Citation: R v Kerry John Wallace [2014] NSWDC 348
Court: District Court of New South Wales
Date: 26 November 2014
Judge: Judge Tupman DCJ
Background
The accused was a DJ and co-operator of a regular Sunday dance party at the Abercrombie Hotel in Broadway, Sydney. In the early hours of 6 January 2014, a uniformed officer approached him in the DJ booth shortly after midnight, following the final event his business had held at that venue. Police had been conducting a plainclothes and uniformed operation at the dance party that evening, with drug detection as a central purpose.
The accused was already known to police as a person of interest. Two Crime Stoppers reports had nominated him by name as someone who supplied drugs from the DJ booth at these events, and a July 2013 undercover operation at the same venue had produced intelligence consistent with those reports.
Following the approach by the officer-in-charge, the accused was searched without a warrant. Drugs were found. Two separate applications were then made to exclude evidence at trial: one concerning the legality of the search itself, and another concerning whether the drugs had been submitted for forensic analysis within the required regulatory timeframe.
Legal Issues
- Whether the officer held a reasonable suspicion sufficient to justify a warrantless search of the accused under s 21(1)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002
- Whether evidence obtained from that search should nonetheless be excluded under s 138 of the Evidence Act 1995 if the search was found to be unlawful
- Whether the forensic analysis of the drugs was inadmissible because the samples were submitted outside the 14-day period prescribed by Regulation 10 of the Drug Misuse and Trafficking Regulations 2011
- Whether, if the analysis was technically inadmissible, the desirability of admitting it outweighed the undesirability of doing so under the s 138 balancing test
Decision
First application: The warrantless search
Judge Tupman accepted that Senior Constable Lay formed a genuine suspicion that the accused was in possession of a prohibited drug. That suspicion rested on a combination of factors observed in the moment, including the accused appearing to sweat, avoiding eye contact, appearing nervous, and tightening his grip on the bag he was holding. Those observations were assessed in the context of the broader intelligence picture, which included the two Crime Stoppers reports naming the accused, the results of the July 2013 undercover operation, and the officer's own observations of apparently drug-affected patrons that evening. The court concluded the suspicion was objectively reasonable in all those circumstances and that the search was lawful. The first application to exclude evidence was refused.
Second application: Regulatory timeframe for drug analysis
The drugs were submitted for forensic analysis three days after the 14-day period prescribed by regulation. The court found this constituted a contravention of the regulation, making the certificate of analysis not strictly admissible. However, the court proceeded to apply the s 138 balancing exercise, weighing the desirability of admitting the evidence against the undesirability of doing so.
The court noted that the three-day overrun was at the lower end of seriousness, and there was no evidence suggesting the quality of the analysis had been compromised. The case was characterised as serious but not among the gravest criminal matters. Judge Tupman was careful to note that the outcome could differ where the delay was substantially longer. On balance, the court found the desirability of admitting the evidence outweighed the undesirability of excluding it, and the analysis evidence was admitted.
The court also took the opportunity to make a pointed observation about regulatory compliance. It emphasised that police are obliged to know and follow applicable legislation, and that management within the Police Service carries responsibility for ensuring officers at ground level understand both the extent and limits of their powers.
Orders Made
• The evidence of analysis will be admitted.
Key Takeaways
- Reasonable suspicion for a warrantless search under s 21(1)(d) of LEPRA can be established by combining contemporaneous behavioural observations with pre-existing intelligence, including Crime Stoppers reports and prior operational findings, provided the suspicion is objectively grounded.
- Under s 138 of the Evidence Act 1995, a court undertaking the balancing exercise will consider the nature and gravity of the breach, not simply its existence; a three-day overrun of a 14-day regulatory deadline, without evidence of compromised analysis, was held insufficient to outweigh the desirability of admitting the evidence.
- The District Court indicated that a significantly longer delay in drug submission would likely produce a different outcome, signalling that the margin of tolerance is narrow and fact-specific.
- Compliance with regulations governing drug analysis is a mandatory obligation, not a discretionary one; the court underscored that the purpose of such provisions need not be self-evident for the obligation to bind.
- Where the prosecution chooses not to call evidence on a voir dire issue, it places itself in a difficult position when the court is asked to make detailed findings, a factor the court noted expressly in this decision.
Legislation and Cases Referenced
Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002, s 21(1)(d)
- Evidence Act 1995, s 138(3)
- Drug Misuse and Trafficking Act 1985
- Drug Misuse and Trafficking Regulations 2011, Regulation 10
Cases:
- R v Rondo (2001) 126 A Crim R 562