DPP v Leonard

[2001] NSWSC 797

Reported Decision: 53 NSWLR 227
127 A Crim R 381

New South Wales

Supreme Court

CITATION:

DPP v Leonard [2001] NSWSC 797

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 11765 of 2001

HEARING DATE(S):

30 July 2001

JUDGMENT DATE:

14 September 2001

PARTIES :

THE DIRECTOR OF PUBLIC PROSECUTIONS
(Plaintiff)

v

TROY CLAUDE LEONARD
(Defendant)

JUDGMENT OF:

James J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Mr Dowd LCM

COUNSEL :	P Berman SC (Plaintiff) J Hart (Defendant)
SOLICITORS:	S E O'Connor Solicitor for Public Prosecutions (Plaintiff) Perrot's Solicitors (Defendant)
CATCHWORDS:	Appeal from Magistrate - search of defendant's vehicle by police officer - consent to search - whether knowledge of right to refuse consent is critical to validity of consent - admissions - whether consent to search is admission - whether any breach of legal requirements by police officer was "deliberate" or "reckless".
LEGISLATION CITED:	Justices Act s 104 (4) Criminal Procedure act s 108 Evidence Act s 138 Drug Misuse and Trafficking Act s 37(4)
CASES CITED:	George v Rockett (1990) 170 CLR 104 Anderson v Judge's of the District Court of NSW (1992) 27 NSWLR 701 Bunning v Cross (1977-1978) 141 CLR 54 Pollard v The Queen (1992-1993) 176 CLR 177 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 Peyton and Anor v Nobbs and Anor (2000) NSWSC 43 (Newman J) Director of Public Prosecutions v Nicholls (2001) NSWSC 523 (Adams J) Wineburg v Stafford (unreported, 22 July 1997) R v Azar (1991) 56 A Crim R 414 Schneckloth v Bustamonte 412 U.S. 218 Meates v Attorney-General (1981) 2 NZLR 335 Ghani v Jones (1970) 1 QB 693 Werner v The Police (High Court of New Zealand, Gallen J, 16 April 1986) R v Horton (1998) 45 NSWLR 426 R v Esposito (1998) 45 NSWLR 442 Re A (a Child) (2000) 115 A Crim R 1 R v Tolmie (1996) 84 A Crim R 293
DECISION:	Appeal allowed

- 43 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
SYDNEY REGISTRY
COMMON LAW DIVISION

11765 of 2001

James J

September 2001

THE DIRECTOR OF PUBLIC PROSECUTIONS
(Plaintiff)
v
TROY CLAUDE LEONARD
(Defendant)

Judgment

1    HIS HONOUR: This is an appeal by the plaintiff, the Director of Public Prosecutions pursuant to s 104(4) of the Justices Act, against a decision by a Local Court Magistrate (Mr Dowd) made on 6 March 2001, refusing to admit evidence obtained as a result of a search of a vehicle being driven by the defendant, Troy Claude Leonard, in a prosecution of the defendant on drug charges.

2    The offences with which the defendant was charged were allegedly committed on 28 April 2000 on the Sturt Highway near Hay. The principal prosecution witness is a Police Officer, Constable Barnes. In a statement made by him, Constable Barnes said that at about 12.30am on 28 April 2000 he was performing random breath testing duties on the Sturt Highway near Hay. Constable Barnes signalled to an approaching vehicle that it should stop and the vehicle stopped close to where Constable Barnes was standing. The driver of the vehicle was the defendant.

3    Paragraphs 5, 6 and 7 of Constable Barnes’ statement were in the following terms:-

“5. I approached the driver, a male person about 30 years old and said, “Good evening sir, you have been stopped for a random breath test. Have you consumed any alcohol this evening”?
He said, “No, not at all”.
It was noticed at this time that the male person was in the company of a female about 30 years old, whom I now know to be Vera HOLMES. This person was occupying the front passenger seat of the vehicle.
I said, “Sir, in accordance with the provisions of the Road Transport (Safety and Traffic Management) Act of 1999, I require you to undergo a breath test for the purpose of indicating the concentration of alcohol present in you (sic) blood and I direct you to exhale deeply in one single breath, air from your lungs directly into this approved device until I tell you to stop”.
6. The male person complied with this request and supplied a sufficient amount of air into the breath testing device.
I said, “Sir, the test has proved negative, may I see your licence please”?
He said, “Sure, no worries”.
The male person then produced a current New South Wales drivers licence in the name of Troy Claude LEONARD. The address on the licence was 32 Farview Drive, DUBBO NSW. The photograph upon the (sic) was identical to the male person that was driving the vehicle.
7. I said, “Sir can I ask the purpose of your journey this morning”?
He said, “We have come from Adelaide and we are going home to Dubbo”.
I said, “Are you on holidays or something”?
He said, “No, not really”.
I said, “Is this your vehicle”?
He said, “No, it’s a hire vehicle”.
I said, “Sir, would you consent to a search of your vehicle”?
He said, “Why”?
I said, “Sir, we have a lot of illegal substances that are being transported along the Sturt Highway, particularly in hire vehicles such as these. What I would like to do is conduct a search of the vehicle in your presence to check for any such substances or illegal drugs”.
He said, “Go for it, there is nothing in here mate”.
I said, “We will start in the rear of the vehicle in the boot”.
He said, “Fine”.”

4    The conversation between Constable Barnes and the defendant was not tape recorded. Constable Barnes had brought a hand held tape recorder to the random breath testing site but had left it in a police vehicle.

5    After the conversation between Constable Barnes and the defendant which I have quoted, Constable Barnes and the defendant then walked to the rear of the defendant’s vehicle. Upon the defendant opening the boot of the vehicle, Constable Barnes noticed a smell emanating from the boot, which appeared to be the smell of cannabis. The defendant identified two pieces of luggage in the boot as being his. When Constable Barnes opened one of these pieces of luggage, he found bags containing green vegetable matter, which upon later analysis was found to be cannabis.

6    The defendant was arrested and conveyed to the Hay Police Station. At the police station a further search of the defendant’s luggage was made and further bags containing cannabis were found. At the police station Constable Barnes asked the defendant a number of questions. He recorded the questions he asked and the answers the defendant gave in his official police notebook. Two questions and answers were as follows:

“I said, “Do you agree that you were stopped by police on the Sturt Highway at hay (sic) on the 28th of April, 2000m (sic) at about 12.30am”.
He said, “Yes”.
I said, “Do you agree that you then agreed to a search of your vehicle WMG-412”?
He said. “Yes”.”

7    The defendant signed the entries in Constable Barnes’ notebook as being a true and correct record of the interview at the police station.

8    A little later at the police station the defendant was asked whether he wished to participate in an electronically recorded interview and he said, “no”.

9    Other police who had been present at the random breath testing site did not join Constable Barnes, until after they saw Constable Barnes and the defendant walking towards the rear of the defendant’s vehicle. None of them had heard the earlier conversation between Constable Barnes and the defendant.

10    The defendant was charged with one offence of supplying a prohibited drug and three offences of possession of a prohibited drug. The charge of supplying a prohibited drug was based on the defendant having been in possession of not less than a traffickable quantity of cannabis. The defendant elected to have the charge of supplying a prohibited drug dealt with on indictment and all of the charges were then referred to the Director of Public Prosecutions for prosecution. Subsequently, both the Director of Public Prosecutions and the defendant elected that all of the charges should be heard summarily. However, the Director of Public Prosecutions retained the conduct of the prosecutions.

11    The hearing of the charge of supplying a prohibited drug and two of the charges of possession of a prohibited drug commenced before Mr Dowd on 5 February 2001. On that date a voir dire inquiry was held to determine the admissibility of the evidence of the finding of the drugs during the search of the defendant’s vehicle. I will henceforth refer to this evidence as “the evidence”.

12    In the voir dire inquiry a brief of evidence was tendered and admitted, which contained Constable Barnes’ statement and statements by the other police officers, which added little or nothing to Constable Barnes’ statement. Constable Barnes also gave oral evidence. The defendant did not give evidence or call evidence in the voir dire inquiry.

13 In the voir dire inquiry it was submitted on behalf of the Director of Public Prosecutions that the evidence was admissible as having been lawfully obtained by Constable Barnes, either in the exercise by him of the power conferred by s 37(4) of the Drug Misuse and Trafficking Act or as having been obtained with the consent of the defendant.

14 Section 37(4) of the Drug Misuse and Trafficking Act provides in part that a member of the police force may stop and search any vehicle in which the member reasonably suspects that there is any prohibited plant or any prohibited drug which is, in contravention of the Drug Misuse and Trafficking Act, in the possession or under the control of any person.

15 Section 357E of the Crimes Act confers a similar power in general terms in the case of indictable offences. Section 357E provides in part that a member of the police force may stop and search any vehicle in which he or she reasonably suspects that there is any thing used or intended to be used in the commission of an indictable offence. The Magistrate in his judgment did not refer to s 357E of the Crimes Act and I will have regard only to s 37(4) of the Drug Misuse and Trafficking Act.

16    In the voir dire inquiry it was submitted by counsel for the defendant that a member of the police force cannot “reasonably suspect” that there are prohibited drugs or prohibited plants in a vehicle, unless there are reasonable grounds for such a suspicion and, in the present case, there were not reasonable grounds for such a suspicion on the part of Constable Barnes. Consequently, the search of the vehicle was not authorised by s 37(4) of the Drug Misuse and Trafficking Act.

17 It was accepted by counsel for the defendant that, even if the search of the defendant’s vehicle was not authorised by s 37(4), nevertheless, if the defendant had consented to a search of his vehicle, the search would not have been illegal and the evidence would not have been unlawfully obtained.

18    However, it was submitted that, even if evidence of the conversation between Constable Barnes and the defendant was admissible, not just in the voir dire inquiry but generally, the consent given by the defendant was not a valid consent, because it was not an informed consent, in that the defendant had not been informed that he had a right not to consent.

19    It was submitted, alternatively, on behalf of the defendant, that evidence that the defendant had given his consent to a search of his vehicle was evidence of an “admission” within the meaning of that term in s 108 of the Criminal Procedure Act; that s 108 of the Criminal Procedure Act was applicable; that there had been no tape recording of the conversation in the course of which the admission was made; there was no reasonable excuse why a tape recording could not have been made; and consequently, evidence that the defendant had given his consent to a search of his vehicle was inadmissible.

20    The Magistrate had heard voir dire inquiries in three other cases which raised similar issues. In each of the cases the defendant had been an occupant of a motor vehicle which had been stopped and searched by police and in which police had found prohibited drugs or prohibited plants. On 6 March 2001 the Magistrate delivered a single reserved judgment in which he dealt with the voir dire inquiries in all four cases. The first 19 pages of the judgment apply generally to all four cases. In the remaining parts of his judgment the Magistrate dealt separately with each of the four individual cases.

21    Near the beginning of his judgment the Magistrate identified four issues as arising out of the voir dire inquiries. These issues were:-

“1. Did the relevant police officers have the reasonable suspicion required under Section 37(4) of the Drug Misuse and Trafficking Act to entitle them to search the vehicle?
2. In circumstances where that reasonable suspicion was not held, was the giving of consent by the occupants of the vehicle sufficient to entitle the search to be made?
3. Pursuant to Section 108 of the Criminal Procedure Act 1986 should the roadside questioning of the defendants by the police be regarded as constituting admissions, thus requiring a recording of the conversation to make them admissible (subject to the provisions in Section 108(2)(a)(ii) or Section 108(2)(b)).
4. In the event that the Court finds the search to be illegal should the Court exercise its discretion pursuant to Section 138 to admit the evidence notwithstanding the illegality.”

22    The Magistrate proceeded to deal with those four issues in the general part of his judgment.

23    As to issue 1, the Magistrate, applying what the High Court said in George v Rockett (1990) 170 CLR 104, in the context of the issuing of search warrants, held that under s 37(4) of the Drug Misuse and Trafficking Act a police officer does not reasonably suspect that there are prohibited drugs or prohibited plants in a vehicle, unless there are reasonable grounds for the police officer to form such a suspicion before commencing searching. The Magistrate held that the facts that the Sturt Highway is a well-known drug route and that drugs are frequently transported in hired vehicles (even if such facts could be established), could not, by themselves, amount to reasonable grounds for a suspicion that there are prohibited drugs or prohibited plants in a vehicle.

24    As to issue 2, the Magistrate held that, if there are not reasonable grounds for a suspicion that there are prohibited drugs or prohibited plants in a vehicle, “the giving of a proper consent can do away with the need to form a reasonable suspicion”. The Magistrate referred to what was said by Kirby P in Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 at 705.

25    The Magistrate then addressed the question of “what is required to be established for proper consent?” The Magistrate made a number of references to the factor of whether a person, at the time of giving consent, has knowledge of his right to refuse to give consent.

26    At page 8 of his judgment the Magistrate, after saying that there are a number of factors to be taken into account “in determining whether consent has been voluntarily given”, said:-

“The other important factor is knowledge of the right to refuse. This is not necessarily an all controlling factor, but unless it can be demonstrated that such knowledge exists in the context of roadside searches of motor vehicles, it is very difficult to argue that the consent was truly voluntary”.

27    Later in his judgment at p 10 the Magistrate said:-

“As I indicated earlier, knowledge of the right to refuse may not be the only or all controlling factor. It may for example, have much less weight or no weight at all if the person requested to consent is legally trained, or himself a police officer or other person known to be familiar with drug laws.
However, the average person without this knowledge in the present situation is clearly at a disadvantage. The DPP (in Leonard and Holmes) submitted that the consent was informed consent because the defendants were told the purpose was to search for drugs. Whilst the reason for and limits of search are relevant as information, they do not refer to the very core of the individual’s rights, that is, that he or she is entitled to refuse consent”.

28 As to issue 3, the Magistrate referred to s 108 of the Criminal Procedure Act and to the definition of “admission” in Part 1 of the Dictionary at the end of the Evidence Act. The Magistrate stated the view “that any statements made by an accused in these charges giving consent to search is a representation adverse to his interests” in the outcome of the proceeding and, therefore, “an admission”. Hence, unless the statement is recorded or there is a reasonable excuse shown why a recording could not have been made, evidence of the statement is not admissible.

29 As to issue 4, the Magistrate referred to s 138 of the Evidence Act and to cases on the discretion at common law to exclude illegally or improperly obtained evidence, such as Bunning v Cross (1977-1978) 141 CLR 54. The Magistrate quoted at length from the judgment of Deane J in Pollard v The Queen (1992-1993) 176 CLR 177, a case concerning the admissibility of a confessional statement made at a police station. In his judgment the Magistrate quoted parts of what Deane J said at pages 203-204. The full passage in Deane J’s judgment is as follows:-

“In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" (Bunning v Cross (1978), 141 CLR, at p 78) with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it" (Bunning v Cross at p 78). In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence”.

30    The Magistrate then referred to Deane J’s conclusion in Pollard at p 209 that the conduct of the police by which the confessional statement had been procured from Pollard had involved a reckless disregard of a statutory requirement, that therefore the considerations favouring exclusion of the evidence were at their strongest and these considerations would ordinarily dictate that a judicial officer should exercise the discretion so as to exclude the evidence. In Pollard the trial judge had not adverted to the question of whether evidence of the confession should have been excluded on public policy grounds.

31    In his judgment the Magistrate then dealt separately with the individual cases before him.

32    The first case the Magistrate dealt with individually involved a defendant named Lazenby. It is necessary to refer to some of what the Magistrate said in dealing with Lazenby’s case, because, in subsequently dealing in his judgment with the present defendant’s case, the Magistrate referred to “reasons previously outlined”, which would appear to include some of what the Magistrate had previously given as his reasons in determining Lazenby’s case.

33    In dealing with Lazenby’s case, the Magistrate held that “generalised” knowledge that the Sturt Highway was often used for the conveying of prohibited drugs in hired vehicles could not of itself amount to reasonable grounds for a police officer to suspect that there were prohibited drugs in any particular hired vehicle.

34    The Magistrate further held in Lazenby’s case that Lazenby had not validly consented to his vehicle being searched by police. The Magistrate stated that “consent must be informed consent, that is, the person must be made aware … that he or she had an absolute right to refuse to consent, without any form of penalty or disadvantage to that person”. By that criterion there had not been any valid consent by Lazenby.

35 The Magistrate then turned to s 138 of the Evidence Act. The Magistrate said:-

“So far as s 138 is concerned, it is clear that the police officers here, whilst perhaps not consciously deciding to act in the knowledge they were in breach of a statutory duty, nevertheless consciously decided to instigate a search which search was in fact illegal and which in fact involved a “deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct …” (Deane J, Pollards case 176 CLR 177 at 203).
In accordance with the principles there set out, I consider I should exercise my discretion to exclude the evidence”.

36    When the Magistrate came to deal with the present defendant’s case, the Magistrate quoted or summarised the evidence of Constable Barnes. The Magistrate then said:-

“For reasons previously outlined, I do not consider objectively the facts were such as could reasonably justify suspicion, nor was the consent given informed consent.. I therefore find the search of the motor vehicle to be an illegal search, and refuse to admit the evidence pursuant to Section 138 of the Evidence Act for the reasons previously outlined.
I note also that in my view the conversation as to search constituted an admission pursuant to section 108 of the Criminal Procedure Act 1986, and that the requirements of section 108 were not complied with, although because of my earlier findings this breach is not relied on to determine the question of legality of search”.

37 Section 104(4) of the Justices Act, pursuant to which this appeal is brought, provides as follows:-

“(4) Appeals in relation to interlocutory orders
A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court”.

38    At the hearing of these proceedings before me, it was not disputed by counsel for the defendant that the appeal was competent, as being an appeal against an interlocutory order. I am satisfied that the appeal is competent and I will, briefly, state my reasons for that conclusion.

39    The decision by the Magistrate against which the Director of Public Prosecutions seeks to appeal was that evidence which the informant wished to adduce should not be admitted. As the Magistrate observed in the general part of his judgment, the evidence in question, that is, the evidence of the finding of the drugs in the vehicle of each defendant during a search of the defendant’s vehicle, was “at the very essence of the Crown case”. Without the evidence of the finding of the drugs, the prosecution had no case against any defendant.

40 Counsel for the Director of Public Prosecutions referred me to decisions on s 5F of the Criminal Appeal Act, which permits an appeal to the Court of Criminal Appeal from an “interlocutory judgment or order” made in proceedings to which the section applies. It has been held in relation s 5F that, while a ruling on the admissibility of evidence does not generally amount to “an interlocutory judgment or order” within s 5F, it will do so, where the effect of the ruling is to prevent the prosecution from putting a case: R v Bozatsis and Spanakakis (1997) 97 A Crim R 296. Although s 5F of the Criminal Appeal Act refers to “an interlocutory judgment or order”, whereas s 104(4) of the Justices Act refers merely to “an interlocutory order”, I do not consider that the difference in the language of the two sections means that decisions on s 5F of the Criminal Appeal Act are not also applicable to s 104(4) of the Justices Act. In Peyton and Anor v Nobbs and Anor (2000) NSWSC 43 (Newman J) and Director of Public Prosecutions v Nicholls [2001] NSWSC 523 (Adams J) it appears to have been accepted that the principles enunciated by the Court of Criminal Appeal in relation to s 5F of the Criminal Appeal Act are applicable to s 104(4) of the Justices Act, although in each case the judge held that, applying those principles, there was not “an interlocutory order”.

41    On the hearing of this appeal, counsel for the Director of Public Prosecutions did not submit that the Magistrate had made any error of law in deciding that Constable Barnes did not have reasonable grounds for suspecting, and therefore did not “reasonably suspect”, that there were prohibited drugs or prohibited plants in the defendant’s vehicle and that, accordingly, the search of the defendant’s vehicle was not authorised by s 37(4) of the Drug Misuse and Trafficking Act.

42    However, it was submitted by counsel for the Director of Public Prosecutions that the Magistrate had made errors of law:-

1. In holding that the consent given by the defendant to the police officer to search his vehicle was not a valid consent, because it was not an informed consent.

2. In holding that evidence of the consent given by the defendant was, in any event, inadmissible, because it was evidence of an ‘ admission’ within s 108 of the Criminal Procedure Act and was, therefore, rendered inadmissible by that section.

3. In holding, in exercising his discretion under s 138 of the Evidence Act , that evidence of the finding of the drugs should be excluded, on the basis that the evidence had been obtained by conduct in ‘ deliberate or reckless breach’ of legal requirements.

43    I am satisfied that all of these alleged errors involve a “question of law alone” within s 104(4) of the Justices Act.

44    As the appeal is otherwise competent, I should grant leave to the Director of Public Prosecutions to appeal. Inter alia, the questions of law which the Director wishes to have argued are questions of general importance and it is apparent from his Worship’s judgment and from an affidavit sworn by a police prosecutor attached to the Griffith Local Court Circuit that the questions have arisen in a number of cases.

45    It might be argued that the question of the admissibility of the evidence of the consent is anterior to the question of the validity of the consent. If evidence of the consent is inadmissible, then no question of the validity of the consent arises. However, I will deal with the alleged errors of law in the order in which I have stated them, which is in accordance with the order in which they were dealt with by the Magistrate in his judgment and the order in which they were argued before me.

That the Magistrate erred in law in holding that the consent given by the defendant to the police officer to search his vehicle was not a valid consent because it was not an informed consent.

46    As I have already indicated, the Magistrate, citing what Kirby P said in Anderson v Judges of the District Court held that, even if there were not reasonable grounds for Constable Barnes to form a suspicion that there were prohibited drugs or prohibited plants in the defendant’s vehicle, so that the search was not authorised by s 37(4) of the Drug Misuse and Trafficking Act, nevertheless the search would not have been illegal, if the defendant had consented to the search. Both before the Magistrate and before me counsel for the defendant accepted that this was a correct statement of law.

47    In Anderson the defendant had been charged with an offence of goods in custody under s 527C of the Crimes Act, after the vehicle in which he had been travelling had been stopped and searched by police officers and goods consisting of banknotes had been found in the vehicle. In his judgment Kirby P noted that it had not been submitted that the search had been illegal. His Honour said “the basis of the authority for such a search may have been the Drug Misuse and Trafficking Act 1985, s 37(4) or the Crimes Act, s 357E. It may have been the consent of the claimant (Anderson)”. As the legality of the search was not in issue, it was unnecessary for Kirby P to explore what were the requirements for a valid consent.

48    In his judgment in the present case the Magistrate considered the question of “what is required to be established for proper consent”. Earlier in this judgment I quoted some of what the Magistrate said on this question.

49    Although the Magistrate said that there were a number of factors to be taken into account and although he said that knowledge on the part of the person giving consent of the right to refuse to give consent is “not necessarily an all-controlling factor,” I consider that, when the Magistrate’s judgment is read as a whole, including the general part of the judgment, the part of the judgment dealing with Lazenby’s case and the part of the judgment dealing with the defendant’s case, it is clear that the Magistrate did proceed on the basis that knowledge, on the part of the person giving consent of the right to refuse to give consent, was a critical or controlling factor. In the general part of his judgment, the Magistrate said that, unless it can be demonstrated that the person giving consent had knowledge of the right to refuse consent, it is “very difficult” to argue that a consent is voluntary, that is, valid. Although the Magistrate said that knowledge of the right to refuse to consent may have less weight, if the person requested to consent is legally trained or a police officer or some other person familiar with the drug laws, the basis for this remark would appear to be that such a person would already, by reason of his training or experience, be aware of the right to refuse consent, without having to be told of the right to refuse consent by a police officer requesting consent to a search, and not that, in such circumstances, knowledge of the right to refuse consent would have less weight. A little later in the judgment the Magistrate said that what Constable Barnes had told the defendant about the purpose of the proposed search, while relevant to the question the Magistrate had to decide, did not refer to “the very core of the individual’s rights, that is, that he or she is entitled to refuse consent”.

50    In dealing with Lazenby’s case the Magistrate said that the apparent consent given by Lazenby was not a valid consent because it was not an informed consent, in that Lazenby had not been made aware that he had an absolute right to refuse consent. In dealing with the defendant’s case the Magistrate said that the consent given was not an “informed consent”.

51    Whether a person requested to consent to a procedure which police wish to carry out, is aware of his or her right to refuse consent, can be a factor in determining whether an apparent consent should be regarded as a valid consent. However, in my opinion, in elevating this factor to the status of a critical or controlling factor, such that, if it is not present, it will be “very difficult” for an apparent consent to a procedure to amount to a valid consent, the Magistrate was committing an error of law.

52    As counsel for the Director of Public Prosecutions submitted, the decision of White J of the Supreme Court of Western Australia in Wineburg v Stafford (unreported, 22 July 1997) is directly in point. The Magistrate in the present proceedings was not referred to Wineburg v Stafford.

53    In Wineburg v Stafford a police officer stopped the defendant’s vehicle. The police officer asked if the defendant was carrying any drugs or firearms and the defendant answered “no”. The police officer then said “Do you mind if I have a quick look in your vehicle then?” The defendant replied “No, go ahead”. On a search of the defendant’s vehicle the police officer found a bong for smoking cannabis. The defendant was later charged with a drug offence.

54    On an appeal from a magistrate White J identified as an issue for determination by him, whether the failure by the police officer to caution the defendant that he was not obliged to permit a search of his vehicle rendered the defendant’s consent nugatory, with the result that the search was unlawful. White J held that the search of the defendant’s vehicle was not unlawful. His Honour held that the police officer had asked for, and had been granted, permission to search the vehicle and there had been no finding by the magistrate, nor was there evidence to support a contention, that the permission had been obtained by coercion.

55    In his judgment in Wineburg v Stafford White J referred to the decision of the High Court in Bunning v Cross and observed that there were analogies between the case before him and Bunning v Cross. In Bunning v Cross a motorist (Mr Bunning) had been stopped by a police officer on highway patrol duty. The evidence, the admissibility of which was in issue, was the result of a breath analysis test of a breath sample supplied by Mr Bunning at a road patrol station.

56    In Bunning v Cross there were a series of proceedings, before a magistrate, before a single judge of the Supreme Court of Western Australia, before the magistrate again, before the Full Court of the Supreme Court of Western Australia on the return of an order nisi and then, finally, before the High Court. The single judge held that the administration of the breath analysis test had been unlawful, in that it was not authorised by Western Australian legislation. The finding that the administration of the test had been unlawful was not challenged on the hearing before the Full Court of the Supreme Court of Western Australia.

57    Most of the judgments of the judges of the High Court are devoted to the discretion at common law to exclude evidence which has been unlawfully obtained. However, at pages 63-64 Barwick CJ said:-

“The learned judge in the first instance held the administration of the breathalyzer test to be unlawful in the sense that a coercive demand for the taking of the test was not authorised by the Road Traffic Act under the provisions I have quoted. The judge did not consider whether the test was taken voluntarily and not under the coercion of a demand by the police officer.
There was material on which that question could have been considered. It appears, in my opinion, from the transcript of the magistrate's notes that the patrolman did not cause the applicant to engage in the breathalyzer test by any direction or command, or by any representation or any trick or improper behaviour. Nor did the authorized person who operated the breath analysing equipment by any such act cause the applicant to co-operate in the operation of that equipment. Nothing in ss 63 to 73 inclusive of the Road Traffic Act in my opinion, precludes the voluntary submission of a person to the breathalyzer test or makes the validity of such a test voluntarily undergone dependent upon an antecedent use of the preliminary test. What s 66 does is to empower the patrolman to require or command submission to the preliminary test and to provide a sample for analysis by the breathalyzer apparatus or, in appropriate circumstances as stated in the sections, to require or command the provision of a sample of breath without there having been a preliminary test. Failure of compliance with the patrolman's requirement made in conformity with the provisions of the Act attracts the penalties provided by s 67. But nothing in the Act precludes a patrolman or an authorized person from asking for a sample of breath of a person willing to give it or from operating the breathalyzer apparatus in relation to such a sample. There is, in my opinion, nothing unlawful in the making of such a test with the co-operation of a person willing without being required or commanded to take it.
Of course, a fine line divides such a willingness from a willingness the product of coercive conduct: and in deciding whether the willingness was uncoerced, it is proper to remember the apparent authority of a patrolman and the situation of the motorist who has been "taken" to the police station. But, in this case, there is no finding of any coercive conduct on the part of the patrolman or authorized person: nor, in my opinion, ought there to have been. Rather, the impression the magistrate's notes creates in my mind is that the applicant, confident of his own innocence of wrongdoing, was quite willing if not anxious to take the test which, it seems to me, it was likely that he believed would clear him.
However, no appeal having been brought from the first decision of the Supreme Court, it must now be accepted, when considering the propriety of the magistrate's exercise of discretion, that the administration of the breathalyzer test was enforced by the officer in virtue of his office as a constable of police and that the officer's demand that the applicant undergo the test was not warranted by the statute and thus was without legal authority”.

58    In their joint judgment Stephen and Aickin JJ noted at p 67 that: -

“… the Full Court, which apparently heard argument not only upon the manner in which the magistrate exercised his discretion and the criteria he employed in doing so but also upon the quite distinct question whether or not, when the appellant took the "breathalyzer" test, he did so quite of his own volition; if so, no question would have arisen of his being unlawfully required to submit to the test and hence no question of there being any discretion to reject evidence because it was the product of an unlawful police requirement”.

59    However, their Honours considered that the grounds of the order nisi before the Full Court were not wide enough to include a ground that the evidence had not been unlawfully obtained because the appellant had taken the breathalyser test of his own volition.

60    Jacobs J said in his judgment at p 82 that the High Court was not bound to proceed on the basis that the evidence had been unlawfully obtained and his Honour held that what had happened was that the appellant had been asked for a sample of his breath and had been willing to give it, with the consequence that the evidence of the result of the test had not been unlawfully obtained.

61    Murphy J held that the appellant had not acted voluntarily. His Honour said at p 84:-

“Mr Bunning was at a police station (presumably under arrest); he was required several times to take the test and declined; but finally agreed. The police officer required him to do so in the belief that he was lawfully requiring him to do so. In these circumstances, it is idle to regard Mr Bunning's submission as voluntary”.

62    It is clear that Mr Bunning was not told that he was not required to take the test. Indeed, as Murphy J pointed out, the police officer believed that Mr Bunning was required to take the test. However, none of the High Court judges suggested that whether Mr Bunning had been told that he had a right to refuse to take the test was critical, or even material, to whether he had taken the test voluntarily, that is, had consented to take the test. According to Barwick CJ, the material matters were whether Mr Bunning had undertaken the test as a result of a direction or command or as a result of a misrepresentation, trick or other improper behaviour on the part of the police.

63    Counsel for the Director of Public Prosecutions referred to what Gleeson CJ said, with the concurrence of other members of the Court of Criminal Appeal, in R v Azar (1991) 56 A Crim R 414, regarding whether a statement made to police had been made voluntarily under the principle at common law that evidence of a statement which contains an admission is not admissible unless the statement was made voluntarily. In his judgment Gleeson CJ enunciated a series of propositions, two of which were:-

“8. It is also important to note that what is involved is an inquiry as to the accused’s will, rather than as to the accused’s state of knowledge, including knowledge of his legal rights. What a person knows or does not know may be relevant, as an evidentiary fact, to the question whether the person’s will has been overborne, but knowledge or belief, on the one hand, and will, on the other hand, are different concepts.
9. There is no justification for the proposition that a statement is voluntary in the relevant sense only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. Indeed if, as has been noted above, a statement may be voluntary even though made pursuant to a legal obligation, a fortiori a statement made be voluntary even though the maker is unaware of what the law requires”.

64    I accept that these propositions stated by Gleeson CJ support a conclusion that a person may consent to an investigative procedure taking place without being aware that he has a right to withhold his consent to the procedure taking place. This conclusion is, of course, subject to any statutory provision to the contrary.

65    It is apparent from the transcript of the hearing of 5 February 2001 and the terms of his Worship’s judgment of 6 March 2001, that the Magistrate was referred to, and that the Magistrate consulted, a textbook Tronc Crawford and Smith Search and Seizure in Australia and New Zealand (1996). The statement in the Magistrate’s judgment that knowledge of the right to refuse consent is not necessarily an “all controlling factor” (although I have held that the Magistrate did in fact regard it as the controlling or critical factor), would appear to have been derived from this textbook. However, what the Magistrate said in his judgment does not accurately reflect the terms of the text. At pp 89-91 the authors list what they consider to be “relevant factors regarding voluntariness”. Before listing the factors the authors say “no one factor by itself conclusively determines the voluntariness of a consent”. The fifth factor listed, after coercion, a threat in bad faith to obtain a warrant, a show of force and a person being in custody when he consents, is “knowledge of the right to refuse”. The authors say at p 90:-

“5. Knowledge of the right to refuse
While a person’s knowledge of his or her right to refuse to give consent is a factor to consider, it is not the controlling factor. A police officer who seeks a consent to search need not inform the person of his or her right to refuse: Schneckloth v Bustamonte (1973) 93 S Ct 2041; Pearce v Button (1986) 60 ALR 549; see also Anderson v Harper [1982] Qd R 105”.

66    The case of Schneckloth v Bustamonte cited at p 90 of Search and Seizure in Australia and New Zealand is a decision of the United States Supreme Court and is reported at 412 U.S. 218. The case is complicated by aspects of American constitutional law; nevertheless, the case is in point and is a persuasive authority. The headnote to the report in the United States reports, which accurately summarises the decision of the majority of the Court, is as follows:

“During the course of a consent search of a car that had been stopped by officers for traffic violations, evidence was discovered that was used to convict respondent of unlawfully possessing a check. In a habeas corpus proceeding, the Court of Appeals, reversing the District Court, held that the prosecution had failed to prove that consent to the search had been made with the understanding that it could freely be withheld. Held: When the subject of a search is not in custody and the State would justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntary; voluntariness is to be determined from the totality of the surrounding circumstances. While knowledge of a right to refuse consent is a factor to be taken into account, the State need not prove that the one giving permission to search knew that he had a right to withhold his consent”.

67    It may be that this statement is actually more protective of the person consenting than is the position under Australian law, in the absence of any statutory provision.

68    Pearce v Button, the second of the cases cited in Search and Seizure in Australia and New Zealand, which is a decision of Pincus J in the Federal Court, is particularly relevant, because of a comment made by Pincus J about the judgment of Cook J of the Supreme Court of New Zealand in Meates v Attorney-General (1981) 2 NZLR 335, a case cited by the Magistrate in his judgment and relied on by counsel for the defendant before me.

69    In Meates v Attorney-General Cook J held that the removal of documents by Customs officers was not authorised by the New Zealand Customs Act and that there had been no valid consent to the removal of the documents. On the subject of consent Cook J said at p 346:-

“… it should be noted that, while consent may include acquiescence, it must be a genuine consent and not a mere acquiescence in what a person believes to be another’s lawful right”.

70    At p 347 his Honour said:-

“By the same token it seems that, before true consent can be given in the situation which is under consideration, there must be knowledge of all the material circumstances and these would include an understanding of the rights of Customs officers in the absence of consent. To give consent means to agree that a particular thing be done and the person so agreeing must understand that his consent is necessary”.

was a case under the Australian Customs Act. Pincus J held that certain searches by Customs officers were not authorised by the Customs Act. However, his Honour held that Mr Pearce had consented to the searches. On the subject of consent, Pincus J referred in his judgment to Ghani v Jones (1970) 1 QB 693 and Meates v Attorney-General. His Honour criticised the second passage in the judgment of Cook J which I have quoted. Pincus J said at p 550-551:-

“It is not clear to me why it is necessary, in order that true consent may be held to exist, that one must be able to find that the person, the subject of the search, accurately understood the rights of Customs officers in the absence of consent, as Cook J held. That appears to be a test which would but seldom be satisfied. If, lacking such an understanding, a person whom it is proposed to search takes the warrant as read and displays anxiety to assist, not being overborne or bullied in any way, then I find it difficult to see why his consent should necessarily be disregarded. Here no pressure appears to have been placed on Mr Pearce”.

72    I would adopt the criticism made by Pincus J of Cook J’s judgment, which appears to me to be well founded.

was not referred to in the later New Zealand case of Werner v The Police (High Court of New Zealand, Gallen J, 16 April 1986), which is discussed in Search and Seizure in Australia and New Zealand at p 86. In that case Werner was stopped at random by a police officer and searched by the police officer. In the course of the search the police officer found a bag containing cannabis and Werner was charged with, and convicted of, possession of a drug. On appeal, it was argued that the search was not authorised by the New Zealand Misuse of Drugs Act 1975. However, Gallen J dismissed the appeal on the grounds that the police officer had given evidence, and the judicial officer at first instance had found, that Werner had consented to being searched. The only relevant evidence given by the police officer was:-

“I asked his full name and address and he gave me this information. I then asked the defendant if he would consent to a search being made of his person. The defendant agreed to this”.

74 The magistrate in his judgment and counsel for the defendant in argument referred to s 139 of the Evidence Act and the law about the administering of a caution before a person under arrest or under suspicion of having committed an offence is questioned by police. However, I do not consider that the law which has developed in that special context and which is the subject of special statutory provisions, should be applied generally in determining whether an apparent consent to an investigative procedure by a person not under arrest is a valid consent.

75    I consider that the Magistrate erred in law in holding that the consent given by the defendant to the police officer to search his vehicle was not a valid consent, because it was not an informed consent.

That the Magistrate erred in law in holding that evidence of the consent given by the defendant was inadmissible as being evidence of an admission falling within s 108 of the Criminal Procedure Act and rendered inadmissible by that section.

76 Section 108 of the Criminal Procedure Act provides in part as follows:-

“108 Admissions by suspects
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2) Evidence of an admission to which this section applies is not admissible unless:
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made”.

77 Section 108 was inserted in the Criminal Procedure Act by s 4 and Schedule 2 of the Crimes Legislation Amendment (Sentencing) Act No. 94 of 1999. By the same amending Act s 424A of the Crimes Act was repealed (s 5 and Schedule 3(15)). It is clear that s 108 of the Criminal Procedure Act was intended to replace s 424A of the Crimes Act and there is no significant difference between the two sections.

78 As I have already stated, the Magistrate held, although it was not strictly necessary for his decision, that evidence of the consent given by the defendant was evidence of an admission, that the admission was an admission to which s 108 of the Criminal Procedure Act applied, that there had been no tape recording of the conversation in the course of which the admission was made and that the prosecution had not established that there was a reasonable excuse why a tape recording had not been made and consequently evidence of the admission was inadmissible.

79 On the hearing of this appeal counsel for the Director of Public Prosecutions did not dispute that, if evidence of the consent was evidence of an admission, the admission was an admission to which s 108 applied and did not dispute that neither paragraph (a) nor paragraph (b) in subsection (2) of s 108 had been satisfied. However, it was submitted by counsel for the Director of Public Prosecutions that the Magistrate had erred in law in holding that the giving of the consent was an “admission”.

80    In R v Horton (1998) 45 NSWLR 426 it was held that the word “admission” in s 424A of the Crimes Act (and hence in s 108 of the Criminal Procedure Act) had the same meaning as “admission” in the Evidence Act.

81 In Part 1 of the Dictionary at the end of the Evidence Act “admission” is defined as follows:-

“’Admission’ means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person's interest in the outcome of the proceeding”.

82    “Previous representation” is defined as follows:-

“’Previous representation’ means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”.

83    “Representation” is defined as follows:-

“’Representation’ includes:
(a) an express or implied representation (whether oral or in writing), or
(b) a representation to be inferred from conduct, or
(c) a representation not intended by its maker to be communicated to or seen by another person, or
(d) a representation that for any reason is not communicated”.

84    It is apparent that the definition of “representation” in the Dictionary is a merely inclusive definition and that the definition is circular, the word to be defined being repeated in the definition. It is clear from the Evidence Act, including the provisions of Part 3.2 (Hearsay) and Part 3.4 (Admissions) that the word “representation” as used in the Act includes conduct by a person, verbal or non-verbal, whereby a person asserts, intentionally, the existence of a fact (see, for example, s 59). However, whether the word has any wider meaning is unclear.

85    The Magistrate in the general part of his judgment referred to the decision of the Court of Criminal Appeal in R v Esposito (1998) 45 NSWLR 442. However, neither that case nor the earlier case of R v Horton, which was followed in Esposito (both cases involving s 424A of the Crimes Act) is determinative of the present issue.

86    In R v Horton, the evidence, the admissibility of which was in issue, was evidence of a statement made to a police officer by the accused that “he (the victim on the murder charge) fell on the knife”. On the face of it, this statement was exculpatory. However, it was held by the Court of Criminal appeal to be adverse to the accused’s interest in the outcome of her trial, in that the making of the statement tended to show that the accused was not particularly affected by the amount of alcohol she had consumed, thus weakening her “defence” of intoxication. Wood CJ, with the concurrence of the other members of the Court, held that the statement, though apparently exculpatory, was a representation adverse to the maker’s interest in the outcome of the proceeding. At p 438 his Honour said that, if a narrower view of the statutory definition was adopted, police witnesses might fabricate accounts of “apparently exculpatory statements, in the expectation that they might be used against the accused as weakening his credibility or as demonstrating a consciousness of guilt, or as removing the factual basis for a defence that might be suspected of being available, or as otherwise painting the accused in an unfavourable light”.

87    In R v Esposito the accused, who was charged with having murdered someone in Kings Cross, had, when interviewed by the police, denied that he had been at Kings Cross at about the time of the murder. The Crown relied on the making of this statement as being the telling of a lie in consciousness of guilt. The Court of Criminal Appeal, applying its previous decision in Horton, held that the making of a statement which, on the face of it, was exculpatory, could still be an admission, as being a representation adverse to the maker’s interest in the outcome of the proceeding.

88    On the hearing of this appeal, counsel for the Director of Public Prosecutions relied particularly on the decision of Bryson J in Re A (a Child) (2000) 115 A Crim R 1 (another case concerning s 424A of the Crimes Act). In Re A the plaintiff on the appeal before Bryson J had been convicted in the Children’s Court of an offence of robbing a bank. Two bank officers had identified the plaintiff as being the robber from photographs. Their evidence of identification was picture identification evidence within s 115 of the Evidence Act and under s 115(5) the picture identification evidence would not have been admissible, unless the plaintiff had refused to take part in an identification parade. A police officer gave evidence that he had interviewed the plaintiff and that, when the plaintiff had been asked “Do you wish to participate in a line-up?” the plaintiff had said, “No”. In reliance on this evidence, the magistrate constituting the Children’s Court admitted the picture identification evidence.

89    In Re A it was argued on behalf of the plaintiff, both before the magistrate and on the appeal before Bryson J, that the evidence of the plaintiff refusing to take part in an identification parade was evidence of an “admission”. However, Bryson J held that the evidence of the plaintiff’s refusal was not evidence of an admission.

90    At paragraph 28 of his judgment Bryson J said:

“The statement "No" in its context does not fall within any meaning of the word "admission" in ordinary usage, or in any usage known to me in evidence law or other law. If "admission" in s 424A is to be understood in the context of s 424A itself, in my opinion the statement was not an admission; it was a direct statement on the subject of the plaintiff's wishes about taking part in an identification parade, and was not in any sense an admission or (to search for illustrative analogies) a narration, a relation or a representation about whether some state of facts existed. Nothing in the definition of "admission" set out in s424A could lead to any qualification of this opinion”.

91    At paragraph 29 of his Honour’s judgment his Honour said:-

“The word "representation" in ordinary usage is in my understanding capable of several shades of meaning; it can refer to a narration of some fact, case or argument, to an assertion that some state of fact is correct, and it can also refer to the depiction, it may be in words, of something which stands in the place of but is known not to be the original state of fact”.

92 Bryson J considered a submission made by counsel for the plaintiff, which was based on s 72 of the Evidence Act, that a statement by a person refusing (or granting) consent to an investigative procedure the police wish to carry out is a representation of the maker’s contemporaneous state of mind within s 72. Bryson J rejected this submission. At paragraph 37 his Honour said:-

“This in my view is a highly artificial perception of what a representation is, and of what occurs when a person expresses a consent, a refusal or another state of mind. In my view what takes place is a consent or a refusal; the consent or refusal is an event itself, or it could be called a fact of itself, and it is only in an obscuring indirect way that it could be perceived as a representation about a state of mind, or that it could be supposed that the word "representation" was used in the Dictionary in a sense which included it”.

93    I would generally adopt the reasoning of Bryson J. “Representation” is not defined in the Evidence Act, except in the circular way I have referred to. In ordinary usage the word “representation”, even if it is not limited to an assertion of fact, nevertheless has an indirect quality; a representation is an assertion, stating, alleging, picturing or portraying of some matter other than itself. See the definitions of “representation” in the Oxford English Dictionary and the Macquarie Dictionary.

94    The uttering of words by a person giving or refusing consent is not a representation about something else, it is a fact or event in itself; it is not a representation that the person is consenting or refusing to consent, it itself constitutes the giving or refusing of consent. In the present case, the defendant, by uttering the words “Go for it. There is nothing in here, mate” and the word “Fine” was not representing that he was consenting to a search of his vehicle; by uttering those words he was actually consenting to a search of his vehicle. I agree with Bryson J that the making of such an utterance should not be characterised as a representation about the maker’s then state of mind.

95    A matter which was not argued, but which seems to me to be at least arguable, is that, even if the giving of consent was a representation, it was not in itself adverse to the interest of the maker in the outcome of the proceeding. What would be adverse to the interest of the maker in the outcome of the proceeding would be any evidence incriminating the maker which was discovered in the course of the search. It could of course be the case that nothing incriminating is discovered in the course of a search.

96 I consider that the Magistrate erred in law in holding that evidence of the consent given by the defendant was inadmissible as being evidence of an admission falling within s 108 of the Criminal Procedure Act and consequently rendered inadmissible by that section.

That the Magistrate erred in law in holding, in the exercise of his discretion under s138 of the Evidence Act , that evidence of the finding of the drugs should be excluded, on the basis that the evidence had been obtained by conduct in “ deliberate ” or “reckless” breach or disregard of legal requirements.

97 If the search was validly consented to, then the search would not be illegal and the evidence of the finding of the drugs during the search would not be evidence illegally obtained and, hence, there would be no occasion to determine whether the evidence should be excluded in the exercise of the discretion conferred by s 138 of the Evidence Act. However, the Magistrate, because he held that the search had not been validly consented to, so that the evidence was evidence illegally obtained, had to decide whether the evidence should be excluded in the exercise of the discretion under s 138.

98 As I have previously indicated, in the part of his judgment specifically dealing with the prosecution of the defendant the Magistrate said that he had decided to refuse to admit the evidence pursuant to s 138 of the Evidence Act “for the reasons previously outlined”. It is clear that “the reasons previously outlined” were the reasons the Magistrate had given in the general part of his judgment and in the part of his judgment dealing with Lazenby’s case and were that the evidence had been obtained in deliberate or reckless disregard of legal requirements by a police officer and that, as Deane J had said in Pollard, where evidence is obtained in deliberate or reckless disregard of legal requirements by those whose job it is to enforce the law, the judicial discretion to exclude illegally obtained evidence should ordinarily be exercised in favour of excluding the evidence.

99    It was submitted by counsel for the Director of Public Prosecutions that the Magistrate had erred in law:-

1. In directing himself about what would amount to a deliberate or reckless disregard or breach of legal requirements.

2. In not actually making any finding, or at least, any express finding, that any breaches of legal requirements by Constable Barnes had been deliberate or reckless.

3. To the extent to which the Magistrate had made such a finding, in making a such a finding, where, it was contended, there was no evidence to support such a finding.

100 As to 1: counsel for the Director of Public Prosecutions referred to what the Magistrate had said in relation to s 138 in deciding the case of Lazenby. I have already quoted what his Worship said but it is convenient to repeat it. His Worship said:-

“So far as s 138 is concerned, it is clear that the police officers here whilst perhaps not consciously deciding to act in the knowledge they were in breach of a statutory duty, nevertheless consciously decided to instigate a search which search was in fact illegal and which in fact involved a “deliberate or reckless breach of statutory requirement imposed by the legislative to regulate police conduct …” (Deane J, Pollards case 176 CLR 177 at 203).
In accordance with the principles there set out, I consider I should exercise my discretion to exclude the evidence”.

101    I accept submissions by counsel for the Director of Public Prosecutions that this passage in his Worship’s judgment, which I have held forms part of “the reasons previously outlined”, contains errors of law.

102    If the Magistrate was not prepared to make a finding that a police officer consciously decided to act in the knowledge that he would be acting in breach of a statutory duty, the Magistrate could not find that the breach of the statutory duty by the police officer was “deliberate”.

103    Likewise, unless the Magistrate was prepared to make a finding that a police officer acted in the knowledge that he might be acting in breach of a statutory duty but nevertheless deliberately decided to proceed with the action and undertake the risk, the Magistrate could not, according to the meaning given to “reckless” in s 138(3)(e) by Adams J in paragraph 20 of his Honour’s judgment in Director of Public Prosecutions v Nicholls, have found that the breach of the statutory duty was “reckless”. That a police officer consciously decided to instigate a search, which was in fact illegal, does not show that any contravention by the police officer of the statutory requirements for a lawful search was “deliberate” or ‘reckless”. Even if the word “reckless” in s 138(3)(e) has a wider meaning than that attributed to it by Adams J in Director of Public Prosecutions v Nicholls, it would be necessary, in order for a police officer’s conduct to be “reckless”, to find that the police officer failed to give any thought to whether there was a risk of a search being illegal, in circumstances where, if any thought had been given, it would have been obvious that there was such a risk. On “recklessness” generally, see R v Tolmie (1996) 84 A Crim R 293.

104    Even if a police officer acted in “deliberate or reckless breach of statutory requirements”, the evidence obtained from the search of a vehicle would not have been obtained by unlawful conduct which was “deliberate” or “reckless”, unless the police officer had also acted in “deliberate” or “reckless” disregard of legal requirements in relation to obtaining the consent of the person whose vehicle he wished to search.

105 As to 2: I also accept the submission made by counsel for the Director of Public Prosecutions that, if the Magistrate was going to base his decision on s 138 of the Evidence Act on a factor that there had been an impropriety or contravention which was deliberate or reckless, the Magistrate should have made an express finding that Constable Barnes had acted deliberately or recklessly and supported that finding by proper reasoning. In his judgement the Magistrate did not make such a finding or disclose such reasoning.

106    As to 3: I accept the further submission by counsel for the Director of Public Prosecutions that there was no evidence on which the Magistrate could have found that Constable Barnes acted “deliberately” or “recklessly”.

Conclusion

107    For the reasons given, I consider that the appeal by the Director of Public Prosecutions should be allowed. The orders sought in the Summons are, in my opinion, appropriate orders for me to make and I accordingly make orders in accordance with paragraphs 1 to 7 inclusive of the Summons, which are:-

1. An order that leave to appeal be granted.

2. An order pursuant to section 109(a) of the Justices Act 1902 setting aside the following interlocutory order made by Mr M Dowd Magistrate in proceedings against the Defendant for offences pursuant to sections 25 and 29 of the Drug Misuse and Trafficking Act 1985 (supply prohibited drug) and section 10(1) of the Drug Misuse and Trafficking Act 1985 (possess prohibited drug) (2 counts):

- the interlocutory order refusing to admit into evidence the results of a search, conducted by Constable Geoffrey Barnes on 28 April 2000, of a vehicle driven by the defendant.


3. A declaration that the Magistrate erred in law in determining that the search of the vehicle by Constable Barnes was unlawful.

4. A declaration that the Magistrate erred in law in determining that the evidence of the defendant’s consent to the search of the vehicle constituted an admission for the purposes of s 108 of the Criminal Procedure Act 1986.

5. A declaration that the Magistrate erred in law in the exercise of his discretion pursuant to s 138 of the Evidence Act 1995.

6. An order that the matter be remitted to the Local Court to be dealt with in accordance with the orders and reasons for judgment of this Court.

7. Costs.

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Last Modified: 09/19/2001