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District Court 5 April 2019

R v Large

[2019] NSWDC 627

DrugsTraffic & driving
CRIME PRE TRIAL HEARING VEHICLE APPROACHED TO ADMINISTER RBT SEARCH OF CAR DRUGS, CASH AND PHONES FOUND AND SEIZED

Citation: R v Large [2019] NSWDC 627
Court: District Court of New South Wales
Date: 5 April 2019
Judge(s): Norrish QC DCJ

Background

The accused faced three charges arising from events in Paddington in the early hours of 28 January 2018: two counts of knowingly taking part in the supply of prohibited drugs (cocaine and MDMA) and one count of possessing suspected proceeds of crime ($13,420 cash). Police had stopped the accused's vehicle, questioned her and her passenger without administering cautions, and then searched the car, finding drugs and cash on the passenger side.

The accused pleaded not guilty and brought a pre-trial application to exclude the evidence obtained from the stop and search. She argued the stop was a pretext for criminal investigation rather than a genuine random breath test (RBT), the questioning was unlawful, and there were no reasonable grounds to search the vehicle.

The hearing involved evidence from three police officers, a fourth officer involved in handling the phones at the station, and the accused herself. The court heard sharply conflicting accounts, and the reliability of the senior officers' evidence became a central issue.

Legal Issues

  • Whether the police lawfully stopped the accused's vehicle, either under Schedule 3 of the Road Transport Act 2013 (RTA) for an RBT or under section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).
  • Whether the questioning of the accused and her passenger, conducted without cautions and without any recognised power to compel answers, was lawful and proper.
  • Whether there were reasonable grounds for the police to search the vehicle under section 36 of LEPRA.
  • Whether the evidence obtained from the stop, questioning, and search should be excluded under section 138 of the Evidence Act 1995 on the basis that the desirability of admitting it did not outweigh the undesirability of admitting evidence obtained improperly or unlawfully.

Decision

Issue 1: Lawfulness of the stop

The court accepted that the RTA gave police a power to stop a vehicle for an RBT without needing prior suspicion of any offence. However, Norrish QC DCJ found that the primary purpose of stopping the accused's vehicle was not to administer a breath test but to investigate the occupants for possible criminal activity (at [94]). Three features were decisive: no breath test was ever administered; no breath-test device was deployed; and Senior Constable Ward's own evidence revealed that his questions were directed at "building blocks" toward a criminal investigation, not toward assessing alcohol consumption (at [109]-[111]). The court found this an improper and likely unlawful exercise of the RTA power.

Issue 2: Lawfulness of the questioning

The court found that the questioning of both the accused and her passenger, conducted without cautions and without any power to compel answers, was investigative in character and unlawful (at [111]-[112]). Both senior officers acknowledged in evidence that they had no power to ask the passenger any questions, and the request for the passenger's identification was also found to be unjustified. The training given to the probationary constable that night, namely to "ask as many questions as possible" to assist in forming reasonable suspicion, illustrated that the questioning was a deliberate investigative strategy (at [96]).

Issue 3: Reasonable grounds for the search

The court found that any reasonable suspicion the officers may have formed at the time of the search was built entirely on information obtained through the unlawful and improper questioning (at [113]). The stated grounds (the accused "avoiding" police, perceived inconsistencies in her answers, and her demeanour) were not reliable. The court doubted the accuracy of Senior Constable Ward's account of the conversation and noted that the demeanour observations, in particular extreme nervousness, were not reflected in the subsequent electronic interview (at [115]-[116]). The search was not authorised by section 36 of LEPRA, and no other statutory power for the search was identified (at [118]).

Issue 4: Exclusion under section 138 of the Evidence Act 1995

Turning to the discretion to exclude evidence obtained improperly or unlawfully, the court acknowledged the evidence was important to the Crown case and that there is a genuine public interest in detecting drug supply. However, the court concluded that the police had deliberately used the RBT power as a mechanism to conduct an investigation they knew they had no lawful authority to conduct at that point (at [122]). The reliability of the evidence was also compromised by multiple significant inconsistencies and self-admitted errors in the senior officers' evidence, including changed accounts about when phones were examined and where a fourth phone was found, with one officer apparently changing evidence after speaking to a colleague before returning to the witness box (at [20]-[21]). The desirability of admitting the evidence was outweighed by the undesirability of admitting evidence obtained in the way it was (at [123]).

Orders Made

  • Evidence of the questioning of the accused in Hopetoun Street, Paddington, the search of the motor vehicle driven by the accused, and the product of that search, is not to be admitted, on the basis that the desirability of admitting the evidence is outweighed by the undesirability of admitting evidence obtained in the way in which it was obtained.

Key Takeaways

  • The District Court held that the RBT power under Schedule 3 of the Road Transport Act 2013 cannot lawfully be used as a pretext for investigative questioning of vehicle occupants; where the primary purpose of a stop is criminal investigation rather than breath testing, the exercise of that power is improper and likely unlawful (at [94], [106]).

  • Questioning of a driver and passenger by police, without caution and without any statutory authority compelling answers, will constitute unlawful and improper conduct where it is directed at building grounds for a criminal investigation rather than fulfilling any legitimate purpose connected with the RBT power (at [111]-[112]).

  • Under section 36 of LEPRA, a reasonable suspicion justifying a vehicle search must be independently grounded; where the only basis for that suspicion derives from information extracted through prior unlawful questioning, the search itself will not be authorised by that provision (at [113]-[118]).

  • In applying the section 138 discretion, courts will weigh the seriousness and deliberateness of the unlawful conduct against the importance of the evidence to the Crown case; here, the finding that police knowingly circumvented legislative constraints on their powers was a significant factor pointing toward exclusion (at [122]-[123]).

  • Significant credibility problems in police evidence, including changing accounts given after discussions with co-witnesses, self-admitted factual errors, and an absence of contemporaneous notes or recordings, reinforced the court's conclusion that admitting the evidence would give curial approval to conduct that courts should instead censure and deter (at [20]-[24], [122]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995, s 138
- Law Enforcement (Powers and Responsibilities) Act 2002, s 36
- Road Transport Act 2013 s 3, Schedule 3

Cases
- Bunning v Cross (1978) 141 CLR 41
- Cleland v R [1982] HCA 13; (1982) 151 CLR 1
- Holgate-Mohammed v Duke [1984] AC 437
- Hyder v Commonwealth (2012) 217 A Crim R 571
- R v Magnus Kaba [2014] VSC 52
- Ohara v Chief Constable of Royal Ulster Constabulary
- R v Buddee [2016] NSWDC 422
- Rondo v R [2001] NSW CCA 540
- Streat v Bauer (Supreme Court NSW) Smart J, 16 March 1998 unreported
- Williams v R (1986) 161 CLR 278