Director of Public Prosecutions v Paul (Ruling)
[2021] VCC 179
•4 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-20-00940
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
| v | |
| TIMOTHY ALBERT BRIAN PAUL | Accused Applicant |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 14 February 2021 | |
DATE OF RULING: | 4 March 2021 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Paul (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 179 | |
RULING
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Subject:EVIDENCE
Catchwords: Application by accused to exclude evidence asserted to have been improperly or illegally obtained
Legislation Cited: Evidence Act 2008, s138; Drugs, Poisons and Controlled Substances Act 1981, s82
Ruling:Application refused. Evidence admitted.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Porceddu | Solicitor for the Office of Public Prosecutions |
| For the Accused Applicant | Mr J Miller | James Dowsley & Associates Pty Ltd |
HIS HONOUR:
1By Notice dated 25 October 2020, Timothy Paul makes application pursuant to s138 of the Evidence Act 2008 to exclude evidence asserted by him to have been improperly or illegally obtained. The evidence sought to be excluded is drugs, including GHB and Methylamphetamine, scales and notes consistent with drug trafficking, together with a number prohibited weapons seized as a result of the search of a motor vehicle that took place in Glen Iris on 9 October 2018.
2It was submitted by Mr Miller of Counsel, who appeared on behalf of Mr Paul, that the police officer who decided to search the motor vehicle driven by Mr Paul did not suspect that Mr Paul was in possession of drugs and in the alternative that if she did there were no reasonable grounds to found such a suspicion. In addition, Mr Miller sought to exclude evidence seized as a result of the execution of a search warrant at premises occupied by Mr Paul, which warrant was obtained on the basis of the drugs and other paraphernalia seized from the car driven by Mr Paul
3The application commenced on Friday, 12 February 2021 and was to proceed upon the transcript of a voir dire conducted at the Magistrates’ Court at Melbourne on 20 January 2020 in respect to the legality of the search. During the course of submissions, it was apparent that in the Magistrates’ Court proceeding, matters relevant to the application had not been canvassed during cross-examination and I granted leave for Acting Sergeant Prowse to be called for further cross-examination that took place on 17 February 2021.
4To understand the application, one needs to review the evidence of Acting Sergeant Prowse and Constable Michael Exton, who gave evidence in the Magistrates’ Court, as well as the evidence given by Acting Sergeant Prowse before me.
5In a statement made within 24 hours of the search, Acting Sergeant Prowse deposed that at about 2:20am on Tuesday, 9 October 2018, she, together with Constable Exton were patrolling the Glen Iris area in a police divisional van. Initially they travelled north along Warrigal Road, then turned left into High Street to travel west towards the City. As the police proceeded along High Street, they passed Gladstone Street and approached Muswell Hill, when they each observed a black Mazda sedan travelling in the opposite direction. The Mazda sedan did not have a front number plate displayed and when Acting Sergeant Prowse looked at the rear of the Mazda sedan, there was no rear number plate displayed. Acting Sergeant Prowse performed a U-turn and intercepted the Mazda sedan in High Street, just prior to Fuller Grove. As Acting Sergeant Prowse approached the Mazda sedan, she saw the driver turning his head and upper body towards the left side of the vehicle. In the Magistrates’ Court, she described the driver as shifting in his seat and fidgeting. Acting Sergeant Prowse suspected that the driver was potentially hiding something. In cross-examination, she accepted the proposition that the driver had bent over, possibly towards the front of the driver’s side. These details, however, did not appear in her statement of 10 October 2018.
6Acting Sergeant Prowse asked the driver for his driver licence and to state his name and address. He responded that his name was Timothy Paul, and Acting Sergeant Prowse asked, “what can you tell me about the plates?”, to which Mr Paul responded, “Oh I got a permit for that. It’s in the window.” Acting Sergeant Prowse asked, “So what were you doing, where have you been?” to which Mr Paul responded, “We just went to Point Cook to pick up this part”. At this stage, Mr Paul picked up a package containing a car part from the rear of the passenger compartment and showed it to Acting Sergeant Prowse. Acting Sergeant Prowse said to Mr Paul, “You went and got that from Point Cook at 2:30 in the morning?” to which Mr Paul responded, “Yeah, from a friend”. Mr Paul was asked, “Okay and so why are you in Glen Iris now?” to which he responded, “We just went to McDonald’s”. To Acting Sergeant Prowse’s knowledge there was not a McDonalds’ store near to where the interception had taken place.
7At the Magistrates’ Court hearing, Acting Sergeant Prowse swore that the applicant could not recall the full name of the previous owner of the Mazda sedan and said that he wanted to go to McDonalds and then intended to travel to Endeavour Hills. This information was not contained in Acting Sergeant Prowse’s statement. She was not challenged on this evidence that was given in cross-examination nor was she challenged on her evidence that the most direct route from Point Cook to Endeavour Hills would have been via the Monash Freeway and that this added to her suspicions concerning the applicant’s activity.
8Acting Sergeant Prowse observed that Mr Paul appeared nervous and appeared not to want to look directly at her. Acting Sergeant Prowse asked the female passenger for her details and she told Acting Sergeant Prowse that her name was Kerry and sometime shortly thereafter, Constable Exton took down the female passenger’s details and returned to the police divisional van to check Mr Paul’s licence details and “Kerry’s” identity. Prior to doing so Constable Exton spoke with the female passenger, who identified herself as Kerry Campbell. He observed that she was stuttering but not slurring her words, and that she was looking around a lot and was acting very erratically. Constable Exton was a qualified drug impairment assessor and deposed that he could recognise when somebody was impaired by a substance of some description. He suspected that the female passenger of the Mazda sedan was affected by a substance of some description.
9Constable Exton was involved in the computer search of the driver’s name and licence details, as well as the identity of the passenger. In respect to the name given by the passenger he did not come up “with anything” after having searched the police computer system, he suspected that the female passenger had given him a false name and was influenced by some form of drug based on her erratic behaviour. Added to these matters Constable Exton was suspicious of Mr Paul because he and his passenger were out in Glen Iris at 2.30 in the morning and could not give a reason (for that).
10While at the divisional van making the computer searches, Acting Sergeant Prowse and Constable Exton discussed their suspicions including that Constable Exton believed the female passenger had given him a false name. However, based only on Constable Exton’s evidence about his conversation with Acting Sergeant Prowse at the divisional van there is insufficient evidence to conclude that Constable Exton communicated his suspicion in respect to presence of drugs in Mr Paul’s car to Acting Sergeant Prowse.
11Constable Exton swore in the Magistrates’ Court that both the driver and his passenger were acting in a very evasive manner and did not want either Acting Sergeant Prowse or him to search the car.
12After checking the driver’s and passenger’s details, both Acting Sergeant Prowse and Constable Exton approached the vehicle and spoke to the applicant. Prowse said to the applicant, “So how do you know each other? to which he replied, “We’re friends”. Prowse asked, “How long have you known each other for?” to which the applicant responded, “A while”. Prowse asked, “How did you meet?” at which stage both the applicant and the female passenger looked at each other and then the female passenger said that they had met through mutual friends.
13Acting Sergeant Prowse in her statement deposed that she said, “Is there anything in the vehicle that there shouldn’t be?” to which Mr Paul responded, “No”. Acting Sergeant Prowse said, “So no drugs or anything?” to which the applicant said “No”.
14In her statement, Acting Sergeant Prowse deposed that she then said, “Okay, that’s fine but I believe that there’s something in the vehicle and I’m going to be searching it. Can you please get out of the vehicle for me?” During cross-examination, both before the Magistrates’ Court and before me, she swore that the “something” was a reference to drugs.
15On being informed that the car was to be searched, the applicant said, “What? Why? What grounds do you have to do that?” In her statement, Acting Sergeant Prowse deposed:
“I don’t believe what you’ve told me. You’re driving around at 2:30 in the morning with no plates on the car. You’re telling me you’ve come from Point Cook to pick up a part for the car when nothing is open at this time of night and you have no reason for being in Glen Iris. You’re driving through an area where we get a lot of reports for theft from motor vehicles and burglaries, you’ve got tools in the back seat and now you’re being argumentative about it.”
16When challenged in the Magistrates’ Court about her reference to thefts from motor vehicles and burglaries in the Glen Iris area and the presence of tools in Mr Paul’s car, Acting Sergeant Prowse responded “Yes, because drug addicts usually commit burglaries and thefts to support their habit”. No further challenge was made to Acting Sergeants Prowse’s evidence about her suspicion being as to the presence of drugs in Mr Paul’s car.
17The applicant asked Acting Sergeant Prowse what station she was from and informed Acting Sergeant Prowse that he was going to call her station and speak to her superior.
18On this topic, Constable Exton swore before the Magistrate that, to his recollection, the driver expressed his opinion that the police did not have grounds to conduct a search and that Acting Sergeant Prowse said in response:
“We do have grounds based on suspicion that you have something – you have drugs in that vehicle.”
19Constable Exton swore that both the driver and passenger were reluctant to let the police search the vehicle, and the driver responded, “No, you can’t do that. You don’t have the grounds.”
20When Acting Sergeant Prowse was tested in the Magistrates’ Court concerning her suspicions, she swore that the condition of the car added to her suspicion that there were drugs in the vehicle:
“Particularly because with my career having pulled over numerous vehicles I understand it is usually when you come across a car that is dirty, unkept, has multiple items in there, there’s something else in that vehicle that you want to look into.”
21Acting Sergeant Prowse accepted that she did not observe any drug paraphernalia in the motor vehicle.
22In respect to her evidence before the Magistrate as to her conversation with the applicant, she swore:
“I asked initially if there was anything in the vehicle which should not be [there]. He said, ‘No’ and so then I questioned him further and asked if there was [sic] any drugs in the vehicle.”
23Acting Sergeant Prowse swore that the applicant answered, “No”, to which she responded, “I said that I didn’t believe him and that I was intending on searching the vehicle”.
24Acting Sergeant Prowse swore that the applicant’s attitude towards the police power to search the Mazda sedan was, in her opinion, a tactic to delay the search because there was something hidden in the car and that this conduct contributed to the suspicion that she held in respect to the presence of drugs in the Mazda sedan.
25In respect to Acting Sergeant Prowse’s belief as to her power to search Mr Paul’s vehicle, she swore before me:
“But I knew I had a power under the Drugs, Poisons and Controlled Substances Act to search. I knew I had that.”
26However, when pressed as to the basis for exercising the power to search, Acting Sergeant Prowse based her power on suspicion alone and not that any suspicion she entertained needed to be based on reasonable grounds.
27During submissions from counsel, I informed them that my preliminary view was that there were no reasonable grounds for Acting Sergeant Prowse’s suspicions.
28After Acting Sergeant Prowse was excused, Mr Porceddu of counsel, who appeared for the Crown, submitted that a proper analysis of the situation confronting Acting Sergeant Prowse and Constable Exton would cause me to be satisfied that the suspicion held by Acting Sergeant Prowse was based on reasonable grounds. Mr Porceddu relied upon the following matters to establish “reasonable grounds”:
(i) the time of day at which Mr Paul was intercepted, being 2.30am;
(ii) the Mazda sedan did not display any registration plate;
(iii) the lack of knowledge in Mr Paul of the former owner of the Mazda sedan;
(iv) the stated reason for being out at 2.30am being that he and his passenger had gone to Point Cook to collect a car part for the Mazda sedan;
(v) the route taken by Mr Paul not being the most direct route from Point Cook to Endeavour Hills, his stated destination;
(vi) the lack of a nearby McDonalds’ store;
(vii) the physical state of the inside of Mr Paul’s car;
(viii) that Mr Paul’s passenger had given Constable Exton a false name;
(ix) the evidence given by Acting Sergeant Prowse as to the prevalence of thefts from motor vehicles and burglaries in the Glen Iris area and that such crimes were committed by drug addicts to support their habit; and
(x) the reluctance of both Mr Paul and his passenger to consent to a search of the Mazda sedan.
29Whilst Acting Sergeant Prowse did not believe that she required any state of mind beyond suspicion, in combination, Mr Porceddu submitted that the circumstances that she and Constable Exton were confronted with provided reasonable grounds for the suspicion that Acting Sergeant Prowse professed to hold prior to commencing a search of Mr Paul’s vehicle.
30Ultimately, I am of the view that despite Acting Sergeant Prowse’s belief that all that was required for her to be empowered to search Mr Paul’s car for the presence of drugs was a suspicion as to the presence of drugs in Mr Paul’s vehicle, the concatenation of circumstances, to my mind, establish reasonable grounds for suspecting that there was a drug of dependence in respect of which an offence had been committed in Mr Paul’s car.
31If I am wrong about my finding and the true position be that the evidence permitted only a suspicion that Mr Paul was up to some wrongdoing and no more, I would not exclude the evidence.
32In the balancing exercise set out under s138(3) of the Evidence Act 2008, it was conceded by Mr Miller, on behalf of the applicant, that the evidence had probative value and that the importance of the evidence in the proceeding was central to the proceeding. Further, it was conceded by Mr Miller that drug trafficking is a serious offence and so much is evident by the offence being punishable by a maximum penalty of fifteen years’ imprisonment. As against that, Mr Porceddu conceded that the weight of drugs seized by police was “not significant”.
33During the course of discussion, it was conceded by Mr Millar that on the evidence that I could not find that any impropriety was deliberate or reckless, and I am of a view, at best, Acting Sergeant Prowse was simply mistaken as to her powers. The last-mentioned concession impacts on an assessment of the gravity of the impropriety which, in the circumstances, I regard as at the lower end of improper conduct.
34I accept that the conduct of the police constituted an infringement of Article 17 of The International Covenant on Civil and Political Rights as it infringed the privacy of Mr Paul. Likewise, if s82 of the Drugs, Poisons and Controlled Substances Act 1981 had been complied with, there was no other way the evidence could have been obtained in the circumstances of this case. It seems to me that s138(3)(g) has no application in the present circumstances.
35Accordingly, I refuse the application and admit the evidence.
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