Director of Public Prosecutions v Green
[2021] VCC 1033
•30 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V VERNON GREEN |
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JUDGE: | Her Honour Judge Gwynn | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2021 | |
DATE OF RULING: | 30 July 2021 | |
CASE MAY BE CITED AS: | DPP v Green | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1033 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Application to exclude evidence alleged to have been illegally obtained; trafficking in a drug of dependence in not less than a commercial quantity; trafficking in a drug of dependence; handling stolen goods; items discovered on search of car by Police; whether evidence of offences obtained as a consequence of illegal search; whether s138 of Evidence Act 2008 engaged
Legislation Cited: Evidence Act 2008; Drugs, Poisons and Controlled Substances Act 1981; International Covenant on Civil and Political Rights.
Cases Cited:Bunning v Cross [1978] HCA 22; DPP v Marijancevic [2011] VSCA 355; Murray & Ors v The Queen [2017] VSCA 236; Kadir v The Queen [2020] HCA 1
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms P. Thorp | Office of Public Prosecutions |
| For the Accused | Mr R. Lawrence | Stary Norton Halphen |
HER HONOUR:
1This is an application by Vernon Green to exclude evidence of his alleged possession of drugs of dependence and stolen items which were located by Police on 28 December 2019 in a car which Mr Green identified as being his vehicle. Relying on section 138 of the Evidence Act 2008, Mr Green argues that the search of his vehicle was not legal and that any evidence then located should not be admitted in any trial.
2The prosecution opposes this application, contending that there was in fact lawful authority to search the vehicle in question. They argue that, in any event, the public interest in allowing the evidence to be admitted would far outweigh any undesirability of admitting evidence obtained in this way.
3In general terms, I accept that powers of entry, search, and seizure can infringe a person’s basic rights to privacy, property and their bodily security. The common law has historically limited the power of entry and search to protect these rights. Courts should not give curial approval to the unlawful conduct of those whose duty it is to enforce the law.
Background
4No evidence was called on the application.
5I have had access to detailed written submissions in the application before me, prepared by both the defence and the prosecution. In addition, I have had access to the depositional materials which include transcripts from body worn camera footage. I have had access to the body worn camera footage itself.
6At approximately 8:13 pm on 28 December 2019, Mr Green was observed by Senior Constable Simpson lying in front of a white Ford utility on the street outside an address in Beach Street, Port Melbourne.
7This observation caught Senior Constable Simpson’s attention and, as a result, he and Senior Constable Declan Fietz stopped their police vehicle in order to speak with the accused. By the time they did so, Mr Green was sitting in the driver’s seat of the white Ford utility. Senior Constable Fietz approached the accused.
8He observed Mr Green to appear nervous and Senior Constable Fietz activated his body worn camera. Senior Constable Fietz then conducted a registration check on the plates attached to the Ford utility and determined that those plates in fact belonged to a silver Ford laser sedan. He observed the interior of the Ford utility to be messy, with tools, bags and rubbish piled throughout the car.
9Senior Constable Simpson also activated his body worn camera and approached the area in which Senior Constable Fietz and Mr Green were located.
10Both police members say that the accused was constantly moving around the Ford and disobeying their directions to move away from the car and stand on the footpath.
11When Senior Constable Fietz checked the accused’s licence number with the VicRoads and police database it indicated that Mr Green had an outstanding warrant for his arrest in relation to failing to appear at court for a charge of handling stolen goods. At that point Mr Green was placed under arrest.
12A check by Police on the Ford vehicle determined that it was unregistered.
13Senior Constable Fietz then searched the Fort Ute and located some 31 items listed in the document entitled “Summary of Prosecution Opening” dated 16 January 2020, to which I have also had recourse. The items included various drugs as outlined in that document as well as other items alleged to have been stolen.
14During the search Mr Green admitted that everything in the car belonged to him.
15The exhibit list on the depositional material reflects that amounts of $1,950 and $815 in cash were located by Police in the vehicle.
16In a subsequent record of interview with police members Fietz and Gentner at 12:50 am on 29 December 2019, Mr Green made substantial admissions to trafficking in drugs and handling stolen goods.
17His phone was also seized and interrogated, revealing evidence of alleged drugs sales.
The charges
18Mr Green is charged with the following offences arising out of the search of his vehicle on 28 December 2019:
· Charge 1 - Handling stolen goods
· Charge 2 - Traffick in a drug of dependence (methylamphetamine) in not less than a commercial quantity
· Charges 3, 5, 7, 9, 11, 13, and 15 all relate to possession of a drug of dependence
· Charges 4, 6, 8, 10, 12, and 14 all reflect a charge of trafficking in a drug of dependence
19The drug possession charges appear as alternatives to the drug trafficking charges and relate to methylamphetamine, methylenedioxymethamphetamine ('MDMA'), heroin, cocaine, clonazepam, diazepam and Cannabis .
20The Crown summary dated 16 January 2020 reads that the total combined weight of items containing methylamphetamine seized from Mr Green’s car was 184.5 grams and approximately 130 grams of, I assume, pure methylamphetamine. A commercial quantity is 50 grams. The combined weight of items containing MDMA seized from the car was 170.2 grams, at approximately less than 100 grams of, I assume pure MDMA. 19.8 grams of heroin was also located, as were a number of prescription drugs and a small amount of cannabis to which I have referred.
21No trial date has been fixed.
Depositional statements
22Senior Constable Zhang attended the scene part-way through the interaction, but simply states that he observed a male in custody and handcuffed. He observed Senior Constable Fietz to start searching the vehicle from the passenger side door. He makes no observations as to the basis for doing so.[1]
[1] Statement of Zhang, p. 92
23Senior Constable Simpson [2]states that he first observed a male lying on the ground between a white Ford Falcon Ute and black Volkswagen Coupe. That male was reaching up at the front of the Ford Ute. He and Senior Constable Fietz came to a stop in the vehicle in which they were travelling in order to speak to that male, Mr Green. He was told by Senior Constable Fietz that a LEAP check had been conducted in relation to Mr Green which showed that there was an outstanding warrant for his arrest. The accused was arrested at that time.
[2] Statement of Simpson, p. 99
24Senior Constable Simpson’s next observation is that Acting Sgt Phillips and First Constable Zhang attended at the scene. He observed Senior Constable Fietz to open the passenger side door of the vehicle causing items to fall to the ground. At this point the search had clearly commenced. He makes no observation as to Senior Constable Fietz’s reasoning.
25In his statement, which appears to be dated 5 February 2020, Senior Constable Fietz states that he first spoke to Mr Green when Mr Green was sitting in the driver’s seat of the white Ford. To him, Mr Green appeared nervous as he was giving what he described as “short, closed answers” and was avoiding saying why he was in that area. He conducted a check on the vehicle which revealed that it had expired registration. He next observed the car to be messy, with numerous tools, bags, food and rubbish piled throughout. While speaking with Mr Green, Senior Constable Fietz observed that he was constantly moving around his car and disobeying police directions to stand on the footpath. Mr Green was then flagged for an outstanding warrant for handling stolen goods and placed under arrest.
26Senior Constable Fietz states that, “Due to the way Green was behaving at this time, his vague reason for being there, the state of the car and the false plates on the vehicle I formed a suspicion that the vehicle contained drugs and stolen property and decided to search the vehicle.” He then searched the vehicle during which the drugs and alleged stolen property were located.[3]
[3] Statement of Senior Constable Fietz, p. 104
Committal evidence
27At committal proceedings held on 27 October 2020, Senior Constable Zhang was unable to recall anything about the reasons why Senior Constable Fietz was going to conduct a search of Mr Green’s car.[4]
[4] Committal transcript p, 755
28Senior Constable Simpson gave evidence at the committal proceeding that to him, Mr Green appeared nervous in their presence and “didn’t want to fully state why he was in the area”.[5]He did not have a conversation with Senior Constable Fietz about conducting a search of the car prior to the search actually commencing.[6]
[5] Committal transcript p, 760
[6] Committal transcript p, 762
29Under cross-examination at committal proceedings Senior Constable Fietz gave evidence that, on questioning, he found that Mr Green gave short answer responses that were quite vague and that he appeared nervous.[7] Senior Constable Fietz then identified the outstanding warrant.[8] In summary, Senior Constable Fietz gave evidence confirming his written statement that it was a combination of Mr Green’s behaviour at the time, his vague reasons for being there, the state of the car and that the plates affixed to the vehicle were false that gave him a basis for believing that there were drugs in the car.[9] He confirmed that he did not speak with Senior Constable Simpson about his suspicion at that time.
[7] Committal transcript, p. 766
[8] Committal transcript, p. 768
[9] Committal transcript, p. 774
Body worn camera
30Both police members Fietz and Simpson activated body worn cameras whilst speaking with Mr Green on 28 December 2019. This is perhaps the best evidence as it was taken at the time that events unfolded and isn’t reliant on memory.
31Mr Green presented as courteous overall, as were the Police members with him.
32As referred to earlier, I have had access to the actual footage as well as the transcript of it.
33It was identified by Senior Constable Fietz that there was an outstanding warrant. Mr Green is told that they will have to take the false registration plates from the car. Senior Constable Simpson asks, “Now is there anything in the car that shouldn’t be in the car?” Mr Green answers “Just food and shit[10].” This is the first time that investigating the interior of the vehicle arises.
[10] Transcript, p. 111
34Shortly after the accused was arrested for the outstanding warrant relating to a charge of handling stolen goods, Senior Constable Simpson states “We just gotta make sure that there is nothing else in the car first”.[11] He does not reference a reason for so doing. At this time Senior Constable Fietz refers to having to make some enquiries about the car and refers to it having the incorrect plates fitted.
[11] Depositions, p. 125
35Senior Constable Simpson then says to Mr Green, “So – now in relation to what’s in the car, you understand that you’re under arrest, here, for a warrant the handling stolen goods?”[12]
[12] Depositions, p. 128
36Senior Constable Fietz receives a radio transmission asking if they are “all good”. He responds to that by saying “Yeah, look, we will need a unit to transport but other than that, I think will be alright. We’ve got a check over the car. He is being compliant, is in cuffs so it’s not – – – at the moment”[13]
[13] Depositions, p, 130
37Mr Green is then asked by Senior Constable Simpson if there are any drugs or weapons in the car. Apart from Senior Constable Simpson’s earlier enquiry, at this point the only conversation to date related to the origin of the car, the registration plates and the outstanding warrant. The accused responds that he was trying to recall what was in the vehicle, thinking that it was a “bunch of Christmas food.”[14] He is questioned further about where the car came from. Police identified that it was not reported as stolen.
[14] Ibid
38Police members Zhang and Phillips arrive. Senior Constable Fietz tells Acting Sergeant Phillips, “So really, we probably got a false plates and a warrant” to which Acting Sgt Phillips responds with “Happy days”. Senior Constable Fietz then says “Haven’t had a look through the car yet but…”[15]
[15] Depositions, p. 138
39At a later stage Senior Constable Fietz states that he will give the accused one more chance to tell him if there is anything the car that shouldn’t be, that is, “no drugs or weapons or anything like that?” [16] I observe that he appears to have opened the door slightly before or at least contemporaneously with that questioning.
[16] Depositions, p. 129
40Items fall from the car, revealing drugs.
The Application
41It is contended by Mr Green that the search was illegal and that any evidence thus obtained, including his record of interview in which he makes substantial admissions, ought be excluded pursuant to section 138 of the Evidence Act2008.
42Section 138 of the Evidence Act 2008 reads as follows:
Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless 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.
43Therefore, if improperly obtained, the Court must exclude the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
44This provision requires the determination of the question as to whether or not the police were lawfully entitled to search Mr Green’s vehicle at the time they did so and discovered various drugs and alleged stolen property. The onus is on the accused is to demonstrate, on the balance of probabilities, there was no lawful authority to conduct the search.
45Should illegality be established, the onus then shifts to the prosecution. The evidence will not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence having regard to the manner in which the evidence was obtained.
The Defence argument – illegal search
46Essentially, the defence argue that at the time of conducting the search of Mr Green’s vehicle, the relevant police member, Senior Constable Fietz, did not have a reasonable basis to form a suspicion that there were drugs in the vehicle.
47The defence submit that if Senior Constable Fietz held a suspicion, it was not one that he had discussed with his corroborator, Senior Constable Simpson. Certainly this is supported by the evidence of Senior Constable Simpson who, as I have referred, made his own references to looking in the car. That being so, I accept that it is primarily the evidence of Senior Constable Fietz that is relevant to the purported suspicion said to have empowered the search.
48The defence submit that Senior Constable Fietz had not considered whether or not there was a reasonable basis to suspect that the accused’s vehicle contained drugs, instead completing a search as a matter of course. The Defence point to the sequence of events and exchanges, some of which I have already outlined. They rely on the following:
· Neither Senior Constable Simpson nor Fietz refer to suspecting that there may be drugs in the car prior to the search commencing;
· Shortly after the arrest for the outstanding warrant, Senior Constable Simpson states “We’ve just gotta make sure that there is nothing else in the car first”;
· Senior Constable Fietz communicates on radio transmission saying they need a transport unit “but other than that, I think will be alright. We’ve got to check over the car”;
· Senior Constable Simpson asked the accused “So there is no stolen things in there?… No drugs, no weapons” to which the accused responds “No, like… Ha I’m just trying to think what’s in there. Just a whole bunch of Christmas food”;
· When Acting Sergeant Phillips arrives on the scene and an exchange occurs between him and Senior Constable Fietz, Senior Constable Fietz says “Warrant to handle stolen goods. Plates don’t match the car. Plates are off a car with cancelled reg that also, apparently belongs to Vernon here… And this car is also unreg… Expired, cancelled. Neither of them reported stolen, neither of them are actually in his name, but he bought them both unregistered and he hasn’t got paperwork for it, so… So really, we got false plates and a warrant… Haven’t had a look through the car yet but...”.
49The defence submit that the express concerns of Senior Constable Fietz are with the incorrect plates and possibly of stolen goods in the car. They note that there is no mention to his superior officer, Acting Sergeant Phillips, of the suspicion that the accused was in possession of drugs. It is submitted that the search was conducted as a matter of course without any consideration as to whether or not there was a lawful power to do so.
The prosecution argument – legal search
50The prosecution argue that the search of Mr Green’s vehicle was legal as it was conducted pursuant to section 82 of the Drugs, Poisons and Controlled Substances Act 1981. This section relevantly reads that:
(1) Where a police officer has reasonable grounds for suspecting that –
(a) on or in a vehicle in or upon a public place
…
there is a drug of dependence in respect of which an offence has been committed or is reasonably suspected to have been committed under a provision of Part V, the police officer may with such assistance as he thinks necessary -
(f) search the vehicle…
…
(h) seize and carry away the drug dependence -
and deal with it according to law.
51The prosecution relies on the statement of Senior Constable Fietz where he states, “I formed a suspicion that the vehicle contained drugs and stolen property and decided to search the vehicle”. The prosecution also rely on evidence from the body worn camera footage. They submit that it was before the drugs were found, at commencement of the search, that Senior Constable Fietz says to the accused “I’ll give you one more chance to tell me though, is there anything in the car that there shouldn’t be? No drugs or weapons or anything like that?” to demonstrate that the police officer actually held the suspicion.
52As already stated, it appears to me from the footage that Senior Constable Fietz had commenced or was partway through opening the door at the time this question was asked.
53The prosecution submit that there are a number of matters which establish a reasonable ground for the suspicion said to be held by Senior Constable Fietz. These include:
· Senior Constable Simpson observing the accused of lying on the ground between two parked cars;
· Senior Constable Fietz’s observation of the accused as nervous and not properly engaging in conversation with the police;
· Senior Constable Fietz’s view that the accused did not want them near the vehicle;
· Senior Constable Fietz’s observation that the car was messy with tools, bags of food and rubbish piled throughout the vehicle;
· the expired registration of the vehicle and the fact that the vehicle had false plates attached;
· the accused had an outstanding warrant for failing to attend court in relation to a charge of handling stolen goods; and
· that the accused was arrested in St Kilda which is an area known for a high level of drug-related activity.
54I note that Senior Constable Fietz gave the address as being in Port Melbourne whilst the search was being undertaken[17]. Not much probably turns on this observation, other than I have no evidence of Port Melbourne being described in the same way.
[17] Depositions p, 142
Findings
55As I have referred, the prosecution contends that Mr Green’s vehicle was searched by Senior Constable Fietz pursuant to section 82 of the Drugs Poisons and Controlled Substances Act, that is, he had reasonable grounds for suspecting that inside the vehicle there was a drug dependence.
56The test for establishing that the suspicion held by the police officer was based on reasonable grounds has two elements:
· that the suspicion was actually held; and
· the circumstances must have been a kind that would raise a suspicion in the mind of a reasonable person. A suspicion is a “positive or actual apprehension or mistrust” that requires more than a “mere idle wondering”[18]
[18] Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236 {62} citing Queensland Bacon Pty Ltd v Reeds (1996) 115 CLR 255
57To quote from the Court of Appeal in Murray, Hale and Olsen (pseudonyms) v The Queen [2017] VSCA 236 at [63]:
“In considering whether a police officer has reasonable grounds for a suspicion, under s 82, it is important to bear in mind, first, that s 82 requires a police officer to have reasonable grounds for a suspicion, and for a belief that a drug of dependence is on a vehicle or a person in a public place. The distinction between suspicion, on the one hand, and belief, on the other hand, is fundamental in determining the reasonableness of the suspicion.”
58From the body worn camera footage, I accept that the accused presented as being preoccupied with securing his tools and locking the Ute, protecting the Ute from the Police members. Whilst polite, he appears agitated.
59There is limited merit in the argument that because the accused appeared nervous and unsure with police there were reasonable grounds for a suspicion as to his possession of drugs. This would also have been in the context of an arrest for an outstanding warrant for failing to attend court in relation to a charge of handling stolen goods and/or having false plates affixed and could not be suggested to be particular to a fear of what might then be located in his car. Still, it is about Senior Constable Fietz’s mindset, and he could not have known the mind of the accused, only reflect on his own observations at the time, to formulate any suspicion.
60On the available evidence I accept Senior Constable Fietz completed the search of the vehicle in circumstance where any suspicion held was without any consideration being given as to whether or not there was a reasonable basis for suspecting that the vehicle may contain drugs.
61The preponderance of the evidence, particularly that taken at the time rather than that viewed with the benefit of some hindsight, leads me to conclude that I am not satisfied that Senior Constable Fietz's suspicion that there was a drug of dependence in Mr Green’s vehicle was one held on reasonable grounds.
62In my view, section 82 of the Drugs Poisons and Controlled Substances Act did not authorise Senior Constable Fietz to open and then search Mr Green’s vehicle.
Section 138
63The argument then turns to whether or not the evidence should be admitted. The impropriety has been made out on behalf of Mr Green. Section 138 of the Evidence Act therefore places the burden of proof on the prosecution to show, on the balance of probabilities, that the desirability of admitting the evidence outweighs the undesirability of not doing so and that the factors in section 138 weigh in favour of admission.
64Defence submissions point me to DPP v Marijancevic [2011] VSCA 355 which refers to the balancing exercise in the following terms:
“…weighing against each other two competing requirements of public policy, namely, the public interest in admitting reliable and probative evidence so as to secure the conviction of the guilty and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the system of criminal justice.”
65I accept that the balancing exercise to be undertaken by the court is essentially the same as that discussed in Bunning v Cross [1978] HCA 22.
66Subsection (3) of section 138 sets out a range of factors to be taken into account which include:
a)the probative value of the evidence; and
b)the importance of the evidence in the proceeding; and
c)the nature of the relevant evidence, cause of action, or defence and the nature of the subject matter of the proceeding; and
d)the gravity of the impropriety or contravention; and whether the impropriety or contravention was deliberate or reckless: and
e)whether the impropriety or contravention was contrary to or inconsistent with the right of a person recognised by the International covenant on civil and political rights; and
f)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
g)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
67Each of the parties have provided detailed written submission addressing each of these factors.
68Both parties appear to accept that the probative value of the evidence is high – as indeed it is – and incredibly important. Without the evidence the prosecution effectively falls away. The defence properly concede that the greater the probative value of the evidence the greater the public interest in its admission.
Section 138(3)(a), (b) and (c) of the Evidence Act 2008
69Sections 138(3)(a), (b) and (c) require that I take into account the probative value of the evidence, the importance of the evidence to the proceeding, and the nature of the relevant offences in the subject matter of the proceeding.
70The defence concede that the probative value of the impugned evidence is high. It is accepted that charge 2, traffick in a drug dependence in not less than a commercial quantity, is a serious charge.
71Consideration of these factors overwhelmingly favour the admission of the evidence.
72The items found inside Mr Green’s vehicle comprise the entirety of the prosecution case, such that the probative value and importance presents as obvious. Charge 2 on the indictment, trafficking in a commercial quantity of a drug dependence, namely methylamphetamine, carries a maximum penalty of 25 years imprisonment, reflective of the seriousness with which Parliament regards this offence. The sale of drugs of dependence and the harm that then results in the community in terms of health impacts and the resort to criminal behaviour is a matter of serious concern. There is a clear public interest in the detection and conviction of those who choose to engage in such activity.
Sections 138 (3)(d) and (e) of the Evidence Act 2008
73On behalf of Mr Green it is submitted that the unlawful search of his car was done simply as a matter of course. As such, it is argued that this constitutes an arbitrary contravention of the right to privacy and property and is therefore a grave impropriety.
74Further, it is argued that if Senior Constable Fietz had given proper consideration to the requirements of section 82, he would have realised there was no basis for a reasonable suspicion and, as such, his search was performed recklessly, weighing heavily in favour of exclusion.
75The prosecution submitted that the gravity of any impropriety was low. It is submitted that his decision to search was not a deliberate or reckless breach of section 82, rather that it was made in unexpected circumstances during the apprehension of Mr Green and concern that an opportunity to do the search might otherwise be lost. It was done in the context of suspicion less than one of reasonable grounds.
76Whilst genuinely concerned about police members having a proper understanding of their powers, especially when it does involve impinging on a person’s privacy and property, I am of the view that Senior Constable Fietz’s conduct could more properly be described as careless or mistaken rather than deliberate or reckless. The context of the search itself must be taken into account. His impropriety was a result of an error in judgement in the context of an active apprehension being undertaken and his observations of the accused and gathering information as events unfolded. He did communicate his intention to search the vehicle to other officers and was present when Senior Constable Simpson asked the accused at an earlier stage whether there were drugs and weapons in the car. His breach therefore can properly be described as being towards the lower end in terms of its gravity.
Section 138(3)(f)
77On behalf of Mr Green it is argued that the improper search of his vehicle is in contravention of article 17 of the International Covenant on Civil and Political Rights, which recognises the right of a person not to be subjected to arbitrary or unlawful interference with his or her property.
78Whilst not specifically addressed in their written submissions, the prosecution accept, as I understand, that if I found the police actions to have been improper, then it would be inconsistent with the accused’s rights under the ICCPR.
79This factor favours exclusion of the evidence.
Section 138(3)(g)
80There is no evidence or information suggesting that Senior Constable Fietz has been or is likely to be subject to disciplinary proceedings as a result of the search conducted of Mr Green’s car on 28 December 2019.
81It is submitted on Mr Green’s behalf that there is a need for the court to denounce the improprieties of police and that this factor weighs heavily in favour of the exclusion of the evidence.
82In Kadir v The Queen the High Court stated that"
“… Where the impropriety or illegality was neither deliberate nor reckless, the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration.”[19]
[19] Kadir v The Queen [2020] HCA 1, para [20]
83Having regard to my findings, I will treat this factor as neutral.
Section 138(h) of the Evidence Act 2008
84This provision deals with the difficulty, if any, of obtaining the evidence without impropriety or contravention.
85On Mr Green’s behalf it is argued that his vehicle could have simply been locked whilst he was taken to the police station. Police would then have had the opportunity to make application for a search warrant, and the search could have been conducted with limited risk that the evidence would have been lost in the meantime. However, it is also argued that if a warrant was sought with the same mindset as articulated by Senior Constable Fietz, a warrant may well have not been granted.
86The prosecution argued that if the search not been conducted at this time the opportunity to complete the search may well have been lost and the drug is removed.
87This argument is one which is acknowledged as engaging in a degree of speculation and I accept that this is so, neutralising its value.
Findings
88In my view the prosecution has demonstrated that, in the proper weighing of the factors mandated by section 138(3), the evidence located by police from the accused’s vehicle on 28 December 2019 should be admitted.
89Admission is strongly favoured by the probative value of the evidence, the importance of it and the seriousness of the charges, particularly charge 2.
90My assessment of the contravention, accepting that it exists, was that it was not as serious as it may have been. Senior Constable Fietz’s actions may be described as ill-considered, but not as reckless nor deliberate. That finding favours admission.
91The factor which positively favours exclusion is the contravention’s inconsistency with the accused’s right to privacy as enshrined in the ICCPR. Given my findings at the specific circumstances of this contravention being not at the higher end, a breach of this right is not as serious as it might otherwise be.
92Accordingly, I rule the evidence obtained as a consequence of the search of Mr Green’s vehicle on 28 December 2019, including that of his record of interview, is admissible in any trial.
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