshaw's words, build reasonable grounds for suspicion is in my view prohibited by the terms of s 234 of the Liquor Act. In any event, it was not proper to use those powers under the Liquor Act to investigate or 'build' reasonable suspicion for another offence.
[108] As can be seen from the summary of facts, and the transcripts of the body worn camera footage, after the search under the Liquor Act had been announced but before announcing the search under s 120C, Sergeant Bradshaw questioned Patrick about cannabis immediately, not about alcohol. After he told the applicant he would search the car for alcohol, Sergeant Bradshaw immediately went to the subject of cannabis.
[109] Neither the applicant nor Patrick were cautioned. There is one point towards the end of the first conversation with Patrick set out earlier that Sergeant Bradshaw tells him he does not have to tell (Bradshaw) anything. By that time, he has questioned Patrick about his use of ganja. It was after this conversation Sergeant Bradshaw said he had reasonable grounds and 'it was all 120C'. Other passengers were not cautioned.
[110] The Crown submitted a caution in respect of the applicant and Patrick was not required as they were not suspects at the time they were questioned. However, it must be remembered that both were detained at the time under the Liquor Act and were immediately or shortly thereafter, questioned about cannabis. Sergeant Bradshaw was somewhat inconsistent about whether Police General Orders applied at the time,[119] on the one hand stating they did apply to the applicant, then later agreeing the applicant was not a suspect. He said Patrick was not a suspect until he said he used drugs. In re-examination he accepted he was not a suspect. I cannot determine whether at various points Sergeant Bradshaw determined the applicant was a suspect for the offence of supply cannabis, but it is apparent he was treated in some respects as a suspect, but without safeguards as would be expected under Police General Orders. After Patrick gave information about his use of drugs, I conclude both the applicant and Patrick became suspects. There was an attempt to partially caution Patrick, although it was wholly insufficient to meet the requirements of both sets of General Orders.[120]
[111] Further, on balance, the questioning of Patrick was likely to mislead him on the purpose of the questioning, given obviously English was not his first language. General Order Q2 clearly applied and was not complied with at all. It was misleading to ask "I'm not worried if you smoke ganja" in the context of the overall questioning set out above. This was likely to induce Patrick to speak more about cannabis which Sergeant Bradshaw was clearly worried about. It is this very conversation which was the last element contributing to the establishment of reasonable grounds for suspicion.
[112] A further related issue is whether there was compliance with s 139 of the UEA:
1. Cautioning of persons

[129]

[113] The effect of a failure to caution under s 139 of the UEA is that exclusion of the questioning will be required under s 138 unless its admissibility can be justified.[121] If s 139 is engaged, the Court is required to find an impropriety in accordance with s 138(1) of the UEA has taken place. Here, the question is whether the applicant and Patrick were under arrest before questioning commenced without a caution. The applicant argued s 139(5)(b) of the UEA covered circumstances of 'constructive arrest' as on the evidence police 'would not allow the person to leave if the person wished to do so'. The Crown relied on s 139(6)(b) on the basis that the applicant and passengers were not under arrest but merely being detained while police searched the car under s 238 of the Liquor Act and s 120C of the Police Administration Act. On the findings made thus far, the Crown's contention must fail. Sergeant Bradshaw disavowed reliance on powers under the Liquor Act. From the time of the first round of questioning with the applicant and when he commenced questioning Patrick, he had commenced an investigation for cannabis while utilising the powers of detention he said he had under the Liquor Act. That amounted to a misuse of the powers he assumed he was exercising.
[114] Section 139(6) of the UEA Act does not apply as the detention of the people and the car was not in accordance with law. Those powers under the Liquor Act were not the powers relied on to search the occupants of the vehicle and the car. The powers were used to investigate another matter, namely cannabis offences, therefore it was not a bona fide exercise of power.[122] Section 139(6) of the UEA did not affect the operation of s 139(5) and the applicant and other occupants were under arrest albeit constructive arrest at the time they were questioned by police.
[115] It was an error to rely on the Liquor Act powers to apprehend and detain. During the period of detention assumed to be under the Liquor Act, Sergeant Bradshaw commenced investigation for cannabis offences and pursued the investigation until he had reasonable grounds under the Police Administration Act. He agreed there was no power to conduct a criminal investigation under s 238 of the Liquor Act.
[116] A similar issue arose under a completely removed legislative regime in the New South Wales case of R v Buddee.[123] A car was apprehended for an RBT. The driver produced her licence. A breath test was taken. The reading was negative. When the police officers approached the car they began to ask questions about photo frames containing memorabilia from the movie Scarface in the back of the car. A caution was delivered. The officer did not specify what the caution was about but asked the driver, who owned the photo frames, to which she answered that they were hers. The officer asked if there was any 'ice' in the vehicle and the driver said "No, well at least I don't think so". The officer then said police would search the car and the driver was not to touch an ice pipe in the car. The passenger was to leave the car as well. The officer cautioned the driver and questioned her again. She agreed the contents of a tin looked like ice but she did not know the quantity. She was arrested for possession of a prohibited drug. In later questioning, further information about drugs was obtained from the driver. The police account of the incident was found to be against the objective evidence provided in the records and the Court concluded that the road safety power to pull people over for a random breath test was 'selectively relied upon to pull people over on a hunch or mere suspicion that they might be involved in crime'.[124] After dealing with the authorities relevant to intrusions on liberties by the state,[125] McClintock DCJ said;[126]

[132]

[117] After reviewing further authorities it was said that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating occupants or searching vehicles for crime detection.[127] I draw a similar conclusion here. Liquor Act powers of random search cannot be used to interrogate occupants or search cars for crime detection.[128]
[118] In R v Large,[129] police stopped a car for a RBT but no test was administered. Following questioning, the accused and a passenger were removed from the car, cautioned and a search conducted. The stop was considered to be 'proactive policing'. It was held the car was stopped for an ulterior purpose '[T]o make inquiry of the occupants of the car in order to ascertain whether they were involved in criminal activity, including drug supply'. It was held police were acting on a 'hunch' in the absence of reasonable suspicion.[130]
[119] Buddee and Large were applied in R v Kovac on a similar issue of an investigation commencing after a car was stopped by police.[131] It was said in Kovac a police officer can make general conversation or 'chit chat' with a person.[132] At [42] the Court concluded 'it can be stated that police are not empowered to ask certain questions that the legislation expressly provides is empowered upon certain criteria being met'. A number of examples of such powers were given. In Kovac it was held the caution required upon arrest should have been given by police at the time they were asking investigative questions. Even though in Kovac the accused was not under arrest, it was held no power was available for police to ask investigative questions that have the potential to circumvent the right to silence.[133]
[120] Police in the Northern Territory are authorised to take a person into lawful custody, including for questioning,[134] though the person will need to be arrested and taken before a court as soon as practicable, unless they are being held for a 'reasonable period' under s 137(2) of the Police Administration Act to enable questioning and investigation. No claim is made to s 137 for authority to arrest and investigate, as the only authority was based on the Liquor Act for random search and detention, notwithstanding another power was relied on for the search. Further, this was not an arrest under s 123 of the Police Administration Act. At the time of the detention there was no suggestion there were reasonable grounds for arrest under s 123.
[121] It is concluded here, police did not have authority when acting under the Liquor Act to ask investigative questions in order to build a suspicion for another offence.
[122] Interesting questions arise about whether the dual powers under the Liquor Act and the Police Administration Act can both be enlivened at once or, whether the Liquor Act powers can be relied on, whether or not Sergeant Bradshaw formed the belief he could search for drugs under s 120C of the Police Administration Act. Ultimately, the Crown submitted whether or not Sergeant Bradshaw formed the reasonable suspicion under s 120C was irrelevant as the car was being searched in any event under the Liquor Act and during that search the cannabis would have been found.
[123] The Crown relies on the authority police have to exercise dual search powers, even though Sergeant Bradshaw disavowed reliance on the Liquor Act powers for the actual search.[135] The Crown submits he was mistaken. In many situations, reliance on dual powers or mistaking the source of power by a police officer or other official exercising the power is unexceptional. In John Holland v Industrial Court of New South Wales; Parsens Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales Spiegelman CJ said:[136]

[135]

[124] These cases concern mistaken powers, but here Sergeant Bradshaw relied on s 238 of the Liquor Act to detain the car and its occupants when such a power was not available. Even if my conclusion is wrong, there was no power to investigate other offences. Bradshaw used the Liquor Act power in any event to build grounds to acquire a reasonable suspicion under s 120C of the Police Administration Act to justify searching the car and occupants. The power under the Liquor Act was used for general criminal investigation or drug investigation, with barely a mention of alcohol in the questioning. As Sergeant Bradshaw said, it was "all s 120C". It was a misuse of the power. It was not a bona fide use of the Liquor Act power.
[125] In any event, it has been held the principle cited above from John Holland 'is not a universal and categorical proposition'.[138] Here the information gathered to support or build the suspicion on reasonable grounds was mostly improperly or unlawfully obtained.
[126] That said, once all of the information was in the possession of Sergeant Bradshaw, he did have, in my view reasonable grounds to suspect cannabis was in the car. The information was: the car was being driven to Wadeye; many people use cannabis at Wadeye; the time of driving was late, based on Bradshaw's experience; it was a time when drug dealers try to take cannabis into Wadeye to lessen to risks of detection; acknowledgement by Patrick Jongmin that he smokes cannabis and on one interpretation of the body worn footage, had cannabis on him although he changed what he said; the applicant's previous history including supply cannabis in 2014 and earlier unspecified cannabis offences. Not all of these pieces of information are of significant weight, but together they were in my view, enough to sustain a suspicion on reasonable grounds there was cannabis in the car or on some of the occupants. That was not the primary issue in this matter. The problem was that the information was obtained improperly or in contravention of an Australian law.

[149]

[139] Mention has already been made of the ICCPR in the context of the interpretation of the Liquor Act and the use made of the Covenant when the Legislative Assembly debated the Liquor Bill.
[140] Article 9 of the ICCPR provides for the right to liberty and security of the person and that a person not to be subject to arbitrary arrest or detention, except in accordance with procedures established by law. Although the breach here is not a substantial incursion of the ICCPR, as procedures were not followed under the Liquor Act, the applicant and occupants were wrongfully detained from the time police told them to pull over for a search under the Liquor Act. Similarly, as the detention was not according to law as the applicant was not 'about to commit' a forfeiture offence under the Liquor Act, he should not have been subject to the preliminaries of a random search. This impaired his right to liberty of movement under Article 12(2) and interfered with his privacy under Article 17 as searches of his and the other occupant's person was not authorised by law.
[141] Article 2 of the ICCPR provides that the rights of all the individuals be recognised in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. As mentioned above, the Legislative Assembly considered potential racial discrimination under the Convention on the Elimination of All Forms of Racial Discrimination against the regime of restricted areas under the Liquor Act.
[142] If the police interpretation of the circumstances under which detention and search can be authorised by the Liquor Act is permitted to stand, there is potential for indirect racial or social origin discrimination. On the police interpretation, anyone travelling to a community which is a general restricted area could be detained and randomly searched, even though the community of destination is hundreds or thousands of kilometres away. The vast majority of people who reside in general or special restricted areas are Aboriginal people. Whenever an Aboriginal person is travelling to their home community or visiting another, they could be subject to a random search. That would seem to call for an examination of whether such an interpretation of the Liquor Act was discriminatory on the basis of race or social origin. Of course if such a person was 'about to commit' a forfeiture offence, the operation of the law may be reasonable or justifiable even if it has a disproportionate operation on Aboriginal people who live in liquor restricted communities, but not otherwise. There is not any reason to 'place a fence around criminal laws of general application' on the basis that they do not attract the operation of principles of discrimination law.[139]
[143] Although the incursions into the ICCPR are not substantial in terms of how long the applicant and others were detained and subject to searches, the consequences of any continuation of the practice is potentially damaging for members of the Aboriginal community and police and others who enforce the laws. These matters have been taken into account.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (234 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (16)