Citation: R v Murray [2019] NSWDC 63
Court: District Court of New South Wales
Date: 11 February 2019
Judge(s): Neilson DCJ
Background
The accused was charged with drug supply offences involving methylamphetamine. Police observed her vehicle leaving a known drug premises and later, in an unrelated visit to another address, encountered her parked outside. A detective she knew personally approached the vehicle and noticed suspicious behaviour: large amounts of cash in mixed denominations, profuse sweating by a passenger, and nervous conduct by both occupants.
The detective questioned the accused several times about whether she had drugs, without first administering a formal caution. On the third occasion, the accused admitted there were drugs, then dropped a bag near her foot. She subsequently admitted to having drugs on her person and retrieved a small bag of crystals from her bra. A further bag was found in her wallet and a larger quantity was recovered from the vehicle floor.
The accused challenged the admissibility of the verbal admissions and argued that the physical evidence recovered as a result should also be excluded.
Legal Issues
- Whether the admissions made by the accused to police were improperly obtained in breach of s 281 of the Criminal Procedure Act 1986, due to the absence of a prior caution
- Whether the physical evidence (drugs retrieved from the accused's bra, wallet, and vehicle) was obtained improperly or illegally under s 138 of the Evidence Act 1995
- Whether the accused's act of producing drugs from her bra was a coerced response to the threat of a physical search, and whether that tainted the physical evidence
Decision
Neilson DCJ found that the detective had ample grounds to suspect drug involvement before questioning the accused. Given the combination of suspicious circumstances, including the accused's prior visits to a known drug premises, her nervousness, the passenger's extreme sweating, and the large amount of cash changing hands, the detective should have administered a caution before asking whether drugs were present. Failing to do so rendered the questioning improper.
On that basis, both verbal admissions were excluded under s 281 of the Criminal Procedure Act 1986. The questions themselves were also ruled inadmissible, though the court permitted the Crown to lead evidence of the accused's physical actions (reaching into her bra and dropping a bag) by reference to the fact that a question was asked, without disclosing the content of the excluded question.
Regarding the physical evidence, the court found it was not improperly or illegally obtained. The accused's act of producing the drugs from her bra, and the subsequent discovery of drugs in the wallet and on the vehicle floor, were treated as independently admissible. The court rejected the argument that the physical evidence was so tainted by the improper questioning as to be excluded.
The court fashioned a practical direction for trial: if the jury asked about the nature of the excluded question, it would be told only that the question was inadmissible and that the jury was to ignore it.
Orders Made
• Jury to be empanelled at 10 o'clock
• Matter adjourned part heard to 12 February 2019
• Certain evidence ruled inadmissible (questions "Do you have any drugs in the car?" and "Do you have any drugs on you?" and the accused's affirmative responses)
• Evidence of Officer Bock's observations of the accused's actions permitted to be adduced in accordance with the rulings made
Key Takeaways
- The District Court held that police questioning directed at eliciting admissions about drug possession required a prior caution under s 281 of the Criminal Procedure Act 1986, once the officer had reasonable grounds to suspect drug involvement, regardless of an existing personal relationship between officer and suspect.
- Verbal admissions obtained without the required caution were excluded, even where the surrounding circumstances clearly justified the officer's suspicion.
- Physical evidence retrieved as a direct consequence of excluded questioning is not automatically excluded. The court distinguished the admissions from the accused's physical acts, ruling the latter independently admissible.
- Under s 138 of the Evidence Act 1995, "improperly obtained" does not automatically extend to physical evidence produced in response to an improper question, particularly where the accused exercised some agency in producing the items.
- Where an admission is excluded but the accompanying physical action remains admissible, a trial court can permit the Crown to lead evidence of that action by reference to an unspecified question, with an appropriate direction to the jury that any excluded question is to be disregarded.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 138, 139
Cases:
- R v Cornwell (2003) 57 NSWLR 82; 141 A Crim R 164