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Supreme Court 5 January 2001

DPP v FARR

[2001] NSWSC 3

Also reported as (2001) 118 A Crim R 399
Drugs
CRIMINAL LAW ADMISSIONS S424A OF CRIMES ACT ILLEGAL SEARCH S138 OF THE EVIDENCE ACT 1995

Citation: DPP v Farr [2001] NSWSC 3
Court: Supreme Court of New South Wales
Date: 5 January 2001
Judge(s): Smart AJ

Background

The respondent, Ms Farr, was stopped at a random breath test in Moree. Police observed signs consistent with cannabis use, conducted a roadside search, and found cannabis, electronic scales, and a substantial sum of cash. She made a series of admissions to police at the roadside, in the police vehicle, and during a recorded interview at the station.

Charges were laid in the Local Court for goods in custody, cultivating a prohibited plant, supplying a prohibited drug, and possessing a prohibited drug. The magistrate dismissed all charges after ruling that certain roadside admissions were inadmissible because they had not been recorded in accordance with section 424A of the Crimes Act 1900, and then exercising a discretion under section 138 of the Evidence Act 1995 to exclude further evidence on the basis of impropriety.

The Director of Public Prosecutions appealed to the Supreme Court, arguing the magistrate made legal errors in both rulings.

  • Whether the roadside admissions made by Ms Farr were "admissions" to which the recording requirements of section 424A of the Crimes Act 1900 applied, or whether they fell within the "on-the-spot" exception in that provision.
  • Whether the magistrate correctly applied section 138 of the Evidence Act 1995 when exercising the discretion to exclude evidence obtained as a consequence of an allegedly unlawful search.
  • Whether the magistrate correctly identified the onus of proof when determining whether the search was lawful, and whether the magistrate adequately addressed all the evidence bearing on that question.

Decision

On the section 424A issue, Smart AJ found the magistrate erred in treating the roadside admissions as inadmissible for non-compliance with the recording requirements. The judge examined whether the admissions fell within the exception for statements made "at or about the time" of the alleged offence or during the "on-the-spot" phase of the investigation. The magistrate had not properly applied the relevant provisions and had drawn too broad a conclusion about which admissions were caught by the recording obligation.

On the section 138 discretion, Smart AJ identified several errors in the magistrate's reasoning. The magistrate had misapplied the onus of proof: under section 138, once impropriety is established, the prosecution bears the onus of satisfying the court that evidence should nonetheless be admitted, but the prior question of whether the search was lawful required the defendant to raise sufficient evidence to put the issue in contest before that onus shifted. The magistrate also failed to properly weigh all the relevant circumstances, including the evidence of the distinctive smell of cannabis and the condition of Ms Farr's eyes, which bore directly on whether police had reasonable cause to conduct the search.

Smart AJ also found that the magistrate had not made clear factual findings on the critical disputed facts, namely whether police genuinely detected the smell of cannabis and observed the physical signs they described. Those findings were necessary before any conclusion about the lawfulness of the search could be reached, and without them the section 138 analysis could not be properly conducted.

The Supreme Court held that the matter had to be remitted to the magistrate for further hearing. Smart AJ acknowledged the complexity of the issues and the practical difficulties under which the Local Court had operated, but concluded the errors could not stand.

Orders Made

  • The magistrate's order dismissing the informations against Ms Farr for goods in custody, cultivate prohibited plant, supply prohibited drug, and possess prohibited drug was removed into the Supreme Court and quashed.
  • The matters were remitted to the magistrate for further hearing in accordance with the reasons of the Supreme Court and according to law.
  • No order as to costs was made provisionally, with liberty granted to both parties to list the matter for argument on costs by arrangement with the judge's Associate.

Key Takeaways

  • Section 424A of the Crimes Act 1900 does not require all roadside admissions to be recorded in the manner prescribed for formal interviews; the provision contains exceptions for statements made at or about the time of the alleged offence, and the boundaries of those exceptions require careful analysis.
  • Under section 138 of the Evidence Act 1995, the onus of persuading the court to admit improperly obtained evidence rests on the prosecution, but the threshold question of whether the conduct was improper in the first place must be addressed with precision, including a clear allocation of which party bears the evidentiary burden at that stage.
  • Before exercising the discretion to exclude evidence under section 138, a court is required to make express factual findings on the disputed circumstances underlying the alleged impropriety, particularly where those facts are central to whether any illegality or impropriety occurred at all.
  • Insufficient factual findings on credibility and contested evidence cannot be remedied by a broad exercise of the exclusionary discretion; the section 138 analysis depends on those findings being made first.
  • In remitting the matter, the Supreme Court confirmed that errors in the application of section 138, even if potentially expressed as "slips," justify quashing the dismissal where the transcript does not support treating them as mere oversights.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 424A
- Evidence Act 1995 (NSW), s 138
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Traffic Act 1909 (NSW)
- Justices Act 1902 (NSW), s 109(a)

Cases:
- R v Horton (1998) 45 NSWLR 426
- R v Reed [1999] NSWCCA 258
- R v Coulstock (1998) 99 A Crim R 143
- R v Nabalarua (CCA, unreported, 19 December 1997)
- McPherson v The Queen (1981) 147 CLR 512
- Van der Meer v The Queen (1987) 35 A Crim R 232
- Pollard v The Queen (1993) 67 ALJR 193
- Bunning v Cross (1978) 141 CLR 54