Police Powers to Stop, Search and Detain

A police officer’s power to stop, search and detain a person or vehicle are set out in ss21 and 36 of the Law Enforcement (Powers and Responsibilities) Act 2002. The relevant sections are set out below. The criteria that must exist before such power is enlivened, is that the police officer must have a suspicion (as to a defined circumstance set out below) and that there are reasonable grounds for such suspicion. Hence, the test is both subjective and objective.

Some principles that have emerged through the cases (in particular R v Rondo [2001] NSWCCA 540 ) are:

i. A reasonable suspicion involves less than a reasonable belief, but more than a possibility.

ii. Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown.

iii. A suspicion may be based on hearsay material, or materials which may be inadmissible in evidence. The materials must have some probative value.

iv. What is important is the information in the mind of the police officer stopping the person or vehicle, or making the arrest at the time he did so.

The cases of Azar v DPP [2014] NSWSC 132 (28 February 2014) and R v Fortescue, Michael [2010] NSWDC 272 (15 March 2010) are set out below as to how the courts have interpreted such issues.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 – SECT 21

21 Power to search persons and seize and detain things without warrant

(cf Crimes Act 1900 , ss 357, 357E, Drug Misuse and Trafficking Act 1985 , s 37)

(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug.

(2) A police officer may seize and detain:

(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 – SECT 36

36 Power to search vehicles and seize things without warrant

(cf Crimes Act 1900 , ss 357, 357E, Police Powers (Vehicles) Act 1998 , s 10, Drug Misuse and Trafficking Act 1985 , s 37)

(1) 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 exists:

(a) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,

(b) the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence,

(c) the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,

(d) the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence,

(e) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985,

(f) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.

(2) A police officer may, without a warrant, stop, search and detain a class of vehicles on a road, road related area or other public place or school if the police officer suspects on reasonable grounds that any of the following circumstances exist:

(a) a vehicle of the specified class of vehicles is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence,

(b) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.

(3) A police officer may seize and detain:

(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

Azar v DPP [2014] NSWSC 132 (28 February 2014)

Last Updated: 6 March 2014

Supreme Court

New South Wales

Case Title:
Azar v DPP

Medium Neutral Citation:
[2014] NSWSC 132

Hearing Date(s):
20 February 2014

Decision Date:
28 February 2014

Jurisdiction:
Common Law

Before:
Adamson J

Decision:

(1) Dismiss the amended summons
(2) Order the plaintiff to pay the defendant’s costs

Catchwords:
POLICE – legitimate exercise of powers – searches and detention of persons – whether suspicion was reasonably formed – presence of hire car in area known to police to be connected with drug use and supply, in circumstances where a person got into the passenger seat of a motor vehicle and then got out again within a short period of time – whether Parliament intended power to detain to amount to an arrest

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), s 52
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21 , s 36
Road Transport (Safety and Traffic) Management Act 1999 (NSW), s 13

Cases Cited:
Acuthan v Coates (1986) 6 NSWLR 472
Attorney General for NSW v X [2009] NSWCA 199; (2009) 49 NSWLR 653
Bain v Police [2011] SASC 228
Coleman v Power [2004] HCA 39; 220 CLR 1
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402
George v Rockett [1990] HCA 26; 170 CLR 104
Henderson v O’Connell [1937] VicLawRp 35; [1937] VLR 171
Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942
Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 517
Nguyen v Elliott (Supreme Court (Vic), Hedigan J, 6 February 1995, unrep)
Ohlsen v Jones (1991) 53 A Crim R 136
R v Orm [2011] NSWDC 26
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Street v Bauer (Supreme Court (NSW), Smart J, 16 March 1998, unrep)

Parties:
Emile Azar (Plaintiff)
Director of Public Prosecutions (Defendant)

Representation

Counsel:
E Ozen (Plaintiff)
D Kell (Defendant)

– Solicitors:
Solicitors:
Benjamin & Leonardo Criminal Defence Lawyers (Plaintiff)
SC Kavanagh, Solicitor for Public Prosecutions (Defendant)

File Number(s):
2013/216074

JUDGMENT

Introduction

By an Amended Summons filed 29 October 2013, Emil Azar, the plaintiff, appeals, under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW), against a conviction entered by Milledge LCM at the Downing Centre Local Court on 13 May 2013. There was no opposition to an extension of time being granted to institute the appeal.

The two grounds are:

(1) The Magistrate failed to properly consider the test for the legitimate exercise of police powers under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA); and
(2) The Magistrate erred in finding that the plaintiff was not under arrest at the relevant time.
The material before me comprised the transcript of proceedings before the Magistrate, the transcript of her Honour’s reasons which were given orally and the exhibits, including a DVD of footage taken of relevant events, which, by agreement between the parties, I watched in chambers rather than in open court.
The Facts

On Friday, 28 September 2012 at about 9.20pm Constable Simpson and Acting Sergeant Pisani, two plain-clothes police officers, noticed a white Toyota Corolla on Oxford Street. They saw that the driver (Mr Azar) was alone, he had device on his lap and was using a mobile telephone. They followed the car to the King Street Wharf district. They ascertained from enquiries conducted en route that the Corolla was a hire car.

The Corolla pulled over to a kerb in that area. The police officers saw a man get into the passenger seat. He stayed for a short time and then got out of the car and walked away very quickly. Mr Azar accepts that the two officers suspected that a drug transaction had taken place.

One of the officers got out of the car and tried, unsuccessfully, to intercept the male who had just got out of the Corolla. The police then stopped the Corolla, which was already some distance away. They performed a breath test on Mr Azar pursuant to s 13 of the Road Transport (Safety and Traffic) Management Act 1999 (NSW), which returned a negative result.

The police suspected that Mr Azar might have a prohibited drug on his person or in the car and determined that Mr Azar was not free to leave. They undertook a search of the vehicle and found cocaine in a number of plastic satchels and a total of $3,900 in $50 notes.

Mr Azar argued in the Court below that the suspicion entertained by the police that he had prohibited drugs in his possession, or under his control, was not held on reasonable grounds, although he accepted that the police officers genuinely believed that to be the case. Accordingly the principal issue was the reasonableness of the suspicion that was accepted to have been genuinely held by the officers.

The two police officers gave evidence, in part on a voir dire, before the Court below on 25 February 2013. Mr Azar did not give evidence. After hearing the evidence on the voir dire and submissions the Magistrate adjourned for a period to consider the issue of reasonable suspicion and the lawfulness of the search and to obtain the transcript.

On 13 May 2013 the Magistrate delivered oral reasons for her decision that the suspicion each of the police officers held was reasonably formed at the appropriate time. The hearing continued. The defendant offered no evidence.

The Magistrate then convicted the defendant of four offences:

(1)   Possess prohibited drug (s 10(1) Drug Misuse and Trafficking Act 1985 (NSW))
(2)   Deal with money suspected of being proceeds of crime (s 193C(1) Crimes Act 1900 (NSW))
(3)   Fail to comply with direction of police officer without reasonable excuse (s 39(b) LEPRA)
(4)   Resist police in lawful exercise of their duty (s 546C Crimes Act).

The plaintiff has not yet been sentenced, and is on bail.

Whether the grounds of appeal involve a question of law alone

Mr Azar would require leave to appeal to this Court on a question of fact, or mixed law and fact. No leave was sought.

Mr Ozen contended on behalf of Mr Azar that he had an appeal as of right in the present case by reason of s 52 of the Crimes (Appeal and Review) Act, which lies on a question of law alone. He submitted that the question whether a police officer was exercising lawful authority is one which must, by definition, be a question of law, although he accepted that the grounds on which such determination is based arise from the facts of the case.

The DPP disputed that the grounds as framed raised questions of law alone. Mr Kell, who appeared on behalf of the DPP, submitted in respect of the first ground that the question whether the particular matters known to the police officers concerned, and taken into account by the Court, amount to reasonable suspicion involves questions of fact and degree that are specific to the particular circumstances. Further, a mixed question of fact and law does not fall within the description of “question of law alone”: Attorney General for NSW v X [2009] NSWCA 199; (2009) 49 NSWLR 653 at [44]; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at [60]. The DPP also submitted that ground two raised a question of fact or a mixed question of fact or law.

I consider that the first ground raises a pure question of law only if it is understood as contending that, taking the evidence at its highest, the Court below could not have found that the police officers suspected on reasonable grounds that the plaintiff had a prohibited drug under his control, whether on his person, or in the vehicle he was driving. The relevant test was articulated by James J in Ohlsen v Jones (1991) 53 A Crim R 136 in the underlined passage in the following terms:

“The evidence on which the Magistrate relied in the present case, namely evidence relating to the time (the early hours of the morning), the presence of two persons in the vehicle and the fact the vehicle was registered in relation to an address which was not in the locality, but a considerable distance away, certainly did not compel the conclusion that a suspicion held by the informant was an objectively reasonable suspicion. However, it seems to me that it cannot be said that there was no evidence on which within reason there could be a finding that the suspicion was held on grounds which were reasonable.”

[Emphasis added.]

In so far as the second ground raises a question whether detention that is authorised by s 21(1) or s 36(1) of LEPRA amounts to an arrest, this is, in my view, a question of law alone.
If the grounds are not confined in the manner set out above, they do not involve pure questions of law and no appeal as of right would lie.
Relevant legislation

Section 21 of LEPRA relevantly provides:
21 Power to search persons and seize and detain things without warrant

. . .

(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

(2) A police officer may seize and detain:

(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,

found as a result of a search under this section.

Section 36 of LEPRA relevantly provides:
36 Power to search vehicles and seize things without warrant

(1) 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 exists:

. . .

(3) A police officer may seize and detain:

. . .

(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,

found as a result of a search under this section.

Section 13(1) of Road Transport (Safety and Traffic) Management Act relevantly provides:
Power to conduct random breath testing

(1) A police officer may require a person to undergo a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that the person:

(a) is or was driving a motor vehicle on a road or road related area, or

. . .

Ground 1: whether it was open to the Court below to find that the suspicion entertained by the police was held on reasonable grounds

The evidence in the Court below

Both police officers were asked on the voir dire to identify the basis for their suspicion that Mr Azar had prohibited drugs in his possession or under his control. Officer Simpson identified the following three factors:

(1)   Mr Azar was driving a hire car, which police regarded as a notorious means of transporting prohibited drugs;
(2)   Mr Azar drove to namely Lime Street, King Street Wharf area in the proximity of the Cargo and Bungalow 8 bars, which is an area well-known to police for the use and supply of prohibited drugs; and
(3)   The incident that involved a male getting into the vehicle and leaving it after a very short time.

Although Officer Simpson did not refer to Mr Azar’s use of the hand-held device when listing the matters that founded his suspicion, he had earlier given evidence that this observation led them to follow the vehicle when they first saw it in Oxford Street. He said that Mr Azar appeared to be “utilising a device which was in his lap area … and he was constantly looking down.” Officer Simpson gave evidence in the Court below that he could see a vibrant colour coming from the device.

Officer Pisani described the decision to search the vehicle as being “a joint decision”. He gave the following evidence:
“In my mind I’d made the decision to search when that gentleman [i.e. the male suspected of being involved in a drug transaction] got out of the car.”

Officer Pisani identified the bases for his decision to search the vehicle. He referred to the area which was known to be frequented for illicit drug transactions, the time of night and the actions of the man getting into the car for a short period of time.

Although neither officer, in terms, identified Mr Azar’s use of a mobile phone/ hand held device as a factor that was germane to his suspicion for the purposes of s 21 or 36 of LEPRA, this was part of the reason they decided to follow the Corolla when they first observed him on Oxford Street.
Relevant principles

The question whether there are reasonable grounds for suspicion was considered by the High Court in George v Rockett [1990] HCA 26; 170 CLR 104. The Court said, at [14]:

“Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942, at p 948, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, ‘was unable to pay (its) debts as they became due’ as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at p 303):

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”

A suspicion is more than a possibility and less than a belief. Reasonable grounds for suspicion can include information that the officer concerned has been told by another officer. It can include material of a hearsay nature.
In Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [75] McHugh J referred to the spectrum of mental states between ‘suspicion’, ‘belief’ and ‘knowledge’ and quoted the proposition:
“Suspicion lives in the consciousness of uncertainty.”

The applicable principles regarding the concept of reasonable suspicion have recently been summarised by McColl JA in Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 517 (a false arrest/imprisonment case) at [14]-[19]; see also [54]-[59] per Basten JA. They are also summarised in Street v Bauer (Supreme Court (NSW), Smart J, 16 March 1998, unrep), a decision relied on by Mr Ozen on behalf of Mr Azar.
The plaintiff’s submissions

Mr Ozen emphasised the importance of construing strictly the powers conferred on police officers to conduct a search. He referred to Nguyen v Elliott (Supreme Court (Vic), Hedigan J, 6 February 1995, unrep) in which the Supreme Court of Victoria set aside convictions for assaulting and resisting an officer in the execution of his duty when the arrest was unlawful and therefore not made in the execution of the officer’s duty. Hedigan J (who was cited with approval by McHugh J in Coleman v Power [2004] HCA 39; 220 CLR 1 at [118]- [120]) relevantly quoted the following passage from Mann CJ’s judgment in Henderson v O’Connell [1937] VicLawRp 35; [1937] VLR 171:

” It is quite true that all the powers of the police of arresting and searching and bringing before a justice are powers specifically conferred upon them for the purposes of obtaining evidence in respect of charges not yet laid, and it is said in those circumstances the rule against searching persons not under arrest has no application. But there is great necessity in my opinion for construing strictly the powers conferred upon the police in this respect. The power at large to search persons not in custody is one which calls for the clearest authority. It is one which almost inevitably tends to provoke breaches of the peace and is one which on the construction of this section I think the Legislature has not authorised.”

Mr Ozen submitted on behalf of Mr Azar that, although the threshold for a reasonable suspicion was lower than required for a belief, it nonetheless required some rational basis. He relied on the following observation made by Lakatos DCJ in R v Orm [2011] NSWDC 26 at [55]:

“I pause to note that it is one thing for a police officer to use his commonsense and experience to seek out and investigate leads in relation to an offence. In my view, it is quite another for an officer to make value judgments about the actions of a suspect and to translate those value judgments to the level of a reasonable suspicion of offending. This is especially so when the officer appears to make little effort to consider any innocent explanation for such actions. This approach may indicate a closed rather than an open and inquiring mind and may suggest that the officer’s intention was to gain evidence inculpating the accused.”

Mr Ozen submitted that there were no factors in the present case that made the Corolla “stand out” to a reasonable person. He contended that the presence of a hire car, which was not driven in an erratic manner, in a popular entertainment quarter on a Friday night and the happening of a brief interlude between driver and another man who came and sat in the passenger seat were entirely unremarkable and wholly insufficient to give rise to a reasonable suspicion. He also submitted that the matters in the minds of the relevant officers were “no more than generalisations”.
Mr Ozen submitted that the following list of matters relied on by the Magistrate was more extensive than had been identified by the police officers when they were asked to list the bases for their suspicion although, with one exception, he accepted that the officers had given evidence of the other matters referred to by the Magistrate. The relevant passage from the reasons was:
They had formed a view and the view was well formed. The reasons that they gave that it was a hire car, usual drug suppliers involve themselves in the use of hire car; the brightly lit device on his lap in Oxford Street; the considerable use of the mobile phone; the Cargo Bar and Bungalow 8 in the King Street wharf area; that it was a Friday night; that there were U-turns and the stops; that there was this person, a quick visit to the vehicle for some thirty seconds and then walked quickly, despite the fact that it’s raining; that it was not speculative, absolutely not at all.

The single exception was that Mr Ozen said that the following statement by the Magistrate contained in the passage set out above was in error in that it overstated the evidence:
“usual[ly] drug suppliers involve themselves in the use of hire car”

Mr Ozen accepted that hearsay evidence is a proper basis on which a police officer may act. However, he argued that the notoriety of the Cargo Bar and the Bungalow Bar as locations associated with transactions involving prohibited drugs was of limited weight in the present case since the plaintiff’s car was located 100 metres from one and 400 metres from the other when the man came and sat for a short period in the passenger seat of his car.
Reasons

The principles that govern the interpretation of statutes which confer powers on police officers are not contentious. The statement of Mann CJ relied on by Mr Ozen and set out above is entirely orthodox. There was no relevant issue about the identification of the appropriate test in the instant case or whether the Court below posed the correct test or addressed the relevant statutory provisions. As I have said, in the context of my jurisdiction under Part 5 of the Crimes (Appeal and Review) Act, the issue for me is whether it was open to the Court below to find that the police officers had reasonable grounds for their relevant suspicion.
In my view, the submissions made on behalf of Mr Azar do not have sufficient regard for the relevance of the time at which suspicion arises, which is, as Lord Devlin said in Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942 at 948:
“at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end.”

The reference by Mr Ozen to “generalisations” in the submission summarised above ignores the relevance of police experience. In forming a suspicion the officer is, in effect, drawing upon his or her training and experience and the whole of his or her observations of the relevant events.

Where generalisations are based on nothing more than prejudice they could not amount to a basis for a reasonable suspicion but where they are, as in the present case, potential indicia of criminal conduct, they are capable of so doing. The fact that only a minority of hire cars are used for drug trafficking does not preclude the fact that hire cars are not uncommonly used for that purpose, (presumably because their use makes it more difficult for the driver to be identified, or traced) being used to ground a reasonable suspicion. The fact that only a minority of people in the King Street Wharf area may be involved in illegal drug transactions does not preclude the circumstance that it is an area in which such transactions are known to occur with a greater concentration than might be expected elsewhere, being taken into account. The circumstance that Mr Azar’s car was parked 100 metres away from, rather than immediately outside the entrance of, a bar notorious for being associated with transactions involving prohibited drugs does not, in my view, diminish the relevance or force of this consideration as a reasonable foundation for a suspicion. The fact that some people get into the passenger seat of a motor vehicle and get out again within a short period for an entirely innocent purpose is no reason not to have regard to the fact that the conduct is consistent with a drug transaction having been effected.

I do not consider that anything turns on the slight overstatement in the reasons of the Court below of the evidence as to the relevance of hire cars. The officers said that it was well known that it happens that hire cars are used by persons for supply of drugs. They did not say that it was usual that drug dealers use hire cars. On one reading of the Magistrate’s reasons, her Honour was saying that it was. The authorities remind one of the need to resist adopting too pedantic an approach to reasons given orally by Magistrates in busy courts: Acuthan v Coates (1986) 6 NSWLR 472 at 479A per Kirby P (Glass and Mahoney JJA agreeing).
Although the reasons for decision were not given until the transcript of the proceedings, which took some time, was available, they were given orally, without an opportunity being afforded to Milledge LCM to proof read or edit them. Further, as the transcript of the reasons records, other matters for hearing or mention were interposed in the course of the oral delivery of reasons. These matters together militate against my placing any weight on what I regard as no more than an isolated infelicity of language.

It is a moot point whether the relevant suspicion would have been based on reasonable grounds had the officers searched the vehicle before the man got into the passenger seat for a short period consistent with the length of time it would take to complete a drug transaction. In my view this matter was ample, in light of the other two matters, to ground a reasonable suspicion. One might rhetorically ask what more would have been required to ground a reasonable suspicion if not those three matters taken together.

In my view it was reasonably open to the Court below to find that the following combination of factors was sufficient to give rise to reasonable suspicion within the meaning of ss 21(1)(d) ands 36(1)(e) of LEPRA:

(1) Mr Azar was driving a hire car, against a background of police experience that it is not uncommon for drug dealers to use hire cars to transport drugs for supply;

(2) He was in an area known to police to be connected with drug use and supply; and

(3) The other male got in and out of Mr Azar’s car in a short period of time (which led the officers to suspect that a drug transaction had taken place).

In my view, the Court below was also entitled to take into account Mr Azar’s use of the hand held device/mobile phone (and, indeed, the other matters listed by the Court below in the extracts from the reasons set out above) although the officers did not specifically identify it in that part of their evidence in which they listed the matters that caused them to harbour the relevant suspicion. As Gleeson CJ, Gummow, Hayne and Heydon JJ said in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [40], what constitutes reasonable grounds for a forming a suspicion or belief must be judged against “what was known or reasonably capable of being known at the relevant time.” In a case similar to the present, Bain v Police [2011] SASC 228, White J said at [26]:

“… in considering whether Constable Brown did reasonably suspect that the appellant’s car may have in it something which would afford evidence of an offence … it was appropriate for the Magistrate to have regard to all of the information concerning the appellant then available to Constable Brown…”

However, as I consider that it was open to the Court below to find a relevant suspicion based on the three factors listed above, it is not necessary to consider the relevance of the handheld device/mobile phone or of any of the other matters further. Mr Ozen tentatively submitted that these other matters were irrelevant considerations but I did not understand him to press that submission, which would, in my view, have been without merit.

The first ground of appeal has not been made out.

Ground 2: whether the Court below erred in finding that Mr Azar was not under arrest when the search was undertaken

Mr Azar contended that once the police stopped the Corolla in which he was the driver, he was under arrest because he was not free to go.

The DPP accepts that, prior to the search being undertaken after the Corolla had been stopped by police and the breath test administered, Mr Azar was not free to go. Officer Simpson explained why Mr Azar was not free to go in the following terms:
“Cause we had reason to believe there were drugs in the car so under powers in LEPRA we have the right to stop, search and detain someone to search them.”

Mr Azar submitted in this Court, as he did in the Court below, that as soon as he was no longer free to go he was under arrest and that, as he was not cautioned, the ensuing conduct by police was unlawful. He also submitted that this ought lead to my setting aside his convictions.

A power to detain arises under ss 21(1) and 36(1) of LEPRA. In this respect, s 36(1) authorises a police officer, who relevantly has reasonable grounds to suspect, to “stop, search and detain” a person. A separate power arises under s 13 of the Road Transport (Safety and Traffic) Management Act to stop a motor vehicle to conduct a roadside breath test.

Mr Azar was, shortly thereafter, in fact arrested (initially for failing to comply with a direction of a police officer and then for resisting police in lawful exercise of duty). However, prior to that time he was not under arrest: rather, he was being detained under the relevant LEPRA provisions.

The difficulty with Mr Azar’s submission is that it ignores the powers of detention referred to above which are separate and distinct from the power to arrest a person. Had Parliament intended these specific powers to detain to amount to an arrest it would, in my view, have made it clear by the use of the word “arrest”.

The Court below correctly rejected the submission that Mr Azar was under arrest from the time the police stopped the vehicle and found that he was then being detained under LEPRA.

Accordingly, the second ground also fails.

For completeness, I should add that I accept Mr Kell’s submission made on behalf of the DPP that, even had I allowed the appeal, the matter would have had to be remitted to the Court below since it would not have been open to me to set aside the conviction. If I had found that the search was unlawful because the finding of reasonable suspicion was not open as a matter of law to the Court below, the question of the admissibility of the prohibited drugs would still have to be determined as a matter of discretion by reference to s 138 and s 139 of the Evidence Act 1995 (NSW). This discretion would be exercised, in that event, by the Court below and not by this Court.

Orders

I make the following orders:
(1) Dismiss the amended summons.
(2) Order the plaintiff to pay the defendant’s costs.

R v Fortescue, Michael [2010] NSWDC 272 (15 March 2010)

Last Updated: 27 June 2012

NEW SOUTH WALES DISTRICT COURT

CITATION:
R v Fortescue, Michael [2010] NSWDC 272

FILE NUMBER(S):
2009/00137775

HEARING DATE(S):

JUDGMENT DATE:
15 March 2010

PARTIES:
Regina
Michael Fortescue

JUDGMENT OF:
Nicholson SC DCJ

COUNSEL:
Defence: M Bateman

SOLICITORS:
Crown: Mr N Borosh

CATCHWORDS:
Criminal Law – Trial – Application to exclude evidence – search of the person – drugs found in possession – ecstacy – right to stop, search and detain – distinction between casual chat and formal stopping – meaning of reasonable suspicion – circumstances and context in which suspicion formed – no illegality in ordering search.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
s.138 Evidence Act 1995
s.21 Law Enforcement (Powers and Responsibilities) Act 2002

CASES CITED:
R v Rondo [2001] NSWCCA 540

TEXTS CITED:

DECISION:
Application on behalf of defence to exclude evidence of search warrant and evidence of drugs found upon the accused is rejected.

JUDGMENT
1. On 27 January 2010 Michael Fortescue was arraigned upon an indictment alleging he supplied ecstasy on 15 February 2009. To this charge he has pleaded not guilty.

2. The Crown case is in the early hours of the morning two police officers who were conducting observations of the Nightclub in Bridge Street, Sydney, had cause to search the accused’s person. Concealed in his underwear they found a small orange-coloured Eclipse brand mint container containing fifty-three ecstasy tablets.

3. The defence claim police had no right to stop, search or detain the accused and behaved unlawfully in doing these things. The defence argued that the evidence obtained as a result of the search and detention was therefore unlawfully obtained and should not be admitted because the desirability of admitting the evidence is outweighed by the undesirability of admitting it [see s.138 Evidence Act 1995].

4. The court’s task is to determine whether, in the circumstances of their encounter, the police reasonably suspected the accused of having anything on his person that was unlawfully obtained or used or intended to be used in the commission of an indictable offence, at the point in time where they stopped, searched and detained the accused. If police had no reasonable grounds for stopping, searching and detaining the accused, then the second matter to be determined is whether the s 138 discretion should be exercised to admit the evidence (s 138 Evidence Act 1995).

5. The two police involved in the search and detention gave evidence. The accused, as was his right, did not give evidence, although evidence was before the court of a post-arrest urine test. The statement of facts submitted by police to the Local Court magistrate was also tendered. I will return to these items later.
Who Bears the Burden

6. At all times in a criminal trial the accused is under no obligation to give or call evidence in his case. That does not mean that all other rules of evidence are suspended. The onus is on an accused to prove the police behaved in contravention of an Australian law. Should that proposition be established on the balance of probabilities, the onus then falls upon the Crown to establish the desirability of admitting any tainted evidence outweighs the undesirability of excluding it.

7. The law in question is said to be the Law Enforcement (Powers and Responsibilities) Act 2002, LEPRA s 21(1)(a) which appears in Pt 4 of the LEPRA – Search and Seizure Powers Without Warrant. Section 21(1)(d) gives to the police a power without warrant to stop, search and detain a person if the police officer suspects on reasonable grounds that the person has in his possession a prohibited drug, in contravention of the Drug Misuse and Trafficking Act 1985. Absent that power, a police officer would be acting in contravention of the Common Law to stop, search and detail a person. A police officer purporting to exercise that power, given by LEPRA, to stop, search and detain, would be acting in contravention of the law if he or she did not have reasonable grounds for suspecting his or her target had been in possession of prohibited drugs.

8. Thus the burden of proving a breach of common law or a misuse of LEPRA rests with the accused in this trial. A crucial issue in the trial is the point at which the police officers purported to exercise the power to “stop” the accused and whether at that time they had reasonable grounds to do so. The stopping of a person for purposes of a search is the first step police take in order to conduct a search in circumstances such as this case.

9. A chat, simply for social purposes or during which observations are being made or even as a trick to further investigation does not constitute a stopping “if the accused is free to quit the conversation/observation/investigation and depart at any time”.

10. In R v Rondo [2001] NSWCCA 540 a vehicle was stopped for no greater reason than police became aware the person driving the vehicle was not the registered owner of the vehicle. Thousands upon thousands of Sydneysiders are lawfully driving vehicles in circumstances where they are not the registered owner. Workers driving company cars, persons in relationships driving their partner’s cars, taxi drivers sharing shifts with registered owners are three groups that readily spring to mind. The Court of Criminal Appeal held in Rondo such a stopping was unlawful because there were no reasonable grounds in the answer given by the driver (that he was not the owner) and that answer alone to suspect any wrong doing.

11. In the case before me, two police officers had been alerted to the presence of the accused and his companion in a laneway more dimly lit than surrounding areas. The two men were in the vicinity and police believed had been in attendance at the Tank Nightclub which had a reputation among police as a well known establishment for drug users. At some point the police stopped the accused and his companion and whilst they were so stopped searched them. The point in time at which the accused and his companion were stopped, that is the point at which they were required to comply with the demand they remain and were no longer free to leave for the moment, although not yet arrested.

12. That point in time is important. Many of us have experienced being stopped and detained by police. A good example is a roadside breath test. The onus was on the defence to prove that at that particular point in time police had no reasonable grounds to suspect possession of drugs on either person. Neither counsels’ questions or submissions focused on that point in time. It remains for me to determine on the evidence.

13. It was the Crown case in the early hours of 15 February 2009 that two plain clothes police, Constable Luke Pisani and then Probationary Constable Nathan Coates were on duty in the Tank Stream Way and Bridge Lane, Sydney area. The Tank Nightclub is located nearby.

14. They saw the accused and his male companion walking down Bridge Street lane into Tank Stream Way. Each describes the accused as looking over his shoulder at least three times as they walk. Both sat down on a bench. At this point in time the distance between police and the two men was about ten metres. Each man lit a cigarette.
15. Pisani’s evidence is that he said to Coates “We will go over and talk to them.” They went across, showed their police ID and said, “Good day boys, how’s it going?” Pisani showed his police badge and introduced himself and Probationary Constable Coates. Ms Bateman put in issue the showing of the police badge by Constable Pisani. In cross-examination it was agreed that there was or may have been in this time conversation about Good Vibrations (a band) and Chinese Laundry (a nightclub) by way of social chit chat. In a record of interview which was conducted at 4.19am (Q & A 19 to 22). I am satisfied both police showed their badge upon approaching, notwithstanding the evidence of Constable Coates to the contrary.

16. Pisani agrees at some stage he introduced himself and asked, “Have you taken drugs this evening?” And “Do you think where you are sitting is suspicious?”

17. During the course of the conversation police made observation of the accused having dilated pupils and white paste material in the corner of his mouth. Both symptoms were significant to the officer, because each was consistent with drug use. Ms Bateman, for the defence, put in issue the presence of a white paste material in the corner of the mouth. She relied upon visual images of the accused during a record of interview conducted at Surry Hills Police Station at 4.19am and thereafter as establishing an absence of white paste in the corner of the mouth at that time. I am satisfied at 4.19am the accused presented at the interview room without white paste on the corners of his mouth.

18. Police claim in evidence the accused had two mobile phones next to him on the bench. The presence of these mobile phones on the bench also has been put in issue by the defence. That claim first appears to have been made by Constable Pisani on 24 February 2009, ten days after the arrest, in a statement. Normally that prior consistent statement would be favourable material going to his credibility. However, in the ERISP (electronically recorded interview of suspected person) Detective Pisani put this question:

“…I’ll just make reference back to the search. Do you agree when you first emptied your pockets you were, two Nokia mobile phones were located on you ?

A. Yep. (Questions 118, 119 voir dire Exhibit 6).

19. In the facts tendered before the Magistrate no reference was made to the mobile phone being on the bench and being a factor that had aroused suspicion. I am satisfied Constable Pisani’s evidence is based upon the contents of his statement made ten days after the arrest. I am satisfied he did not use or refer to the ERISP when he made his statement. I am satisfied his memory when he made his statement was faulty and incorrect. I am satisfied the phones played no part in grounding the suspicion of the officers.

20. According to Coates the conversations between the police on the one hand and the accused and his friend on the other occurred before the search was embarked upon.

21. The Crown has tendered, without objection, Constable Pisani’s statement. In paragraph 8 of the statement in addition to the dilated eyes and white paste, Pisani noted the accused’s leg was shaking and he was clenching his jaw. These observations are listed as occurring during the conversation. Given that I have found the police identified themselves at commencement of the conversation the accused’s awareness that he had possession of a small container secreted in his underwear, on the accused’s own account that he was to hide or hold until its owner returned and that he “sort of guessed pills were in it” I am satisfied these two symptoms were observed by Pisani during the conversation.

22. At the point in time when Constable Pisani told Constable Coates that “we will go over and have a talk” to the men, he did not have enough “to stop” the men for any purpose let alone to search them.

23. While the nightclub’s reputation may have been tainted by some association with drugs that would be insufficient to select customers at random for search. Nor was the fact that the two men made their way down a laneway less brilliantly lit than the front of the club. Nor was the fact that both men looked over shoulders as they walked down the laneway at 2am. In a metropolis such as Sydney where street crime is not unknown it may have been prudent to do so. That the two men were pointed out as being of interest for a particular reason by another police officer, could not supply reasonable grounds for suspicion. That both men sat and had a cigarette is not a fact that can be taken as encouragement to form suspicion. Nor do all of these facts taken together supply enough to entitle police to stop, search or detain.

24. There seems to be evidence arising from cross-examination that supports Pisani’s remark that the police were going to talk to the two men. There is conversation about Good Vibrations and Chinese Laundry. The evidence puts all conversation as taking about three minutes before the search. The cross-examination seems to suggest, and I am prepared to accept, the conversation about bands and venues occurred before there was a demand made for search. I accept that this was a device used by police to engage, at some level, the men for the purpose of giving police an opportunity to test whether they should go further. It would make sense that the questions re drug use were closer to the search than the general ..(fault in recording equipment..); (read “questions being asked”) as Pisani was making up his mind to search the men.

25. In the absence of questions, therefore, and evidence about the precise point of time Constable Pisani determined to order the search I can only express my finding this way.

26. The evidence has not established that the accused was “stopped” by police; that is, that he was required to stay in the company of police until the questions about using drugs were asked. Put another way, the defence has failed to establish that the two men were “stopped” for some police purpose at or during that first point of early contact by police. I am satisfied once the questions about drugs were asked, Constable Pisani’s purpose was no longer to “talk to them” but rather to cause each to be searched at his direction and by his subordinate. I am satisfied at least from that point both men were “stopped” by police.

27. Once the drug question was asked, which may have been one and a half or so minutes into the conversation, he had noticed the dilated pupils, the white paste, the trembling leg and the clenched jaw. The more significant symptoms are the dilation of the eyes and presence of the paste in the corners of the mouth at 2.15am. While the significance of the dilation of the eyes has been put in issue, as capable of having an explanation inconsistent with drugs, in combination with other symptoms, the officer was entitled to take it into account. These symptoms could now be put into the context created by time, location and circumstance as giving to the symptoms I have isolated additional force.

28. The defence argue the absence of white paste at 4.19am invites an inference that it was also absent at 2.15am. Such an inference is far from compelling, particularly given the ease with which such paste could be removed consciously or otherwise by a pensive rub of the corner of the mouth with thumb and index finger. The defence seeks to negate the dilation of the eyes as being caused by amphetamine use by relying upon a urine screening done on 16 February; that is, the day following the arrest. Two matters arise. Firstly, there is no evidence of dissipation time for amphetamines in the urine. Many drugs disappear from the urine relatively quickly, for example, GBH. Some last longer, eg cannabis, but absent expert evidence I am unable to find that the accused was not under the influence of a drug.

29. Frankly, I am not able to find that he was either, but the onus was on the defence to prove that he was not. I should say such a proposition gains strength if one takes into account the custody notation that he did not appear to be under the influence of drug or alcohol in his favour. While his responses in the record of interview were relatively monosyllabic, there did not appear to be any deportment issues suggesting that he was other than sober and perhaps tired, but it is a mistake to think that the police officer had to find he was under the influence of drugs. It is sufficient if the officer, viewing the symptoms with others, has reasonable grounds for suspecting possession of a prohibited drug by the accused.

30. The question to be determined, then, is at the point in time when I am satisfied the accused had been stopped, was there sufficient grounds for suspecting the accused possessed prohibited drugs. The seminal judgment from the CCA on this matter is a judgment of Acting Justice Smart in Rondo. After reviewing a number of cases, his Honour said at para (53):

“These propositions emerge:

(a) A reasonable suspicion involves less than a reasonable belief, but more than a possibility. There must be something, which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by section 357E (the section at that time relating to the powers to stop search and detain). A reason to suspect that a fact exists is more than a reason to consider a look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material, or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer stopping the person or vehicle, or making the arrest at the time he did so. Having ascertained that information, the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question, regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances.”

31. It should be noted that there is a difference between “suspicion” and “proof” and whilst the suspicion must be reasonable, there is a long way between reasonable suspicion and even proof on the balance of probabilities.

32. There is no requirement for the officer to have formulated in his mind any potential conduct other than the suspicion of possession of the illicit drugs. He does not have to determine whether any drugs that might be found were for own use, to be supplied, or to be kept for some other person.

33. Given the symptoms observed by Pisani, the location, time and context of the circumstances, I am satisfied such suspicion as he entertained qualified as more than a mere possibility, and would have created in the mind of a reasonable person a suspicion that the accused was in possession of a drug in contravention of the Drug Misuse and Trafficking Act 1985. I am satisfied the information before the police officer afforded reasonable grounds for the suspicion he formed.

34. Constable Coates, who conducted the search, put his belief like this -“I suspected that he was in possession of illegal drugs.” Constable Coates was at the time a probationary constable. He was required to act in accordance with directions given by a superior police officer. In my view, it is the decision of Constable Pisani that is important, as he was the one who was responsible for the stopping, ordered the search and the detaining following that order for the purposes of the search. If I be wrong, it will still follow that I regard Probationary Constable Coates as being equally aware of the dilated pupils and white paste, and that his suspicion was founded on reasonable grounds.

35. I find the defence has failed to prove any impropriety or contravention of any Australian law by either officer. That being so, the defence are unable to call in aid s 138 of the Evidence Act 1995 or other related sections of the Evidence Act 1995. The application to exclude the evidence of the search, and drugs found upon the accused, is excluded.

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