Citation: R v Yongcheng Zhang [2022] NSWDC 457
Court: District Court of New South Wales
Date: 4 May 2022
Judge(s): Coleman SC DCJ
Background
The accused faced four counts on indictment: supply of a prohibited drug (methylamphetamine, approximately 100g), two counts relating to possession of alleged proceeds of crime ($82,680 in cash), and possession of a prohibited weapon (an extendable baton). The charges arose from events on 25 November 2017, meaning the accused had been before the courts for approximately four and a half years by the time this pre-trial application was heard.
Two plain-clothes officers had been conducting surveillance of a unit complex in Canterbury following a tip-off about possible drug supply. They observed the accused enter the complex carrying a box and leave without it some five to ten minutes later. At the time he left, the lead officer conceded there were no reasonable grounds to stop and search the accused under LEPRA.
Rather than approaching the accused directly, the officers followed his vehicle and pulled it over. The accused was told he had been stopped for "random testing." A breath test for alcohol returned a nil result, yet the officers continued to question him about where he had been and who he had visited. The accused sought to exclude the evidence flowing from that stop, including items seized from his vehicle, observations at the roadside, and subsequent questioning.
Legal Issues
- Whether the initial traffic stop under the Road Transport Act 2013 (NSW) was a lawful exercise of that power or an improper use of it as a pretext to conduct a drug investigation.
- Whether the continued detention of the accused after the breath test was completed became unlawful.
- Whether the subsequent search of the accused and his vehicle under s 21 of LEPRA was lawful, given the manner in which the stop was conducted.
- Whether the evidence obtained should be excluded under s 138 of the Evidence Act 1995 (NSW) as illegally or improperly obtained.
Decision
Coleman SC DCJ found that the traffic stop was not a genuine exercise of the road safety powers under the Road Transport Act 2013. The lead officer admitted there were no grounds to stop and search the accused under LEPRA, yet the officers followed the vehicle and activated lights and sirens to pull it over. The court found the officers used the random breath testing power as a pretext or device to further their drug investigation, a purpose entirely outside the scope of that power.
The court also found that Thompson's statement to the accused that they had been "patrolling in the area" was deliberately untrue, and that the continued questioning about the accused's movements after the nil breath test result had no connection to any legitimate road safety purpose. The information and observations obtained during that unlawfully extended detention then formed part of the basis for the LEPRA search, tainting it.
Turning to s 138 of the Evidence Act, the court acknowledged that the desirability of admitting probative evidence must be weighed against the undesirability of admitting evidence obtained improperly or unlawfully. The court concluded the balance favoured exclusion. Key factors included the serious and reckless nature of the officers' conduct, the deliberate misuse of a limited statutory power, and the fact that other lawful investigatory means may have been available given the information already held by police.
The court declined to exercise its discretion to admit the challenged evidence, finding it was not shown that the desirability of admission outweighed the undesirability of doing so. It emphasised that the Road Transport Act power to stop a vehicle without cause is a limited power granted for road safety purposes, and it cannot be converted into a general investigatory tool.
Orders Made
- The evidence described in items 1 to 4 of MFI 5 is not to be admitted in the proceedings.
Key Takeaways
- The District Court confirmed that a power to stop vehicles under road transport legislation is a limited power conferred for road safety purposes, and its exercise for an investigatory or intelligence-gathering purpose is an improper use that can render a stop unlawful.
- Where a nil result is returned on a breath test, continued detention and questioning unrelated to road safety may itself become unlawful, potentially tainting any evidence subsequently obtained.
- Under s 138 of the Evidence Act 1995 (NSW), the court weighs the desirability of admitting probative evidence against the undesirability of admitting improperly obtained evidence; seriously reckless conduct by police can tip that balance toward exclusion.
- A deliberate false statement by an officer about the circumstances of a stop, such as falsely claiming to have been "patrolling in the area," was treated as conduct that could not be condoned and weighed against admission.
- The availability of lawful alternative investigatory means is a relevant consideration under s 138(3): where police could have obtained evidence through proper channels, that weighs against using improperly obtained evidence.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 85, 90, 137, 138
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), Part 9, ss 21, 36
- Road Transport Act 2013 (NSW), Schedule 3 cls 3 and 6, s 114
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), ss 193B, 193C
- Weapons Prohibition Act 1988 (NSW), s 7(1)
Cases:
- Coco v The Queen [1994] HCA 14
- R v Rondo [2001] NSWCCA 540
- R v Kola [2002] SASC 203
- Robinson v Woolworths Ltd (2005) 64 NSWLR 612
- Streat v Bauer (NSWSC, 16 March 1998, unreported)
- Williams v The Queen (1986) 161 CLR 278
- Daniel Fromberg v R [2017] NSWDC 259
- R v Buddee [2016] NSWDC 422
- R v Large [2019] NSWDC 627
- R v Mihajlovic (No 2) [2019] NSWDC 141
- R v Pizarro (NSWDC, 20 October 2015, unreported)