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Court of Criminal Appeal 18 February 2005

Regina v Minh Quoc Le

[2005] NSWCCA 40

Also reported as 151 A Crim R 564
Firearms & weaponsPublic order & justice offences
CRIMINAL LAW POWER OF ARREST WHETHER ARREST LAWFUL POWER OF DETENTION AND SEARCH WHETHER SEARCH LAWFUL WHETHER EVIDENCE UNLAWFULLY OBTAINED.

Citation: Regina v Minh Quoc Le [2005] NSWCCA 40
Court: New South Wales Court of Criminal Appeal
Date: 18 February 2005
Judge(s): Bryson JA, Barr J, Hoeben J

Background

The appellant was convicted by a jury in the District Court of using an offensive weapon to prevent police investigation, contrary to section 33B(1)(a) of the Crimes Act 1900. The offence arose from an incident in which police discovered a pistol taped to the appellant's back during a roadside stop and search in Smithfield late at night.

Two police officers on patrol encountered two vehicles parked near a reserve known for drug activity. After the car containing the appellant sped away, officers stopped it and received a radio warning that the driver may carry a pistol and had a history of gang, drug and firearms activity. Officers directed all occupants out of the vehicle and began searching both the car and the individuals.

During a pat-down search, Constable Gewargis felt a hard object under the appellant's jacket and discovered the concealed pistol. The appellant then seized the weapon and pointed it at the officer, prompting a physical struggle before he was subdued with capsicum spray and a baton.

  • Whether the officers had lawful power under section 352 of the Crimes Act 1900 to arrest the appellant without a warrant.
  • Whether the officers had lawful power under section 357E of the Crimes Act 1900 to detain and search the appellant.
  • Whether the evidence of the pistol was unlawfully obtained and should have been excluded.
  • Whether any unlawfulness in the arrest tainted the subsequent detention and search, rendering the evidence inadmissible.

Decision

The Court upheld the trial judge's ruling that the evidence was lawfully obtained. Barr J, with whom Bryson JA and Hoeben J agreed, found that the circumstances known to Constable Gewargis at the time, including the location, the vehicles' arrangement, the inconsistent accounts from the drivers, and the radio warning about the driver, were sufficient to ground a reasonable suspicion under both section 352 and section 357E.

Applying the test from R v Rondo, the Court confirmed that a reasonable suspicion requires more than a mere possibility but less than a reasonable belief. Some factual basis must exist, and hearsay or material not admissible at trial can contribute to that factual basis, provided it has some probative value. On the facts here, the officer's suspicion that the occupants may have been engaged in drug dealing, itself a serious indictable offence, met that standard.

The Court also addressed the appellant's argument that an unlawful arrest would have tainted the search. Even assuming the arrest under section 352 was unlawful, the Court held this would not have invalidated the detention and search. The power to detain and search under section 357E operated independently of any arrest power. Critically, the pistol was discovered directly through the lawful exercise of that separate detention and search power, not as a consequence of any arrest.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the power to detain and search under section 357E of the Crimes Act 1900 operates independently of the power of arrest under section 352. An unlawful arrest does not automatically taint a search conducted under a separate, lawfully exercised power.
  • Applying R v Rondo, a reasonable suspicion must have some factual basis but can be formed from hearsay or otherwise inadmissible material, provided that material carries some probative value.
  • Where evidence is discovered directly through a lawful detention and search, its admissibility is not undermined by a collateral question about the lawfulness of a concurrent arrest, provided the arrest did not prompt or lead to the discovery.
  • Circumstances relevant to establishing reasonable suspicion may include the nature of the location, the behaviour of those present, inconsistencies in accounts given to police, and radio intelligence about individuals.
  • In dismissing the appeal, the Court affirmed the trial judge's exercise of discretion under section 138 of the Evidence Act to admit the evidence, finding no error in the conclusion that no unlawfulness had occurred.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 352, 357E
- Evidence Act 1995 (NSW), s 138

Cases:
- R v Rondo (2001) 126 A Crim R 562