Director of Public Prosecutions v Tran
[2021] VCC 1682
•27 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00203
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V ANH TUAN LE TRAN |
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JUDGE: | Her Honour Judge Gwynn | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2021 | |
DATE OF RULING: | 27 October 2021 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1682 | |
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; possession of a drug of dependence; 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; Criminal Procedure Act 2008
Cases Cited:Murray & Ors v The Queen [2017] VSCA 236; DPP v Anna Fees & Vu Quoc Nguyen [2021] VCC 1329
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O’Toole | Office of Public Prosecutions |
| For the Accused | Mr H. Moodie | James Dowsley & Associates |
HER HONOUR:
1On 25 December 2019, Mr Tran was a passenger in a vehicle with Phuong Huynh when police intercepted the vehicle in which they were travelling at about 4:10 am in Elizabeth Street, Richmond
2This is an application by Mr Tran to exclude evidence of his alleged possession of drugs of dependence which were located by police on 25 December 2019 on that occasion. Relying on s138 of the Evidence Act 2008, Mr Tran argues that the search of the vehicle was not legal and that any evidence then located should not be admitted in any trial.
3The 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 that way.
4In 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
5Brief cross examination of the informant, First Constable Alexander Urano, took place on 14 July 2021 after an application pursuant to s198B of the Criminal Procedure Act 2008 was granted. I will return to the evidence given on that occasion.
6In terms of the application itself, no evidence was called.
7I 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 a committal hearing, and an Information Report (IR) which became quite relevant. I have also seen body worn camera footage of the intercept of Mr Huynh and Mr Tran by police officers, First Constable Urano and Senior Constable Nosek. I note that First Constable Urano now has the rank of Senior Constable Urano. For the purpose of this ruling I will refer to him as First Constable Urano because it is that information that has been available to me on the materials.
The charges
8Mr Tran is charged with the following offences arising out of the search of the vehicle in which he was a passenger on 25 December 2019:
· Charge 1 - Trafficking in a drug of dependence (heroin)
· Charge 2 - Possess a drug of dependence (heroin)
· Charge 3 - Possess a drug of dependence (methylamphetamine)
· Charge 4 - Possess a drug of dependence (MDMA)
· Charge 5 - Possess a drug of dependence (diazepam)
9All charges rely on the single date of 25 December 2019, directly related to the search. The possession of heroin at Charge 2 appears as an alternative to the drug trafficking charge the subject of Charge 1.
10I have had access to the “Prosecution Opening for Trial” dated 15 April 2021 which sets out the Crown case. That document reads that at approximately 4:10 am on Wednesday 25 December 2019, Mr Tran was a passenger in a 2003 Toyota Camry which was being driven by his associate, Phuong Tranh Huynh.
11Police officers First Constable Alexander Urano and Senior Constable Marcus Nosek were on duty in the Richmond area when First Constable Urano observed the Toyota Camry being driven by Mr Huynh on Lennox Street, Richmond and without operating taillights.
12First Constable Urano directed the Camry to pull over in Elizabeth Street, Richmond. The identity of each of the occupants was confirmed. Mr Tran was in the front passenger seat. Mr Tran informed First Constable Urano that he and Huynh had just come from Mr Huynh’s residence at 15/139 Highett Street, Richmond, and that they were on their way to a brothel.
13Mr Tran and Mr Huynh were ultimately directed to exit the vehicle so that the police could search it pursuant to the Drugs, Poisons and Controlled Substances Act 1981. Each complied.
14Inside the Toyota Camry Senior Constable Nosek located a brown Gucci bag with a red strap on the rear passenger seat. Inside that bag was a small zip lock bag containing a brown crystallised substance. Mr Tran admitted that the Gucci bag was his and that the zip lock bag contained MDMA.
The search continued with Senior Constable Nosek relevantly locating a red and black backpack in the foot well behind the front passenger seat. $2400 in cash was located in the rear left pocket of Mr Tran’s jeans.
15An imitation firearm was also located inside the backpack.
16Both Mr Huynh and Mr Tran were arrested.
17The red and black backpack was searched at the Richmond Police station and revealed:
· three packages each containing a brown compressed powder containing 84.1 grams of heroin with a purity at 0.5 per cent;
· three snap lock bags each containing a white compressed powder containing heroin in the amount of 4.12 grams with a purity ranging from 84 per cent to 86 per cent.
· two snap lock bags each containing a crystal substance of 0.7 grams identified as being methylamphetamine with a purity ranging from 83 per cent to 84 per cent;
· a zip lock bag containing brown crystals containing 3,4-methlenedioxy-N-methtylamphetamine (MDMA) in the amount of 0.2 grams with a purity of 81 per cent.
· seven diazepam tablets were also located.
18I note that a traffickable quantity of heroin is 3 grams.
19Upon interview with police Mr Tran denied that he was in possession of any of the items located by police in the Toyota Camry. He told police that he won the cash located on his person at Crown Casino.
20Mr Huynh has not been charged.
21No trial date has been fixed for Mr Tran. Should the matter proceed to trial the Crown have filed a Notice of Incriminating Conduct. Mr Tran denied knowing who owned the backpack, having seen it or owning anything located in the vehicle. Inside the backpack police located a wallet with his driver’s licence and banking cards. CCTV footage retrieved by police from the flats located in Highett Street, Richmond show Mr Tran in possession of the back pack some 3-4 minutes prior to the police intercept on 25 December 2019.
22Police also located cash on Mr Huynh in the amount of $3400. That combined with the cash located on Mr Tran in the amount of $2400 and a firearm in the red and black back pack are not facts that have formed part of the factual matrix on arguments raised on which I am asked to make my determination. Accordingly those facts, that is the cash located on both Mr Huynh and Mr Tran, and the imitation firearm located in the red and black backpack, have not played a role in my decision.
Depositional statements
23As referred to earlier, the two police members involved in the intercept of Mr Huynh and Mr Tran were First Constable Urano and Senior Constable Nosek.
24In his statement dated 3 February 2020, Senior Constable Nosek confirms that he was on duty with First Constable Urano on Wednesday 25 December 2019 when at approximately 4:12 am he observed a vehicle with no taillights travelling north in Lennox Street, Richmond. That vehicle turned right into Elizabeth Street and the police members caught up with the vehicle on Elizabeth Street. First Constable Urano was driving and activated police lights signalling to the vehicle to pull over. The vehicle was a gold coloured Toyota Camry, registered number 1MO 6YT with two occupants, one in the driver's seat, the other in the front passenger seat.[1]
[1] Depositional statement, p.26
25In his statement dated 17 January 2020, First Constable Urano says that he approached the Camry with Senior Constable Nosek remaining with the police vehicle. When First Constable Urano returned to the police vehicle he advised Senior Constable Nosek of the drivers name, Phuong Thanh Huynh. Senior Constable Nosek then conducted checks on the police database and states that he, First Constable Urano, formed a suspicion Mr Huynh may be in possession of a drug of dependence and that, 'we decided to search the vehicle under the Drugs, Poison and Controlled Substances Act.'[2]
[2] Depositional statement, p. 27
26Mr Huynh was approached and searched. As already referred, he had about $3400 in his possession which he said he won at the casino.
27After the search of Mr Huynh, the search of the vehicle was then conducted.
28First Constable Urano states that he followed the Camry after he initially observed it in Lennox Street, Richmond. He says that he did so to identify the registration details and with an intention to intercept it and inform the driver that the taillights were not operating.
29After pulling the vehicle over at Elizabeth Street, he approached the driver’s side of the vehicle and observed two Asian males inside. He was told by the driver that he did not have his driver’s license with him but that he did have a proof of age card. First Constable Urano confirmed the driver to be Phuong Thanh Huynh on a Victoria Police issued iPad on accessing the police database.[3] He also confirmed the identity of the passenger, Anh Le Tran.
[3] Depositional statement, p. 31
30
First Constable Urano states that when they first observed the Camry driving north in Lennox Street, Richmond, it was in close proximity to Mr Huynh’s residence at 139 Highett Street, Richmond and he believed that they may have just come from there. First Constable Urano states that the area surrounding Mr Huynh’s residence is a known pocket of high drug activity and contains supervised safe injecting rooms. First Constable Urano formed a suspicion that Mr Huynh and the passenger were in possession of a drug of dependence in the vehicle in which they had been intercepted.[4] At that point he states he directed Mr Huynh and
Mr Tran to exit the Camry. He began a pat down search of Mr Huynh whilst Senior Constable Nosek commenced searching the Camry
[4] Ibid.
31Prior to commencing the search, First Constable Urano states that he was told by Mr Tran that they were on their way to a brothel and had just come from Mr Huynh’s residence at 15/139 Highett Street, Richmond.
32The search of each of the men and the vehicle commenced.
The Information report[5]
[5] Depositions, p. 135
33Located in the depositional materials is an 'information report' (IR). This reveals that it was submitted on 17 November 2019 and assigned on 10 December 2019. No evidence was called as to the interpretation of that information or of the information report.
34In terms of the source evaluation on that report, it is marked as an 'untested source'. In terms of the evaluation of the information it is marked, 'cannot be judged.' Again, no evidence as called as to the interpretation of the information report.
35On its face, the information report states that a caller wanted to report that drug dealing is going on from Unit 15 of 139 Highett Street, Richmond. According to the information given, the person who lived at that unit is an Asian by the name of Phuong Thanh Huynh and that he has been living at the unit and dealing drugs for pretty much five years. The caller also reported that Mr Huynh doesn’t have visitors coming and going from the unit but instead goes outside to meet people waiting for him. He meets people on foot and in cars away from the security cameras. The caller did not know what type of drugs were involved. The caller also reported that Mr Huynh’s mailbox is an exchange point and that there are "two Asian guys around Mr Huynh’s age that sometimes turn up together" and sometimes are on their own. They "have a swipe card to get into the block and keys to [Mr] Huynh’s mailbox". One of these guys "drives a white Honda Civic sedan".
Committal evidence
36At committal proceedings held on 4 February 2021, Senior Constable Nosek gave evidence that he used an iPad to check the name of the driver of the Toyota Camry on LEAP (Law Enforcement Assistance Program). Mr Huynh’s identity was confirmed and First Constable Urano formed a suspicion that the driver might possess a drug of dependence.
37Senior Constable Nosek gave evidence that he had been told by Officer Urano that there had been information that Urano had received in relation to drug trafficking, relating to Huynh and 139 Highett Street where Huynh was living. He could not recall what information was discussed prior to the search and what was discussed afterwards. Senior Constable Nosek understood that Officer Urano had been part of a special tasking force and would have had access to such information.
38Tendered as part of the committal proceedings was the information report to which I have referred, four pages of what was described as ePDR (Electronic Patrol Duty Return) running sheets, notes taken by First Constable Urano dated 29 December 2019 and pocket diary notes taken by him dated 24 December 2019.
39First Constable Urano gave evidence agreeing that his initial intention was to pull the vehicle over and to inform the driver about the nonoperational tail lights.
40He said that the gave Senior Constable Nosek the driver’s details which were put into the police database via iPad. He confirmed his written statement that the area surrounding Huynh’s residence was a known pocket of high drug activity and there was a safe injection room in the area. The factors which led to his suspicion that Mr Huynh and the passenger might be in possession of drugs were the nonoperational tail lights, the car was close to Mr Huynh’s address and he may have just come from there, as well as knowing the area to be one of high drug activity with a supervised injecting room.
41In his committal evidence, for the first occasion, First Constable Urano said that he was also aware of an IR (information report). He explained this being the first occasion, by saying he wasn’t sure about referring to information reports in a formal statement. He gave evidence that he sought advice from a couple of sergeants and was advised to 'leave the IR part out.' His evidence was that he had been part of a tasking group, finished a secondment to that group in December 2019 and then had some leave. He believed that, 'it wouldn’t have been long before that, ah, shift on the 24th', which I interpret to be him referencing the timing of his access to the information report.
42First Constable Urano agreed that the tasking unit with which he was involved deals with a lot of information reports, specifically within the Yarra area which encompasses Richmond. He agreed that it was a busy area in terms of information reports, particularly around drug dealing and drug use but said that, 'we weren’t getting flooded with, like, heaps per day, so I would remember a lot of them.[6]' He said it was part of his job to check IR’s if there was ‘nothing else going on’.
[6] Committal transcript, p.175, line 24-25
43First Constable Urano was very clear that he remembered the IR about Mr Huynh prior to the search of the vehicle commencing stating, 'I made reference to him being involved in a few IRs prior to searching the vehicle, and where his residence is I’m very familiar with, um, in terms of the actual building itself. Um, I’ve been at the tasking unit previously for six months, and before that I’d been at Richmond for two years, so I would say my knowledge of the building, per se, and the surrounds is probably a bit better than the average police person – police officer.'[7]
[7] Committal transcript, p. 176, line 10-18
44This evidence narrowed the information on which he relied to the residence and the building, not just the 'pocket of high drug activity.'
45In his written notes dated 29 December 2019, First Constable Urano had referenced the information report. He said that he refreshed his memory from the EPDR and pocket notebook when he made his notes dated 29 December 2019.
46In his committal evidence First Constable Urano said that he mentioned the IR to Senior Constable Nosek before the search commenced, saying to him, 'something along the lines of the person’s been involved in multiple IRs in the last month. I think it was something along those lines.' He did not agree with the proposition that he only remembered the information report post the search. He said that he had a clear memory of speaking to Senior Constable Nosek before searching the car about Mr Huynh being involved in multiple IR's.
47
First Constable Urano agreed when asked that there was nothing about the car itself that was unusual, apart from the tail light not working. He detected that
Mr Huynh may have been nervous in his presence. This was also an observation which he did not refer to in his original statement.
48It does not appear that Mr Tran’s legal representatives had seen the body worn camera footage taken at the scene in advance of the committal.
Body worn camera
49
First Constable Urano was wearing an activated body worn camera on
25 December 2019 which recorded his interaction with Mr Huynh, Mr Tran and his conversations with Senior Constable Nosek in the lead up to and during the search of the Toyota Camry shortly after 4:10 am on 25 December 2019. Rather than relying on memory sometime after the events, which must have been the case in terms of statements and evidence given, the body worn camera footage is perhaps the best evidence of what transpired.
50Observationally, all interactions with Mr Huynh and Mr Tran appeared cordial. Observationally it was Mr Tran whom had a better command of English and who was, on occasion, used by First Constable Urano to give information to and ask questions of Mr Huynh.
51It was First Constable Urano who approached the vehicle and asked for the drivers licence, the driver being Mr Huynh. He asked Mr Huynh’s name and where he lived. To that question it was Mr Tran who responded who indicated and said 'just right there' and pointed behind before the actual address of 15/139 Highett Street was provided by Mr Huynh. First Constable Urano indicated that he was going to take a breath test and made enquiry about what Mr Huynh and Mr Tran were doing. Mr Tran responded with the fact that it was his birthday.
52First Constable Urano was then provided with Mr Huynh’s Medicare and proof of age card and indicated that he was going to check his license from those details, returning to the vehicle where Senior Constable Nosek had remained. There was no photo of Mr Huynh apparent on either document. Senior Constable Nosek can be seen to be entering details into an electronic device.
53As he does so First Constable Urano confidently states, 'I now know who this guy is actually…I’ll get his date of birth but I know who he is, he’s had some drug involvements.' At the time of making this statement he was aware of Mr Huynh’s appearance and address from the intercept.
54First Constable Urano returns to the Toyota Camry where Mr Huynh and Mr Tran have remained. He then obtains Mr Huynh’s date of birth and then walks back to the police vehicle. He provides the date of birth to Senior Constable Nosek who then enters details into an electronic device. As this takes place, First Constable Urano says to Senior Constable Nosek, 'I know who this guy is, yeah, he should have some drug priors.' At that point a photo of Mr Huynh comes up on the device with written detail below.
55Once the photo and the written detail appears First Constable Urano says. 'yeah, he’s got drug priors, trafficking. Yeah there’s a couple of recent IRs about this bloke. Like, within the last month.' Senior Constable Nosek then asks, 'are we going to tip it over, or what?', referencing searching the vehicle. First Constable Urano responds in the affirmative. It is at that point that his intention is crystallised.
56First Constable Urano commences with a search of Mr Huynh. He asks him directly if he has had any police involvement, spoken to the police and puts to him that he does have some history with police. This is all denied by Mr Huynh before he says 'long time' - which I presume to be referencing any history has some age.
57First Constable Urano then says to Mr Huynh that he has seen Mr Huynh recently, walking up and about his unit and that he is going to search the car under the Drugs Poisons and Controlled Substances Act. He states to Mr Huynh that he knows that he has a history of trafficking with police and that he seen him recently driving around the area so he is going to search the car. He makes that statement through Mr Tran.
58Senior Constable Nosek then commences the search of the Toyota Camry.
Section 198B cross-examination of First Constable Urano
59As referred to earlier, pre-trial cross-examination of First Constable Urano took place on 14 July 2021 before me.
60The primary attack was on three aspects of the evidence from the body worn camera footage and comments made by First Constable Urano in that footage. Those aspects are:
· that there are a ‘couple of recent IR’s about this bloke' (Mr Huynh) when, on the evidence, there was only one information report;
· That he had told Mr Huynh he was going to search his car because he had a history of drug trafficking, had a history of drug use and that First Constable Urano had seen Mr Huynh recently walking up and down his unit when he had not seen Mr Huynh walking up and down his unit; and
· That he told Mr Tran (using him to translate) to Mr Huynh that he (First Constable Urano) was going to search the car because Mr Huynh had a history of drug trafficking and that he seen him recently driving around the area when he hadn’t seen Mr Huynh recently driving around the area.
61First Constable Urano responded to each of these queries, giving evidence that:
· there was definitely an IR and that he may have made a mistake with the quantity;
· he had probably not seen Mr Huynh walking up and down his unit and didn’t really know why he said that he had;
· he was referencing seeing Mr Huynh driving just prior to the intercept when he said, 'I’ve seen Mr Huynh recently driving around the area' and had made an error in the way in which he expressed himself. He was referencing the intercept, not to any other observation.
62In the cross-examination, during the 198B of First Constable Urano, he was confident:
· that he could see on the iPad in the police vehicle that Mr Huynh had drug priors for trafficking after which he stated, 'I know who this guy is. He should have some drug priors' to Senior Constable Nosek.
· It is at that point that he decided to search the car – the two factors discussed with Senior Constable Nosek in advance of that point being that Mr Huynh had drug priors and that there was a recent information report.
· that Mr Huynh had drug priors and that he had seen the IR prior to the intercept of the vehicle.
· At the time he spoke to Mr Huynh, based on the address, he remembered the specific IR so when he spoke with Mr Huynh he definitely wasn’t confusing him with anybody else, he was confident at the time who he was speaking to and why.[8]
[8] s198B transcript, p. 16, line 29-31; p. 17, line 1-4
63In re-examination First Constable Urano explained that he did not tell Mr Huynh about the IR as he understood that they were not to be disclosed to offenders. I do accept that this is likely to be his belief at the time.
64First Constable Urano gave evidence that Mr Huynh’s address was on the proof of age card that he collected from him before he returned to the police vehicle and that he had observed or looked at the IR within recent proximity to the night, recognising immediately - not just the fact that the address was similar but also that he had already seen Mr Huynh’s face when he said, 'I think I know this guy' to Senior Constable Nosek. His memory had been 'jogged' as to why. First Constable Urano believed that he had only seen the IR in the week prior to the intercept.
The Defence argument – illegal search
65Essentially, the defence argue that at the time of conducting the search of the vehicle being driven by Mr Huynh, the relevant police member, First Constable Urano, did not have a reasonable basis to form a suspicion that there were drugs in the vehicle and therefore any evidence located was improperly obtained as was evidence resulting from the location of drugs and other items.
66I accept that it is primarily the evidence of First Constable Urano that is relevant to the purported suspicion said to have empowered the search.
67Section 82 of the Drugs, Poisons and Controlled Substances Act 1981 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.
68It is argued that s82 therefore carries two requirements, one that the relevant police officer must suspect that there is a drug dependence in respect of which an offence has been committed and, two, the suspicion must be one based on reasonable grounds.
69In this context, the applicant submits that First Constable Urano did not have reasonable grounds for suspecting that there was a drug of dependence in the vehicle in respect of which an offence had been committed for the following reasons:
· leaving the time of the morning, the area being known for drug activity and the nonoperational tail lights to one side, there was nothing about the way that the Toyota Camry was being driven or the behaviour of either of its occupants that would give rise for suspecting a drug offence;
· First Constable Urano observed nothing to indicate that either Mr Huynh or Mr Tran were affected by drugs or alcohol, indeed prior to commencing the search he had described them both to Senior Constable Nosek as 'pretty calm’;
· Acknowledging that First Constable Urano recognised Mr Huynh and recalled an IR naming him as a suspected drug dealer, this was insufficient to create reasonable grounds for suspecting that there was a drug of dependence in the vehicle in respect of which an offence had been committed as:
(i)his comments prior to and after the search do not reveal any recollection of the contents of the IR; and
(ii)he had referred to a couple of recent IRs when there was in fact only one.
70Criticism is also made of First Constable Urano giving conflicting accounts as to the justification for his search that revealed what is submitted to be an absence of a rational and factual basis given he was wrong about the number of IR’s he referenced to Senior Constable Nosek and given he was wrong when he explained the reason for the search to Mr Huynh when he referenced having seen Mr Huynh recently walking up and down his unit and to recently seeing Mr Huynh driving around the area.
71Further, it is submitted that the details of the information report demonstrated meaningful differences between what is alleged in that document and the position in which Mr Huynh was discovered on 25 December 2019, those differences eroding the factual basis for the search.
72It is submitted that the suspicion that there were drugs in the car was heavily based on Mr Huynh’s priors for drug offences, a vague memory of a recent IR report which was bolstered by false memories of having seen Mr Huynh walking and driving in the area. It is submitted that any suspicion was arbitrary and lacked sufficient factual basis.
Section 138
73It is contended by Mr Tran that the search was illegal and that any evidence thus obtained, including his record of interview with police on 25 December 2019, ought therefore be excluded pursuant to s138 of the Evidence Act2008.
74
Again, detailed submissions were filed with oral argument being held on
29 September 2021. I have had recourse to these submissions.
75Section 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.
76Therefore, on finding that the evidence was improperly obtained, the court must exclude the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
77This provision requires the determination of the question as to whether or not the police were lawfully entitled to search the vehicle which Mr Huynh was driving and in which Mr Tran was a passenger at the time they did so and discovered various drugs and items as alleged. The onus is on the accused is to demonstrate, on the balance of probabilities, that there was no lawful authority to conduct the search.
78Should 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 as I have already referred.
The prosecution argument – legal search
79The prosecution argue that the search of the vehicle Mr Huynh was driving was legal as it was conducted pursuant to s82 of the Drugs, Poisons and Controlled Substances Act 1981.
80Again, I have had recourse to detailed written and oral submissions.
81The prosecution essentially relies on the evidence of First Constable Urano and the body worn camera footage in submitting that the following features were operating in his mind at the time he determined to ‘tip the car over':
· the time, being 4:10 am;
· driving without tail lights indicating a desire not to be detected;
· the location being an area known to First Constable Urano as being a pocket of high drug activity situated close to a supervised injecting room;
· First Constable Urano’s recognition of Mr Huynh after the intercept in circumstances where it was acknowledged that he and Mr Tran had just come from Mr Huynh’s address of 15/139 Highett Street, Richmond;
· That in the lead up to the intercept First Constable Urano had been on a task force in the Yarra area investigating drug trafficking and had access to the information report which referenced that name and that address;
·
The evidence was unchallenged that he had seen the relevant information report within a week of the intercept of the vehicle which was being driven by
Mr Huynh;
· That information report referred to drug dealing from 15/139 Highett Street Richmond, the resident of that address as Phuong Huynh, that he goes outside to meet people waiting for him and is careful to avoid detection with the way he deals drugs. There are also two Asian guys who sometime turn up together and sometime separately, referenced in the report. From this the Crown submit that First Constable Urano was aware of Mr Huynh’s name, address and the nature of the suspected activity related to that address and at a time proximate to the intercept ;
· Mr Huynh did have drug related prior convictions and Mr Huynh appeared nervous to First Constable Urano.
82It is submitted that these facts, in combination, provide ample basis for First Constable Urano to form a suspicion that there was a drug of dependence and that it was one he held on reasonable grounds.
83It is submitted that the search of the car driven by Mr Huynh on 25 December 2019 should be found lawful and the evidence then located properly obtained. The Crown submit that s138 therefore has no work to do.
Findings
84
As I have referred, the prosecution contends that the vehicle being driven by
Mr Huynh was searched by police pursuant to s82 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.
85The 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 of 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 'mere idle wondering'.[9]
[9] Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236 {62} citing Queensland Bacon Pty Ltd v Reeds (1996) 115 CLR 255
86To quote from the Court of Appeal in the relatively recent decision of 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 s82, it is important to bear in mind, first, that s82 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, is fundamental in determining the reasonableness of the suspicion.'
87The body worn camera footage has great utility in the assessment I am to undertake.
88I do not accept the submission that the non-operational tail lights were a factor. In my view that observation by police had no more role to play than a reason to pull over the Toyota Camry, and to advise, as First Constable Urano said, the driver of that situation. Events clearly unfolded from that point. Nor in my view does much flow from First Constable Urano describing Mr Huynh as appearing nervous. Whilst I did not make the same observation, I note that it occurred in circumstances where English was not Mr Huynh's first language and he was speaking to police, circumstances that may present as nervousness.
89However, I do take the view that First Constable Urano’s suspicion was one that evolved, albeit over a number of minutes, and that it was one which was completed in the moment that he was directly asked by Senior Constable Nosek if he wanted to ‘tip the car over' and First Constable Urano responded in the affirmative.
90I do not see an issue with First Constable Urano’s response in his evidence at the s198B hearing in relation to the number of IR's that he had seen, that he may have made a mistake about ‘a couple of IR’s' as opposed to one, as being one of significance. This did not detract from the content of the information report in the sense that I accept that he was at least aware of Mr Huynh’s name in circumstances where it was connected to 15/139 Highett Street, Richmond and allegations of drug dealing. I accept that he believed that he recognised Mr Huynh, his name, his address and that both were associated with drug trafficking from the information report that he had seen proximate to the intercept. There was no challenge that he had seen the information report. There was no challenge to the contents of the information report. There was no challenge to the reliability of the information in that report.
91I did find his other explanations, for what was referred to by the applicant as ‘conflicting accounts,’ as unconvincing. I don’t know why First Constable Urano referenced seeing Mr Huynh at his unit or driving around the area when neither appear to be accurate.
92I am not of the view that the inaccuracies reflect his memory or poor recall of the contents of the information report.
93Whilst part of First Constable Urano’s conversation at the scene with Mr Huynh in the early hours of 25 December 2019, neither of these inaccurate comments by First Constable Urano to Mr Huynh seemed to have fed into his suspicion, only to the way he was interacting with Mr Huynh in the face of Mr Huynh’s denials that Mr Huynh had spoken to police before or had a history with police or had a history with drugs - perhaps done so in an effort to draw a more truthful response.
94The prosecution do not seek to rely on Mr Huynh’s denials as part of the forming of First Constable Urano’s suspicion.
95First Constable Urano’s desire not to reveal the existence of the information report or its contents to Mr Huynh or Mr Tran may well have also infected the conversation that he had with them at that time.
96Either way, the inaccurate conversation occurs at a point in time prior to the search and when the unchallenged evidence of the information that is within his mind is:
· that he identified the vehicle at 4:10 am in an area of high drug activity;
· he had worked in Richmond for about two years and been on a drug taskforce for about six months prior to the intercept and was familiar with the activity in the area;
· that Mr Huynh and Mr Tran were in close proximity to Mr Huynh’s residence and acknowledged having just left that address;
· that same address was identified to First Constable Urano in an information report which alleged drug dealing from those very premises where the occupant would leave the address to deal drugs, narrowing, in effect, the scope of his suspicion;
· that same information report identified the driver of the vehicle, Phuong Huynh, to be the sole occupant of the address 15/139 Highett Street, Richmond;
· that First Constable Urano had seen the information report on his return from leave and within a week of intercepting the vehicle that Mr Huynh was driving, that is, the information was recent;
· essentially, he believed that he recognised Mr Huynh from that information;
· it was also within his knowledge and decision making that Mr Huynh had drug involvements and should have drugs priors and this was confirmed by Senior Constable Nosek’s enquiry of the Police database.
97The inaccurate conversation First Constable Urano has with Mr Huynh directly and, then through Mr Tran, is at a point after he had made the decision to search the Toyota Camry. In my view he had made that decision at the police vehicle in conversation with Senior Constable Nosek with the information that I have already referred to foremost in his mind.
98The test for establishing that the suspicion held by First Constable Urano was based on reasonable grounds requires that the suspicion – which must be positive or actual apprehension or mistrust and not merely ‘idle wondering” – was one actually held; and that the circumstances must have been of a kind that would raise a suspicion in the mind of a reasonable person.[10]
[10] Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236 [65]
99I have taken into account all the matters raised by counsel in both their written and oral submissions and referenced the material to which I have had recourse. The Prosecution also referred me to a recent decision of DPP v Anna Fees & Vu Quoc Nguyen [2021] VCC 1329 which I have also read.
100For the reasons outlined, I am satisfied that First Constable Urano was aware of the need to have a relevant suspicion and that, he held that suspicion. Further and, on balance, I do consider that the suspicion was one which reasonable in the circumstances, and therefore the search conducted of the vehicle driven by
Mr Huynh was legal.101With that finding, unless asked to do so, I do not propose to consider the provisions of s138 of the Evidence Act 2008.
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