Citation: R v Pizarro [2015] NSWDC 445
Court: District Court of NSW
Date: 20 October 2015
Judge(s): McClintock SC DCJ
Background
The accused was charged with two offences arising from a stop and search of her vehicle in Regent Street, Redfern shortly after midnight on 30 April 2015: supplying methylamphetamine and dealing with proceeds of crime ($1,870 in cash). The vehicle was pulled over by three police officers who were part of Operation Tallon, a unit focused on investigating public place shootings rather than traffic enforcement.
Before trial, the accused applied on a voir dire (a preliminary hearing to determine admissibility) to exclude the drug and money evidence on the ground that the vehicle stop and subsequent search were unlawful or improper, making the evidence liable to exclusion under section 138 of the Evidence Act 1995.
The central factual dispute was whether the stop was genuinely a random breath test or a criminal investigation dressed up in traffic-stop clothing.
Legal Issues
- Whether the police had lawful power to stop the accused's vehicle in the circumstances, including whether the random breath test power under the Road Transport Act 2013 could validly be exercised for criminal investigatory purposes.
- Whether the search of the vehicle was lawful.
- If the stop and search were unlawful or improper, whether the evidence should nonetheless be admitted under section 138 of the Evidence Act 1995, weighing the desirability of admitting the evidence against the undesirability of doing so.
Decision
Issue 1: Was the vehicle stop lawful?
The court found that Officer Jory decided to stop the vehicle as a direct result of warnings on the mobile data terminal, not for a genuine random breath test (at [18]-[19]). The terminal revealed that the accused was linked to ICE supply from the vehicle in nearby Newtown and was possibly a Firearms Prohibition Order holder (at [6]-[7]). The court accepted that random breath tests were being used during Operation Tallon as a tool for monitoring persons of interest and gathering criminal intelligence, rather than for road safety purposes (at [10]).
McClintock SC DCJ held that the RBT power under the Road Transport Act exists only for road traffic management and safety purposes and carries no legislative intention to authorise stops for criminal investigation (at [41]-[42]). Consistent with the principle in Coco v The Queen that statutory authority to interfere with common law rights must be clearly expressed, the court concluded that using the RBT power as a ruse to conduct a criminal investigation exceeded the lawful scope of that power (at [43]-[45]). The purported exercise of the RBT power was therefore unlawful and improper, and the search and discovery of the drugs were tainted by the same illegality (at [46]).
Issue 2: Should the evidence be excluded under section 138?
Despite finding the stop and search unlawful, the court admitted the evidence. The onus rested on the Crown to satisfy the court that the desirability of admitting the evidence outweighed the undesirability of doing so (at [48]). The probative value of the evidence was high, the evidence was critical to both counts, and the prosecution involved a drug offence of significant public importance (at [48]).
The court also found the degree of impropriety on the night to be minimal. There were very significant pre-existing suspicions about the vehicle, its location, the time of night, and its likely occupant, and only a small amount of further information would have provided a lawful basis to stop and search under the Firearms Act or LEPRA (at [49], [51]). The court expressly noted, however, that the post-event reconstruction of the RBT reasoning by police was more concerning, even if not determinative of the admissibility question (at [51]).
Orders Made
- Evidence admitted.
Key Takeaways
- The District Court held that the random breath test power under the Road Transport Act 2013 is limited to road traffic safety purposes and cannot lawfully be exercised to stop a vehicle for criminal investigatory purposes, even where police have genuine and significant suspicions about the vehicle's occupants (at [41]-[42]).
- Using the RBT power as a deliberate ruse to circumvent the preconditions required under LEPRA or the Firearms Act, such as reasonable grounds for suspicion, renders the stop unlawful and improper (at [43]-[46]).
- A finding of unlawfulness does not automatically result in exclusion under section 138 of the Evidence Act 1995. The court balances the desirability of admitting the evidence against the undesirability of admitting improperly obtained evidence, taking into account the gravity of the impropriety and the extent to which a lawful stop could readily have been achieved on the same facts (at [48]-[52]).
- Where police possessed substantial pre-existing intelligence that fell just short of the threshold for a lawful stop, the degree of impropriety may be treated as minimal for the purposes of the section 138 balancing exercise, even though the stop itself was unlawful (at [49], [51]).
- The judgment reinforces that the elaborate protections in LEPRA would be undermined if police could bypass reasonable suspicion requirements simply by invoking a traffic power for an unrelated purpose (at [45]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Road Transport Act 2013 (NSW)
- International Covenant on Civil and Political Rights
Cases
- Application by Huy Huu Lee [2009] ACTSC 98
- Bunning v Cross (1978) 141 CLR 54
- Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
- Morris v Beardmore [1981] AC 446
- Ridgeway v R (1995) 184 CLR 19
- Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426
- Williams v R (1986) 161 CLR 278