The Queen v Michael Ryan Malloy [1999] ACTSC 118

1. Prior to the commencement of the trial in this matter Mr Gill, who appeared for the accused, informed me that there would be objections to crucial portions of the evidence upon which the Crown intended to rely in support of the charges. In view of the nature of the objections foreshadowed it was clear that a voir dire would be required. Since the learned Crown prosecutor indicated that the rulings on the objections might well determine whether or not the trial proceeded I agreed to conduct that part of the proceedings prior to the date set down for the balance of the trial.

2. Whilst I took the view that it was neither necessary nor desirable for the accused to be arraigned at this stage of the proceedings, an indictment was presented charging the accused with the following offences:

* that on 22nd day of August 1998 at Canberra in the Australian Capital Territory he possessed a traffickable quantity of a prohibited substance namely 3, 4-Methylenedioxy-N, [alpha]-dimethylphenylethylamine (MDMA) for the purpose of sale or supply to any person; and

* on 22 August 1998 at Canberra he possessed a traffickable quantity of a prohibited substance namely 3, 4-Methylenedioxy-N, [alpha]-dimethylphenylethylamine (MDMA).

3. The events that gave rise to these charges may be stated shortly. On the evening of Saturday 22 August 1998 the accused was found to be asleep on a Murray's coach which had just pulled into the Woden bus interchange. A bottle which had apparently contained tablets and bore a label referring to the drug Temazenpan was found nearby. Temazenpan is apparently a sedative. The driver of the coach contacted the police and Constables Wynton and Curtain duly attended. Both attempted to wake the accused but were unsuccessful. Constable Curtain then called an ambulance. Whilst waiting for the ambulance to arrive they commenced to search the accused in order to establish his identity and determine whether there was anything on him that may have cast some light on whether he had consumed something which may have accounted for his unconscious state. As a result of this search they found in his wallet documents providing photographic identification of him.

4. The ambulance then arrived and paramedics attempted to rouse the accused by shaking and shouting at him and then by the application of painful stimuli. The latter technique was successful though it appears that the accused did not immediately gain full wakefulness. At about the time that the accused was roused the police began to search his backpack. They found a brown toilet bag in which they located a small plastic bag containing a quantity of small white tablets. These tablets were shown to the accused and he was asked what they were. He said that they were "ecstasy tablets". It is common ground that the drug referred to in the charges is commonly known as ecstasy. The accused demanded to know what right the police had had to go through his bag. Constable Wynton told him that they had thought he had overdosed and wanted to know how many tablets he had taken. The prisoner was then asked to stand and told that he was getting off the bus. He was asked whether he had anything on him that might harm either Constable Wynton or himself and produced an aerosol pepper spray. He told Constable Wynton that he had it to protect himself. He was then informed that he was under arrest.

5. Mr Gill submitted that any evidence of the tablets being found in the accused's backpack should be excluded as having been illegally obtained. The police officers had not carried out the search pursuant to any warrant and there was no statutory provision which would have authorised the search in the circumstances then prevailing. He submitted that there was no general power at common law to search a person prior to his or her arrest and in support of this contention referred to the judgment of Legoe J in R v Davidson (1991) 54 SASR 580 at 584 and 586.

6. The Crown conceded that the search had not been authorised by warrant and that there was no statutory power that would have applied in the circumstances but contended that there was a common law power search and seizure "in exigent circumstances". Mr Whybrow informed me that he had been unable to find any actual authority for this proposition but referred me to a brief allusion to the existence of such a power in "Search and Seizure in Australia and New Zealand" by Tronc, Crawford and Smith LBC Information Services 1996 at 6. Unfortunately, the relevant passage is merely an incidental comment in parenthesis and no attempt is made to describe the nature and extent of any such power. Furthermore, whilst the learned authors refer to "later common law decisions" the only one identified is Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and Mr Whybrow conceded that he had been unable to find anything in the High Court's judgment which referred to such a power. Despite the apparent paucity of authority, however, I am prepared to assume for present purposes that there is a common law power of search and seizure in exigent circumstances. Such a power might enable a police officer coming unexpectedly upon a situation involving a grave and imminent threat to public safety to intervene and save lives without acting unlawfully and thus exposing himself or herself to an action for trespass. Nonetheless, the search of a person's private property and the seizure of his or her belongings constitutes a serious invasion of privacy and any common law power to so infringe the rights of others could be justified only by compelling circumstances.

7. In the present case Sergeant Best gave evidence that when he entered the coach Constables Wynton and Curtain and the two paramedics were already in attendance. The accused appeared to be "between that state of being asleep and awake" but was responding to questions being asked by paramedics. Sergeant Best then had a conversation with Constable Wynton and it was only after that conversation that the backpack was searched. Neither of the paramedics had apparently told any of the police officers that there was any need to search the backpack. Nor had they suggested that the accused was in any danger. On the contrary, whilst there is always a risk that the person who has been sedated might go back to sleep, it appears that the concerns of the paramedics had been relieved once they had been able to rouse him. In my view the mere risk that a person in a stationary bus might go back to sleep whilst in the presence of paramedics is not an exigency of sufficient gravity to fall within the scope of any common law power of the kind upon which the Crown relied. Accordingly, I have no doubt that the search was unlawful.

8. Nonetheless, the Crown contended that I should exercise discretion under s 138 of the Evidence Act 1995 (Cth) to admit the evidence notwithstanding the fact that it had been obtained improperly or illegally. It was submitted that the most of the matters which the court was required to take into account by virtue of subs (3) supported this course. Evidence of the discovery of the tablets was of significant probative value and of considerable importance to the Crown case. The offences were serious. Furthermore, whilst the search of a person's property whilst he was asleep and unable to protest was, prima facie, a serious impropriety, Constable Wynton had acted in the interests of the accused and in the belief that he was lawfully entitled to do what he did. Furthermore it would have been extremely difficult to have obtained the evidence in any other way.

9. When asked during cross-examination at the committal proceedings why he had searched the bag Constable Wynton said "because we still hadn't established whether or not he had taken any medication or anything else that may have been, say, illegal. We hadn't established if he was suffering from a medical problem. These things could have been found in that bag". He was cross-examined further in relation to this issue both during the committal proceedings and on the voir dire before me. Having considered the whole of his evidence I am satisfied that Constable Wynton was motivated both by a genuine concern for the accused and by a desire to ascertain whether he possessed any prohibited drugs. The Crown did not contend to the contrary.

10. The Crown argued that s 138 had effectively codified the common law principles recognised in cases such as Bunning v Cross. Impressive support for this contention was found in the judgment of the NSW Court of Criminal Appeal in R v Rooke (unreported NSW Court of Criminal Appeal 2 September 1997) in which the test under s 138 was said to be the same as the common law test except for the onus. Whilst not binding upon individual judges of this Court, decisions of the New South Wales Court of Criminal Appeal are, of course, highly persuasive. In any event, I would not demur from the proposition that the essential nature of the tests is similar. Nonetheless, it seems to me that the comparison suggested must be approached with some care. The change from the principle that evidence of illegally or improperly obtained was prima facie admissible to one that evidence so obtained is prima facie inadmissible is of profound importance. Furthermore, it is clear that the section applies to evidence that has been illegally or improperly obtained by anyone whilst the common law principle was generally applied in relation to evidence which had been procured by unlawful conduct on the part of police or other investigative officers. Hence, in Bunning v Cross, Stephen and Aickin JJ at 74 referred to the principles which had been established in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 in the following terms:

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."

Barwick CJ expressed agreement with the judgment of their Honours. In the more recent case of R v Swaffield [1998] HCA 1; (1998) 151 ALR 98 at 108 Brennan CJ said that the chief object of the public policy discretion was "the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct . . ." The principle contained in s 138 plainly reflects a broader objective. Subsection (1) provides that the evidence is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been obtained in the unlawful or improper manner in question. Whatever may have been the position at common law, I think it is now clear that a court must take into account all of the policy considerations that may be relevant to the exercise of such a discretion; not merely those set out in subs (3).

11. The present case must be approached on this basis. Offences of possessing "ecstasy" for the purpose of sale or supply to others are very serious and whilst the accused is entitled to the presumption of innocence there is a strong public interest in ensuring that reliable and otherwise admissible evidence is adduced at his trial. On the other hand, it is important to ensure that the rights of all members of the community are protected. History is littered with examples of rules designed to ensure the maintenance of important human rights being subverted by decisions intended to serve the perceived interests of justice in particular cases.

12. I accept that Constable Wynton did not realise that he was acting unlawfully in searching the backpack. That is clearly a relevant factor but it is one to which only limited weight can be given. It is a well known axiom that ignorance of the law is no excuse and that principle is routinely applied to defendants with no legal training or background. There is a certain irony in the Crown maintaining that ignorance of the law should nonetheless justify the admission of evidence illegally or improperly obtained by trained and experienced police officers. In making this observation I do not mean to be critical of Constable Wynton. The law has been evolving rapidly and that process has led to increasingly greater complexity. It is for the authorities to ensure that individual officers are kept up to date. Nonetheless, it is important that all police officers have a good understanding of certain fundamental principles, especially those relating to their power to enter and/or search the property of other members of the community, the need to caution suspects before asking them potentially incriminating questions and the circumstances in which people may be arrested. Yet failure to understand or act upon such fundamental principles of law has given rise to unnecessary difficulties in a number of recent cases.

13. It is true that each case should be judged on its merits but one cannot wholly lose sight of the extent to which individual cases may influence official behaviour either by giving rise to judicial precedent or by providing unintended encouragement for taking "short cuts" unauthorised by law. The circumstances that confronted the police on this occasion were by no means unique. It is a commonplace occurrence for drug users to collapse and for others to be unable to rouse them. In this Territory paramedics usually decline to call the police for fear that people might be deterred from calling ambulances due to concerns that either they or the person about whom they are concerned might be charged and punished. It may be argued that this practice involves tacitly condoning criminal behaviour but paramedics give priority to saving human lives rather than to the enforcement of the criminal law. On the other hand, whilst police officers may also be solicitous of the welfare of people obviously in urgent need of medical care they will also be conscious of their continuing duty to enforce the law. Consequently, they are likely to have mixed motives of the kind which I have found Constable Wynton had on this occasion. Hence, the argument that evidence obtained as a result of an unlawful search should be admitted because the officer was motivated, at least in part, by concern for the accused will be available to the Crown in many cases of this kind.

14. The law clothes police officers with significant authority. It also provides them with ample means of augmenting that authority such as the opportunity of obtaining search warrants by telephone. The nature and extent of the authority so conferred reflects the balance which elected governments have determined should be maintained between the need to ensure that criminals can be caught and prosecuted and the need to ensure that the rights of all members of the community are respected. The discretion provided by s 138 empowers courts to admit evidence obtained in contravention of the law and that power is not constrained by any requirement for special or exceptional circumstances. However, it must be exercised in the context of the principle that evidence illegally or improperly obtained is otherwise inadmissible and the public policy considerations which that principle is intended to serve.

15. I am conscious of the potential importance of the evidence and of the risk that by excluding it the Crown's prospects of successfully proving the commission of a serious offence might be prejudiced. However, there are countervailing considerations. It is important to ensure that those charged with enforcing the law themselves observe it, it is important to ensure that rights of privacy not be overridden merely because people are unconscious or too ill to enforce them, and it is important to ensure that others are not deterred from seeking medical assistance for them.

16. In the present case, notwithstanding Mr Whybrow's cogently argued submissions, I am not satisfied that the desirability admitting the evidence outweighs the undesirability of admitting evidence obtained in these circumstances. Accordingly, I am required by s 138 to exclude it.

17. Mr Gill also objected to evidence of the conversations that followed both on the bus and later at the police station.

18. The objection to evidence of the former conversation may be readily resolved. It is clear that the accused would not have been permitted to leave had he declined to answer the questions put to him and consequently must be treated as having been under arrest at the relevant time. Accordingly, the requirements of Part 1C of the Crimes Act 1914 were infringed in at least three respects: the accused was not cautioned; he was not informed of his right to consult a legal practitioner; and the conversation was not recorded by audio tape or videotape. Furthermore, he was interviewed immediately after being roused from an obviously deep sleep and may not have been fully alert. Indeed, when taken to the police station Sergeant Best deferred the interview for more than an hour and a half due in part to concern that it may have been unfair to have proceeded earlier if the accused had not fully recovered from the effects of the sedative. The Crown was unable to advance any matter which would have warranted the conclusion that the desirability of admitting this evidence outweighed the undesirability of doing so in these circumstances.

19. The circumstances in which the subsequent interview occurred were quite different. The accused was left in a cell from approximately 10.36 pm until 12.20 am. As I have mentioned, the delay was partially attributable to Sergeant Best's concern that it might be unfair to interview the accused if he was not fully awake and alert. Sergeant Best said that it was also attributable to his desire to make enquiries about the drug said to have been contained in the tablets. He explained that he did not want to conduct a formal interview only to later discover that the tablets contained nothing but aspirin. The accused was duly cautioned and informed of his right to consult a legal practitioner. His answers were apparently given voluntarily and the interview was appropriately recorded.

20. In these circumstances, it was contended that notwithstanding any earlier impropriety there was no basis upon which evidence of this conversation could be said to have been illegally or improperly obtained or for its admission to be regarded as unfair to the accused. On the other hand, Mr Gill argued that however properly the interview may have been conducted it was predicated upon the discovery of the tablets during the unlawful search of his backpack and the unlawfully obtained admission as to the nature of those tablets. Hence, any admissions made during the course of the interview had also been obtained "in consequence of an impropriety or of a contravention of an Australian law". I accept that submission. It would require an unjustified contortion of the language employed in par 1(b) of s 138 to construe the section as requiring only the exclusion of evidence directly obtained as a result of an illegal search and I do not accept that the relevant provision may be circumvented by reliance upon secondary evidence obtained in this manner. In my view evidence of the conversation in question is prima facie inadmissible.

21. The Crown submitted that is should be nonetheless be admitted because it was of significant probative value, was important to the Crown case and tended to prove the commission of a very serious offence. The Crown also pointed to the mixed motives of Constable Wynton and to the fact that the evidence was not obtained as a result of a deliberate or reckless contravention of the law. Furthermore, Mr Whybrow eloquently argued that the police would be put into an extremely difficult position if they were unable to rely upon confessional material obtained following contraventions of the law or improprieties, especially if the interviewing officers did not realise that any such contravention or impropriety had occurred.

22. These are important considerations but, again, there are countervailing factors. First and most obviously, the Commonwealth Parliament has chosen to make evidence obtained as a consequence of a contravention of an Australian law prima facie inadmissible and must be presumed to have done so with due understanding of the difficulties which might ensue as a consequence. Secondly, it should be remembered that investigating authorities will only be in such a difficult situation if it has been brought about by some antecedent contravention of the law or impropriety. Thirdly, the rights of an accused person may have been compromised by such antecedent illegality or impropriety. In the present case, for example, by the time he was interviewed at the police station the accused knew that his bag had been searched, tablets had been found and admissions as to their nature extracted from him. In those circumstances, whilst he was properly cautioned that he need not answer any questions he may well have thought that there was little point in exercising his right to silence at that time because any protection such a course might otherwise have afforded him had, for all practical purposes, already been stripped from him. Furthermore, he had been left in a holding cell for an hour and a half and may have thought that if he elected to answer the questions put to him during the interview he may be allowed to leave or at least be given a place to sleep. It is true, as the Crown pointed out, that he did not give evidence and his motivation for answering the question is to some degree a matter of speculation. However, whilst the accused bears the onus of establishing that the evidence to which the objection relates was obtained as a consequence of an impropriety or contravention of an Australian law, the Crown bears the onus of establishing that the discretion should be exercised in its favour. Despite the persuasive arguments put forward on its behalf by Mr Whybrow I am not satisfied that it has done so.

23. Accordingly, this evidence must also be excluded.

24. I might mention that the relevant admission was merely that the tablets "are called Milleniums and they are supposed to be ecstasy" and this would in any event have been inadequate to prove that they contained 3, 4-Methylenedioxy-N, [alpha]-dimethylphenylethylamine (MDMA).

25. Mr Gill also submitted that any admissions made during the course of the interview had been obtained unlawfully because the accused had been unlawfully arrested. However having regard to the view which I have taken as to the other issues argued it is unnecessary to rule on this submission.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Instructing solicitors: ACT Director of Public Prosecutions