Citation: R v Yana Orm [2011] NSWDC 26
Court: District Court of NSW
Date: 22 February 2011
Judge(s): Lakatos SC DCJ
Background
The accused was stopped by a highway patrol officer near Gundagai while the officer was conducting a random breath test. The officer became suspicious after the accused's vehicle appeared to avoid the breath test site. The breath test returned a negative result, but a licence check revealed the accused's South Australian licence had been cancelled.
After observing the accused's behaviour, the officer asked whether he would find anything illegal in the vehicle and, when the accused said no, asked whether he could search it. The accused agreed. The search uncovered a chip bag containing pseudoephedrine (314.6 grams) and methylamphetamine (133.8 grams), along with cash. The accused was arrested and subsequently gave a recorded interview (an ERISP, meaning an Electronically Recorded Interview of a Suspected Person) in which he made admissions.
The accused was indicted on two counts of deemed supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985. Before trial, a voir dire (a preliminary hearing to determine the admissibility of evidence) was conducted to decide whether the evidence obtained from the search and the interview should be excluded.
Legal Issues
- Whether the accused validly consented to the vehicle search, in circumstances where police conceded they lacked reasonable grounds to suspect the presence of drugs
- Whether the search was illegal or improper, giving rise to a discretion to exclude the evidence under s 138 of the Evidence Act 1995
- Whether the admissions made in the ERISP should be excluded, either because they were the product of the unlawful search or on other grounds
- What constitutes adequate police practice in conducting an ERISP following a contested search and arrest
Decision
Issue 1: Legality of the Search
The Crown conceded, and the court accepted, that the officer did not have reasonable grounds to suspect drugs were present. The officer's suspicions rested on five factors: the accused avoided eye contact, he had stayed at a hotel rather than with relatives, he could not provide the cousins' address, he appeared to have avoided the breath test, and he smoked a cigarette while nervous. The court accepted these did not amount to reasonable grounds in law, even if the officer held an honest belief.
The central question was therefore whether the accused's consent to the search was valid. The court considered whether consent given in response to the officer's question, framed as it was, could constitute a genuine, informed agreement. Having reviewed the evidence including the officer's Local Court testimony, the court ultimately concluded on the balance of probabilities that the accused had consented, and that the search, though preceded by conduct that fell short of the statutory standard for a warrantless search, was not rendered unlawful by that consent.
Issue 2: Discretion to Exclude Under s 138
Even where evidence is improperly obtained, a court retains a discretion under s 138 of the Evidence Act to admit it if the desirability of admitting the evidence outweighs the undesirability of doing so. The court weighed the circumstances of the search, the officer's conduct, and the seriousness of the offences. After applying that balancing exercise, the court determined that the evidence should be admitted.
Issue 3: ERISP Admissions
The ERISP raised separate concerns about police practice. The court noted that the officer who conducted the search and arrest also participated in the subsequent interview. The court found this arrangement problematic because it may inhibit an accused from raising complaints and encourages the arresting officer to put his own version of events. Additionally, leading questions were used throughout the interview. The court nevertheless admitted the interview.
Issue 4: Observations on Police Practice
The court took the opportunity to identify four areas of concern regarding the conduct of ERISPs: the failure to take contemporaneous notes before the interview; the involvement of the arresting officer in the interview; the use of leading questions; and the reliance on stereotypes and generalisations when forming suspicion. The court expressed the view that these practices risk unfairness to suspects and may jeopardise prosecutions, and invited the relevant authorities to consider remedial steps.
Orders Made
- Evidence admitted
Key Takeaways
- The District Court confirmed that a police officer's honest belief that drugs are present does not, without more, constitute "reasonable grounds" to conduct a warrantless search, even where that belief is based on several observed factors.
- Consent given by a suspect to a vehicle search can render an otherwise problematic search lawful, provided the consent is genuinely established on the balance of probabilities.
- Under s 138 of the Evidence Act 1995, improperly obtained evidence is not automatically excluded: the court must balance the desirability of admitting the evidence against the undesirability of the manner in which it was obtained, taking into account factors including the seriousness of the offending.
- The court identified involvement of the arresting officer in the subsequent ERISP as a practice to be avoided unless necessary, on the basis that it may inhibit the accused and skew the record of interview.
- Reliance on racial or behavioural stereotypes without critical analysis, failure to take contemporaneous notes, and the use of leading questions in an ERISP were each flagged as practices capable of causing unfairness and undermining the integrity of a prosecution.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985
- Evidence Act 1995
Cases
- DPP v Leonard (2001) 53 NSWLR 227
- R v Azar (1991) 56 A Crim R 414
- Meates v Attorney General (Customs Department) [1981] 2 NZLR 335
- Coleman v Zanker (1991) 58 SASR 7
- R v Chapman (2001) 79 SASR 342
- Bunning v Cross (1978) 114 CLR 54
- DPP v Nicholls [2001] NSWSC 523