DPP v Pringle
[2015] VCC 702
•29 May 2015.
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00297
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OWEN ANTONY PRINGLE |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26, 27 and 28 May 2015. | |
DATE OF RULING: | 29 May 2015. | |
CASE MAY BE CITED AS: | DPP v Pringle | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 702 | |
REASONS FOR RULING
---
Catchwords: Criminal Law. Admissibility of Evidence. Section 138 Evidence Act 2008.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Wheelahan | Vaille Anscombe Acting Solicitor for Public Prosecutions |
| For the Accused | Ms S Leighfield with Ms K McKay | Victoria Legal Aid |
HER HONOUR:
1 Owen Pringle (“Pringle”) has been charged on indictment with two charges of trafficking in a drug of dependence, four charges of possession of a drug of dependence, and one charge of trafficking in a drug of dependence commercial quantity.
2 When arraigned he pleaded not guilty to each of the charges.
3 The charges arise from a chain of events which commenced when Pringle’s ute was intercepted by Constables Griffiths and Braun who were on Divisional van duties in the area of Nepean Highway, Parkdale on Saturday 11 January 2014.
4 Following enquiries, the police ascertained that Pringle had a conviction for driving whilst suspended, that the period of suspension was current and therefore he was driving whilst suspended with a relevant prior. He was arrested and told that his ute would be impounded under s 84F of the Road Safety Act 1986.
5 It is not in dispute that the initial intercept was lawful and was purely undertaken due to his licence status.
6 A preliminary hearing was conducted in respect to an issue relating to the admissibility of evidence, namely, a small package containing the drug known as ice, that was located in the ute following the intercept and other evidence that forms the basis of the charges on the indictment.
7 Much of the factual background is not in dispute. Following the intercept a short discussion with police took place on Nepean Highway. Pringle provided his Australian passport to Constable Braun that confirmed his personal particulars. He confirmed that he was Owen Antony Pringle born 26 January 1978 and that he lived at 7A Steedman Street, Mordialloc. He was cautioned and given his rights at the scene.
8 Constable Griffiths then confirmed via the Police Communications Centre that Pringle had prior convictions for drive whilst suspended and she sought authorisation and received authorisation to impound Pringle’s vehicle. Back up was requested.
9 Constable Braun then explained to Pringle that his ute would be impounded. He took the keys out of the ignition and handed the keys to Constable Griffiths. She then walked over to the accused and had a conversation with him.
10 Pringle had a broken ankle and he required some crutches to assist with his mobility. Constable Griffiths removed a pair of crutches from the rear tray of the ute and provided those to Pringle. He declined to ride in the car to the service lane off the Nepean Highway. He made his own way over to the nature strip of the service lane. Constable Griffiths then drove his ute over to the service lane off Nepean Highway. Constable Braun followed and parked the divisional van behind Pringle’s vehicle.
11 Shortly thereafter, a Moorabbin Highway Patrol car, containing Senior Constable Downwood and Leading Senior Constable Morrison arrived and parked behind the divisional van. Constables Griffiths and Constable Braun had a short conversation with those officers and explained to them what had happened. Constable Braun with the assistance of Senior Constable Downwood attended to completing the relevant impound paperwork whilst Constable Griffiths walked over to Pringle and had a conversation with him. In particular, she offered to assist with the removal of any valuables from the ute as the ute would be impounded for 30 days.
12 Following the intercept, Constable Griffiths looked at and removed various items from Pringle’s ute, and in doing so located a cigarette packet containing a snap lock bag. Inside the snap lock bag was a white crystalline substance which was later analysed and found to be methylamphetamines which weighed 5.9g. This snap lock bag of drugs forms part of the basis of Charge 1 on the indictment, and the location of it was the precursor for a series of events which included:
·the arrest of the accused;
·a further search of the ute (whereby vials of testosterone were located - Charge 2);
·transportation of the accused to the Moorabbin Police Station by divisional van;
·a full strip search of the accused at the police station (whereby further drugs were located on his person– Charges 1 (part), 3 and 4);
·a search warrant being executed on the home of his parents (wherein a red hessian bag containing an alleged commercial quantity of methylamphetamine, (Charge 5) and a safe containing $227,100 were located) and:
·a search warrant being executed on a storage unit leased in the name of the accused (wherein further drugs (Charges 6 and 7) and a vacuum sealing machine and vacuum bags were located).
13 What the accused takes issue with is the process by which drugs were located in his car. It was submitted by Ms Leighfield, on behalf of Pringle, that the search undertaken by Constable Griffiths of his car was an illegal search and, on that basis, it was submitted that that evidence was inadmissible and, further, that the product of all further searches which flowed on from that initial search was also inadmissible.
14 Mr Wheelahan, on behalf of the Crown, submitted that Constable Griffiths provided benevolent assistance to Pringle, who was on crutches, in removing his property from his vehicle. Whilst removing the articles from the vehicle she serendipitously disclosed the presence of the methylamphetamine in a cigarette packet. Thereafter more drugs were discovered on Pringle’s person and later a commercial quantity of drugs was discovered at 7A Steedman Street pursuant to a warrant and further drugs were found when the search warrant was executed on the storage unit. He submitted the discovery of the drugs and the later search of Pringle was lawful.
15 Ms Leighfield submitted that any evidence obtained from that initial search should be excluded pursuant to s138 of the Evidence Act 2008 (Vic).
16 Further, in the event that the evidence is ruled inadmissible; she argued that the arrest of the accused and the product of all further searches which flowed on from this initial incident were also inadmissible as each of the further steps flowed directly from the initial illegal search. In the event that I were to rule the evidence admissible, Mr Wheelahan agreed with this proposition.
Section 138 of the Evidence Act 2008 (Vic)
17 Section 138 of the Evidence Act 2008 (Vic) provides that:
“138 Exclusion of improperly or illegally obtained evidence
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 has been obtained.”
18 The section contemplates a two stage process.[1]
[1] See, eg, R v Kerr & Anor (Ruling No 1) [2015] VSC 64, [13] (per Forrest J).
19 The first stage is that the party seeking to exclude the evidence (in this case, the defence) has the burden of showing that the evidence was obtained improperly or in contravention of an Australian law. It then falls on the party seeking the admission of the evidence (in this case, the prosecution) to persuade the Court that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
20 Pursuant to s.138 the court must exclude the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
21 The balancing exercise to be undertaken by the Court is essentially the same as the balancing exercise as discussed in Bunning v Cross. However there a number of mandatory considerations under s.138(3) which the Court must take into account:
“(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognized by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”
22 Powers of entry, search and seizure can infringe the basic rights to privacy, property and the bodily security of a person. Accordingly, the common law has historically limited the power of entry and search to protect the rights of private property and privacy.[2] Whilst both the Commonwealth and State legislatures have made exceptions to the common law position over the years and allowed for various circumstances where searches with or without warrants may be undertaken, these rights remain important constraints on how far these powers are permitted to extend.
[2] See, eg, George v Rockett (1990) 170 CLR 104.
23 As was stated by the High Court in George v Rockett :
“[n]evertheless, in construing and applying such statutes; it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.”[3]
[3]Ibid [2].
24 Similar concerns apply where a search is conducted without warrant, and that is the situation here. There must be strict adherence to the statutory conditions.[4]
[4] See, eg, R v Davidson (1991) 54 SASR 580; R v Bernath (Unreported, Ruling of Judge Mullaly, 29 June 2012), 191.
25 In the present case it was submitted that the methylamphetamine that was located in the ute was located by means of an illegal search conducted by Constable Griffiths.
26 In order to establish this, the defence must satisfy the court on the balance of probabilities that the actions undertaken by Constable Griffiths constituted a search, and that Constable Griffiths had no power under common law or statute to undertake that search, and was thereby conducting an illegal search.
27 I heard evidence from all relevant police officers who were involved in the conduct of the intercept and the searches of Mr Pringle’s vehicle at the point of interception and thereafter involved in other searches. In this ruling, I shall only refer to the evidence relating to the initial search of the ute.
28 Constable Anne-Marie Griffiths is the informant. Much of her evidence was not in dispute insofar as the background to the matter. Her evidence confirms that on 11 January 2014 whilst on divisional van duties in company with Constable Braun, Pringle’s vehicle was intercepted on Nepean Highway, Parkdale.
29 They had been following his ute and she confirmed that he had a conviction for driving whilst suspended.
30 Once the intercept was complete, she and Constable Braun approached the driver’s side of his ute. Constable Braun had a conversation with Pringle whereby he produced his passport to confirm his identity because he did not have his driver’s licence. He gave his name and address and then the conversation went through the fact that he had a suspended licence.
31 Constable Griffiths went back to the police vehicle, ran some checks, and confirmed through Police Communications that he had two suspended convictions and therefore the car would be impounded under s.84F of the Road Safety Act 1986.
32 Following that, both she and Constable Braun talked to Pringle about his ute being impounded. She was given the keys from Constable Braun so that she could move the vehicle to the slip lane, that is, a side street off Nepean Highway. Constable Griffiths told Pringle that she was going to move the car because he had a suspended licence and also because of her concern about Pringle being on the Nepean Highway in a 80 kilometre zone.
33 Pringle told police that he had a broken foot and requested a pair of crutches. Constable Griffiths opened up the back of the ute, obtained the crutches, and handed those to him. It was proposed that she would drive the ute to the slip lane and he declined the offer to hop into the passenger side and made his way over to the side street off Nepean Highway.
34 When Constable Griffiths first went into the car she observed that there were things thrown around in the vehicle, things on the floor and the seat. She confirmed in examination-in-chief that she did not have any concerns or suspicions at that point in time.[5]
[5]T89, L2-3
35 Her purpose for moving the ute was to facilitate the impound. It was intended that the ute would be towed away and that there was going to be over a 30 minute wait for a tow. Constable Griffiths parked the ute and Constable Braun parked the divisional van behind Pringle’s vehicle.
36 Previously, Constable Griffiths had asked for back-up. Shortly after she parked Pringle’s vehicle a Highway Patrol vehicle arrived. Their vehicle was parked behind the police divisional van. Two officers, Senior Constables Downwood and Senior Constable Morrison, attended to help with the impound.
37 At that time, Pringle was sitting in the gutter on the corner of the street, basically on the side of the slip lane about 30 metres up the road. Constable Griffiths had a conversation with Constable Braun and the Highway Patrol members about the paperwork for the impound. She said “I’ll go and get Mr Pringle and I’ll get all the valuables out of the car”.[6]
[6]T90, L8-12
38 She stated that Constable Braun and the highway patrol members were doing the paperwork for the impound and they were just in front of the police vehicle.
39 When she spoke to Pringle she said that he would have to get his valuables out of the ute because he would not see it again for 30 days. He said “Yep, no worries”, so they then went back down to the ute. He was on crutches and was quite slow moving. They made their way back down to his ute. After they arrived at the ute, she said “Do you want me to give you a hand to empty everything from your car?” and he said “Yes”.[7]
[7]T90, L25-28.
40 There was a discussion about how he was going to get home. He said he would have to get a taxi and she said, “We can give you a lift if you want because you live close. You’d have to go into the back of the van” and he said “That’s fine”.[8]
[8]T90, L29-31. T91, L1-4.
41 Her evidence was that she opened up the passenger side door wide. There was a little black esky-like soft bag on the floor and she said to Pringle, “Do you want me to use this to put everything into?” and he said, “Yep, that’d be great”. She then proceeded to put items in the bag. Included in it was a $5 note that she found inside the vehicle. She started collecting things that she thought were of value because of the need to get everything out of the car.
42 Pringle said, “Can you put all the receipts into the glove box?” She grabbed a lot of receipts and things from the floor of the vehicle and put them all into the glove box. Her evidence was that she then noticed that there were three packets of cigarettes sitting on the passenger seat, so she shook them to see if they were empty or full. She opened up the first one and saw the white powder.[9]
[9]T91, L9-27.
43 At that point she was not exactly sure where Leading Senior Constable Morrison was positioned.
44 Constable Griffiths said the purpose of picking up the cigarette packets and shaking them was to see if they had cigarettes in them or whether it was just rubbish to leave in the car, or whether she would put it into the little black bag. The one she opened up first there were no cigarettes, just white powder.[10]
[10]T91, L9-27.
45 After she discovered that, she closed the cigarette packet again and closed the passenger door, walked to the back of the vehicle and told the highway patrol members and Constable Braun what she had found. She said Leading Senior Constable Morrison said “Good find” and she thought it was after she had arrested Mr Pringle that Constable Morrison said he was going to help her search the car.[11]
[11]T92, L8-17.
46 Pringle was standing at the back of the ute as well and she said that she was going to arrest him. She told Pringle that he was under arrest for the possession of a drug of dependence and gave him a caution and told him his rights.[12] She told him about what was found in the cigarette packet and she said that some white powder had been found and she asked the question “What is the white powder?” and he said “It’s ice”.[13] At that point he asked to sit down as his leg was quite sore and basically he sat down at the back of his car.
[12]T93, L18-19.
[13]T93, L22-24.
47 She told Pringle that there would be a search of the car conducted under the Drugs, Poisons & Controlled Substances Act 1981.[14] He stayed with Constable Braun and Leading Constable Downwood, and then Leading Senior Constable Morrison came to the vehicle and they started searching it or she started searching and he was watching her search.[15]
[14]T93, L2-5.
[15]T93, L6-10.
48 Following the search of the vehicle she went through the receipts in the glove box and found a storage shed receipt which she wrote the address of on her glove so that she could do an information report later.[16] She opened up the rear of the boot of the vehicle and found a laptop bag. There were three vials in the laptop bag that were identified by Pringle as being testosterone and a peptide for which he did not have prescriptions.
[16]T94, L7-11.
49 All of the evidence was bagged in exhibit bags and photographs were taken, and thereafter at the Moorabbin Police Station a record of interview was conducted by the informant with Pringle that night.
50 On 12 January 2014 a warrant was executed at 7A Steedman Street, Mordialloc, where a quantity of drugs and a safe were found. As noted earlier, a large sum of money was located in a safe that was subsequently opened on 14 January 2014. On 17 January 2014 a further search was undertaken of the vehicle at the Vehicle Impoundment Unit in Preston. No other drugs were located.
51 At the time of Pringle’s arrest, Constable Griffiths had been a sworn member of police for just under two years. She was a very inexperienced officer still undertaking divisional van duties.[17]
[17]T96, L4-7.
52 The informant confirmed in cross-examination that she did not have a power to search the vehicle under the Road Safety Act 1986.[18] She confirmed that the ute was seized in relation to the “hoon” legislation and it was not seized in relation to any drug investigation.[19]
[18]T116, L7-9
[19]T116, L7- 12.
53 In cross-examination, Constable Griffiths confirmed that when she began removing items of value from the ute that Pringle was behind her. She had opened up the side door and he was just beside her. Once she had put some receipts and things into the glove box she had her back towards him and he moved down towards the end of the car.[20] She could not recall precisely when it was that Leading Senior Constable Morrison came up behind her.[21]
[20]T99, L20-28.
[21]T100, L1-4.
54 She confirmed that she told Pringle that she was going to help him remove items of value from the ute.[22] That was because the ute was going to be impounded.[23] She confirmed that there were a lot of things inside the ute. There was a discussion with Pringle about items of value but she said he did not specify what they were. She confirmed she did not at any stage tell him that she was going to search his car.[24] She confirmed that she did not tell Pringle that she was going to start looking through, for example, paperwork.[25] She did not specifically have a conversation with him about the cigarette packets. She did not ask him if he wanted the packets.[26] She did not ask him if she could open them or look inside them.[27]
[22]T100, L15-16.
[23]T100, L17-18.
[24]T100, L24-26
[25]T100, L27-28
[26]T100, L29-31
[27]T100, L1-2
55 She confirmed when she first opened the passenger door that what she was actually doing was sorting through what was in the car in terms of sorting through the rubbish that was in the car.[28] She said that she was looking at what was there. She disagreed with the suggestion that she was searching the items that were in the car.[29]
[28]T101, L3-6
[29]T101, L8-10
56 She confirmed that she did not know where Leading Senior Constable Morrison was standing at that time when she was undertaking that task.[30] She said that she opened the cigarette packet and looked inside it and saw the snap lock bag which had some kind of substance in it.[31] She denied taking the snap lock bag out of the packet, she just looked in it. She thought it looked like ice, so she closed it again and put it back down and then closed the door. She then walked down to the back of Pringle’s car and Leading Senior Constable Morrison followed her. She spoke to all members slightly away from Pringle.
[30]T101, L11-13
[31]T102, L1-4
57 This evidence that Leading Senior Constable Morrison was following her is consistent with what he says, namely, that he was present and observed Constable Griffiths when she located the cigarette packet containing the white crystal material.
58 Importantly, in cross-examination, Constable Griffiths confirmed at the point at which she was assisting to remove the items, as she described it, that she did not actually have a basis for undertaking a search.[32] At that stage, she had not asked permission to search Pringle’s car.[33] Pringle had not given her consent to search his car. He had just agreed for her to help him take out his valuables.[34]
[32]T103, L2-4
[33]T103, L5-6
[34]T103, L7-8
59 Following the finding of the drugs in the cigarette packet, Pringle was taken back to Moorabbin Police Station and a record of interview was formally conducted by the informant commencing about 9.46 pm. That was suspended. There was a search of 7A Steedman Street, Mordialloc, and a recommencement of the record of interview at 2.54 am on 12 January 2014. Essentially, a “no comment” record of interview was made.
60 There were questions asked of Pringle during the record of interview about the finding of the cigarette packet and the drugs. At Question 56 it was put to Pringle that once it was realised that the car was to be impounded that the informant was helping him clean out his car and he said that she could help clean out the car and that he provided a consent to a search of the car.
61 At Question 57 the informant said that as she was searching through the car she opened up a cigarette packet and inside that packet was a plastic container containing drugs.
62 The informant completed an Application for Forensic Services request on 18 January 2014 relating to this matter which included Item 7, a small ziplock bag with six grams of white crystals, requesting a drug analysis. In relation to that she typed:
“Seized bag and cigarette packet located on front passenger seat of the accused’s vehicle during consent search. Vehicle intercepted in Nepean Highway, Parkdale. Suspected methylamphetamine”.
63 In relation to Items 5 and 6 which concerned the vials of testosterone and peptide that were seized from the ute at the time of arrest, she identified that they were seized during a Drugs, Poisons and Controlled Substances search, which she distinguished from the initial search of the car.
64 In a statement that was made on 13 January 2014, the informant detailed conversations that she had with Pringle at the time of his arrest and she informed him, after cautioning him and giving him his rights, that “I’m going to continue searching your car under the Drugs, Poisons and Controlled Substances search. Have you got any other drugs or anything that can hurt me?” and he said “No”.
65 She clearly referred to what she had earlier been doing as being a “search”. In cross-examination, she said it was just the language she used at the time.
66 The informant confirmed that the further search that was conducted of Pringle’s ute was pursuant to her powers under s.82 of the Drugs, Poisons & Controlled Substances Act. Thereafter, her understanding was that once drugs were located, she could search and remove from the vehicle any exhibit that could have an associated drug link. For example, more drugs or his phone – so she was basically looking for anything that might relate to offending in relation to drugs.[35]
[35]T108, L4-16
67 She said that when she was looking through the receipts in the car, what made her write down the address of the storage unit was that the Drug Response Unit or Divisional Response Unit had requested that when she does an intercept where there are drugs, that they collect as much information as possible, so it was just information for an Information Report to go to the Drug Unit.[36] She elaborated that information reports are to do with any intelligence that is gathered.
[36]T108, L23-30
68 The informant confirmed that she completed an electronic running sheet, that is, a record she created initially whilst in the divisional van. That was completed back at the station. It is a live document and you cannot go back in time.
69 In that document the informant noted that she had moved the vehicle to the service lane, noticed rubbish throughout the vehicle and three cigarette packets. Pringle was on crutches. He waited on the nature strip of the service lane. The informant helped pack up the interior of the vehicle with the consent of Mr Pringle. The informant went through the empty cigarette packets and located a plastic bag with white powder. She arrested Pringle for possess a drug of dependence. A further search of the vehicle located two vials of brown liquid – probably GHB - and one vial of white powder, drug of dependence prescriptions. The entry was last updated by her on 12 January 2014 at 18.07.
70 Leading Senior Constable Morrison, in evidence in chief, confirmed that prior to attending in response to the request for assistance from the Cheltenham divisional van, that he was aware that a vehicle had been intercepted that was to be impounded. The Highway Patrol members were attending on this occasion merely to offer their assistance with the necessary paperwork. When he arrived, he observed that there were a lot of things going on. The two attending officers were out of the car. They were in the service lane off Nepean Highway. He thought that the accused was at the rear of the ute already and that the officers were talking to him at the rear of the ute.
71 He confirmed that Constable Griffiths removed items from the accused’s car.
72 He was asked by the prosecutor to tell exactly what he saw and he said:
“All I – I assisted - I went over to the door. I remember her walking over to the passenger door, so the passenger - it was only – well – it’s a ute, so it’s two door. So the passenger front door and she crouched down and I went over to assist her. Well, that’s common practice. If anyone’s going to search a car, I don’t like them doing it one up…obviously that’s for corroboration too, so that’s just what my common practice is, is to follow a member over there while the other members are doing their thing , and I stood behind her as she leant down inside the car.”[37]
[37]T49, L18-30
73 Paraphrasing his evidence, he said that it was a bit of a mess inside the ute and that he remembered Constable Griffiths picked up some cigarettes packets, to his understanding, to give the cigarettes to Pringle. He inferred that she was looking for a packet that obviously had cigarettes in it. There were a few empty packets, so that Constable Griffiths opened one of them to see if there were any cigarettes in it and that is when she found what is now in evidence. He said he saw a small snap lock bag.[38]
[38]T50, L1-12
74 He was asked whether he heard any of the discussion that the informant had had with Pringle prior to doing the search. He confirmed that Pringle was informed that the car was going to be taken, and that there was a discussion around what we (the police) were going to do with him. Pringle was on crutches and he either needed to get a taxi or a mate to come and pick him up. He had been informed of that and so then he was talking about what he wanted from the car if anything. In evidence-in-chief, he said he could not recall the specifics of the conversation.
75 He said that in his experience as a Highway Patrolman it is not standard procedure for police to assist anyone to take their possessions out of the car in these circumstances. Here it was done because of Pringle’s inability to actually do it himself and there did not appear to be any issue with Pringle.[39]
[39]T51, l1-4
76 He was clear that when Constable Griffiths started removing the items from the vehicle, it was his understanding that she was conducting a search.[40] The basis for his understanding was that it appeared to him that that was what she was doing. She was moving the rubbish around, that is, the bits of rubbish, and she found three cigarette packets. She did not place them in a bag. They were on the seat and she was just seeing what was in them.[41]
[40]T51, L18-19 & 20
[41]T51, L16-29
77 When she discovered the drugs, she informed him of that fact, and he also saw what she was doing. He said that he had been working in drugs before and identified that the crystals looked like ice and he made a comment to the effect that it was a “good find”.[42]
[42]T52, L14.
78 He described Constable Griffiths’ actions as a search and he described her work ethic and enthusiasm as being a good thing, rather than just focusing on impounding a vehicle for the driver driving whilst suspended. He did not turn his mind at all to what power the constable had to search the vehicle at that time.[43]
[43]T52, L6-17.
79 Constable Griffiths immediately informed Pringle that he was under arrest and he said that from there, there was a further search conducted. Thereafter, a further search of the tray of the vehicle revealed the presence of a laptop bag. He then undertook a pat-down search of Pringle and found nothing.
80 In cross-examination, he confirmed that Constable Braun and Leading Senior Constable Downwood were focused on filling in the paperwork for the impoundment, leaning on the bonnet of the divisional van. He was accompanying Constable Griffiths whilst they were doing the paperwork. He said that the search that he referred to started after he and Senior Constable Downwood arrived. There was no discussion between Constable Griffiths and him about what she was doing. Constable Griffiths just walked over and opened the door and “away she went”, so he followed.[44]
[44]T54, L19-22.
81 He confirmed that he could recall a conversation between Pringle and Constable Griffiths prior to her removing items from the car but he could not recall the specifics. He believed that there was conversation about removal of property from the car. He confirmed he did not hear any suggestion to Pringle that his car was going to be searched. Pringle was not asked expressly if he consented to his car being searched.[45]
[45]T55, L12-18.
82 At the time of arrival, the only issue was the impoundment of the ute and there was no discussion about any suspicions held of there being drugs in the vehicle.[46]
[46]T55, L19-24
83 He stated that Constable Griffiths started at the passenger side of the car and was searching through the car moving bits of rubbish, namely, paperwork and general rubbish. He said that as she was doing that, she was not speaking to Pringle. She was moving around items in the vehicle. He did not actually see her take anything out of the car to put into a separate bag until later.
84 He remembered Pringle was asking about items that he wanted from the tray of the vehicle as there was a lot of stuff in there, namely, clothing and shoes.[47]
[47]T56, L20-25.
85 He did not hear any discussion with Pringle about him wanting any items from the front passenger area of the car. At the time Constable Griffiths was sorting the rubbish.[48] He said that he observed her moving bits of rubbish around and saw her open more than one cigarette packet and he did not specifically hear any discussion with Pringle about whether he wanted any cigarettes from the car.[49]
[48]T56, L26-31.
[49]T57, L5-7.
86 He recalled that there were two or three packets of cigarettes. He was pretty sure that two were empty and there was one that was not. The one that was not empty was picked up by Constable Griffiths. It was light, so she sort of shook it and then opened it. When she opened the packet there were no cigarettes in it and he saw her place her hand inside the cigarette packet and pull out a small snap lock plastic bag with a crystal-like substance in it. At that point, Constable Griffiths said she thought she had found a drug of dependence and he said he thought it looked like ice. He could not recall exactly what he said to Constable Griffiths, something along the lines of she had done well locating the item.[50]
[50]T57, L21-31; T58, L1-12.
87 He confirmed that it was after this discovery that Constable Griffiths arrested Pringle and told him his rights, and she told him that she was going to continue searching the vehicle. He agreed at that point the search had not been completed. At that stage it was only part of the car.[51]
[51]T58 & 59
88 He confirmed that Pringle was shown the drug that was found and he offered his view of what it was, namely, that it was ice. He was present while the search of the rest of the ute occurred. He stood at the rear of the ute and observed Constable Griffiths. He could not recall whether she did a search of the glove box of the car at any stage in his presence.[52] He could not recall whether he observed her searching the driver’s side of the ute.
[52]T60, L30-31.
89 He remained at the scene until the ute was towed away and provided the towing docket to Constable Griffiths, otherwise he had not had any further contact in respect to the investigation.[53]
[53]T61, L7-11.
90 In re-examination, he confirmed his observation that on that occasion Constable Griffiths appeared to be getting on well with Pringle and they were speaking well to one another. Pringle was co-operating with everything that the police were telling him about what was going to happen, and that there was a conversation about getting things out of the car that he needed. There was an offer to go and get some things and he was quite happy to accept that offer, from what he could see. He could not remember the precise words that were used by Pringle when he accepted the offer.[54]
[54]T62, L6-17.
91 Constable Braun’s evidence was that he completed the necessary paperwork with assistance from Constable Downwood. He was present when there was a discussion between Constable Griffiths and Pringle about getting his valuables out of the vehicle, to which Pringle replied “That would be good”.[55]
[55]T37, L4-7
92 In cross-examination, he confirmed he only heard part of the conversation.
93 He did not observe Constable Griffiths' actions when she went to the front side of Pringle’s vehicle to remove the valuables.
94 He confirmed that Leading Senior Constable Morrison was with Constable Griffiths. He said in answer to a question, “Is it correct to say that he was standing next to her whilst she was in the vehicle, or removing things from the vehicle?” He said, “I guess that would be fair to say”. Pringle was a little distance away on the nature strip.[56]
[56]T44, L9-15
95 He first became aware of an item being found, i.e. drugs, when Constable Griffiths walked back to the divisional van and told him.[57] Leading Senior Constable Morrison was with her.[58]
[57]T44, L24-26
[58]T44, L27-28
Findings concerning the initial search
96 On balance, having regard to the totality of the evidence, I am satisfied that on 11 January 2014 that the accused was intercepted for driving whilst suspended and that a lawful decision was made to impound his ute pursuant to s.84F of the Road Safety Act 1986.
97 At that time there was no reason for the police to search Pringle’s vehicle for drugs, nor does s.84F of the Road Safety Act 1986 confer any power on a police officer to search a vehicle. Pringle was not under suspicion in respect to the commission of an offence other than driving whist suspended.
98 Constable Griffiths obtained Pringle’s consent to enter the vehicle to remove valuables only. Constable Griffiths did not have his permission to search the vehicle. This was not a consensual search.
99 There is a conflict on the evidence about what transpired once Constable Griffiths opened the passenger door and began to rummage around in the front passenger side of the ute.
100 I prefer and accept Leading Senior Constable Morrison’s evidence of what he observed when he was standing behind Constable Griffiths. I find that he was present when Constable Griffiths was undertaking the task. I accept that he had a good vantage point. Pringle was standing at the rear of the ute when Constable Griffiths was leaning into the front passenger seat of the ute.
101 I accept his evidence that he saw Constable Griffiths searching through the front area, moving bits of rubbish and other items. He saw Constable Griffiths pick up and open more than one cigarette packet before opening the one within which she located the drugs. He saw her place her hand inside the cigarette packet and pull out the small snap lock bag containing the white crystals.
102 He was emphatic in his description that what he observed was a search and he is a police officer with some 15 years' experience.
103 Constable Griffiths was not asked to collect any cigarettes by Pringle. The only conversation held with him concerning this area of the ute was about placing the receipts into the glove box. Once she had completed that task there was no other reason for her to continue to search through and move the other items of rubbish around in the area or to examine any cigarette packages.
104 Leading Senior Constable Morrison’s evidence about what he remembered of the conversation he heard between Pringle and Griffiths related to items to be removed from the rear of the tray only.
105 Contrary to Mr Wheelahan’s suggestion this was not a mere exploration of the ute diligently trying to find items of value to be given to Pringle, I am satisfied that the actions of Constable Griffiths went beyond providing assistance to removing valuables and did in fact constitute a search which she did not have any basis at law to conduct.
106 I am satisfied that at the time Constable Griffiths did consider she was conducting a search. In making this finding I have had regard to the evidence of Leading Senior Constable Morrison. Further, I consider the language used by Constable Griffiths to Pringle at the time she arrested him and cautioned him on his rights supports this conclusion. Constable Griffiths told him that she was going to ‘continue searching’ his vehicle.
107 This finding is also consistent with the puttage of Constable Griffiths to the accused during his record of interview, namely that the accused said she could help clean out his car and that he also provided a ‘consent to the search’ of his car;[59] that as she was ‘searching through’ his car she opened up the cigarette packet and found the white powder;[60] and that after she arrested the accused, she ‘continued a consent search’ of the back of the ute.[61] It is also consistent with what the informant recorded on the Application for Forensic Services, namely seized bag in cigarette packet located on front passenger seat of accused’s vehicle during consent search’.[62]
[59] Record of Interview Q56, Depositions, p2638.
[60] Record of Interview Q57 Ibid p 2638.
[61] Record of Interview Q58 Ibid p2639.
[62] Depositions p307.
108 Therefore, I am satisfied that Constable Griffiths did conduct a search for which there was no power and that the evidence obtained from that search is evidence obtained by an impropriety for the purposes of s.138 of the Evidence Act 2008. Accordingly, the Court must exclude the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
109 As was stated by the Court of Appeal in DPP v Marijancevic [2011] VSCA 355, [18], the judgment called for under section 138 involves the:
“Weighing against each other of two competing requirements of public policy, namely, the public interest in admitting reliable and probative evidence so as to secure the conviction of the guilty and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the system of criminal justice.”[63]
[63] [2011] VSCA 355, [18].
110 I now turn to the list of non-exhaustive factors set out in s.138(3) of the Evidence Act 2008. The subsection provides guidance to my task and no factor is determinative.
Relevance and probative value
111 The test is not just whether the evidence is relevant, but rather requires a measure of its probative value. The greater the probative value of the evidence, the more persuasive the argument for the desirability of admitting the evidence.[64]
[64] See, eg, R v Borg [2012] VSC 26, [75] (per Lasry J).
112 “Probative value” is defined in the Dictionary to the Act as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
113 The drug found in the ute forms the basis for Charge 1 on the indictment. The evidence is relevant and is therefore a factor that weighs in favour of it being admitted.
The importance of the evidence
114 The real significance of the evidence, and this was conceded by the parties, is that this evidence forms the basis for the chain of events that led to the discovery of the further evidence that underpins the remaining charges on the indictment. If this evidence is ruled inadmissible then it follows so should all the other evidence obtained through subsequent searches. The further searches were not based on any independent evidence. In essence the prosecution would not have a case. This evidence is important in the proceeding and is therefore a factor that weighs in favour of it being admitted.
The nature of the relevant offence
115 The “relevant offence” has to be considered. Charge 1 relates to trafficking simpliciter, whilst not serious it is not of the highest order.
The Gravity of the Impropriety or Contravention
116 In DPP vMarijancevic [2011] VSCA 355, three levels of improper conduct were discussed.
117 At the least serious end is conduct which did not involve any knowledge or realization that the conduct was illegal and where no advantage or benefit was gained as a consequence of the impropriety. Middle of the range conduct is conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end is conduct which was known to be illegal and which was pursued for the purposes of obtaining a benefit or advantage that could not be obtained by lawful conduct.[65]
[65] DPP v Marijancevic [2011] VSCA 355, [67].
118 Constable Griffiths was an inexperienced police officer whose actions in searching the ute were illegal. Constable Griffiths was aware at the time she conducted the search that she did not have any power to do so. I consider her actions to be that of a person who was diligent and committed to her job who nonetheless on this occasion made a serious error of judgement. Her initial motivation was to assist Pringle to gather his valuables but this changed when she undertook the illegal search of the front passenger area of the ute. She was then examining the contents of the ute for intelligence purposes.
119 Unfortunately, Constable Griffiths was not given any advice or assistance by the more experienced officer, Leading Senior Constable Morrison, at the time of the search. By his actions he implicitly encouraged the search without properly turning his mind to what, if any, power there was to undertake such a search.
120 Constable Griffiths did seek in retrospect to improperly characterise her actions as “a consensual search” as evidenced in the language used in the various questions asked of the accused in the record of interview that have been referred to previously. This characterisation was repeated in the electronic running sheet and in the Application for Forensic Services.
121 Further, through her actions an advantage was obtained that could not have been obtained by lawful conduct. Mr Wheelahan conceded this proposition in argument.
122 On balance, therefore, I consider that her conduct is worse than middle of the range conduct and falls into the most serious range of conduct.
123 This conduct is a factor that weighs heavily in favour of the evidence not being admitted.
Was the Impropriety or Contravention Deliberate or Reckless
124 Constable Griffiths’ own evidence is that she did not have a basis to search Pringle’s vehicle prior to locating the drugs in the cigarette packet.
125 I have found that she had permission only to remove valuables from Pringle’s vehicle.
126 This is not a case where the informant undertook an illegal search under a mistaken belief she had power to do so. Her actions were not inadvertent. She was aware that she was not entitled to search Pringle’s ute at the time she commenced searching the front passenger area. Yet, Constable Griffiths undertook the actions which constituted a search anyway.
127 I find that her actions were deliberate and not merely reckless.
128 This conduct is a factor that weighs heavily in favour of the evidence not being admitted.
Was the Contravention Inconsistent with a Right recognised under the ICCPR (International Covenant of Civil and Political Rights)?
129 I accept the defence submission that an illegal search of the accused’s car and property is inconsistent with the rights set out in Article 17 of that Covenant.[66] This is another factor that weighs in favour of the evidence not being admitted.
[66] R v Bernath (Unreported, Ruling of Judge Mullaly, 29 June 2012), 191.
130 Article 17 of the ICCPR recognizes the right of a person to not be subjected to arbitrary or unlawful interference with his privacy:
“Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.”
Is any other Proceeding likely to be taken in relation to the Impropriety?
131 There are no proceedings which have been taken or are likely to be taken against Constable Griffiths for her conduct.
132 In the circumstances where there are no other proceedings relating to the impropriety, the need for curial denunciation of the impropriety, through exclusion of the evidence, gains more weight.
The Difficulty of Obtaining the Evidence Without Impropriety or Contravention
133 In the instant case, it has been conceded by the Crown that the evidence against the accused would not and could not have been obtained absent the impropriety.
134 There was no basis on which a search could be justified in the circumstances. There was no suspicion on reasonable grounds as to the presence of drugs. Hence without undertaking an illegal search, the presence of the drugs would not have been known and the evidence would not have been obtained.
135 In circumstances where an investigating body has no power to obtain the evidence legally, or in circumstances where there has been a deliberate cutting of corners, then these circumstances would support exclusion, particularly from a deterrence perspective.[67]
[67] See, eg, discussion of this factor in Stephen Odgers, Uniform Evidence Law in Victoria (2nd Edition) (2013), pp 844-845; and R v Borg [2012] VSC 26.
136 The charges that have been laid against Pringle are serious drug charges. There is great public interest in ensuring that a trafficker of commercial drugs be convicted and dealt with under the law.
137 In criminal proceedings, a comparison of the gravity of the offence/s with the gravity of the misconduct case does form part of the balancing exercise required by s.138(3).[68]
[68]Gedeon v R [2013] NSWCCA 257 at [180] per Bathhurst CJ (Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing).
138 However in determining whether to exclude the improperly or illegally obtained evidence pursuant to s.138:
the ultimate question … is to resolve the conflict between the benefit of bringing a wrongdoer to conviction, against the adverse impact upon the integrity of court processes by giving curial approval or encouragement to the unlawful conduct of those whose task it is to uphold the law (Gedeon v R [2013] NSWCCA 257 at [216] per Bathurst CJ (Beazley P, Hoeben CJ at CL, Blanch and Price JJ agreeing), citing Ridgeway v The Queen (1995) 184 CLR 19 at 31 per Mason CJ, Deane and Dawson JJ).
139 As noted by the Court of Appeal in DPP v Marijancevic –
“The trial judge was right to emphasise as a relevant consideration the undesirable effect of curial approval being given to unlawful conduct of those whose duty it is to enforce the law. In doing so he was drawing upon the implied power of the courts to protect the integrity of the judicial process.”[69]
[69] [2011] VSCA 355, [18].
140 In the particular circumstances of this case, where there are a number of factors which I have identified as going into my consideration when undertaking the balancing task, I have determined that I am not satisfied ultimately that the prosecution has succeeded in establishing that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
141 Therefore, the evidence obtained from the search of the accused's ute on 11 January 2014 must be excluded pursuant to s.138 of the Evidence Act 2008. What follows thereafter is that the balance of the evidence sought to be led by the prosecution is infected by the illegal search conducted by Constable Griffiths.
---
0
7
0