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Court of Criminal Appeal 24 July 2003

Regina v Loc Huu Phan

[2003] NSWCCA 205

Drugs
CRIMINAL LAW

Citation: Regina v Loc Huu Phan [2003] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 24 July 2003
Judge(s): Meagher ACJ, Hulme J, Hidden J

Background

The respondent was charged with deemed supply of cocaine after police attended a residential property at Canley Heights without a search warrant or arrest warrant. Police had received an anonymous tip-off that escaped immigration detainees were living in a backyard shed. Five uniformed officers attended that evening.

Officers who moved to the backyard observed the respondent emerge from the shed. From outside they could see items on a table inside the shed consistent with drug supply, including a spoon, bi-carbonate of soda, and resealable plastic bags. They also noticed a plastic bag and a fifty dollar note protruding from his pocket. The respondent was searched before his wife, the tenant of the premises, had given police permission to enter.

Analysis of the cocaine found on the respondent revealed 14.4 grams at 75.5% purity. In a recorded interview, he admitted possession but claimed it was for personal use. The trial judge in the District Court excluded all evidence flowing from the unlawful search under s138 of the Evidence Act, prompting the Director of Public Prosecutions to appeal to the Court of Criminal Appeal under s5F of the Criminal Appeal Act.

  • Whether the trial judge's ruling to exclude evidence under s138 of the Evidence Act was correct, given that police had entered the premises unlawfully
  • Whether the admissions made in the electronically recorded interview fell within the excluded evidence, and whether this Court therefore had jurisdiction to hear the appeal under s5F
  • Whether the trial judge's discretionary balancing of the desirability of admitting the evidence against the undesirability of admitting unlawfully obtained evidence had miscarried

Decision

The Court of Criminal Appeal first addressed the jurisdiction question. Counsel for the respondent argued that the admissions made in the recorded interview were not caught by the trial judge's exclusion ruling, meaning the Crown case had not collapsed and no appeal lay under s5F. The Court rejected this. Given the obvious link between the unlawful search and the subsequent admissions, the admissions were plainly obtained "in consequence of" a contravention of Australian law within the meaning of s138(1)(b) of the Evidence Act. The trial judge's ruling encompassed those admissions, and jurisdiction was established.

On the substantive question, the Court accepted that the trial judge's decision was discretionary and applied the well-established principles from House v The King for appellate review. The Court concluded that the discretion had miscarried. While acknowledging the public policy concerns the trial judge raised about unlawful police conduct, the Court found those concerns had little real bearing on the facts at hand.

Central to the Court's reasoning was the trial judge's own finding that the police had acted in good faith and responded promptly to what they perceived as a genuine report requiring urgent attention. That finding sat uneasily with the high level of censure the judge applied to the officers' conduct. The Court also noted that the respondent was searched only a very short time before his wife lawfully permitted police to enter the premises.

Drawing on the High Court's observations in Bunning v Cross, the Court noted the distinction between calculated disregard of the law and isolated, accidental non-compliance with statutory safeguards. The police conduct in this case fell well short of deliberate defiance. In all the circumstances, the Court held that the proper exercise of the s138 discretion compelled admission of the evidence, and set aside the trial judge's ruling.

Orders Made

  • Appeal allowed
  • The trial judge's ruling excluding the evidence is set aside

Key Takeaways

  • The Court of Criminal Appeal confirmed that admissions made in a recorded interview following an unlawful search can be obtained "in consequence of" that contravention under s138(1)(b) of the Evidence Act, bringing them within the scope of an exclusion ruling and grounding appellate jurisdiction under s5F of the Criminal Appeal Act.
  • A finding that police acted in good faith, responding promptly to a report perceived as genuine, is a significant factor weighing against exclusion of evidence under the s138 balancing exercise.
  • Under s138 of the Evidence Act, the court must weigh the desirability of admitting evidence against the undesirability of admitting unlawfully obtained evidence, taking into account factors including the gravity of the illegality, the good faith of the officers, and the seriousness of the offence charged.
  • The distinction drawn in Bunning v Cross between "calculated disregard" of the law and "merely accidental non-compliance" remains relevant to the s138 analysis, even though that case was decided under the common law discretion rather than the Evidence Act.
  • Appellate courts reviewing discretionary rulings under the House v The King standard may intervene where the trial judge gave significant weight to extraneous policy considerations that, on the facts found, had little real bearing on the case.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), s5F
- Evidence Act (NSW), s138

Cases
- Bunning v Cross (1978) 141 CLR 54
- House v The King (1936) 55 CLR 499
- R v Bozatsis & Spanakakis (1997) 97 ACrim R 296
- R v O'Neill [2001] NSWCCA 193
- R v Rondo [2001] NSWCCA 540