Director of Public Prosecutions v Fees

[2021] VCC 1329

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-21-01238/CR-21-01239

Director of Public Prosecutions

Prosecution

v

Anna FEES

&

Vu Quoc NGUYEN

First accused

Second accused

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2021
DATE OF RULING:	20 September 2021
CASE MAY BE CITED AS:	DPP v Fees & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 1329

RULING
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Subject:CRIMINAL LAW

Catchwords:              Search of a motor vehicle – reasonable grounds for suspecting that drugs located in the motor vehicle – whether evidence was obtained illegally – whether evidence is inadmissible

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic); Evidence Act 2008 (Vic)

Cases Cited:DPP v Marijancevic [2011] VSCA 355; Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236; Kadir v Queen [2020] HCA 1

Ruling:  Evidence obtained as a consequence of the search of Mr Nguyen’s Nissan vehicle on 20 October 2020 is admissible in any trial.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms D Guesdon	Office of Public Prosecutions
For the First accused For the Second accused	Mr R de Vietri Mr J Desmond	Ajak Wolan & Associates Papa Hughes Lawyers

HER HONOUR:

Introduction

1The two accused in this matter are Mr Vu Quoc Nguyen and Ms Anna Fees. Mr Nguyen is charged with trafficking in MDA (9 grams) and, in the alternative, possessing that amount of MDA. They are jointly charged with trafficking in a drug of dependence - methylamphetamine, in not less than a commercial quantity (141.9 grams) and, alternatively, possessing that drug of dependence; as well as alternative charges of trafficking in and possessing each of the following drugs of dependence: Cocaine, MDMA,  and Cannabis L. They are also both charged with related summary offences. They are jointly charged with the summary offence of dealing with property ($5673.60 in cash) suspected of being proceeds of crime. Further, Ms Fees is charged with the summary offence of possessing a prohibited weapon (a Taser) and Mr Nguyen is charged with the summary offence of committing an indictable offence while on bail.  

2At approximately 7:06pm on 20 October 2020, First Constable Sam Reeves (“FC Reeves”) and Constable Liam Hewish (“CS Hewish”) intercepted a white Nissan Skyline at 175 Boundary Road in North Melbourne. Mr Nguyen was driving the vehicle and Ms Fees was sitting in the front passenger seat.

3The car was ultimately searched by police. Drugs and cash were found in it. These drugs form the basis of the whole prosecution case against the two accused for trafficking in and possessing various drugs as well as dealing with cash that is reasonably suspected of being proceeds of crime. No issue is taken with the legality of the interception by police. The issue is whether the search of the car was conducted legally pursuant to s 82 of the Drugs Poisons & Controlled Substances Act 1981 (“the DPCSA”) and is admissible. If the search is found to be illegal, the issue is whether the prosecution has established under s 138 of the Evidence Act 2008 (Vic) that the desirability of the admitting the evidence outweighs the undesirability of admitting the evidence.

Factual background

4At the time of the interception of the vehicle, movement in Metropolitan Melbourne was controlled by a set of COVID-19 restrictions that commenced at 11:59pm on 18 October 2020. Under these restrictions, individuals were permitted to leave home for any period of time to exercise or see friends and family outdoors, and to travel up to 25 km from their home within Metropolitan Melbourne.

5The Nissan Skyline driven by Mr Nguyen was seen leaving the North Melbourne commission flats and driving down Buncle Street. According to FC Reeves,[1] that area is known to police as a high crime and drug activity area and is regularly patrolled for that reason. Checks with VicRoads as police was following the Nissan revealed that it was registered to a Hugo Cortez with an address in Thornhill Park, near Melton – some 35 kms away. Later inquiries revealed that Mr Nguyen had bought the vehicle from Mr Cortez on 9 October 2020.

[1]        Deposition 143, [5].

6While still in the police vehicle, FC Reeves activated his body worn camera, which captured the interaction between police and the two accused, prior to the statement by FC Reeves that he intended to search the vehicle. That interaction  lasted some 6 or 7 minutes. I viewed approximately 15 minutes of the body worn camera footage which includes that interaction. I summarise the content of that footage below.

7FC Reeves made handwritten notes of the incident. He later viewed the footage and prepared a statement. He gave evidence at the committal hearing consistent with his statement.

Submissions

8It was submitted on behalf of Mr Nguyen that FC Reeves’ notes (and the evidence of CS Hewish) reveal his true state of mind – he formed the relevant belief that a search was warranted immediately upon learning from headquarters that Mr Nguyen was on bail for a drug trafficking offence and on that basis alone. This made the subsequent search illegal. It was also submitted that, after viewing the body worn camera footage, which was at odds with the chronology in his notes, he realised that no lawful search could have been undertaken prior to the admission by Mr Nguyen that there were drugs in the car. Therefore, FC Reeves prepared a statement (which was adopted at committal) that included additional matters (beyond the one matter referred to in his notes), which he said contributed to his suspicion that there were drugs in the vehicle.  

9As to the factors to be considered under s 138(3) of the Evidence Act, it was conceded that the evidence is significant and that the prosecution cannot proceed without it. Despite Mr Nguyen being charged for trafficking in a commercial quantity of methylamphetamine, it was submitted that most of the methylamphetamine was found in bags belonging to Ms Fees. It was further submitted that the conduct of FC Reeves falls in the range of serious misconduct and militated in favour of the evidence not being admitted. It was also submitted that the illegal search was inconsistent with Mr Nguyen’s right to privacy under Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”).

10Finally, it was submitted that the court should not, in the circumstances of this case, give curial approval to unlawful conduct of those charged with enforcing the law.[2]

[2]        DPP v Marijancevic [2011] VSCA 355, [18].

11The prosecution submitted that FC Reeves’ decision to conduct the search was made on reasonable grounds within a short period of time, based on his observations, experience and instincts. If he was found to have acted without reasonable grounds, it was submitted that his suspicions were nevertheless genuinely held and, at worst, he was careless and made an error of judgment in the circumstances. For this reason, factors (d) and (e) weighed in favour of admission. Factor (g) should be treated as neutral as no action is contemplated against him and factor (h) should be treated as neutral because his conduct was neither deliberate nor reckless. It was accepted that an improper search of the vehicle would contravene Article 17 of the ICCPR. It was submitted that factors (a), (b) and (c) of s 138(3) of the Evidence Act militated in favour of admission of the evidence. It was submitted that the desirability of admitting the evidence outweighs the undesirability of doing so.

Section 82 of the DPCSA

Test to be applied

12The test for establishing that the suspicion held by the police office was based on reasonable grounds has two elements: that the suspicion – which must be positive or actual apprehension or mistrust and not merely “idle wondering” -  was actually held; and the circumstances must have been of a kind that would raise a suspicion in the mind of a reasonable person.[3]  

[3]        Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236, [65] (‘Murray’).

13For the purpose of this ruling, I confine my examination of these matters up until FC Reeves said to Mr Nguyen: “Because I am going to search this car because I reckon there’s something in here”.

Summary of body worn camera footage

14I summarise the body worn camera footage shown in court as follows. I include my observations about the footage in square brackets.  

15FC Reeves and CS Hewish exited the police vehicle while Mr Nguyen and Ms Fees remained in their vehicle. FC Reeves approached Mr Nguyen, who immediately provided his driver licence to FC Reeves through the driver side window. Mr Nguyen was wearing a face mask.

16FC Reeves identified himself and asked Mr Nguyen to confirm his details, which Mr Nguyen did. This included an Albanvale address.

17FC Reeves asked Mr Nguyen what he was up to. Mr Nguyen answered that he was visiting his grandchildren. FC Reeves asked where they were from, and Mr Nguyen answered Roxburgh Park. FC Reeves asked what Mr Nguyen was doing in North Melbourne, and Mr Nguyen said they were visiting [either his or] Ms Fees’ sister [the audio is indistinct].

18FC Reeves proceeded to ask whether Mr Nguyen had had anything to drink, and Mr Nguyen answered no. CS Hewish then conducted an ordinary preliminary breath test of Mr Nguyen, which returned a negative result.

19FC Reeves and CS Hewish then returned to the police vehicle with Mr Nguyen’s driver licence to conduct further enquiries. Their inquiries revealed that Mr Nguyen was on bail in relation to charges of theft and trafficking methylamphetamine.  [There is no discussion between FC Reeves and CS Hewish about searching the vehicle].

20FC Reeves returned to Mr Nguyen’s vehicle and obtained Ms Fees details. Ms Fees can be seen wearing a face mask, but she removed it to address FC Reeves. Upon being advised that Ms Fees did not have her driver licence on her, FC Reeves asked CS Hewish to talk to her, which he did.

21FC Reeves then asked Mr Nguyen whether he was on bail, which Mr Nguyen confirmed. FC Reeves asked what the bail was for, and Mr Nguyen began to talk about the adjournment of his matter to a date in March 2021.

22FC Reeves then asked what the offence was and what Mr Nguyen did. Mr Nguyen said that he thought that the offence related to driving while he was  suspended. FC Reeves asked whether it involved “drug stuff”, and Mr Nguyen said that “something was found in the car”.

23FC Reeves asked whether there was anything in the vehicle that he needed to be aware of. [At this point, Ms Fees appeared to look towards FC Reeves somewhat nervously]. Mr Nguyen turned his head towards Ms Fees, and then turned back to respond to FC Reeves. Mr Nguyen said that he was visiting his grandkids.

24FC Reeves repeated his question whether there was anything in the car that he needed to be aware of. Mr Nguyen replied: “No”.

25FC Reeves then said: “Because I am going to search this car because I reckon there’s something in here. So tell me now. Don’t lie to me Vu, just be honest with me. Is there something in this car?” [During that exchange, Ms Fees was looking around nervously and moving a plastic bag around].

FC Reeves’ notes

26The notes taken by FC Reeves of the incident up to the same point are as follows:

065 veh whi Nissan Slyline from Mulrose St NMN at approx. 1900 20/10/2020 – reg XXU426. obs veh travel S on Buncle St via obs from Mark St. followed & caught upto veh on Canning St – Macaulay Rd then N onto Boundary rd & intercepted o/s 175 Boundary rd.

VEH reg owner to a Thornhill park add – Hugo CORTEZ.

obs M Asian driver and F Asian passenger inside.

BWC on – M prod vic D/L & stated nam & address VU NGUYEN – 65 MCCANN DR, ALBANVALE & DOB 10/10/72 & stated was visiting Grandkids – when asked why NGUYEN was in NMN m stated visiting her sister referring to FEES.

PBT neg. Due to IRIS malfunction – LIC & MNI check ran on AIR - D24 0 M flagged as current bail for drug trafficking.

Upon returning to veh F P/S - clearly drug affected – chewing rapidly – wide pupils – I asked C/ HEWISH to S/T same through P/S window.

S/T M re bail – asked why/what he had done. When asked about drug stuff. M stated “something was found in the car”.

I/S “is there anything in the car I need to be aware of now?” M clearly nervous – looking around at passenger – sus circumstances.

I/S VU, be honest with me, is there something in this car”

Statement of FC Reeves

27At paragraph 5 of his statement dated 2 December 2020, FC Reeves noted that they were patrolling the area around Buncle Street because it is an area of high crime and they were on patrol to deter and detect offences and to ensure compliance with the Chief Health Officers Directions regarding the COVID-19 pandemic.

28After intercepting the vehicle, FC Reeves stated that he spoke with Mr Nguyen after perusing his driver licence which listed his address as in Albanvale. At paragraph 11, FC Reeves stated:

I had a conversation with the accused and asked what he was up to and his reason for travel. The accused stated he was going to visit his grandkids in Roxburgh park. As the accused’s address was in Albanvale, he was currently in North Melbourne and stated he was going to Roxburgh Park I thought this was unusual. The accused then pointed to a female in the passenger seat and stated they were visiting her sister. I looked at the female in the passenger’s seat who was chewing quite rapidly on what looked like chewing gum.

29CS Hewish then performed a preliminary breath test on Mr Nguyen. CS Hewish and FC Reeves returned to their police vehicle to perform a check on Mr Nguyen’s driver licence. Enquiries through Police Communications confirmed Mr Nguyen’s identity and that he was currently on bail for possessing and trafficking methylamphetamine.

30At paragraphs 15-24, FC Reeves stated:

I approached the driver ’s side door a second time and started speaking with the female passenger through the window. She stated her name as Anna. As she was speaking with me through the window, again, she was chewing quite rapidly. She was also making a pursing, suctioning motion with her mouth and lips and appeared to be heavily substance affected. I now know this female to be Anna FEES, date of birth 19th of February 1971 of 65 McCann Drive, Albanvale. Hereinafter referred to as the co-accused.

In my experience, the behaviour displayed by the co-accused was similar to that of someone who is affected by Ecstasy or Amphetamine. As my suspicions increased, I directed Constable HEWISH to the passenger side to continue to speak with the co-accused and ascertain her details.

I continued my conversation with the accused as the story he had told me wasn’t quite adding up, he was found leaving an area of high drug activity and the co-accused was drug affected. I asked the accused about his current bail. The accused was quite evasive before speaking about driving whilst suspended, failing to mention the bail for the drug matters.

I said, "And some drug stuff?"

He said, "Something was found in the car."

I said, "Is there anything in the car that I need to be aware of right now?"

The accused started looking around and looked at the co-accused who had stopped talking with Constable HEWISH and was listening to our conversation. The co-accused was also leaning over and started looking through a plastic bag in her lap.

He said, "I just want to visit my grandkids."

I said, “Is there anything in the car right now I need to be aware of."

The accused did not respond. I told the accused of my suspicions of drugs in the car and told the accused I would be searching the vehicle.

Evidence of CS Hewish and FC Reeves at committal

31CS Hewish and FC Reeves said that apart from FC Reeves informing CS Hewish of the result of the LEAP check, there was no discussion between them before they walked back to the car, and no discussion between them about searching the vehicle.

32FC Reeves summarised the basis upon which he formed the relevant suspicion, in addition to the fact that Mr Nguyen was on bail for drug trafficking, as follows:

So, from initially, the conversation I had with Mr Nguyen about the purpose for travel, where they said they were going, where they were, where the car was registered to, ah, Ms Fees, her appearance at that point, returning to the vehicle, um, in my opinion nervous and evasive answers and then looking again at Ms Fees and seeing her, in my own opinion, drug affected behaviour. Um, at that point I had formed, I believe, reasonable suspicions to suspect that there were drugs in the vehicle …[4]

Findings and reasons

[4]        Deposition 540.

33I have taken into account all the matters raised by counsel in their written and oral submissions, as well as the material tendered by them. On balance, given the circumstances in which FC Reeves and CS Hewish found themselves, which have been outlined above, I am satisfied that FC Reeves was cognisant of the need to have the relevant suspicion based on more than just the fact that Mr Nguyen was on bail for drug trafficking matters, and that, having regard to the matters referred to by him, he held that suspicion. On balance, I consider that his suspicion was reasonable in all the circumstances, and therefore that the search conducted thereafter was lawful.

34However, for the sake of completeness, and in the event that I am wrong in reaching this conclusion, I proceed to consider the factors required by s 138 of the Evidence Act. However, I do so on the basis of my view that any impropriety by FC Reeves, if it occurred, occurred in a situation that evolved over a short period of time, and was due, at most, to carelessness or mistake, and that it was not a deliberate or reckless breach.[5]

[5]        Murray [81].

Findings and reasons: s138 of the Evidence Act

35Assuming for a moment that the search was unlawful, the prosecution must demonstrate that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. I turn to consider the factors I am required to consider under s 138(3) of the Evidence Act.

s 138(3)(a) and (b)

36I consider that the evidence obtained in the search is of very high probative value and that the evidence is critical to the prosecution case in that without it there is no case against either accused.

s 138(3)(c)

37I consider that the offences of drug possession and drug trafficking, particularly in relation to trafficking of a commercial quantity of a drug of dependence (methylamphetamine) are serious offences. I note that there is a high public interest in the apprehension, prosecution and conviction of those involved in trafficking illicit substances, and, in particular, methylamphetamine.[6]

s 138(3)(d)

[6]        Murray [95].

38I consider that this was an error of judgment in circumstances where he had to make a timely decision based on his observations, experience, judgment and instincts. For this reason, I regard any impropriety as falling at the lower end of seriousness. As such, this factor is likely to be neutral but, if not neutral, it does not weigh strongly against admitting the evidence.

s 138(3)(e)

39I consider on the material before me that FC Reeves genuinely held the suspicion he said he held and that, if he acted without reasonable grounds, it was simply an error on his part to conclude that the grounds were reasonable, so that the contravention was not deliberate or reckless. As such, this factor is likely to be neutral but, if not neutral, it does not weigh strongly against admitting the evidence.

s 138(3)(f)

40I acknowledge that an improper search of the vehicle would breach Article 17 of the ICCPR.

s 138(3)(g)

41I note that it is not proposed that any action is to be taken against FC Reeves in relation to the impropriety and that this consideration is neutral.

s 138(3)(h)

42Finally, I note that in the light of my finding that the impropriety was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration.[7]

[7]        Kadir v The Queen [2020] HCA 1 [20].

Conclusion

Having considered all the relevant factors and the material before me, I consider on balance that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. It follows that the evidence obtained as a consequence of the search of Mr Nguyen’s Nissan vehicle on 20 October 2020 is admissible in any trial.