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District Court 9 November 2016

R v Buddee

[2016] NSWDC 422

DrugsTraffic & driving
CRIMINAL LAW DISCRETION TO EXCLUDE EVIDENCE RANDOM BREATH TESTING “RANDOM CRIME STOPS” ILLEGAL STOP AND SEARCH ARREST

Citation: R v Buddee [2016] NSWDC 422
Court: District Court of New South Wales
Date: 9 November 2016
Judge: McClintock DCJ

Background

Police officers conducting Operation Lightfingers, targeting antisocial behaviour and stealing offences in Merrylands, stopped a vehicle in Desmond Street on 22 October 2015. The officers, travelling in plain clothes, activated their siren and lights and pulled over the vehicle, stating the purpose was a random breath test under the Road Transport Act 2013.

Following a negative breath test result, an officer returned to the vehicle, administered a caution to the driver (the accused), and questioned her about film memorabilia visible in the car. The conversation led the accused to volunteer the presence of an ice pipe, whereupon police conducted a search and found a small tin containing 6.76 grams of methylamphetamine at approximately 80 per cent purity. The accused was charged on indictment with supply.

At trial, the accused brought a voir dire application seeking exclusion of all evidence obtained from the stop and search under section 138 of the Evidence Act 1995, on the basis that it was improperly or unlawfully obtained.

  • Whether the vehicle stop was made for an unlawful or improper purpose, taking the police outside any lawfully conferred authority.
  • Whether, even if the initial stop was lawful, police used the random breath test (RBT) power for the ulterior purpose of conducting a criminal investigation not otherwise authorised under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).
  • Whether the detention and interrogation of the vehicle's occupants following the breath test were unlawful or improper.
  • Whether, at the point police decided to search the vehicle, reasonable grounds existed to exercise the search power under LEPRA.
  • Whether, under the section 138 balancing exercise, the desirability of admitting the evidence was outweighed by the undesirability of admitting improperly or unlawfully obtained evidence.

Decision

McClintock DCJ found that the RBT power had been used as a pretext for a criminal investigation. The duty book entry recording that the "vehicle [was] stopped... arrested Buddee for supply," combined with the complete absence of any mention of a breath test in the officers' notes, supported the conclusion that the purpose of the stop was not genuinely traffic-related. The court made specific findings of fact adverse to the credibility of the officers' accounts, noting that the cautioning of the driver before any criminal suspicion was articulated was inconsistent with the stated RBT purpose and was left without satisfactory explanation.

The court considered the applicable legislative framework under the Road Transport Act 2013 and LEPRA. It found that police had used the RBT power for an ulterior purpose, namely to stop and investigate the vehicle's occupants for suspected criminal conduct, which was not a purpose for which the power was conferred. This constituted an exercise of a statutory power for an improper purpose, rendering the stop and subsequent conduct unlawful.

On the search power, the court found that no reasonable grounds for the search existed independently of what had been obtained through the unlawful and improper conduct. The incriminating information derived from the interaction that followed the improper stop could not retrospectively validate the exercise of the search power.

Applying the section 138 balancing exercise, the court weighed the public interest in admitting evidence of drug supply against the gravity of the impropriety, the fundamental rights engaged (freedom of movement, privacy), and the deterrence value of exclusion. Although the court acknowledged that a previous decision (R v Pizarro) had admitted similar evidence, it distinguished that outcome and concluded here that the desirability of admitting the evidence did not outweigh the undesirability of condoning the conduct. The court noted a concern about a cavalier attitude toward fundamental rights and the importance of discouraging police from treating the RBT power as a routine instrument of general criminal investigation.

Orders Made

  • The evidence obtained following the stop and search of the vehicle on 22 October 2015 is excluded.

Key Takeaways

  • The District Court held that using a random breath test power as a pretext to stop a vehicle for the purpose of conducting a criminal investigation constitutes the exercise of a statutory power for an improper and unauthorised purpose, rendering the stop unlawful.
  • Under section 138 of the Evidence Act 1995, a court must balance the desirability of admitting the evidence against the undesirability of admitting evidence obtained improperly or unlawfully; neither outcome is automatic, and the balancing exercise is fact-specific.
  • Adverse factual findings against police witnesses, including the complete absence of any reference to a breath test in contemporaneous duty books and notebooks, were central to the conclusion that the stated RBT purpose was a pretext.
  • Fundamental rights including freedom of movement and privacy, recognised in instruments such as the International Covenant on Civil and Political Rights, were treated as relevant considerations in the section 138 balancing exercise, lending weight to exclusion.
  • Evidence obtained through unlawful questioning and detention following an improper stop could not be rehabilitated by a purported exercise of the LEPRA search power where no independent reasonable grounds for that search existed.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)
- Road Transport Act 2013 (NSW), Sch 23
- Drug Misuse and Trafficking Act 1985 (NSW)
- International Covenant on Civil and Political Rights 1980

Cases
- Bunning v Cross (1978) 141 CLR 54
- Coco v The Queen (1994) 179 CLR 427
- Williams v The Queen (1986) 161 CLR 278
- Ridgeway v R (1995) 184 CLR 19
- Filippetti v R (1984) 13 A Crim R 335
- Robinson v Woolworths Ltd (2005) 64 NSWLR 612
- R v Pizarro (NSWDC, 20 October 2015, unreported)
- DPP v Magnus Kaba [2014] VSC 52
- Application of Huy Huu Lee [2009] ACTSC 98
- Police v Prinse [1998] SASC 6567
- R v Mellenthin [1992] 3 SCR 615 (Canada)
- Brown v the Regional Municipality of Durham Police Service Board (1998) 131 CCC (3d) 1 (Ontario CA)