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District Court 15 March 2010

R v Fortescue, Michael

[2010] NSWDC 272

Drugs
CRIMINAL LAW TRIAL APPLICATION TO EXCLUDE EVIDENCE SEARCH OF THE PERSON DRUGS FOUND IN POSSESSION ECSTACY

Citation: R v Fortescue, Michael [2010] NSWDC 272
Court: District Court of New South Wales
Date: 15 March 2010
Judge(s): Nicholson SC DCJ

Background

The accused faced a charge of supplying ecstasy, arising from events in the early hours of 15 February 2009 near a nightclub in Bridge Street, Sydney. Two plain-clothes police officers were conducting observations in the area when they approached the accused and his companion, who were sitting on a bench in a dimly lit laneway.

During the encounter, police observed what they described as dilated pupils and white paste at the corners of the accused's mouth, both consistent in their experience with drug use. A subsequent search of the accused's person uncovered 53 ecstasy tablets concealed in his underwear.

The defence applied to have that evidence excluded, arguing the police had no lawful basis to stop, search, or detain the accused, and that the evidence was therefore unlawfully obtained.

  • Whether police had reasonable grounds, under s 21(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), to suspect the accused possessed a prohibited drug at the time they stopped him
  • At what point in time the accused was formally "stopped" (as distinct from a voluntary conversation), and whether reasonable suspicion existed at that moment
  • Whether, if the stop and search were unlawful, the court should nonetheless admit the evidence under the s 138 discretion in the Evidence Act 1995
  • Who bears the onus of proving that police acted in contravention of the law

Decision

His Honour first addressed the question of onus. The defence bore the burden of proving, on the balance of probabilities, that police acted in contravention of an Australian law. Only if that burden was discharged would the onus shift to the Crown to justify admission of the tainted evidence under s 138 of the Evidence Act 1995.

The court drew a careful distinction between an informal conversation and a formal stop. A casual interaction, even one designed to facilitate further observation or investigation, does not constitute a "stopping" under LEPRA provided the person remains free to leave at any time. The relevant question was what information the officers held at the precise moment the accused was no longer free to depart.

Applying the test from R v Rondo [2001] NSWCCA 540, Nicholson SC DCJ held that reasonable suspicion requires more than a mere possibility, but falls well short of proof even on the balance of probabilities. The court was satisfied that Constable Pisani's observations, taken together, met that threshold. The combination of dilated pupils, white paste at the corners of the mouth, the time of night, the proximity to a venue with a known association with drug use, and the accused's repeated over-the-shoulder glancing collectively provided reasonable grounds. The court noted it was the senior officer, Constable Pisani, who bore primary responsibility for the decision to stop and order the search, though it found the probationary constable's own suspicion was also reasonably grounded.

Because the defence failed to establish any contravention of Australian law, the s 138 discretion was never engaged. The application to exclude the evidence was rejected.

Orders Made

  • The defence application to exclude evidence of the search and the drugs found on the accused was rejected.

Key Takeaways

  • The District Court confirmed that the accused bears the onus of proving, on the balance of probabilities, that police acted unlawfully before the s 138 Evidence Act 1995 discretion to exclude evidence is engaged.
  • A voluntary conversation between police and a member of the public, during which the person remains free to leave, does not constitute a formal "stop" under LEPRA, even if police are using the interaction for investigative purposes.
  • Under the Rondo test, reasonable suspicion requires more than a mere possibility but is a considerably lower threshold than proof on the balance of probabilities; the court assesses the totality of information in the officer's mind at the critical moment of stopping.
  • Physical observations of drug-related symptoms, such as dilated pupils and white paste consistent with drug use, combined with contextual factors including time, location, and behaviour, can collectively constitute reasonable grounds for suspicion even if no single factor would suffice alone.
  • Where a junior officer carries out a search on the order of a senior officer, the court focused its analysis on the senior officer's state of mind and grounds for suspicion, while also finding the junior officer independently held a reasonably grounded suspicion.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21(1)(d)
- Evidence Act 1995 (NSW), s 138
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- R v Rondo [2001] NSWCCA 540