Duran (a pseudonym) v The King
[2023] VSCA 314
•12 December 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0122 |
| OMAR DURAN (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in the place of the name of the applicant so as not to prejudice the proper administration of justice.
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 December 2023 |
| DATE OF JUDGMENT: | 12 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 314 |
| JUDGMENT APPEALED FROM: | [2023] VCC 968 (Judge Cannon) |
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CRIMINAL LAW – Interlocutory appeal – Police search of vehicle without warrant – Drug of dependence – Cocaine – Whether search of vehicle lawful – Whether open to judge to conclude that police had reasonable grounds to suspect that drugs in vehicle – Whether judge applied wrong test – No substance in applicant’s proposed grounds of appeal – Application for leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, s 82; Evidence Act 2008, s 138.
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| Counsel | |||
| Applicant: | Mr T Kassimatis KC with Mr PF Bloeman | ||
| Respondent: | Ms A Moran | ||
Solicitors | |||
| Applicant: | James Dowsley & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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PRIEST JA
BEACH JA:
The applicant is facing trial in the County Court on a single charge of trafficking in a commercial quantity of a drug of dependence, contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Drugs Act’). The prosecution case relies entirely upon evidence obtained by police during a search of the applicant’s motor vehicle. The search was conducted without a warrant pursuant to s 82 of the Drugs Act, on the basis that a police officer had reasonable grounds for suspecting that there were drugs of dependence in the vehicle.
Before the commencement of his trial, the applicant applied to have the evidence of the search excluded pursuant to s 138 of the Evidence Act 2008 on the basis that police did not have reasonable grounds for suspecting that his vehicle contained a drug of dependence. The primary judge refused the application,[2] but certified under s 295(3)(a) of the Criminal Procedure Act 2009 that her decision concerned the admissibility of evidence, that if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
[2]DPP v [Duran] [2023] VCC 968 (‘Ruling’).
Pursuant to s 295(2) of the Criminal Procedure Act, the applicant seeks leave to appeal against the primary judge’s decision on the following proposed grounds:
1.The judge erred by misdirecting herself on the statutory threshold necessary to render lawful a search under s 82 of [the Drugs Act].
2.The judge erred by holding that the evidence obtained by police in the search of the applicant’s car was admissible, in circumstances where that holding was not adequately supported by the evidence, and not reasonably open.[3]
[3]These were the grounds as reformulated in the applicant’s summary of contentions in this Court, rather than the grounds as formulated in his application for leave to appeal, which he said had been ‘poorly drawn’.
Summary of prosecution case
At about 2:30 am on 9 February 2022, police officers, First Constable Michael Fahey and Constable Rachel Thomas, who were conducting divisional van duties in the Dandenong area, observed a silver RAV4, parked outside LJ Hooker on the Princes Highway. The applicant was in the driver’s seat of the car and appeared to be speaking to a male standing outside the driver’s side window, despite the window being wound up.
Ms Thomas parked the divisional van close to the RAV4. Mr Fahey conducted a check on the RAV4 registration plate. Both police officers left the divisional van and approached the car. After an initial conversation about the applicant’s licence, Mr Fahey walked around the vehicle, shining his torch and looking into it. After doing this, he asked the applicant if he would consent to the search of his car. The applicant refused to give his consent. Mr Fahey then said that he had a suspicion on reasonable grounds under s 82 of the Drugs Act, so as to entitle him to search the car. A search then took place. Two mobile phones were found in the centre console, a zip-lock bag containing a white powder, which turned out to be cocaine, was found in the centre console and a small safe was found in the boot. The applicant was subject to a pat-down search and two further mobile phones and $380 in cash were found on him.
The safe was seized and later opened with a police issue tool after the applicant had refused to give the combination. Inside the safe was a black plastic bag containing multiple zip-lock bags, and a Coles shopping bag with a large square-shaped block of white powder. There were 20 plastic bags, one of which contained another 29 plastic bags. All 20 of the plastic bags contained a white powder substance which, upon scientific analysis, was found to contain cocaine. The cocaine in the twenty bags ranged in purity from 34 to 78 per cent. In total, there were 912.1 grams of white powder, of which 635.8 grams was pure cocaine. The safe also contained a set of scales. The prosecution case is put on the basis that the applicant was in possession of the cocaine for sale.
The application before the primary judge
The applicant made two submissions before the primary judge. First, the applicant submitted that there was no legal authority for the police to search his vehicle, as there was an insufficient basis for Mr Fahey to suspect, on reasonable grounds, that there was a drug of dependence in the vehicle. The search was thus submitted to be unlawful. Secondly, he submitted that, the evidence found in the search having been obtained improperly, it should be excluded under s 138 of the Evidence Act because the desirability of admitting the evidence does not outweigh the undesirability of admitting evidence that had been obtained by an unlawful search.
There was only one relevant witness in the application before the judge, Mr Fahey. Ms Thomas was unavailable, and the applicant was content to make his application on the evidence of Mr Fahey alone. Mr Fahey’s evidence included his police statement, the evidence he gave at committal and the evidence he gave before the judge. The judge also had regard to bodycam footage tendered during the course of the application.
The evidence of Mr Fahey
Mr Fahey’s police statement
Mr Fahey made a statement on 12 February 2022. The statement commences with a description of Mr Fahey and Ms Thomas coming across the applicant in his motor vehicle, while the applicant was speaking to another male through the closed driver’s door window. After referring to the initial conversation between Mr Fahey and the applicant, and then the activation of Mr Fahey’s body-worn camera, the statement continued:
7.I spoke to [the applicant] about his licence status and then walked around the vehicle as I noticed one of the wheels was different to the other three. First Constable THOMAS spoke with [the applicant] and I saw [the applicant] open and reach into the centre console of the vehicle where I noticed a clear zip lock bag.
8.I walked back to the driver’s door of the vehicle where [the applicant] was standing outside next to the vehicle at this point. I asked [the applicant] if he would give me permission to search the vehicle, [the applicant] declined, and I asked to the reason of him declining. [The applicant’s] attitude begun to change and he began to become evasive with his answers and erratic with his behaviour.
9.I looked more closely at [the applicant] and noticed he has (scil, had) glazy eyes with his left eye being bloodshot, his evasive behaviour, the time of morning and location he was at being a high drug activity area. I explained to [the applicant] that for these reasons I formed a suspicion on reasonable grounds and using section 82 of the Drugs, Poisons and Controlled Substances Act I had power to search his vehicle.
10.[The applicant’s] behaviour became more erratic and aggressive. I located fifty dollars on the driver’s door well. I located two phones in the centre console that I placed on the driver’s seat as well as a medium sized zip lock bag containing a white powdery substance believed to be Cocaine in the centre console. I took a photograph on my police issued device of the centre console and the zip lock bag inside. I now produced this exhibit. First Constable THOMAS placed [the applicant] under arrest for posses’ drug of dependence and read [the applicant] his Caution and Rights.
Mr Fahey’s evidence at committal
In his evidence-in-chief at committal, Mr Fahey said that the contents of his statement were true and correct. He was then cross-examined.
In cross-examination, Mr Fahey said he had been stationed in the Dandenong area for approximately two years. He described his ‘walk-around’ of the applicant’s vehicle, saying that he was shining his police issued torch through the windows of the car ‘and having a gander’. He said that it would be fair to say that this was ‘a preliminary search’. While doing this, he said that he saw a clear zip-lock bag in the open centre console. He then walked back around to the driver’s door of the car and asked the applicant if he would give him permission to search the vehicle.
Mr Fahey said that at the time he asked the applicant if he could have permission to search the vehicle, he had a number of things operating on his mind: the plastic zip-lock bag; the fact that it was 2:30 am; and the fact that the vehicle was ‘in an area of high drug activity’, and an area which was ‘very close to a lot of areas where there is high drug activity’.
It was put to Mr Fahey in cross-examination that it was the time, the location and the existence of the bag which caused him to make his initial request to search the vehicle. He accepted this proposition, before being asked and answering the following questions:
All right. And in terms of the initial request you make of [the applicant], the bag is the tipping point, if I can call it that or the reason that you make the request; isn’t it?---No.
No. Is it the other two things?---No, it’s a combination of all of them.
Yes?---As I stated that he had glazy eyes and one of his eyes was bloodshot.
Well, we’ll get to that?---Okay.
But, at that stage – well, we can look at it now actually. When we go to paragraph 9, you’re referring to a – your statement’s drafted in a chronological manner; isn’t it, sir?---To the best of my ability, yes.
Yes. So, when we get to the point where you say you noticed a glazy eyes, or glassy eyes, and the bloodshot left eye?---M’mm.
That’s after you’ve first made that request as to whether you can search his vehicle; correct?---That is correct, yes.
Yes. So, we’re going to go through it slowly and methodically if we can?---No problem.
So, at the time the original request’s made, you’ve got the three things operating on your mind?---That’s correct, yes.
And what I was suggesting to you, it was the third – the seeing of the bag which is the one that tipped it over – which led to you making that request?---It was a combination of all three together, sir.
A little later in cross-examination, Mr Fahey accepted that at the time he asked for permission to search the vehicle, in his mind, he was going to search the car anyway. Mr Fahey described the applicant’s refusal to give consent as raising ‘further suspicion’. Mr Fahey agreed that it was after the applicant had said that he did not want his car to be searched that he had cause to make additional observations of him — then observing that the applicant’s eyes were ‘a bit glazy’, with one of them being bloodshot.
In cross-examination, Mr Fahey said that he turned on his body camera when he made the decision that he was going to search the vehicle. He was then asked and answered the following questions:
You explain the reasonable suspicion that you have?---That is correct, yes.
All right. By this time, the body worn cam’s rolling; correct?---That is correct, yes.
And in effect, you say firstly, ‘Look, it’s Dandenong. Dandenong’s an area of high drug activity’?---Yes.
It’s late at night?---That is correct, yes.
Bloodshot eye?---Something to do with his eyes, I believe, yes.
All right. You use the word ‘evasive’ and I think we established before that was in relation to his not giving you permission to search the car; correct?---That’s one of the things, yes.
It was put to Mr Fahey that he never mentioned the zip-lock bag he had seen in the centre console. He agreed, saying, ‘I think I failed to mention it, yes’. He was then asked and answered the following questions:
All right. Is there a reason you didn’t say, “Well, look, I just made this observation of a Ziploc bag in your centre console and, you know, it looks a bit suss”?---No, there was no reason. I just must have forgotten, sorry, sir.
You’d forgotten, what, in the - - - ?---Yes, I just failed to mention it. It was not central to my reasons.
So, we can throw that to the side. That’s not really part of your suspicion you say now?---That was part of it. But, it wasn’t central.
Mr Fahey’s evidence before the primary judge
In evidence-in-chief before the primary judge, Mr Fahey gave evidence about his observations as he walked around the applicant’s vehicle. He said that he believed that when he was on the passenger side of the vehicle, he saw the applicant reaching into the car and he saw ‘a couple of phones and a zip-lock bag’ in the centre console. He said he did not see the entire zip-lock bag. The part he saw was ‘clear’. He was asked what his thought processes were at that point. He said, ‘I was just continuing to look around the car and just making note of everything that I saw, in my head’. He was asked whether, as a result of seeing the zip-lock bag, he made a decision. He said, ‘Not at that point’. He was then asked and answered the following questions:
All right. And what was that discussion about?---I spoke to him. I requested if he – if he would allow me to search the vehicle. And he declined. Um, he became more agitated when I questioned him about that. Um, and spoke to him about the glazed and bloodshot eyes.
All right. Why did you ask him if you could search the vehicle?---Due to the area that we were in, the time of night, and just his evasive behaviour.
- - - [W]hen you were talking to him. How did he present?---As – the more I had a conversation with him, he was becoming more agitated and evasive.
All right. And when you say, ‘the more you spoke to him’ – this is after you’ve asked – this is after you’ve enquired of him, as to whether you can search the car, is that correct?---That is correct, yes.
All right. His demeanour after you ask him that question, how did that affect your thought processes, please?---It – it gave me more suspicion.
And more suspicion of what?---On reasonable grounds that I believe that he was trying to hide something, mainly drugs.
All right. And did you explain those suspicions to [the applicant]?---Yes, multiple times, Your Honour.
And what sorts of things did you say?---I explained to him that it was the time of night, and, um, the area of being a high drug activity, his behaviour, and also the glazed and bloodshot eyes that he had.
In cross-examination, Mr Fahey said that he activated his body-worn camera before he did the walk-around, when he found out that the applicant had a suspended driver’s licence. He was cross-examined about the evidence he gave at committal, where he said that the body-worn camera was turned on when he decided to search the car. In the course of this cross-examination, he was asked and answered the following questions:
And that answer is clear, that you indicated in court under oath that the body worn camera was turned on when the decision to search the car had been made. Correct?---Correct, Your Honour.
All right. And that decision, in terms of the chronology of events, you say - well, you’ve told us today that the body worn camera was turned on for the purpose of recording a conversation about the licence?---Yes, Your Honour.
What do you say about the attention between those two propositions?---I may have mis-turned it on, Your Honour, sorry. It takes two taps to turn on the camera.
A little later, Mr Fahey was asked and answered the following questions:
I understand your evidence is the situation with the driver’s licence had no bearing upon your decision to search [the applicant’s] motor vehicle?---It didn’t assist with my suspicion, forming my suspicion. No.
It didn’t assist?---No, it didn’t.
Okay. So at the time, at the time the decision’s made, the things that are on your mind is really the time of night and the location?---As I’m walking around, Your Honour.
Yes?---And then when I had conversations with him, his demeanour, his eyes.
In relation to Mr Fahey’s observations of the applicant having glazy eyes and behaving evasively, Mr Fahey was asked and answered the following questions:
And obviously because they’ve arisen at that point in time, they’re not factors you relied upon for your original suspicion, if I can it that, when the decision was made to search the car. Correct?---So they were – I just want to clarify the question, I apologise.
Yes?---You just want to make sure they were extra points of suspicion, for myself, is that what you mean by that, sorry?
Well, I’ll try them this way. Those observations only arise after you’ve indicated to [the applicant] that you were seeking permission to search his car?---His evasive behaviour was post, yes. His glazy eyes, he had them the whole time.
He had them the whole time?---Yes.
A little later, however, Mr Fahey agreed that his observations of the applicant having glazy eyes were not made until after he had told the applicant that he was going to search the vehicle.
In cross-examination, Mr Fahey’s evidence was of a developing suspicion. He was asked and answered the following questions:
Yes. And at that stage, when the body-worn cam was activated, the decision to search had been made?---I’m forming my suspicion as I’m walking around, just - - -
Right. So when I put - - -?---And the body-worn’s already activated as I’m forming my suspicion.
Right. So what point in time do you say your suspicion finally culminates and – is when you asked, is it?---It’s post asking, as it’s said in the statement that I – his evasive behaviour, his glazed eyes, it’s all helped forming my suspicion under s 82.
In re-examination, Mr Fahey said that conversation with a driver of an intercepted motor vehicle ‘can stimulate possible suspicion depending on their behaviours and everything thereafter’. He said that was what happened in this case. When asked, ‘And how so?’, he responded:
With the evasive nature, the glassy eyes, the time, date, location.
The Ruling
After summarising the background of the dispute, the judge set out the relevant parts of s 82 of the Drugs Act and s 138 of the Evidence Act. Her Honour then referred to the relevant principles, identified primarily in this Court’s decision of Murray (a pseudonym) v The Queen.[4] The applicant accepts that, in doing so, her Honour correctly identified the relevant sections and principles to be applied.
[4][2017] VSCA 236 (‘Murray’).
Her Honour then summarised in considerable detail the evidence given by Mr Fahey, before summarising what could be seen and heard on the bodycam footage from Mr Fahey’s body-worn camera. In the course of summarising Mr Fahey’s evidence, the judge noted that some propositions that had been put to him in cross-examination ‘mis-state[d] the situation’, or were ‘contradicted by the bodycam footage’.[5] The judge described the bodycam footage as follows:
It is evident from the footage that Mr Fahey is conducting the ‘walk around’, shining his torch into the RAV4. Initially, there is no audio. As Mr Fahey apparently reaches the front passenger side of the car, [the applicant’s] arms can be seen moving in the direction of the centre console. Unfortunately, it is difficult to see all that Mr Fahey would have been in a position to see due to the reflection of the torch or other lighting bouncing back from the car windows into the body-worn camera. However, once Mr Fahey comes around to the driver’s side of the car, after [the applicant’s] hands or arms can be seen reaching in the direction of the centre console, [the applicant] is then seen to be exiting the driver’s side, and it is at this time that the audio comes on with an utterance from [the applicant] that is indistinct, closely followed by Mr Fahey saying, ‘What is the reason for me wanting to?’, to which [the applicant] replies ‘Yes’. Mr Fahey replies:
Just ‘cause there’s a glazed look in your eyes, 2.30 in the morning and Dandenong is a high drug activity area, so I’ve just formed suspicion on reasonable grounds mate under s82 of the Drugs Poisons and Controlled Substances Act.
While Mr Fahey is explaining this, [the applicant] is seen to be leaning back into the front of the car, and after Mr Fahey completes this answer, [the applicant] tells him that he was ‘only looking for his smokes, that’s all’. [The applicant] appears agitated and takes issue with Mr Fahey, who repeats that he has formed a suspicion on reasonable grounds and has power to search the car under the relevant provision. [The applicant] then asks him why he is suspicious and Mr Fahey replies that he has just told him:
Your glazed yes, you’re a bit evasive with the questions, you’re in a high drug activity area, and it’s 2.30 in the morning mate.[6]
[5]Ruling, [86], [109], [127].
[6]Ibid [135]–[136].
The judge noted the applicant’s primary submission that the search was unlawful because there were insufficient grounds for Mr Fahey to have formed a reasonable suspicion for the purposes of s 82 of the Drugs Act; and that Mr Fahey’s observations of the applicant’s ‘alleged glazy eyes and erratic behaviour occurred after he had decided to search the car and therefore were not relevant to the formation of that decision’.[7]
[7]Ibid [186].
In holding that the search was lawful, the judge said:
I have made a number of observations in respect of the evidence in this application in the course of this ruling and these observations form part of my analysis and reasons for decision. In reaching my decision, I have applied the relevant legislative provisions and the legal authorities to which I have previously referred.
Having closely considered Mr Fahey’s evidence, I must say that there was some tension in respect of the stage at which he said that he had decided to search the car. A good deal of this tension seems to have flowed from confusion in respect of his understanding and Defence’s for a time, as to whether the walkaround constituted the beginning of the search, which is did not. However, all relevant evidence considered, including the Bodycam footage, I am satisfied that Mr Fahey forms the requisite state of mind at the stage when he had done the walkaround, having seen [the applicant] reach into the centre console, seen part of a clip seal bag in this same area, 2 mobile phones and had made some observations of [the applicant] when conversing with him. His decision to search was based on all of these observations, his knowledge of the area as being a high drug activity area and the discovery of [the applicant] in a parked car at 2.30 am in that area renowned for high drug activity. Whilst he did give evidence at one stage that he had decided to search the car before asking [the applicant] to search, he also said that he’d factored in [the applicant’s] glazey eyes and evasiveness at the stage when he was asking him to search the car. Certainly, the body cam footage supports the view that he’d come to the decision to search in the course of asking [the applicant] to search the car. It’s apparent that he’d already asked to search when the audio comes on, and he therefore had the opportunity to observe [the applicant’s] appearance at that stage, which is consistent with what he said in his police statement.
Factoring all of this in, in my view, Mr Fahey had decided to search after observations that he made during the course of the walk around and in the course of asking [the applicant] to search the car, at which point he made observations about [the applicant’s] behaviour and appearance. The various matters that he’d observed and factored in by this stage, to which I have previously referred, were matters in combination which entitled him to suspect on reasonable grounds that [the applicant’s] car might have contained drugs. Also, if it was only the time of night and the location of [the applicant’s] car in a high drug activity area that weighed on Mr Fahey’s mind, one would have expected him to immediately search [the applicant’s] car upon arriving at the scene. However, this is not what he did - he performed the additional steps to which I have referred, and made relevant observations which informed his state of mind to a point of suspicion on reasonable grounds, and he was entitled to do so, in my view.[8]
[8]Ibid [205]–[207].
In considering s 138 of the Evidence Act, the judge said:
If I am wrong, and Mr Fahey formed his view at an earlier stage, as submitted by Defence, bearing in mind the shift in onus to the Prosecution, I would not exclude the evidence, in any event- the subsequent matters he observed occurred before he actually searched the car and would have justifiably brought him to that level of suspicion in any event. In this regard, I note that Constable Thomas told [the applicant] that she’d factored in the time of night and that a male had been talking to him though a closed window - notwithstanding that Mr Fahey said that he did not factor this latter matter in (although, he did say that he thought this was peculiar), it would have been legitimate to do so.
Further, the quantity of drugs found was significant, giving rise to a most serious offence such that there is a strong public interest in bringing [the applicant] to justice, and the product of the search is the entire basis for the case against [the applicant].
At no time was it put to Mr Fahey that he’d behaved recklessly or deliberately. [The applicant’s counsel] submitted that he’d cut corners or used similar expressions but, in my view, Mr Fahey, a relatively inexperienced police officer at that stage, acted in good faith in accordance with his training, and level of experience. It ought also be remembered that Mr Fahey and his partner were on 000 duties that night so, one could infer, did not have the luxury of time to deal with this situation. Indeed, [the applicant’s counsel] acknowledged that not much more needed to be done for a legal search to have been achieved - in the event that, in accordance with Defence’s submissions, Mr Fahey’s steps in forming a suspicion on reasonable grounds fell short of what was required, and had formed immediately after the walkaround, he was not far off at all in taking necessary further steps to do so - and he took those further steps: he had the conversation; [the applicant] was evasive, and had glazed eyes. Mr Fahey did not actually search the car before engaging in this conversation and making these observations of [the applicant].
There was no evidence from other police officers from the Dandenong police station that it was sufficient to search a person if in a car late at night in the Dandenong area. Mr Fahey’s evidence was that this was enough to intercept but not to conduct a search, as such. I do not accept that in the present case, any shortcomings in the steps taken by Mr Fahey, if, (contrary to my view about the legality of the search), there were some, were such as to be deliberate, reckless or egregious. There was insufficient evidence before me as to widespread illegal search practices of Dandenong police, and I do not accept that any evidence Mr Fahey gave ought result in the Court excluding the impugned evidence so as not to condone illegal behaviour by Dandenong police.
As I have said, in my view, Mr Fahey did not act illegally, but if I am wrong, having regard to the matters in s138(3), in all of the relevant circumstances of this case, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it.[9]
[9]Ibid [208]–[212].
Applicant’s submissions
Under proposed ground 1, the applicant made complaint about a sentence in paragraph [207] of the Ruling, namely:
The various matters that he’d observed and factored in by this stage, to which I have previously referred, were matters in combination which entitled him to suspect on reasonable grounds that [the applicant’s] car might have contained drugs.
The applicant’s complaint relates to the use of the word ‘might’. The applicant submitted that s 82 speaks to a submission on reasonable grounds that there ‘is’ a drug of dependence on or in a car, not to a suspicion that there might be a drug of dependence on or in a car. The applicant submitted:
The difference between the two is material. And so too was the trial judge’s error. A suspicion that something (positively) exists is more than a mere idle wondering or an exercise in conjecture. A suspicion that something only might exist is a significantly lower threshold and closer to mere conjecture.
Under proposed ground 2, the applicant contended that it was not open to the judge to have relied upon the applicant’s ‘glazy eyes and evasiveness’ or the two mobile phones located in the centre console when assessing whether Mr Fahey was justified under s 82 of the Drugs Act to search the applicant’s vehicle. In support of that contention, the applicant submitted:
Mr Fahey gave evidence at the committal hearing that his decision to search the Applicant’s car was made before he asked for the Applicant’s consent to do so. He told the trial judge any consent that might have been given was redundant: he was determined to search the car, whatever the Applicant’s response. He had never asked a person for consent to search a vehicle and not searched it.
That occurred before Mr Fahey observed the Applicant’s glazed eyes and evasiveness.
Further, the evidentiary basis for the trial judge’s finding that Mr Fahey’s suspicion was informed by his having seen two mobile phones during his walkaround is, at its highest, equivocal.
Stripped of those observations – the glazed eyes and the mobile phones – Mr Fahey’s search was said to have been justified by only the time at which the Applicant was intercepted, the notorious area in which he was parked and the clear top of a lunch-sized zip lock bag, seen during the walkaround. Those facts fall well short of meeting the threshold in s 82.
Consideration
There is no substance in the applicant’s proposed ground 1. While it would have been better if the judge had not used the word ‘might’ in paragraph [207] of the Ruling, her Honour’s very thoughtful and detailed reasons make it plain that she well-understood and correctly applied the test in s 82 of the Drugs Act that required a police officer to have reasonable grounds for suspecting that there is a drug of dependence on or in a vehicle.
The error the applicant commits in advancing proposed ground 1 is to read the Ruling as if it were a Statute. Courts have repeatedly deprecated that approach and the making of submissions based on that approach.[10] The sentence in paragraph [207] of the Ruling which the applicant seeks to impugn, when read in context, does not disclose that the judge applied a lower threshold than that required by s 82 of the Drugs Act. In context, it is plain that the judge concluded that the matters which Mr Fahey had observed, were matters in combination which entitled him to suspect on reasonable grounds that the applicant’s car contained drugs of dependence.
[10]Cassell & Co Ltd v Broome [1972] AC 1027, 1085 (per Lord Reid); Cain v Glass (No 2) (1985) 3 NSWLR 230, 248 (per McHugh JA).
Equally, there is no substance in the applicant’s proposed ground 2. When one examines the whole of the evidence, it is plain that Mr Fahey had reasonable grounds for suspecting that there were drugs on or in the applicant’s vehicle. Contrary to the applicant’s submissions, the time at which the applicant was apprehended, the fact that he was in ‘an area of high drug activity’, and the observation of the clear zip-lock bag, were reasonable grounds for Mr Fahey suspecting the presence of drugs on or in the vehicle. In the circumstances, it was not necessary for her Honour to go on and determine that Mr Fahey’s observation of the applicant’s glazy eyes and his evasiveness also constituted reasonable grounds for suspecting the presence of drugs. That said, after examining the whole of the evidence for ourselves, we are not persuaded that the judge erred if, or to the extent that, she placed any reliance upon those matters in order to come to the conclusion that the search was lawful.
Finally, we agree with the judge’s conclusion on the s 138 issue. Specifically, and for the reasons given by her Honour, even if the search could somehow have been concluded to be unlawful (resulting in the evidence obtained being obtained improperly or illegally), on any analysis conducted in accordance with s 138 of the Evidence Act, the desirability of admitting the evidence would outweigh the undesirability of admitting it in the circumstances of this case. When one examines all of the evidence, it is difficult to see how it could sensibly be contended that the evidence obtained as a result of the search could or should be excluded.
Conclusion
The application for leave to appeal from the judge’s interlocutory decision must be refused.
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