Citation: [2019] NSWDC 141
Court: District Court of NSW
Date: 14 March 2019
Judge(s): Mahony SC DCJ
Background
The accused was charged with one offence under the Crimes Act 1900 relating to dealing with the proceeds of crime. The charge arose from a police operation on 16 November 2016 at Boggabilla, known as Operation Northmore XIV, during which the accused was stopped while driving a Toyota Hi-Ace van with Queensland registration plates along Merriwa Street.
After returning a negative random breath test, the accused was directed to move his vehicle approximately ten metres to undergo a random drug test. While that test was administered, a police officer spoke with him. Based on that conversation and observations of the vehicle, police then searched the van using a drug detection dog and officers. The dog made no positive indication, but under a concealed section of the vehicle's floor, police found a black bag containing $400,320 in forty bundled lots. The accused was arrested.
The accused elected to be tried by judge alone. Before the defence case was called, the accused challenged the admissibility of the evidence obtained during the vehicle search, arguing the search was unlawful and that the evidence should be excluded under section 138 of the Evidence Act 1995.
Legal Issues
- Whether Operation Northmore XIV, which combined traffic enforcement and criminal investigation objectives, was itself unlawful.
- Whether it was lawful for police to detain the accused and speak with him during the administration of the random drug test.
- Whether the police officers had a reasonable suspicion to justify a search of the vehicle under LEPRA.
- If the search was unlawful, whether the evidence obtained should nonetheless be admitted under the discretion in section 138 of the Evidence Act 1995.
Decision
Ground 1: Legality of Operation Northmore XIV
The court found that Operation Northmore XIV had a mixed purpose: policing the conveyance of illicit drugs between NSW and Queensland, and detecting other criminal conduct and outstanding warrants, alongside conventional traffic enforcement. That mixed purpose did not make the operation unlawful in itself (at [100]-[101]). The court distinguished the present case from R v Buddee, where an operation had amounted to a transparent misuse of RBT legislation as a vehicle for pure criminal investigation. Here, police retained an obligation to comply with LEPRA and act lawfully throughout the operation (at [101]).
Ground 2: Detention and questioning during the random drug test
The court found that police were lawfully entitled to detain the accused while the random drug test was administered, a process that took several minutes (at [103]). The conversation between Senior Constable Crandon and the accused was not an interrogation. The accused voluntarily answered questions, and there was no legal requirement for police to caution him at that point (at [103]).
Ground 3: Reasonable suspicion for the vehicle search
The court found that Senior Constable Crandon did not have a reasonable basis to form the suspicion necessary to justify searching the vehicle (at [108]-[110]). Objectively assessed, the accused's answers amounted to a coherent account of travelling to Melbourne for work, with an identifiable employer and a plausible trade. The police officer asked no follow-up questions to test that account, and easily verifiable details in it were not checked. The van's size and configuration could not themselves give rise to reasonable suspicion. Senior Constable Noffke's evidence was also rejected as a basis for lawful search, as he expressly disavowed reliance on section 36 of LEPRA and had not in fact communicated any "reasonable cause" to the accused (at [105], [111]). The search was accordingly unlawful (at [112]).
Section 138 discretion: whether to admit the unlawfully obtained evidence
Despite finding the search unlawful, the court exercised its discretion under section 138(1) to admit the evidence (at [125]). The probative value of the $400,320 was high, and without it there was no Crown case (at [114]). The court found the impropriety was a deliberate breach driven by the mission statement of Operation Northmore XIV, and not merely inadvertent (at [115]). It also noted the gravity of that breach, including its impact on protections available to all members of society, and the absence of any disciplinary proceedings against the officers involved (at [116], [118]). Balancing those factors against the seriousness of the offending (a maximum of five years imprisonment for the sum involved, being more than four times the $100,000 threshold) and the large amount of currency found, the court concluded the desirability of admitting the evidence outweighed the undesirability of doing so. The court expressly stated that this conclusion did not condone the police conduct (at [125]).
Orders Made
- Evidence obtained during the unlawful search admitted.
Key Takeaways
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A police operation combining traffic enforcement and criminal investigation objectives is not unlawful on that basis alone, but officers conducting it remain bound by LEPRA and must form a genuine, objectively reasonable suspicion before searching a vehicle (at [100]-[101], [108]).
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Parliament intended to separate motor traffic powers (such as random breath and drug testing) from criminal investigation powers under LEPRA. RBT legislation cannot justify arbitrarily stopping, interrogating, or searching vehicles for crime detection purposes, but lawful detention for the duration of a drug test does not itself breach that boundary (at [99], [103]).
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A police officer's stated grounds for reasonable suspicion will be assessed objectively. Where an accused's answers to questions are coherent and verifiable, and the officer makes no attempt to test or clarify them, those answers cannot found a reasonable suspicion justifying a vehicle search (at [108]-[110]).
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Under section 138 of the Evidence Act 1995, a court may admit unlawfully obtained evidence even where the breach is found to be deliberate. The balancing exercise requires consideration of factors including probative value, the gravity and nature of the impropriety, whether disciplinary proceedings have been taken against officers, and the seriousness of the offending (at [114]-[125]).
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Admitting unlawfully obtained evidence under section 138 does not operate as judicial approval of the conduct that produced it. The District Court made clear that its discretionary decision to admit the evidence carried no endorsement of the methods used by police during Operation Northmore XIV (at [125]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Drug Misuse and Trafficking Act 1985
- Evidence Act (NSW) 1995
- Road Transport Act 2013
Cases
- Fletcher v New South Wales [2019] NSWCA 31
- R v Azar (2014) 239 A Crim R 75; [2014] NSWSC 132
- R v Buddee [2016] NSWDC 422
- R v Em [2003] NSWCCA 374
- R v Huy Huu Lee [2009] ACTSC 98
- R v Orm [2011] NSWDC 26
- R v Rondo [2001] NSWCCA 540