Published by Geoff Harrison | 14 July 2023
For police to exercise their power under these sections (ss21 & 36) to search a suspect, it must be shown that there is a factual basis to ground a reasonable suspicion. 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".
As noted by Adamson J in Azar at [27] a suspicion can be formed from hearsay material:
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 case of Streat v Bauer; Streat v Blanco NSWSC (unreported, Smart J, 16 March 1998) is a case where the court considered hearsay material namely, a police intelligence report and found that the suspicion held was not 'reasonable'; as the information was too nebulous to ground the suspicion as reasonable (see case below).
Police have the power to stop vehicles for the purpose of a random breath test (s109 /Schedule 3 Road Transport Act 2013) however, this power cannot be used as a ruse to subvert the power and responsibilities under other criminal investigation powers (see R v Yongcheng Zhong (below) and R v Buddee). Everyone has the right to liberty as per Article 9 of the International Covenant on Civil and Political Rights and the right to resist an unlawful search or arrest (see Coleman v Power [2004] HCA 39 at [118-121)).
In the case of Buddee, McClintock J, outlines a number of cases and principles as they relate to the police powers and civil liberties and how these powers/legislation should be construed. In relation to police usurping RBT powers His Honour stated:
Applying these principles, it is clear that Parliament intended to distinguish motor traffic powers from criminal investigation powers. The random nature of the motor traffic powers is a very significant interference in the liberties of citizens lawfully going about their business. They are not part of the criminal investigation powers conferred by LEPRA. There was a clear intention to delineate powers based on suspicion of the commission of crime from powers directed primarily at ensuring road safety and proactively preventing driving over the prescribed content of alcohol.
The authorities and statutory interpretation all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection.
That is what happened in this case. I do not find that there was a mixed purpose.
It may be added that the police cannot rely on a statutory RBT power to engage in “proactive” policing or satisfy a curiosity or hunch not amounting to a specific state of mind as required by LEPRA.
At no time, of course, prior to the stop and detain, did the police claim to have any relevant reasonable suspicion. Nor, prior to the elicited admission, was there any material available upon which a suspicion could have been based.
It was also conceded that there was no power to detain the driver and the passenger once they were satisfied that the driver had complied with the provisions relating to the production of a licence. She was free to go and ought not to have been further detained. There is no power to require a passenger to provide identification and no power to restrain any further movement whilst the vehicle is checked apart from those statutory powers. Nor is there any power to restrain or require any further interruption to the driver or the passenger’s journey.
This conduct was also illegal and improper.
Some other relevant cases where police powers relating to stopping and searching people or vehicles are:
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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
(c) any dangerous article, 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.
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
(c) any dangerous article, 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.
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R v Yongcheng Zhang [2022] NSWDC 457 (4 May 2022)
Last Updated: 7 October 2022
District Court
New South Wales
Case Name:
R v Yongcheng Zhang
Medium Neutral Citation:
[2022] NSWDC 457
Hearing Date(s):
02 May 2022
03 May 2022
Decision Date:
4 May 2022
Jurisdiction:
Criminal
Before:
Coleman SC DCJ
Decision:
The evidence described in items 1-4 of MFI 5 should not be admitted in the proceedings
Catchwords:
CRIMINAL LAW – pre-trial hearing – discretion to exclude evidence – illegally or improperly obtained evidence – alcohol breath test – “random testing” – use of motor traffic power for improper purpose – illegal stop and search – search and seizure – exercise of a power for ulterior purpose
Legislation Cited:
Crimes Act 1900 (NSW) ss 193B, 193C
Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
Evidence Act 1995 (NSW) ss 138(1), 138(3)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Part 9, ss 21, 36
Road Transport Act 2013 (NSW) Schedule 3, cl 3 and 6, s 114
Weapons Prohibition Act 1988 (NSW) s 7(1)
Cases Cited:
Coco v The Queen [1994] HCA 14
Daniel Fromberg v R [2017] NSWDC 259
R v Buddee [2016] NSWDC 422
R v Kola [2002] SASC 203
R v Large [2019] NSWDC 627
R v Mihajlovic (No 2) [2019] NSWDC 141
R v Pizarro (NSWDC 20 October 2015 unreported)
R v Rondo [2001] NSWCCA 540
Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612
Streat v Bauer (NSWSC 16 March 1998 unreported)
Williams v the Queen [1986] HCA 88; (1986) 161 CLR 278
Category:
Procedural rulings
Parties:
Regina (Crown)
Yongcheng Zhang (Accused)
Representation:
Counsel:
Mr D Patch (Crown)
Mr C McGorey (Accused)
Solicitors:
Ms A Leonard (Crown)
Ms E Grant (Accused)
File Number(s):
2017/357484
JUDGMENT
Background
By indictment dated 3 August 2020 the accused stands charged with four counts, namely that:
(1) between 20 November 2017 and 26 November 2017 he did supply a prohibited drug namely, methylamphetamine in an amount of approximately 100 g in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985;
(2) on 25 November 2017 he did possess proceeds of crime, namely, $82,680 Australian currency in circumstances where he knew that the currency was proceeds of crime in contravention of s 193B(2) of the Crimes Act 1900;
(3) on 25 November 2017 he did possess property, namely, a $82,680 Australian Currency in circumstances where there were reasonable grounds to suspect that the currency was proceeds of crime with a value of less than $100,000 in contravention of s 193C(2) of the Crimes Act 1900; and
(4) on 25 November 2017 he did possess a prohibited weapon, namely, an extendable baton in contravention of s 7(1) Weapons Prohibition Act 1988.
The matter came before me on 2-3 May 2022 for the determination of an application on the voir dire as to the admissibility of certain evidence. The trial is due to commence on 9 May 2022. As can be seen from the date of the offences alleged in the indictment, the accused has stood charged with the offences for four and a half years. Even with the intervention of the COVID-19 pandemic and, I am told, the loss of two trial dates, it is unsatisfactory that the matter has taken so long to reach this point. It is also unsatisfactory that an application that will potentially have significant bearing on the trial is now only being heard less than a week before the trial is to commence. Having regard to the imminent trial, these reasons have been prepared as quickly and economically as possible.
The accused objects to the admission of the following evidence:
(1) Evidence stemming from the police’s traffic stop of the accused’s vehicle on 25 November 2017 including:
(a) the questioning of the accused by officers Pellinkhof and Thompson and alleged observations of his demeanour at the roadside before his arrest;
(b) questioning of the accused at the roadside after his arrest (which is not electronically recorded);
(c) the items seized from the accused’s vehicle including the seized money, items and mobile phone and records recovered from that phone.
(2) The questioning of the accused during the vehicle search about what the located money was for and his alleged response;
(3) The recording of the accused and police made at Campsie police station on the evening of 25 November 2017;
(4) The opinion evidence of Detective Sgt Bradley Goodhart; and
(5) The bank records and ATO records of the accused.
On the second day of the voir dire, it was agreed that I should only determine issues 1 and 2 above (being the same as items 1-4 in the Table, MFI 5). The remaining matters would be discussed between the parties and, if necessary, agitated before the trial judge.
The main basis of the objection made by the accused is pursuant to s 138 of the Evidence Act 1995 (NSW) (Evidence Act). Additionally, or alternatively, objection was taken in respect to the questioning of the accused on the roadside before any electronic recording of the search of his vehicle was undertaken, under ss 85, 90 and 137 of the Evidence Act.
It is contended that the stopping, questioning and subsequent search of the accused and his vehicle was improper or unlawful (or occurred in consequence of an improper or unlawful act) on the grounds that:
(1) the initial stopping of the vehicle involved the improper or unlawful exercise of the Road Transport Act 2013 (RTA) powers or, alternatively, the continued detention of the accused became improper or unlawful once the alcohol breath test was completed by Thompson;
(2) during the questioning, Thompson improperly made a full statement to the accused about the purpose of his question;
(3) the search of the accused in his vehicle under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) was improper or unlawful as:
(a) part of the information grounding the powers exercise was obtained in consequence of the improper/unlawful stopping or the continued detention after the breath test was performed, and/or
(b) reasonable grounds did not exist to enliven the power for the purposes of s 21(1) of LEPRA.
Factual Matters
The following facts are from the material before me, which included the Amended Crown Case Statement, statements of Pellinkhof and Thompson, additional statements of other police officers, the transcript of the committal hearing and other materials listed in the index to Exhibit VD 1. I also heard evidence from Pellinkhof and Thompson.
On 24 November 2017, Pellinkhof had received information about the possible supply of prohibited drugs from 6-8 Canton Street, Canterbury. At that address there was a unit complex containing a significant number of units. The information did not identify the actual unit, or the persons, allegedly involved in the possible drug supply.
On 25 November 2017, Pellinkhof and Thompson, in plain clothes and in an unmarked police car, commenced surveillance of the unit complex at about 4:45 PM. They saw a number of persons enter and exit the complex. The officers were in their vehicle parked with a direct view of the entrance leading into the complex.
At about 6:30 PM, Pellinkhof and Thompson saw the accused park his car at a nearby BP service station. It was a white Toyota Aurion sedan registration number 888XXX.
The accused was seen entering the ground floor of the unit complex. He had with him a black satchel bag across one shoulder and was carrying a small box. After about 5-10 minutes he exited the complex without the box. The police did not know which unit the accused had been to in the complex.
The officers watched the accused exit the complex and noticed he was not carrying the box. Thompson said the accused made eye contact with him and appeared to pause and stop before continuing to walk to his car. Even if that was so, however, I do not accept that there is a basis to find that the accused knew that he was being surveilled by police as they were in a car with no markings or distinctive antennae. Pellinkhof said at the committal that there was “definitely no basis” for him to conclude that the accused suspected that they were police.
Pellinkhof also confirmed at the committal, and before me, that at the time the accused left the apartment complex, whilst there were several matters of suspicion concerning the accused (to which I will refer), he did not at that time have any basis to stop and search the accused under s 21 LEPRA (or otherwise): T 27.38-48.
Thompson said that after the officers had observed the accused leave the complex Pellinkhof said to him, “What do you reckon, stop him?” He replied: “Yeah, for sure but let him go up the road a bit first”.
The accused got into his car and drove onto Canterbury Road. The officers followed him for a short period when Pellinkhof activated the lights and sirens and pulled him over in Nicholas Street, Campsie.
Pellinkhof accepted that there was nothing in the way that the accused had walked from the building to his car, or the manner in which he had driven, which caused him to suspect or indicated he was driving under the influence of alcohol or drugs: T 22.43, T 28.18.
Pellinkhof told me that a combination of the information that he had received with respect to a possible drug supply, the observations made of the accused entering the complex for a short time (when most other people stayed in the complex for a longer time) and the fact he entered the complex with a box but left without it, together with the pause when the accused made eye contact with the police, indicated to him that the accused may be a drug supplier and, therefore, a drug user (T 18.37-39). It was on this basis he said that it was decided to stop the accused for the purpose of a drug test. He did not say when this decision was made. There was no discussion between the officers about stopping the accused for the purpose of a drug test. I will return to this matter below. However, as I have said, Pellinkhof accepted that at the time the accused got into his car and drove away he had no grounds for a reasonable suspicion to stop him and search him pursuant to s 21 LEPRA.
After the accused pulled his vehicle over, Thompson initially approached him. He showed the accused his badge, identified himself as a police officer and told the accused that he “had been stopped for random testing”. Thompson then carried out a breath test for alcohol which returned a nil result.
Thompson had a conversation with the accused and commenced asking him certain questions about where he lived, why he was in Canterbury and who he had been visiting. None of the questions had any relevance to the random testing that the officers said was the purpose of them stopping the accused. Rather, those questions were directed to why the accused had been at the unit complex.
Thompson said to the accused that he and Pellinkhof were “just patrolling, doing our job, you’re not from around here so just wondering what you are doing in Canterbury”. Pellinkhof heard Thompson say this to the accused.
It was put to Pellinkhof that this statement by Thompson to the accused was untrue in that they were not “just patrolling” but had been on surveillance duty of a particular premises. Pellinkhof accepted that he knew that the statement made by Thompson was untrue at the time it was made by Thompson and he did nothing to correct it: T 30.22-31.
Thompson, on the other hand, denied that it was untrue and asserted that the surveillance activities they had undertaken at the unit complex was “patrolling” (T 73.9-13). I do not accept Thompson’s evidence on that matter. The statement by him to the accused that he and Pellinkhof were patrolling the area was untrue. They were in plain clothes in an unmarked car undertaking specific surveillance based on intelligence Pellinkhof had received. On any reasonable view, this could not be regarded as patrolling in the area. The statement could only have been made to elicit answers from the accused as to why the accused had been in and around the unit complex when he was seen. That is, it was made to assist in the investigation as to the possible drug supply.
Thompson said that he understood that when drivers were pulled over for “random testing” (which included alcohol testing and then a drug test) the procedure was to first do the alcohol breath test and, if negative, a drug test could then be done: T 65.16-19. Pellinkhof agreed: T 37.41-44
Following the alcohol breath test, Thompson took the accused’s drivers licence and said he was returning to his car to conduct further checks. Nothing untoward was found from those checks. There was a question as to whether prior to pulling over the accused’s vehicle, the officers would have undertaken enquiries from their vehicle systems as to the registered owner of the accused’s vehicle. Each officer in cross-examination accepted that this would be usual procedure (T 22.6-7, T 28.39, T 74.6-9). Officer Pellinkhof said he could not remember doing it (T 21.50). Officer Thompson accepted that they would have made these enquiries prior to pulling the accused over and, thus, he would have known that the accused was the registered owner of the vehicle without making further enquiries after the accused had been stopped : T 75.21-24.
When Thompson returned to the police vehicle to make these checks, Pellinkhof approached the accused’s vehicle and commenced to talk to him. When Thompson saw Pellinkhof engaging in discussion with the accused, he ceased these checks and returned to the accused’s vehicle.
Pellinkhof asked the accused questions about where he had been and whom he had been visiting at the unit complex. Again, none of the questions asked related to whether or not the accused had been drinking or taking illicit drugs prior to driving, remembering that the ostensible purpose of the accused being stopped by the officers was to conduct random testing. Pellinkhof accepted (T 30.1) that all of the questions he asked the accused were in furtherance of their investigations with respect to the information he had received about the possible drug supply.
According to Pellinkhof, it was as a result of the questions he asked the accused and the accused’s demeanour and reaction to those questions, that he formed a reasonable suspicion to enliven the s 21 LEPRA power to search the accused.
The accused was informed that he would be searched. Thompson searched the accused and located approximately $3200 in cash in his front right-hand zip up pocket. Questions were asked of the accused with respect to the source of the money and the accused gave answers to those questions. None of these questions or answers were electronically recorded by the officers. There is no evidence before me of any recording by other means of the questions and answers. There is no evidence that there is any recording at a later time of the questions and answers being put to the accused for him to affirm or reject.
The accused was arrested for the being suspected of being in possession of stolen or unlawfully obtained goods in custody. Pellinkhof said that he cautioned the accused that he need not say anything, but that anything he did say would be recorded.
After the accused was arrested, Pellinkhof called officer Cincotta to bring a drug testing kit to the scene. Despite the officers saying in evidence that a purpose of stopping the accused was to undertake random testing, including a drug test, neither of them had checked whether or not there was a drug testing kit in their vehicle. Thompson said he did not recall when he first looked for the drug testing kit (T 76.38-77.9), however, no request was made for Cincotta to bring a testing kit to the scene until after the accused was arrested for the goods in custody.
After the accused was arrested, Pellinkhof also contacted Detective Senior Constable McCormack and asked him to attend to assist with a search of the vehicle.
Whilst the officers waited for the other police to arrive, the accused was asked if there was anything further in the vehicle. He answered that there was about $10,000, which had been borrowed from a few friends for a home loan.
After about 10 minutes, Cincotta arrived and the oral drug test was administered to the accused. According to Pellinkhof, that returned a positive result indicating the presence of methylamphetamine. The accused was then told he was under arrest for the purpose of providing a further oral sample at Campsie police station.
A short time later Detective Senior McCormack arrived and a search was undertaken of the accused’s vehicle which was videotaped.
The accused was cautioned again that he need not say anything and anything he said would be recorded.
The accused was sitting on the ground whilst the search was undertaken. During the search when certain items were located, the accused was asked questions by the officers and answered them.
One of the items located during the search was the accused’s mobile phone. Indeed, that phone rang several times during the course of the search as evidenced by the video recording. One of the calls was from the accused’s girlfriend. The accused asked Detective Senior McCormack if he could speak to his girlfriend and he was refused permission.
When the mobile phone was discovered by Pellinkhof, he asked the accused for the access code to the phone. He did not tell the accused that he did not have to provide this code. Indeed, the accused can be heard to ask, “is that your legal process” and was told by Senior McCormack words to the effect that the police are allowed to check his phone. Clearly, the accused was concerned to understand his rights as to whether the police could access his phone and he had to provide the access code.
The accused provided the code to Pellinkhof who entered it into the phone. Additionally, later that night at the police station the code was used by police to access the phone. A significant number of WeChat messages were downloaded by the police. These messages, and the opinion of Detective Sgt. Goddhart on their meaning, are now sought to be tendered by the Crown at the trial. These messages and that opinion are part of the material that the defence objects to.
During the search of the vehicle, police seized items including $79,450 cash inside a shoebox in the passenger side of the vehicle and $10,000 in a black satchel bag. A knife and an extendable baton were also seized, the latter forming the basis of the charges in count 4 under the Weapons Prohibition Act.
The evidence indicates that the video exhibiting the seized items after the search was completed at the roadside by 8:11 PM. The accused had remained at the roadside for the whole of the time from when he had been pulled over for the purported purposes of the random testing until that time when he was then taken to Campsie Police station.
The evidence makes clear that it was Pellinkhof who decided to and exercise the powers to stop the accused vehicle for the purposes of the random testing under the RTA and who subsequently formed the reasonable suspicion so as to exercise the powers under s 21 LEPRA.
When the accused was taken to the police station he was put before the custody manager who provided the relevant cautions to the accused in accordance with Part 9 LEPRA. This included the opportunity to speak to a legal representative. The accused indicated he did not wish to participate in an electronic interview.
Despite this, later that evening, there is a recording of the accused being present with police whilst the police counted the money seized from the search of the vehicle. Questions were asked of the accused during this exercise. He was asked if he wanted to provide any explanation for each bundle of money seized and counted. He responded to police each time is saying that he did not and that he had already told them this earlier. Again, this is part of the material to which the defence objects.
Pellinkhof said in his statement that no further oral fluid drug test of the accused was undertaken because two hours had elapsed since the test on the accused at the roadside. However, Exhibit VD 3 indicated that at 8:42 PM a test was undertaken on the accused at the police station with a negative result for methamphetamine. A certificate was prepared (albeit stating that the test was undertaken at 9:10 PM) indicating a negative result and that the sample had been sent to the laboratory for further testing. There is no evidence before me as to the result of that further testing.
The defence asked me to infer that had the accused been properly afforded his Part 9 LEPRA rights, he would not have provided the police with the access code to the phone. I accept this submission. I do so based on his asking the police when the phone was found whether it was the legal process for him to provide the code and because once he was aware of his rights, he refused to provide the police with further information or participate in an interview.
The accused was then charged.
Was the Testing of the Accused and his subsequent arrest Lawful?
Accused’s submissions
The first issue to consider is whether the decision to stop the accused for “random testing” and the subsequent questioning and arrest of him were lawful. This is a critical question as the defence submits that if, as is contended, the stopping of the accused and questioning of him was unlawful most, if not all, of the evidence subsequently obtained was obtained as consequence of that unlawful activity and therefore is also not admissible.
The accused bears the onus of establishing the impropriety or illegality of the matters raised.
The accused, from his written submissions, refers to the following statutory principles and authorities.
A police officer is empowered to require a person to submit to a breath test or oral fluid test in accordance with the officer’s directions. Without limiting any other power or authority, a police officer may request or signal the driver to stop for the purposes of carrying out that test: s 114, cl 3 and cl 6 of Sch 3 of the RTA.
The RTA powers do not authorise an officer to stop or detain a person for the purposes of questioning. Nor do they empower police to hold a person once a driver’s license has been produced: R v Buddee [2016] NSWDC 422 (Buddee) per McClintock SC DCJ at [53].
There is nothing in the RTA objects or terms to suggest its powers are directed to anything other than road safety and offences committed under that Act: Buddee at [59].
Section 21 of LEPRA, relevantly, provides that a police officer may without warrant stop search and detain a person, and anything in the possession of or under complete control of the person if the police officer suspects on reasonable grounds that the person has in his or her possession or under his or her control a prohibited drug or unlawfully obtained items. A similar power arises under s 36 of LEPRA although as the accused points out, Pellinkhof made no reference to this provision.
Sections 21 and 36 permit a significant infringement on the rights of a person by permitting the executive to stop and intrude his or her liberty and property. That is permitted without judicial authorisation (e.g. a warrant).
The accused relies on the following matters of principle it says flow from the authorities that have considered this issue.
Any action taken by police must be justified by law, they must be able to point to lawful authority for all actions undertaken. They must act in a bona fide exercise of a power and not for an ulterior purpose: Buddee at [89].
When a power of search is given by statute, the exercise of that power must be strictly in compliance with the statutory power and with the clearest of authority: Fromberg v R [2017] NSWDC 259 (Fromberg) at [21] per Judge AC Scotting.
The accused submits that it is of critical importance to the existence and protection of personal liberty under the law, that the restraints which the law imposes on police powers of arrest and detention (and search) be scrupulously observed: Buddee at [90]-[91] (referring with approval to Williams v the Queen [1986] HCA 88; (1986) 161 CLR 278.
A person should be regarded as having submitted to compulsion where, without the application of threat or application of physical restraint, he or she reasonably believes the choice to do otherwise does not exist: Buddee at [94].
With respect to the powers under the RTA, and after considering principles relevant to construction of the relevant provisions, the accused referred to McClintock SC DCJ in Buddee where his Honour said:
‘104...it is clear that Parliament intended to distinguish motor traffic powers from criminal investigation powers. The random nature of the motor traffic powers is a very significant interference in the liberties of citizens lawfully going about their business. They are not part of the criminal investigation powers conferred by LEPRA. There was a clear intention to delineate powers based on suspicion of the commission of crime from powers directed primarily at ensuring road safety and proactively preventing driving over the prescribed content of alcohol.
105. The authorities and statutory interpretation all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection.
...
107. It may be added that the police cannot rely on a statutory RBT power to engage in “proactive” policing or satisfy a curiosity or hunch not amounting to a specific state of mind as required by LEPRA.’
The accused submits that the RTA does not authorise the detaining of a driver once he or she has complied with the provisions relating to the production of a licence. A person should not be detained under the RTA after that has occurred: Buddee at [109].
The accused says that the reasonableness of the suspicion focuses on the information in the mind of the police officer at the relevant time. Regard must be had for the source of the information and its content: R v Rondo [2001] NSWCCA 540 (Rondo) at [53] (referred to in Fromberg at [28]).
No adverse inference can be drawn from a person insisting on their rights being adhered to and the law strictly followed, and such conduct should not be confused with conduct that can be considered suspicious: Streat v Bauer NSWSC unreported 16 March 1998 per Smart J (referred to in Fromberg at [29]).
A search to prove a negative, namely that there is no basis to suspect a person has possession of unlawful items, is not permissible. The power is only enlivened on the existence of a reasonably held suspicion.
The accused submits that a contended ‘impropriety’ requires consideration of the ‘minimum standards which a society such as ours should expect and require of those entrusted with the powers of law enforcement’. An ‘impropriety’ must not merely blur or contravene those standards in some minor request but must be ‘quite inconsistent with’ or ‘clearly inconsistent with’ those standards: Buddee at [55] (referring to judgment of Basten JA in Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612).
The examination of impropriety or unlawfulness is not limited to the exercise of the power to search. In the accused’s case, it must also canvass the legality of requiring the accused to stop and his continued detention at the scene after the breathalyser test had been conducted: see Rondo per Spigelman CJ at [4]-[5] and Smart JA [50] and [57].
The accused submits that but for the stop, or the continued detention of the accused at the scene after the breathalyser test was performed, the subsequent questioning and associated demeanour of the accused would not have occurred and the search would not have eventuated. If the initial stop and or the ongoing detention at the roadside while questioning was improper or unlawful, the subsequent information relied on by police to exercise the s 21 power was obtained in consequence of that impropriety.
The accused contends that were the Court to find the evidence was obtained improperly or unlawfully (or in consequence of the impropriety or illegality), it would consider the totality of the improprieties in determining whether to admit the evidence under s 138 of the Evidence Act.
The accused submits that an application of these principles in this case would result in a finding of impropriety or unlawfulness. That is because at the point the accused made his way back to his car, before driving off, the Court would find that Pellinkhof:
(1) had decided he wanted to question the accused about his reasons for being at the unit complex (in connection with his investigation into the possible supply of prohibited drugs at those premises).
(2) considered he did not then have sufficient grounds to stop or search the accused under s 21 of LEPRA: CT9-10.
(3) had decided to stop the accused after he drove off for the ostensible purpose of a roadside test (presumably in reliance of cl 3 and cl 6 of Sch 3 of the RTA).
(4) decided that once he stopped the accused for the roadside test, he would use that opportunity to question the accused with any answers/observations potentially being used to provide him grounds to exercise the power to stop and search under s 21 of LEPRA.
The accused submits that even assuming the decision to use the roadside power was made after the accused began driving away, that doesn’t change the fact that Pellinkhof utilised the random breath test power for the purpose of stopping and questioning the accused and he did so because he considered he had insufficient grounds to exercise the s 21 power.
After pulling over the accused, Thompson approached and performed the breathalyser test. The test returned a ‘nil result’. Pellinkhof considered it was then open to the accused to have departed (after the completion of the breath test). Yet neither officer informed the accused he had that right.
After the ‘nil result,’ Thompson began questioning the accused about his movements. Pellinkhof assumed the role of questioning.
Thompson’s statement that they were ‘just patrolling, doing our job, you’re not from around here so just wondering what you are doing in Canterbury’ was clearly an untruthful statement. Both officers had carried out surveillance of the complex for the preceding 2 hours because of information of a possible drug supply at that location. They followed the accused and pulled him over because he had exited those premises and was of interest to them. They had not been merely ‘patrolling’ when they pulled him over.
Thompson’s statement was clearly made to give the accused the impression that the questions being asked of him were merely routine. That is to conceal the true purpose underlying them and to increase the likelihood of him continuing to answer their questions. Only after the accused was questioned about his movements, and alleged observations were made of his demeanour during questioning, which occurred post the breathalyser test, did Pellinkhof consider he had sufficient grounds to exercise the s 21 power.
The accused submits that it is difficult to conceive the officers did not perform a VKG check of the vehicle’s registration plate before pulling over the accused. Const. Thompson is likely to have known the name of the registered owner of the care before he carried out the breathalyser test. The necessity of Thompson’s returning to his police vehicle to ‘conduct checks’ is not explained.
There is no evidence Pellinkhof or Thompson attempted to record (audio or visual) the accused’s answers to their questions or his demeanour (e.g. using a handheld recorder or their mobile phone). Nor did they record the fact of the positive drug test subsequently carried out after his arrest. There is evidence either subsequently attempted to put the questions asked, and answers given by accused, to confirm the accuracy of their account about this. That means the accused is deprived of an objective record of those exchanges.
The conclusion from these matters, it is submitted, is that the stopping and testing of the accused, used as a device to ask questions of the accused in relation to the investigation as to the drug offending and not with respect to any road traffic matter, renders the process unlawful and the evidence, being obtained as a result of the impropriety, inadmissible.
The Crown Submissions
The Crown submits that there was no illegality or impropriety in what was done and no evidence was improperly obtained.
From its written and oral submissions, it submits the following.
The Crown referred to the police powers to conduct a vehicle stop for the purposes of administering a breath test as conferred by Division 2 of part 2 of Schedule 3 of the RTA.
The Crown submitted there may be more than one purpose to a vehicle stop and that the existence of a purpose extraneous to the administration of a breath test does not make the stop (and any subsequent search) unlawful.
The Crown referred to R v Kola [2002] SASC 203, a South Australian decision concerning legislation permitting the establishment of a “Breath testing station” (BTS). The applicable legislation permitted the random stopping of drivers for the purpose of requiring them to submit to an “alcotest” (breath analysis). Similar to the provisions in NSW, a driver could be stopped in these circumstances even though no actual offence had been detected or suspected. The Crown submitted that the decision in Kola supported a conclusion that the stopping of the accused for testing was for two purposes – to do a random test and also to make enquiries about the information they had of a possible drug supply.
It submitted that here the testing was not a device or mere pretext (which would have been improper) but was for a legitimate purpose.
The Crown submitted that in the present case, Pellinkhof and Thompson wished to administer not only a breath test but also a drug test. It was in circumstances where they were aware there was suspected drug activity in the building they were watching and which the accused went into and then left a short time later. The fact that this purpose coincided with a purpose to ask questions of the accused about drug activity does not render the stop unlawful.
The Crown submitted that the circumstances of the stop included the observations of the officers of seeing the accused enter a building then exit again where that building was suspected of being involved in drug activity of an unknown nature. It referred to the evidence that both officers said that if the accused was a drug supplier, it was likely in their experience for him also to be a drug user and thus the need to stop him for a drug test. It is those circumstances that give the vehicle stop a character of being genuinely administered.
The Crown submitted that Buddee is distinguishable. Unlike the position in Buddee, in the present case, the decision by the officers to stop was not reconstructed retrospectively to justify the stop and detention. There may have been a suspicion of involvement in drug activity, but it was based on observations made (and it was intended there be a drug test). In Buddee the police were simply motivated by who they thought was in the car: it was not a “real” RBT and it was “not for a motor traffic purpose” [80]. That much appears borne out by the fact that no breath test was actually carried out in Buddee.
It submitted that in the present case, there were multiple motivations apparent for the stopping and testing. That much was permissible per Kola. It submitted that Buddee may be distinguished even further: it was not a case of multiple motivations. In fact, there seemed to be just one and it was transparent. In the present case, the multiple motivations were a roadside test and the other being the desire to talk to the driver. It submits this is permissible.
The Crown also referred to the decision of his McClintock SC DCJ considering the lawfulness of a vehicle stop in R v Pizarro (NSWDC 20 October 2015 unreported). In Pizarro his Honour also noted that in evidence, the police denied that they had any ground based on reasonable suspicion for any one of the other powers not involving an RBT (p19). His Honour asked the question “Can police for the purpose of satisfying their curiosity about a vehicle simply stop the vehicle” (p19).
His Honour cited the High Court decision of Coco v The Queen [1994] HCA 14 (to engage in what would otherwise be tortious conduct must be clearly expressed) and other authority as well as Article 9 of the International Covenant on Civil and Political Rights. His Honour considered that the RBT power needed to be interpreted consistent with the line of authority in Coco. His Honour held that there was no intention of the legislature to confer a general power to be used for criminal investigatory purposes to pull over vehicles. His Honour also found that the intention of the legislature was to only allow police to breath test people driving vehicles and “no other purpose(s).”
As noted above, the Crown submitted that it appears his Honour’s attention was not drawn to Kola, or if it was, there is no reference to it in his Honour’s judgment. The Crown submits that as was stated in Kola, and as is the case here, where there is a multi-faceted purpose for the stop, if one of the purposes is a genuine purpose to administer a test, the legislative purpose is met and the conduct is not improper.
Consideration
In my opinion, the submissions of the accused should be accepted.
Fundamentally, I formed the view on the evidence and having heard the evidence of Pellinkhof and Thompson, that the purpose for which the officers stopped the accused and subjected him to a “random test” was to make further investigations about the possibility he was involved in the drug supply they had received information about. That was following their observations of him entering the building, staying a short time compared to others and entering with a box but leaving without it. These factors excited the officers’ suspicions about his possible involvement in a drug supply. They wanted to ask him questions about his possible involvement and why he was at the unit complex.
The officers accepted that at that time they observed the accused enter and the exit the unit complex, they did not have grounds to exercise the stop and search powers under LEPRA. They each said that if, as they suspected, the accused was involved in drug supply, then he was likely to be a drug user and therefore should be stopped and tested. I do not accept this evidence as reflective of their true purpose in stopping the accused. I formed the view that this was an excuse used by them to attempt to give a legitimate purpose for the stopping and questioning of the accused. I note that there was no suggestion that the accused had acted in any way when they observed him leaving his vehicle and entering the unit complex, and then leaving the complex to return to his vehicle, which indicated that he was under the influence of any substance.
I also observe that neither of the officers gave evidence when they were cross-examined at the committal that they wanted to test the accused because if he was a drug supplier then he was most likely a drug user, at least in those terms. Pellinkhof did not give any such evidence. The highest it was put by Thompson was that given the information that the accused may have been involved in a drug supply, he should be stopped for random drug testing (CT 29.41).
As I have observed above, the decision to stop the accused was made by Pellinkhof. He activated the lights and sirens to pull over the accused. His evidence was that when he activated the lights and sirens his primary purpose was to do a test but his secondary purpose was to ask questions about the possible drug supply matter (T 39.27). However, he then said that this was in the context of him forming the view that at that time he knew did not have the power to stop him and ask him questions under LEPRA. That answer in my opinion, was telling. It showed that, in fact, his actual purpose was to ask questions and not to administer a test.
It is true he denied that the random test was just a device to question the accused: T 39.14. I do not accept this evidence as credible. Matters which point toward the actual purpose being the questioning of the accused with respect to the drug investigation are:
(1) The evidence that the officers formed a suspicion that the accused was possibly involved in the drug supply at the unit complex because of;
(a) His staying in the complex for a brief time, rather than the longer time others who entered did;
(b) His entry into the complex with a box but exiting without the box;
(c) His eye contact with Thompson on his exit from the complex causing him to pause before getting into his car;
(2) The officers had decided they wanted to question him in respect to the information they had about a possible drug supply as a result of the matters in 1 above and formed that intention before the accused got into his car and drove away;
(3) There was nothing in the conduct of the accused observed by the officers on entry to and exit from the unit complex which indicated he was under the influence of any substances: T 22.43
(4) There is no evidence of any discussion between the officers about stopping the accused for a random test before they did so (as to which see below);
(5) Neither officer checked to see if they had a drug testing kit in the vehicle despite the purpose, or at least one of the purposes, of stopping him was to administer a drug test. This was only done sometime after the accused had been stopped, questioned and arrested. It was then that Cincotta was contacted to bring a test kit to the scene. If the true primary purpose of the stop was to administer a drug test, I find it improbable that the officers would not have taken steps to prepare themselves to be able to administer such a test when they stopped the accused;
(6) The questions asked by Thompson when the accused was pulled over had nothing to do with the possibility of him being affected by drugs or alcohol or road safety, rather related to his reasons for being at the unit complex and were in furtherance of the investigation into the possible drug supply. Thompson also made the false statement referred to above to entice the accused to answer questions;
(7) The questions asked of the accused by Pellinkhof immediately prior to his arrest of the accused also had nothing to with the accused being under the influence of drugs or alcohol or road safety but were directed at matters to assist in the possible drug supply investigation.
Each of the police officers made statements in December 2017, very shortly after the events. Those statements were in evidence before me. As I noted above, there was no evidence in either of those statements (or at all) of any discussion between the officers before they actually stopped the accused that they would stop him for the purpose of administering a breath test and/or a drug test.
The evidence of Thompson (paragraph [13]-[15] of his statement) was that when the accused made eye contact with him after he had exited the building, he thought the accused knew they were watching him. He said to Pellinkhof:
“He noticed us then, he doesn’t look happy at all”
He said he thought the behaviour of the accused was odd. He said Pellinkhof said to him “What do you reckon, stop him?”. He said he replied: “Yeah, for sure, but let him get up the road a bit first.” The accused then drove off and shortly thereafter Constable Pellinkhof activated the lights and siren and stopped the accused.
Constable Pellinkhof’s statement does not contain that conversation. However, in terms of his observations of the accused leaving the unit complex he says (at [8]-[9] of his statement) that he saw the accused move towards his car parked at the BP service station. He says that the accused “made eye contact with police, stalled for a short time and entered the vehicle”. He said by reason of the actions of the accused being inconsistent with others who entered into the unit complex over the period of surveillance, including - due to him entering for a short period of time, entering with a box but leaving without one and being parked in the service station and not a resident parking space, “police wished to investigate [the accused’s] identity and reason for being at the location”. In other words, I infer, he wished to question the accused about those matters.
That Pellinkhof had formed the intention to question the accused at the time the accused got into his car after exiting the unit complex was confirmed by him in evidence both at the committal and before me.
At the committal (from CT 10.3 Exhibit VD1 p 32) he gave the following evidence:
Q:You don’t say there was any grounds to stop and search him before he responded to the questions that you asked him in Nicholas Street; is that right?
A:Well, no, how-yeah. No.
Q: So you had no reasonable basis to suspect he was in possession of anything unlawful up until that point?
A; Up until the point of speaking to him?
Q: Yes?
A: I think there was definitely some questions that obviously, why, for the reason why we stopped him surrounding the whole circumstance itself....
(emphasis added)
At CT 12.37 Exhibit VD1 p 34 and following, after being asked of his observations of the accused leaving the unit complex, the following exchange occurred:
Q: Presumably that is the reason why you say that at that point you had no reasonable grounds to suspect any of the things necessary to justify a search of either the accused or his car, is that correct?
A: Correct.
Q: The fact is though, even though you knew you had no lawful basis to search the accused or his car at that point in time, you had decided by then, or you made the decision then, that you are going to stop and question the accused about his movements; is that correct?
A: No.
Q: Did you say to Thompson at that point-I’m talking now about when you are observing the accused getting back into his car-“What do you reckon? Should be stop him?” Did you say that to Thompson?
A: I believe so.
Q: You said to me a moment ago-when I suggested to you that you decided then that you were going to stop and question him about his movement you denied that?
A: I didn’t say that we were going to stop and question him. I just said that we were going to stop him. Sorry, I, I don’t understand, sorry.
Q: For what purpose would you stop him if not to question him about his movements?
A: Sorry, yeah, sorry, so we-yes, I said we were going to stop him so we stopped—
......
Q: What I’m suggesting to you is that, at that time, you knew you had no lawful basis to search either the accused or his car at that time, don’t you?
A: Yeah.
Q: You agree with that?
A: Yep.
Q: But, even though you knew you had no lawful basis to search either the accused or the car at that time—
A: Yeah.
Q:-- you had decided that you were going to stop the accused and question him about his movements; do you agree with that?
A: To an extent, yes. Yeah, I do, yes. Yes.
Q: So just let’s be clear about that. You knew you had no lawful basis to search either the accused or the car at that point in time, correct?
A: Yeah.
Q: But you had decided that you were going to stop the accused and question him about his movements?
A: Yes.
Q: And that’s what you say in paragraph 9 of your statement, isn’t it, that you wished to investigate his identity and his reason for being at the location?
A: Yes, that’s correct.
Q: Was the reason you decided... to stop and question the accused that you are hopeful that his responses to your questions might enliven a proper basis to search the accused or his motor vehicle? Is that one of the reasons way decided to question him?
A: I, I guess so, either to prove or disprove.
Q: Prove or disprove what?
A: Information-the, the whole basis of that, the circumstances, I guess.
Q: But you’ve agreed at that point in time you had no lawful basis to search either him or the car, correct?
A: Until we spoke to him, yes.
Q: So the purpose of stopping and questioning him was to seek to elicit information to provide you with a lawful basis to search him or the car; is that correct?
A: Yeah.
Q: What power do you say that police had to stop the accused for the purposes of questioning him at that stage?
A: We stopped him for a random breath test, I believe....
(emphasis added)
At CT 15.11-19 Exhibit VD1 p 37 the evidence was:
Q: You see what I’m suggesting to you is that you decided you wanted to stop and question the accused as he was getting into the car at the BP Service Station; you’ve agreed with that, haven’t you?
A: Well, yes, but it’s a very fluid I guess sort of set of circumstances. He is getting into the car. He starting it. We are having a conversation, “Are we or aren’t we?” Yes, and by that time we are moving so—
Q: “Are we or aren’t we going to stop him and question him?”
A: Yes
(emphasis added)
In evidence before me in cross-examination (T 27.36 and following) he gave the following evidence:
Q: You didn’t have-you had thought-before he reached the car, you had in your mind the power under lepra to stop and detain and question, if you have reasonable grounds to suspect an offence?
A: We do have that power, yes.
Q: And you actively considered that power before he got to the car?
A: Yes.
A: Yes.
Q: “But I still want to question him”?
A: Yes.
Q: “And I’m going to question him”?
A: Well, yes.
Q: And he was allowed to drive away, because you could then stop him under the Road Transport Act for random testing?
A: No.
Q: And-so you followed Mr Zhang’s car for about 500 m?
A: Yes.
Q: It was a short time after he pulled out that you pulled him over?
A: Yes.
Q: And nothing about the manner of his driving raise any suspicion with you, about his being affected?
A: No, not that I can recall.
Q: And I want to suggest to you that the purposes of activating the lights and pulling over for random testing was primarily for you to be able to approach and question him about his movements?
A: As well as conduct the random testing, yes.
Q: Well, I want to suggest to you the primary reason for you exercising those powers at the time you activated the lights was so that you could approach him and question him about his movements; that was the primary reason for what you did?
A: No.
Q: You say the traffic matter was more significant than the questions you wanted to ask?
A: I feel like they all carry the same weight or the same-they all fall within the same incident.”
(emphasis added)
Each of the emphasised sections of the evidence above, in my opinion, supports the conclusion that the police did not properly exercise the powers conferred on them under the RTA to stop the accused for the purpose of conducting a roadside test. The decision to stop the accused using that power was made in the context of Pellinkhof having formed the view that he wanted to investigate the accused’s identity and why he was at the unit complex. He had decided that he wanted to question the accused before the accused drove away from the BP Service Station. There was no discussion about stopping the accused for a test, rather, “are we or aren’t we going we stop him for questions?” (see [105] above). He had turned his mind to whether he had a reasonable suspicion so as to enliven the power under LEPRA to stop and search the accused. He formed the view at that time he did not. However, he still wanted to stop and question the accused. The only means to achieve this was to use the power under the RTA provisions. It was only after stopping the accused and questioning him, that he formed the view that the reasonable suspicion to search the accused under LEPRA arose.
The use of the power to stop the accused to administer a “random” test was, I find, a device or pretext to ask questions of the accused relating to the drug supply investigation. Put another way, the only way the officers could achieve their aim of asking him questions in furtherance of the investigation was to use the RTA power to stop him for a test.
I find that the conduct of the officers in stopping the accused in the manner they did and questioning him before he was arrested as they did was improper. It was not for the legitimate purpose of a roadside test under the relevant legislation.
Even accepting the officers’ evidence that they did legitimately have a purpose in stopping the accused for a random test, a question may arise as to whether it was their primary purpose. For the reasons I have identified above, I do not accept this was their real purpose, let alone their primary purpose.
If the use of the random testing powers was not the primary purpose of the officers but was still one of their genuine purposes for stopping the accused, was the use of the traffic powers to stop the accused unlawful? There was debate before me about this. The Crown submits that as long as there was a true purpose in stopping the accused to conduct a drug test (even if it was not the primary purpose) then the conduct was not unlawful.
The Crown relied on R v Kola (2002) 36 MVR 296; [2002] SASC 203. In that case, the question was whether a breath testing station was validly set up by the police in circumstances where a vehicle was stopped for a breath test of the driver. A strong smell of cannabis was detected coming from the vehicle. Questions were asked of the driver, a search undertaken and cannabis found. The driver was charged for cannabis offences.
The Court held that the breath testing station was validly established. It held that it was established to allow alcotests to be conducted and the station was not established as a mere pretext to stop other vehicles for purposes other than conducting alcotests.
At [37] Doyle CJ, with whom Perry and Lander and JJ agreed said:
[37] For example, to take an extreme instance, assume that a police officer establishes a B T S near a particular hotel in several consecutive days, and assume that the evidence establishes that the police officer did so to deter customers from patronising the hotel in the hope that they would patronise a rival hotel with whose proprietor the police officer is friendly. It is difficult to believe that that would be a lawful or valid use of the power to establish the BTS. Such a purpose is extraneous to the purpose for which the power has been conferred. One would think that its presence would render unlawful or invalid the establishment of the BTS. Again, one might postulate the BTS established by a police officer to enable other police officers to check cars for a prison Esca P, the BTS being established as nothing more than an excuse or device to enable the police to stop cars so that they can check the drivers and passengers. Even though locating the Esca P is a proper function of the member of the police force, one again tends to think that the BTS would not be lawfully established if the evidence showed that that was the purpose with which it was established, and if the conducting of alcotests was merely a means to that end. In each instance one would think that the mere fact that alcotests at a BTS was a mere pretext or device, the alcotest being conducted only if the police officer could find no other basis to detain a motorist who had been stopped...
[42] in other words, I consider that a BTS is established lawfully if established for the purpose of conducting alcotests, even though it is established at a time or place or in a manner (or all of them) which will facilitate the detection of other offences. That is, the BTS is established lawfully even though not established for the sole purpose of conducting our contest. As I’ve endeavoured to explain by examples I gave earlier, there will be circumstances when an extraneous purpose is such that the establishment will not be lawful, even though alcotests are conducted. Drawing the line between the situations and what I regard as lawful may not always be easy...
In R v Mihajlovic (No 2) [2019] NSWDC 141, Mahony SC DCJ had to consider the admissibility of evidence obtained as a result of a vehicle being required to undergo a random breath test (which tested negative) and then a random drug test. Whilst the random drug test was being administered, there was a conversation between the police and the driver. The driver’s license was given to another policeman who undertook a criminal history check. During the conversation with the driver, the police officer formed a reasonable suspicion to warrant a search of the vehicle. That search was undertaken by police and a drug detection dog whereupon a black bag containing a significant amount of currency was found. The question was whether the search of the vehicle was legal, the vehicle having been stopped for the purposes of a random breath and drug test. In answering the question as to whether or not it was unlawful or improper for the police to use the random breath test power for an ulterior purpose of conducting a criminal investigation which was not authorised at law, his Honour said:
[99] I respectfully agree with the conclusions reached by Judge McClintock in R v Buddee... At [104) and [105 square bracket that Parliament intended to distinguish motor traffic powers from criminal investigation powers given to police. The motor traffic powers to random breath testing are not part of the criminal investigations conferred by LEPRA and there may be inferred clear intention on the part of Parliament to delineate powers based on suspicion of the commission of crime from powers directed primarily at insuring road safety and pro-actively preventing driving over the prescribed content of alcohol. Further, it is clear that the RBT powers cannot be used to justify the arbitrary stopping vehicles, interrogating of occupants, or searching vehicles for crime detection.
[100] However, I find that the facts of this case may be distinguished from that of R v Buddee, supra. Here, there was an authorised joint operation, lawfully instigated by police. The stopping of vehicles during that operation for the purpose of AR BT being administered to drivers was not unlawful merely because of the directive that a “concerted effort” should be made by police officers to test a majority of vehicles during the operation. Further, it was within the police powers to direct drivers to undergo a RDT as part of the same operation. I find that there was a mixed purpose for this operation, which was not the case in R v Buddee. That mixed purpose was to police of the conveyance of illicit drugs between New South Wales and Queensland, and also to police criminal conduct, as stated in the mission statement, but also to identify persons wanted for outstanding warrants and investigations.
[101] I do not regard the establishment of the operation for those mixed purposes was unlawful per se, nor do I accept the submission made in behalf of the accused of the operation amounted to “a deliberate contrivance to place drivers in a position to criminal investigator purposes”. In carrying out the operation, police officers were still required to abide by LEPRA and act in accordance with the law.
In R v Large [2019] NSWDC 627, Norrish QC DCJ found that the “primary purpose” of stopping the driver in that case was not to administer an RBT, rather to speak to the driver for “proactive policing” investigatory reasons. He held such conduct was not a proper use of the RBT powers: see for example at [94] and [109].
In this case I do not find there was, in fact, a mixed purpose. What occurred was the use of the power to stop the accused to administer a test (without cause or suspicion being required) to affect the purpose of asking him questions related to his involvement in the possible drug supply at the unit complex. The power was not exercised for the reasons of maintenance of road safety. I respectfully agree with McClintock SC DCJ in Buddee at [98]-[112] and his Honour’s conclusions as to the limitations on the exercise of the RTA powers by police. The exercise of the power here was not for the relevant statutory purpose of road safety. It was to aid in the investigation of the police as to the possible drug supply at the unit complex. It ignored the intended delineation of “powers based on suspicion of the commission of crime from powers directed primarily at ensuring road safety and proactively preventing driving over the prescribed concentration of alcohol” (Buddee [104]) or drugs.
I do not accept that in so far as (and if) they hold that if there is a mixed purpose for administering the RTA type tests, it is not necessarily an improper use of the power, Kola or Mihajlovic dictate a different result in this case. In both of those cases the vehicles which were then subjected to additional searches were randomly stopped at the testing places. It was during the course of those random stops, and incidental to them, that the police became aware of matters that enlivened additional powers to question the drivers and search their vehicles detecting criminal conduct.
In this case, there was nothing random about the stopping of the accused. He had been observed as described by the officers. There was an intention and desire to question him to aid in the investigation of the possible drug supply. The reasonable suspicion enlivened by the questions asked of him, and his responses (together with the matters previously observed as he exited the unit complex) was not as an incidental result of a random stop at a breath testing station or a random roadside stop. The position may have been different on the application of Kola and Mihajlovic if it was.
The Crown submitted that there should not be too much emphasis on the word “random” in the random testing that is allowed under the RTA. The Crown submits, as I have said, that if one of the purposes in stopping a vehicle was to conduct a “random test” (that is alcohol and/or drug test) but there was another purpose (including to ask questions in aid of an investigation) then the exercise of the RTA power to stop the vehicle is not unlawful. If, by that submission, it is meant that where police do not have, under the common law or by statute, the authority to stop a person whom they wish to question to aid an investigation, they may lawfully do so under the powers conferred by the RTA with a purpose to administer a breath/drug test, I do not accept it.
This would mean that there would be a potentially unlimited use of the power conferred for limited purposes under the RTA. It would ignore the delineation of investigatory and road safety powers discussed in Buddee and accepted by other judges of this Court.
Having reached this conclusion, subject to a consideration of the discretion under s 138 to admit the evidence, it seems to me that all of the evidence (described in items 1-4 of MFI 5) is inadmissible.
It was only as a result of the unlawful manner in which the accused was stopped and questioned, that the police exercised the power to search him and his vehicle. It was in the course of this search that the $3200 was found on him and he was arrested for goods in custody.
Additionally, following that search, the accused made certain admissions regarding an additional $10,000 that was in the car. There was no recording of the questions asked of the accused and his answers. Although he was cautioned and reminded of his right to silence, this was consequent upon the illegal actions of the officers and they had no lawful right to detain or question him.
Additional officers were then called and a more extensive search of the accused’s car was undertaken and video recorded. It was during that search that the $79,000 dollars was found in the shoe box, the $10,000 was found in the black satchel bag and the knife and baton found in the car. So too, the accused’s mobile phone was found. All of these items were found as a result of the illegal stop and search of the accused.
The accused was asked for his access code to the phone. He asked is this was the legal process. He was clearly, and correctly, concerned to understand whether he was obliged to give the police the access code to the phone. He should have been told he was not obliged to give it to the police. Instead, he was told that the police are able to check the phone. Again, this questioning and his provision of the access code to the phone was consequent upon the improper stop, questioning and arrest of the accused and the illegal search.
The access code to the accused’s phone was also used to obtain the WeChat messages that the Crown now seeks to rely on. Those messages would not have been obtained but for the unlawful conduct.
For those reasons, all of the evidence in [3] (1) and (2) above (being the evidence described in items 1-4 of MFI 5) is, subject to the discretion in s 138 of the Evidence Act, not to be admitted.
Before considering that discretionary matter, I should add that there were additional bases of objection by the accused to some of the material. That included a failure to comply with Part 9 of LEPRA by reason, inter alia, of keeping the accused at the scene of the arrest and search for a significant period of time. It is said he should have been taken sooner to the police station and placed before a custody manager and had the appropriate and required cautions under Part 9 of LEPRA.
By reason of my conclusions above, it is not necessary to determine that part of the accused’s application.
The s 138 Discretion
Having made the determination that the evidence I have identified was obtained improperly or in contravention of an Australian law, the onus falls on the Crown to satisfy me that such evidence should be admissible. The test is that evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: s 138(1) Evidence Act.
In weighing the desirability of admitting the evidence, without limiting the matters the Court may take into account, the Court is to take into account the matters in s 138(3) Evidence Act.
Accused’s Submissions
The accused, in his supplementary written submissions, submits as follows.
The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally: Kadir v The Queen [2020] HCA 1; (2020) 94 ALJR 168 (Kadir) at 173 [13].
Section 138(3) matters
Probative value and importance of the evidence: the evidence from the search and the messages taken from the phone are highly probative. The Crown’s case to the proceeds of crime and weapon’s offence depends on the admission of the money and the baton seized from the accused’s vehicle. The evidence on his phone is of less significance to the Crown’s case.
Nature of the relevant offence: the offences concern alleged drug supply, proceeds of crime and a weapon’s offence. The Crown’s case as to supply is there was an agreement to supply (relying on extended definition) but at the time of arrest no drugs had been procured.
The gravity of the impropriety or contravention: the contraventions are significant. A clear breach of the rules set the legislature that prohibits certain kinds of investigative activity is serious. Those rules protect the civil liberties of all members of the community including those who may be wrongly suspected of criminal activity. Such breaches can be more objectionable than instances of police engaging or provoking criminal activity: Buddee at [115(d)], Large at [121] and Mihajlovic at [116].
In the accused’s case there were numerous instances of impropriety or disregard for statutory safeguards, which should be considered in totality. That includes:
reliance on RT Act powers for an ulterior purpose knowing that the other available statutory powers would not permit the stopping of the accused.
questioning the accused about his activities to ‘build’ a basis to search or to further their investigation of the suspected drug supply offence (these questions not being directed to RT Act compliance and occurring without caution despite him being detained at the time).
not merely omitting to tell the accused the real purpose for their questions, but making an untrue statement about the same to encourage him to continue answering questions,
making no contemporaneous notes or recording of the questions and answers (prior to the search), nor putting to the accused on tape their account of what had been asked and answered by him (for his confirmation). It is open to the Court to take the officer’s failure to objectively or contemporaneously record this phase of questioning in assessing their attitude to their obligations and powers: Large at [60].
keeping the accused at the roadside for at least 40 minutes post arrest while questioned him about items found during the car search (including his phone/passcode) thereby denying him the protections of Part 9.
Judge McClintock had previously raised his concerns at the police’s misuse of the RT Act powers in a decision of Pizarro before Buddee. In Buddee his Honour voiced concern about the need to ensure police were ‘generally deterred from a cavalier attitude being taken’ to fundamental rights (at [118]). That informed his Honour’s determination to exclude the evidence in Buddee. There is no evidence that his Honour’s judgment in Buddee was ever considered or heeded by the Commissioner of Police before the accused’s stop.
In Large, Judge Norrish QC echoed similar concerns (at [121]):
‘The very uncomfortable impression made upon the court from the evidence of the two senior police officers, the manner in which they conducted themselves both in the giving of evidence and on this evening, as well as the ‘revealing’ understanding of the process in the evidence of the Probationary Constable, was that this random stopping of vehicles under the pretence of administering a random breath test, taking the opportunity to ask a series of questions for the purposes of developing a suspicion that might justify a search that was not permitted at law, was a ‘modus operandi’ regularly practised although not admitted. It was clear from SC Ward’s evidence that he had a “patter” which he euphemistically described as keeping the conversations going before administering a breath test, light-hearted et cetera. The police officers clearly understood the line that was required to be crossed before a search could be justified under the legislative powers available to police...’ (emphasis added)
Whether the impropriety or contravention was deliberate or reckless: Const. Pellinkhof deliberately used the RT Act powers to stop the accused so he could question him in an attempt to circumvent the limitation in s 21 of LEPRA. That impropriety or contravention was deliberate, as was Const. Thompson’s subsequent statement that police had merely been ‘patrolling’. Keeping the accused at the scene for over an hour was also deliberately done. If Const. Pellinhkof did not realise the impropriety of doing so that act at least amounts to recklessness.
Contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights: recognised international rights of a citizen not to be subject to undue interference by the executive were contravened.
Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention: the Crown does not suggest (nor is there evidence) the officers have been the subject of any action for the contended contraventions.
Difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: requiring police to observe the safeguards set by the legislature cannot be viewed as a ‘difficulty’. That is the price of maintaining a free society. Consistent with the High Court’s judgment in Kadir, evidence obtained in deliberate contravention of the law with a view to assembling evidence police considered they could not otherwise lawfully obtain makes the contravention more serious. The extent to which it may be more difficult to lawfully obtain the evidence is a factor that weighs against admission (not in favour of admission (at [37).
Admissibility
It is important these legislative protections are not given ‘lip service’ but also enforced: Large at [122]. Police cannot be permitted to take shortcuts or deliberate ‘cutting of corners’ to satisfy legitimate investigative purposes. Censure through exclusion deters future repetition of such conduct: see Large at [122]; Kadir at [18]. The Court would not be satisfied the desirability of admitting the evidence outweighs the undesirability of doing so given the manner in which it was obtained.
The Crown submits from its written submissions:
Section 138
In Buddee, his Honour raised whether he could take into account the anecdotal material that appeared before him and in which he had made previous decision ad and whether it could be regarded as a “routine abuse of power.”
His Honour was persuaded not to take judicial note of those matters, noting his earlier judgement in Pizarro “where police random breath test powers were being used as a transparent ruse to pull over persons where their number plate was the subject of a return from an electronic number plate recognition system but where there was no reasonable suspicion. In that case I, having undertaken the balancing exercise, admitted the evidence. Obviously there is a desirability and public interest in punishing possession and potential supply of illegal drugs and in crime prevention generally” (at [118]).
The car driven by Pizarro had associated intelligence that Pizarro had supplied ice out of the vehicle in a nearby suburb and surrounding areas. There was also information that the car may be driven by a person holding a firearms prohibition order, namely, Pizarro. The effect of such an order was to prohibit a person the subject of the order from possessing or acquiring or using a firearm.
It was Pizarro’s case that the purpose of the stopping was not for the purpose of conducting a random breath test but to obtain the identity of the driver and to search the vehicle for drugs. On the night in question, the relevant police officers were involved in an operation relating to public shootings. It was not related to traffic matters. Though unmarked, some of the vehicles were conspicuous as police vehicles because of the apparently obvious number plate recognition hardware on the roof of the vehicle.
His Honour found that the information ascertained by police regarding the vehicle and prior to stopping it would have legitimately sparked interest in any police officer: “the vehicle was in the adjacent suburb to Newtown where it had adversely come under notice for drug dealing days before. The hour was late, the most likely occupant had a firearms prohibition order and the vehicle itself had come to notice on the COPS system on a significant number of occasions.
His Honour found the decision to pull over the vehicle was not random, it was not for a random breath test and it was a direct result of informational warnings obtained on the mobile data terminal.
In carrying out the s.138 exercise, his Honour noted “There are a significant number of powers relevant to police stopping and searching vehicles and arresting the occupants. It is necessary to examine whether the police had the power to stop a vehicle in the present circumstances and then to search the vehicle in order to determine whether the evidence was unlawfully or improperly obtained” (p11). His Honour thereafter turned to consider the LEPRA provisions, including s21 (power to search persons and seize and detain things without warrant), s.36 (power to search vehicles an seize things without warrant), s.36A (power to stop vehicles), s.37 (powers to stop vehicles and erect roadblocks) and s.14 (power to request disclosure of driver or passenger identity). His Honour also considered the broad powers under s.74A of the Firearms Act. Section 74A(2)(c) permits an officer to stop and detain any vehicle occupied by a person the subject of a firearms prohibition order and conduct a search of the person or vehicle “as reasonably required” for the purposes of determining whether the person the subject of the order has committed an offence under s.74(1),(2) or (3) of the Firearms Act. (Section 74 sets out the effects of a firearms prohibition order.)
His Honour then turned to consider whether any of the criteria in the legislation other than the random breath test legislation were met. That is so, despite the fact that none of the officers said they were exercising any power other than the RBT power, to stop the vehicle (p18).
His Honour found that in the circumstances, none were met. However his Honour did consider that had the police driven past the vehicle and ascertained a female driver, this in itself would have justified a stop and search under the Firearms Act (p18), (although this was not the case).
The evidence was ultimately admitted. In doing so his Honour found the probative value of the evidence was high, being critical to the proceedings, the amount of drug was an indictable quantity which had significant public importance, it was not a truly random breath test (if it was the gravity of the impropriety would have been such that the evidence would have been likely to be excluded). His Honour found that on the night there was a “minimal level of impropriety”. The impropriety or unlawfulness that there was, was not deliberate. There was clearly a justified suspicion in respect of the vehicle and that there was only a subtle distinction between a justifiable LEPRA stop and an unjustifiable one (p23). Further, the officers were legitimately and genuinely concerned with investigative matters. It was not an arbitrary infringement of the freedom of movement. All in all, only a small amount of further information, which in fact existed, would have justified the search.
To his Honour’s mind, there were “very significant suspicions relating to the vehicle, the location, the time of night and the occupant. Very little further information would have been needed to justify a legal stoppage of the vehicle on criminal investigation grounds.” To this end his Honour also noted had they identified the driver as female they could have stopped the car and similarly if she had behaved in a manner “consistent with flight or drug dealing, that would have probably enlivened the LEPRA powers”, though her demeanour alone would not have been sufficient by itself (p23).
Similar to the above decision, it is submitted in the present case the police would have had very significant suspicions relating to the vehicle, occupant, location, date (noting the intelligence known to police), the accused’s change in demeanour upon making eye contact with two people watching him, the amount of time he was in the unit block, the fact that he had obviously dropped something off in the unit block, his nervousness and his inconsistent answers about his visit to the unit block. Similar to Pizarro, little, if any additional information would have been needed to justify a legal stoppage of the vehicle.
In addition to the above the Crown submits:
The probative value of the evidence is high. The search is the basis for establishing the accused possessed the cash that is relevant to counts 2 and 3. In relation to count 1, the $10,000 amount corroborates the evidence of the informer witness.
The importance of the evidence is high.
Without the evidence of the search, the Crown case falls away for counts 2 and 3. It is further noted that relation to count 1, it will be a significant consideration for a tribunal of fact when it comes to assessing the informer’s credibility that the informer witness is corroborated in her evidence regarding the amount of money she handed over ($10,000).
The nature of the offences are serious and involve dealing with large sums of cash. The undetected movement of funds by government authorities has negative effects on the economy and the community. There is a public interest in prosecuting such offences. The amount of $82,680 is also towards the higher end of the upper limit of $100,000 threshhold for count 3.
The gravity of the impropriety or contravention is low. As indicated above, there would not have to be much more, if anything, to have justified a search under a different law enforcement power (LEPRA).
The tenor of the totality of evidence from both officers is that they were not deliberately or recklessly acting with impropriety or in contravention of the law. Defence submit that the officers telling the accused they were just patrolling as opposed to surveilling the unit block (at the time of their initial questions to him) was an untruthful statement. The defence state it was to convey the impression the questions were merely routine. The defence argue it was designed to increase the likelihood of the accused to continue to answer their questions. It is submitted such an outcome is mere speculation and the distinction between patrolling and surveilling (but not covert surveillance) is such a minor one that, when combined with the fact there is no obligation to spell out exactly how long they had been observing the unit block, there really has been no significant impropriety (if any) in that regard.
In addition, in oral submissions the Crown emphasised the significant, most likely fatal, effect on the Crown Case if the evidence was not admitted. It submitted there is a significant public interest in prosecuting serious offences of this type and it is desirable, in circumstances where the Court would not find the impropriety as being significant, of admitting the evidence.
Further, it submitted that objectively the officers may in fact have had the basis for a reasonable suspicion to stop and search the accused when he left the unit complex. They were subjectively mistaken in their belief that they did not have such grounds. This, it is submitted, is a matter that goes to the gravity of the impropriety under s 138(3)(d) Evidence Act.
Consideration
In my opinion, taking into account the matters in s 138(3) Evidence Act, the evidence ought not be admitted. I accept the accused’s submissions as to why the desirability of admitting the evidence does not outweigh the desirability of not admitting the evidence, it having been obtained in the way it was.
In particular:
(1) The probative value of the evidence: I accept that all of the evidence is highly probative in respect to every count on the indictment. I accept that in respect to counts 2-4, the Crown case depends on the evidence obtained as a result of the search;
(2) The importance of the evidence in the proceedings: As I have said, the evidence is very important, if not crucial to the Crown case, certainly counts 2-4 on the indictment.
(3) The nature of the offences: The offences are serious and concern drug supply and proceeds of crime.
(4) The gravity of the impropriety or contravention: I find the contravention is significant. I have found that the officers used the powers under the RTA to stop the accused and question him about matters they wished to but could not otherwise do. By doing so they infringed the rights of the accused and seriously ignored the delineation of investigatory and road safety powers imposed by the legislature. I do not accept the Crown submission that if, objectively, he did have grounds for a reasonable suspicion to enliven the LEPRA powers of search this makes the contravention less serious. A misunderstanding of the effect of information he has, or things he has observed, leading to him exercising another power unlawfully, even with the aim of preventing criminal activity is a serious matter;
(5) Whether the impropriety/ contravention was deliberate or reckless: Pellinkhof believed he did not have the grounds to stop and search or question the accused. I have found that he used the RTA powers as a pretext or device to do so. Even if he did not fully understand the delineation of the respective investigatory and road safety powers, his conduct was seriously reckless. He may have had a legitimate desire to question the accused in relation to objectively suspicious activity based on the information he had, however, he did not use appropriate means to achieve this aim. Further, Constable Thompson’s deliberately untrue statement as to them having been “patrolling in the area” when questioning the accused cannot be condoned;
(6) ...
(7) Whether any proceeding has been taken or is likely to be taken in relation to the impropriety or contravention: I have no information about whether such a proceeding will be taken;
(8) The difficulty (if any) of obtaining the evidence without impropriety or contravention of Australian law: I accept the accused’s submissions in this regard. If evidence is difficult to obtain, that speaks against the use by the police of obtaining it by improper means. In any event, with the information the police had, it may have been that by using other means available to police, evidence of the alleged involvement of the accused in criminal activity could have been obtained.
For those reasons, I decline to exercise my discretion to admit the evidence. I do not accept, having regard to the manner in which it was obtained and the matters I have taken into account, the desirability to admit the evidence outweighs the undesirability of doing so. It is fundamental that police be constrained to the proper use of powers conferred upon them by the legislature. This includes the power to stop a person without cause for the limited purpose allowed by the RTA. That limited power cannot be misused to further the separate and distinct investigatory powers of the police.
I order that the evidence described in items 1-4 of MFI 5 not be admitted in the proceedings.
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