Citation: Regina v John Blaikie [2006] NSWDC 200
Court: District Court of New South Wales
Date: 19 October 2006
Judge(s): Norrish QC DCJ
Background
The accused was charged with offences arising from events on 14 September 2005 in Parramatta. Police had organised a surveillance operation targeting him that morning, based on his known history of domestic break-and-enter offending in the Eastwood Local Area Command and intelligence that he remained active in committing such offences. He was on bail at the time for three alleged break, enter and steal offences.
At around midday, police stopped, detained and searched the accused and his motor vehicle. Allegedly stolen items were found on his person and in the vehicle. A team of eleven surveillance officers from the State Surveillance Branch (whose identities are suppressed under the Law Enforcement (Powers and Responsibilities) Act 2002) had maintained continuous observation of the accused from the moment he left an address associated with him until his arrest.
Before the trial commenced, the accused applied to exclude two categories of evidence: the results of the search, and the identification or recognition evidence from the surveillance officers.
Legal Issues
- Whether police had the requisite "reasonable suspicion" under s 357E of the Crimes Act 1900 to lawfully stop, detain and search the accused and his vehicle, or whether the search was illegal and its fruits should be excluded under s 138 of the Evidence Act 1995.
- Whether the surveillance officers' identification or recognition evidence was admissible, given that the accused was not previously known to those officers personally, engaging s 114 of the Evidence Act 1995.
Decision
On the identification evidence: This objection was largely abandoned as the voir dire progressed. The accused's counsel ultimately conceded that the surveillance officers could give evidence of observing a person they believed, based on a circulated photograph, to be the accused. The court noted several factors supporting the reliability of that recognition: continuous surveillance from a known address to the point of arrest, a highly distinctive appearance, a photograph that was a true likeness, and a DVD recording of the actual stop and arrest. There was no meaningful dispute that the person surveilled was the accused.
On the search under s 357E: The court examined whether the officers who authorised and conducted the search held a reasonable suspicion, applying the test from R v Rondo. That test requires more than a mere possibility but less than a reasonable belief; it requires some factual basis with probative value, assessed by reference to the information in the officers' minds at the relevant time.
The court found that the information available to Constable Sleigh and Inspector Wellfare comfortably satisfied that test. The accused had a documented history of domestic break-and-enter offences in the area, was on bail for three such charges, was known to use specific methods of operation, and was the subject of multiple intelligence reports identifying him as an active offender. The surveillance operation had been properly authorised. There was no evidence of bad faith, impropriety, or any suggestion that the accused had been "loaded" (that is, that incriminating items had been planted on him or in his vehicle).
Because no breach of s 357E was established, s 138 of the Evidence Act was not engaged. The court noted that even if it had found a technical breach, it would not have concluded that any officer had acted in bad faith. The application to exclude the search evidence was refused.
Orders Made
The application to exclude evidence of the search of the accused and his vehicle was refused.
Key Takeaways
- The District Court confirmed that the "reasonable suspicion" standard under s 357E of the Crimes Act 1900 (since repealed) required a factual foundation with probative value, falling between a mere possibility and a reasonable belief, consistent with the Court of Criminal Appeal's approach in R v Rondo.
- A combination of criminal history, active intelligence reports, known methods of operation, and existing bail conditions can collectively constitute sufficient factual basis for a reasonable suspicion under that standard.
- Under s 138 of the Evidence Act 1995, exclusion of improperly obtained evidence only arises where the evidence was actually obtained improperly or in contravention of law; where no breach is established, s 138 is not engaged.
- Where surveillance officers have thoroughly familiarised themselves with a target's appearance through a reliable photograph, conduct continuous observation, and the subject is later confirmed as the arrested person by video recording, s 114 Evidence Act concerns about identification evidence may be substantially diminished.
- No requirement exists for the accused to challenge a witness's truthfulness or reliability in a voir dire for an exclusion application to succeed; the burden remains on the Crown to justify admissibility.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 357E (repealed)
- Evidence Act 1995 (NSW), ss 114, 135, 137, 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases:
- R v Rondo [2001] NSWCCA 540
- Streat v Blanco (unreported, 16 August 1998, NSWSC, Smart J)