Murray, Hale and Olsen (Pseudonyms) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0136

MARSHALL MURRAY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgement has been anonymised by the adoption of pseudonyms in place of the names of the applicants.

S APCR 2017 0139

ROBERT HALE (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0143

SHAUN OLSEN (A PSEUDONYM)	Applicant
v
Respondent
THE QUEEN

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 August 2017
DATE OF JUDGMENT:	6 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 236
JUDGMENT APPEALED FROM:	DPP v Marshall (Unreported, County Court of Victoria, Judge Lacava, 20 June 2017)

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CRIMINAL LAW – Interlocutory Appeal – Police search without warrant – Drug of dependence – Methylamphetamine – Searches of applicants and vehicle – Whether searches were conducted legally – Whether police had reasonable grounds of suspicion – Whether evidence obtained in illegal search admissible – Spectrum of improper conduct by police – Probative value of evidence obtained – Applications for leave to appeal dismissed – Drugs, Poisons & Controlled Substances Act 1981 s 82 – Evidence Act2008 s 138 – Director of Public Prosecutions v Marijancevic (2011) 33 VR 440 – George v Rockett (1990) 170 CLR 104.

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APPEARANCES:

Counsel

Solicitors

For the Applicant, Murray

For the Applicant, Hale

For the Applicant, Olsen

For the Crown

Mr M Pena-Rees
(solicitor)

Mr P J Hannebery

Mr D P Sheales

Mr C Boyce SC with
Mr M E Regan

Armour Legal

Michael Gleeson & Associates

Stephen Andrianakis & Associates

Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:
BEACH JA:
KAYE JA:

The applicants each seek leave to appeal against an interlocutory decision made by a judge of the County Court to admit evidence that had been obtained as a result of a search conducted by police of the applicants in a motor vehicle in which they were travelling in Pascoe Vale on 16 February 2015. The search was conducted without a warrant pursuant to s 82 of the Drugs, Poisons & Controlled Substances Act 1981 (‘the Act’).

At the conclusion of oral submissions, we unanimously dismissed the application for leave to appeal. We now provide our reasons for that conclusion.

The circumstances

At 11:00 pm on 16 February 2015, Sergeant Peter Jones and First Constable David Smith were travelling in a marked police car, driven by Jones, north on Derby Road, Pascoe Vale. As the vehicle approached the intersection of that road with Boundary Road, a dark coloured BMW sedan cut across their path, and turned right into Derby Street. It then accelerated in a southerly direction at a fast speed. Sergeant Jones performed a U-turn in the police vehicle, and gave pursuit. The BMW then braked heavily, and turned left (east) into Kent Road. The police officers momentarily lost sight of the BMW, which, it transpired, had again turned left to travel north in Sunshine Street. The police officers located the BMW parked against the left kerb in Sunshine Street, positioned as if it had been parked hastily. The applicant Robert Hale was in the driver’s seat, the applicant Shaun Olsen was standing outside the open left passenger door of the vehicle, and was commencing to walk away. A third male, later identified as the applicant Marshall Murray, was seated in the left rear seat of the vehicle.

After questioning the applicants, Sergeant Jones decided that a search should be conducted of them, and of the vehicle, pursuant to s 82 of the Act. That section provides that where a police officer ‘has reasonable grounds for suspecting’ that on or in a vehicle in or upon a public place, or in the possession of a person in a public place, there is a drug of dependence in respect of which an offence has been committed or is reasonably suspected to have been committed under a provision of Part 5 of the Act, the police officer may, with such assistance as he thinks necessary, search the person or vehicle, and seize and carry away the drug of dependence.

Searches of the three applicants revealed that Murray had in his possession the sum of $455 in cash, a Nokia telephone and an iPhone 6, and the applicant Olsen had in his possession one iPhone 6.

Constable Smith then searched the vehicle. That search revealed the following items:

·a black wallet, containing a NAB MasterCard in the name of James Olsen (Olsen’s brother) in the driver’s side door pocket;
·a blue Lacoste bag in the driver’s side footwell that contained $1,127 in cash. Olsen had admitted that the bag belonged to him, but he denied that there was anything in it;
·two $100 banknotes in the centre console; and
·four large clip seal bags of clear crystalline substance in the centre console, which Constable Smith instantly suspected may have been methylamphetamine. On analysis it was ascertained that the total weight of the substance was 110.1 grams, with an approximate purity of 90 percent methylamphetamine.

Two other police officers attended the scene a short time later. One of them, together with Constable Smith, conducted further searches in the vehicle, which revealed:

·One small clip seal bag containing three Diazepam tablets and one Xanax tablet within the Lacoste bag; and
·Two traffic penalty notices issued to the applicant Olsen, dated 12 February 2015, identifying Olsen as the driver of the BMW. The notices were found in the glove box of the BMW.

After the three applicants were arrested at the scene, and conveyed to the police station, they were fully searched. Nothing of interest was located on Olsen or Hale. Murray was found to have cash amounting to $3,525 in his underwear, one clip seal bag containing two Diazepam tablets and one Xanax tablet, and two clip seal bags containing 0.7 grams of cocaine and 0.9 kilograms of cocaine respectively.

Each applicant was charged with trafficking in a drug of dependence, namely, methylamphetamine. They were each also individually charged with possessing various drugs of dependence. The ruling by the judge does not directly affect those charges, but is confined to the evidence that is sought to be adduced in support of the trafficking charge.

Before the empanelment of the jury, each applicant objected to the admissibility of the evidence, obtained in the search conducted on them and the vehicle, pursuant to s 138 of the Evidence Act 2008 (‘the Evidence Act’). It was contended that the searches were conducted illegally, because, at the time at which the searches were made, the police did not have reasonable grounds for suspecting that there was a drug of dependence either in the vehicle, or on the applicants. After hearing evidence on a voir dire, the judge concluded that the search had not been conducted pursuant to s 82 of the Act. His Honour found that while the two police members suspected that there was a drug of dependence on the applicants or in the vehicle, they did not have reasonable grounds for such suspicion. However, the judge concluded that the desirability of admitting the evidence outweighed the undesirability of admitting it, so that the evidence was admissible under s 138 of the Evidence Act.

The evidence on the voir dire

Sergeant Jones and Senior Constable Smith each gave evidence on the voir dire, and were cross-examined. The applicants did not give evidence or call any evidence.

Sergeant Jones described the circumstances in which he pursued and intercepted the BMW vehicle. In particular, he stated that when he first observed the BMW, he thought it was worth checking it, because of the speed at which the vehicle had come around the corner, the ‘carelessness with which they cut the corner’, and the fact that when they passed the marked police car, they accelerated away at a high speed. He said that the vehicle accelerated even harder, and he was of the opinion that the occupants of the BMW had observed the police vehicle. As he pursued the BMW, he was able to make out a third person in the back of it.

When Sergeant Jones saw the BMW turn left into Kent Road, he thought that possibly it could be stolen, or that the occupants were trying to evade the police for other reasons. He said that the vehicle had braked heavily before turning into Kent Road, and that it went around the corner at at least 60 kilometres per hour. After Sergeant Jones also turned left into Kent Road, he was unable to see the BMW, and he inferred that the BMW must still be accelerating fast to be out of sight. He said that in his experience when people are trying to evade the police they usually do a second left hand turn in order to shake off the pursuit. Accordingly, he looked down Sunshine Street, and there observed the BMW. He was surprised to see that vehicle stopped. He said that a lot of vehicles do not stop when they seek to avoid the police. Accordingly, automatically his suspicions were raised that something was not right. Initially he had thought that the vehicle was stolen. However, the fact that the vehicle then stopped made him think that the occupants just needed a bit of time to get rid of something out of the vehicle.

Sergeant Jones noted that the passenger side door of the vehicle was open and there was a male walking away from it. He subsequently came to know that person as the applicant Olsen. Sergeant Jones parked behind the BMW and alighted. At that time the applicant Hale was in the driver’s seat of the vehicle and the applicant Murray was in the rear passenger back seat. Sergeant Jones approached Olsen and asked him where he was going. Olsen responded that he was ‘going to take a piss’. When Sergeant Jones asked him where he was going to do that, Olsen responded, ‘Well I’m not going to now you’re here’. He asked Olsen why they had been travelling so fast, to which Olsen responded ‘I was in a hurry I guess’.

Sergeant Jones then told Olsen to get back inside the BMW ‘for safety purposes’, in response to which Olsen returned to the vehicle and sat in the front passenger seat. Sergeant Jones asked to whom the vehicle belonged, to which Olsen repeatedly told him that the vehicle was not registered to him, and that it belonged to a friend. However, none of the occupants of the vehicle were able to provide the name of that friend. At one point, Olsen opened his telephone to try to call the friend that the vehicle was registered to, but he did not make that call. When asked why the vehicle was out at that time, the applicants responded that they were going to a dinner in Brunswick, and they stated the name of the restaurant. Sergeant Jones asked where they had come from, and Hale said that they had come around and picked him up from his address.

Sergeant Jones stated that at that stage he was getting ‘attitude’ from Olsen. It was Jones’ impression that Olsen had had contact with the police before, he was ‘very cocky’, very sure of himself, and did not show much respect for the police. He behaved in a manner as if he had previous dealings with the police. By contrast, the applicant Hale was extremely nervous. His hands were visibly shaking. His nervous state deteriorated as the time progressed. Whenever he was asked questions by the police, he kept looking at Olsen before answering them. Sergeant Jones observed that Murray, in the back seat, thought it ‘was a bit of a joke’. He said he was ‘bouncing around’, he would not keep still, and he kept moving and wriggling.

Sergeant Jones asked the occupants whether they had any identification. The applicant Hale provided his identification to Constable Smith. Olsen and Murray each provided their names and addresses, but did not produce any identification. They each said they did not have any identification on them. Sergeant Jones could see that Murray had something in his pockets, and he asked him to remove it. At that point Murray took out a wad of $50 notes, which totalled over $400. The money was not in a wallet, it was loose. When he asked Murray what the money was for, he said it was for dinner. He stated that they were celebrating Mr Hale’s graduation from university.

Sergeant Jones was then asked by counsel what factors were operating on his mind at that time. Sergeant Jones responded that the manner in which the vehicle was travelling, and, in particular, its speed and the erratic nature of the driving, raised his suspicions immediately. Further, it was his experience that a lot of drug users and drug traffickers now drive around in BMW motor vehicles. He said that the fact that three young males were driving a BMW coupe added to his suspicions. He considered that the hard left hand turn taken by the vehicle into Kent Road was a last minute manoeuvre, and the second hard left turn into Sunshine Street was a manoeuvre to give the occupants of the BMW time to dispose of something. Sergeant Jones suspected that the reason, why Olsen had got out of the vehicle, was to either throw something in the bushes, or hide it in the vehicle or their persons.

Sergeant Jones also stated that he used to work in the cells at Ringwood Police Station where he dealt with a lot of drug dealers and defendants. He said that Olsen comported himself in a manner that was consistent with the mannerisms of those people. He also had noticed that Hale had acted in a manner that was particularly nervous, which got worse as the dealings with the police progressed. Sergeant Jones considered that the behaviour of Murray, constantly moving around, and regarding the matter as a ‘joke’, led him to consider that Murray was affected by alcohol or drugs. The matter was clearly serious, yet Murray thought it was a big joke. He said that he did not think Murray was affected by alcohol because his speech was not slurred, it was more that he was irritable, he could not sit still, which was consistent with people who use methylamphetamine or amphetamine or pills.

Sergeant Jones also stated that the cash, that was in Murray’s pocket, added to his suspicion. He said that people, who traffick drugs, often do not keep their drug money in their personal wallet, but prefer to keep it separate from their personal money. The fact that the cash totalling $455, found on Murray, was separate and in his pocket therefore added to Sergeant Jones’ opinion.

In addition, Sergeant Jones regarded the claim by the applicants that they were going to dinner at 11:00 pm to lack credibility. He did not believe that the vehicle had stopped to allow Olsen to relieve himself. At no point after the BMW was intercepted did Olsen indicate that he needed to go to the toilet. If the occupants of the BMW were in such a hurry for him to get out for that purpose, Sergeant Jones would have expected him to have repeated that need while the police were dealing with him.

Accordingly, Sergeant Jones advised the three applicants that he was not satisfied that there was not something either on them or in the vehicle which he believed to be drugs, and accordingly he caused the search to be undertaken.

In cross-examination, Sergeant Jones stated that, on that evening, he and Constable Smith were patrolling for a suspected stolen motor vehicle in the area. The BMW did not match the description of the vehicle they were looking for. He said that when the BMW accelerated away from them, it reached speeds of between 80 kilometres per hour and 100 kilometres per hour along Derby Street. After they intercepted the BMW, Constable Smith performed a check on the vehicle, and ascertained that it was registered to a female. Sergeant Jones agreed that, at the time at which he stated that he would search the vehicle, he had no information that it was stolen, as it was not listed as stolen. However, the fact that it was not listed did not mean that it had not been stolen that evening. Sergeant Jones was suspicious because the occupants of the vehicle stated that it belonged to a friend, but they would not provide the details of the friend. He said in his experience a lot of people who are dealing with drugs, or who are drug users, register their vehicles in other people’s names, so that when they are intercepted, they can say that the vehicle belongs to a friend. He agreed that he did not have any information that the vehicle was connected with drug activity. He could not detect any smell of drugs and he could not see anything obviously connected with drug possession or drug use.

Sergeant Jones repeated that one of the factors that aroused his suspicion was that the vehicle was a BMW driven erratically at 11:00 pm with three males in the age group of 20 to 30 years. In his experience it is that group of males who become involved in using methylamphetamine. Sergeant Jones repeated that his suspicion was aroused by the erratic driving of the vehicle, and the manoeuvres of it suggested that the occupants were ‘buying time’ before they pulled over.

In cross-examination by counsel for Olsen, Sergeant Jones stated that when he pursued and pulled over the BMW, he was suspicious there were potentially a number of activities in which the occupants could be involved, including theft of a motor vehicle, driving offences, and drug offences. When the vehicle stopped, well ahead of the police car, his suspicion that the vehicle had been stolen reduced, because it was unusual for occupants of a stolen car to pull over in that way.

Sergeant Jones was then asked a series of questions directed to the issue whether he had detained the applicants in or about the vehicle. He said that if Olsen had attempted to leave, he would have advised him that the investigation was ongoing. If nevertheless Olsen had decided to leave, he would have advised him that he was hindering the police in the execution of their duty, and if Olsen persisted, he would have arrested him for that offence. Sergeant Jones considered that the police could give him a direction to stay, and if he refused to do so, he could be advised that he was then hindering police in the execution of their duty. He agreed that he directed Olsen to sit in the vehicle. He said that after that, Olsen continually tried to get out of the vehicle. He was getting in and out of the vehicle while Sergeant Jones was standing there. When he did so, Sergeant Jones advised him to stay in the vehicle.

Sergeant Jones then was questioned about the basis for his suspicion that the applicants had drugs on them or in the vehicle. He repeated the matters to which we have referred. When questioned about Olsen’s attitude, he said that that attitude was ‘almost identical’ to a person who he knows who is a convicted drug dealer. His suspicion was also raised by the fact that Olsen had got out of the vehicle so quickly. It was Sergeant Jones’ experience that persons do that in order to get rid of items that they do not wish the police to find.

Sergeant Jones stated that all three applicants displayed signs by their behaviour which added to his suspicions. In particular, he referred to Hale’s nervousness, Murray’s ‘squirming’ around in the back seat, and Olsen’s demeanour.

When asked to further describe the behaviour of Murray in ‘squirming’, he said that Murray was ‘just fidgeting … continually moving his hands, continually readjusting himself in his seat … just moving, always his hands moving, constantly readjusting’. He said that when Murray showed him the money that Murray said was to be used to purchase dinner, he formed his suspicion about drugs being either on the person or in the car.

Detective Senior Constable Smith gave similar evidence to that of Sergeant Jones. He stated that after the BMW passed the police vehicle in Derby Street, it immediately started to accelerate as it observed the police car doing a U-turn. He said that the BMW braked quite hard taking the left hand turn into Kent Road, so that the front of the vehicle dipped as it turned the corner and rolled around on its suspension. Constable Smith then lost sight of the vehicle, until the police again located it in Sunshine Street. He noted that the left hand passenger door of that vehicle was open and Olsen was out of it. After the police pulled up, Olsen told Sergeant Jones that he was ‘taking a piss’. He said that the occupants then claimed that they were going out to dinner. Olsen was asked why the vehicle was travelling so fast, to which he responded that they were in a hurry. When asked who the vehicle belonged to, Hale responded that it was a friend’s car. When asked the name of the friend, Hale responded ‘just a friend’. It was then that Constable Smith checked the ownership of the vehicle and ascertained that it belonged to a female. Constable Smith attempted to telephone that person, but he was not successful in doing so.

Constable Smith considered that if the occupants had been in lawful possession of the vehicle, they would have been able to say who the owner was. Rather, they continued to maintain that it belonged to a friend. He said that Hale was very nervous, more nervous than someone who had been randomly intercepted by the police. By contrast, Murray and Olsen were quite arrogant in their demeanour to the police. Murray was also fidgety, he was moving around a lot in the back of the car. He said that after Olsen was asked to be seated in the BMW, he got out a number of times, and the police asked him to take a seat.

In cross-examination, Constable Smith stated that the first time that he saw the $455 that was produced by Murray was after he had alighted from the back seat of the car, and Olsen had been searched. He accepted therefore that he did not observe the cash in the possession of Murray until after Sergeant Jones had announced that he was going to search the applicants and the vehicle.

Constable Smith stated that Sergeant Jones and he never told the applicants that they could not leave, but the police asked them each to take a seat. He said that Olsen was twice asked by Sergeant Jones to sit in the vehicle. He accepted that the police did not have any power at that time to direct him to do so. He said that once the decision was made to undertake a search, the three applicants were not free to leave, because they were detained for the drug search. In re-examination, he said that he understood that there was a power to detain persons as part of such a search, and that that power had been ‘inferred by the Courts’.

The judge’s ruling

The judge commenced his ruling by setting out, in detail, the evidence to which we have referred. His Honour noted that when cross-examined, Sergeant Jones was clear that unless the applicants could set aside his suspicions, they were not free to go. The judge observed that that approach seemed to have cast an onus on the applicants to satisfy him that his suspicions were not properly held. The judge also considered that Sergeant Jones, by his evidence, made it clear that he held a suspicion of some form of offending, but he did not turn his mind to the requirements of s 82 of the Act.[2] His Honour accepted, on the balance of probabilities, that Murray first produced the cash amount of $455 to Sergeant Jones while he was still seated in the back seat and when he was asked to provide identification. He considered that at that time Constable Smith was attending to other matters, so that he only saw the cash at a later stage.
[2]DPP v (Marshall) (Unreported County Court, Judge Lacava, 20 June 2017) [22]–[23] (‘Reasons’).

The judge then concluded, in relation to the legality of the search:

Having regard to the evidence called on the voir dire I am of the view that the search which the two police officers carried out of the BMW vehicle and each of the accused was illegal because section 82 of the Act was not complied with. Having regard to all of the evidence of Sergeant Jones there were no reasonable grounds for Sergeant Jones suspecting either that on or in the BMW vehicle there was a drug of dependence in respect of which an offence had been committed or could reasonably suspected to have been committed under a provision of Part 5 of the Act, or that in the possession of each of the accused there was a drug of dependence in respect of which an offence had been committed or could reasonably be suspected to have been committed under a provision of Part 5 of the Act.[3]

[3]Ibid [27].

Accordingly, the judge concluded that the evidence obtained on the search had been obtained improperly for the purposes of s 138 of the Evidence Act.

The judge then considered the matters that he was required to take into account under s 138(3) of the Evidence Act. He noted that it had been conceded that the probative value of the items seized in the vehicle, namely, a quantity of methylamphetamine, together with the money, and the subsequent analysis of the activity on the mobile phone seized from the individuals, was high, and that that evidence was of the utmost importance in the prosecution case. He noted that it was also conceded that a charge of trafficking in a drug of dependence is a serious charge.

In assessing the gravity of the impropriety by the police, the judge considered that Sergeant Jones and Constable Smith had proceeded on an incorrect understanding of what was required for the purposes of s 82 of the Act. Sergeant Jones assumed that what was required was a suspicion by him and his subjective analysis of the situation was enough. To that extent, the judge considered that the ‘impropriety’ of the police was ‘falling towards the lower end of the spectrum of improper conduct’. However, by their conduct, the police achieved an advantage which could not have been obtained if the search had been conducted within the proper framework prescribed by the section, so that the judge’s overall assessment was that the conduct by both police officers fell into the ‘middle of the spectrum of improper conduct’.[4]
[4]Ibid [35]–[36].

The judge considered that the impropriety was neither deliberate nor reckless. Rather, neither Sergeant Jones or Constable Smith had applied any proper thought to the evidentiary situation, and they had proceeded without a proper understanding of how s 82 was intended to operate. Their conduct could probably be best characterised as careless or mistaken.[5]
[5]Ibid [39].

The judge accepted that the conduct of the police constituted an infringement of article 17 of the International Covenant on Civil and Political Rights, as it infringed the privacy of each applicant. He again noted that if s 82 of the Act had been complied with, there was no other way the evidence could have been obtained in the circumstances of the case.

Balancing all those matters, the judge concluded that the evidence was admissible. His Honour reached that conclusion on the basis of the seriousness of the charges faced, the high probative value of the evidence, the importance of the evidence to the prosecution case, and the fact that the police had acted on a misunderstanding of what was required of them before they exercised the power to search. The judge considered that the police were entitled to suspect ‘some wrongdoing’, and to be sceptical of the story that they were given by the applicants. This was particularly so given the demeanour of each of the three applicants, Olsen’s explanation of why he was out of the vehicle, and the finding of $455 cash on Murray. However, the judge concluded there was no evidence that could enable a police officer to reach a conclusion of suspicion ‘on reasonable grounds’ that there was a drug of dependence within the vehicle or on possession of the accused. The judge stated that that was the error made by the police officers. However, on balance he considered that the desirability of admitting the evidence outweighed the undesirability of admitting evidence otherwise obtained improperly.[6]
[6]Ibid [46]–[47].

Proposed grounds of appeal

Each of the applicants individually rely on separate proposed grounds of appeal in support of their application for leave to appeal. However, in essence, the applicants, between them, relied on the following two propositions:

(1)The judge erred in making the following findings:
(a)The judge erred in finding that the conduct of both of the police officers fell in the ‘middle of the spectrum of improper conduct’ (Murray ground 3(a); Hale ground 1(b); Olsen ground 2(f)).
(b)The judge erred in characterising the impropriety as based on carelessness or mistake by the police, rather than finding that the two police officers acted in either deliberate or reckless disregard of the requirements of s 82 of the Act (Murray ground 3(b), 4; Hale ground 1(c); Olsen ground 2(a)–(h)).
(c)On behalf of Olsen, it was further submitted that the judge ought to have found (but did not) that the police had wrongly detained the applicants for the purposes of the search (Olsen ground 2(d)(iii)).

(2)It was not reasonably open to the judge to conclude that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained in the manner in which the evidence in this case was obtained. (Murray grounds 1, 2; Hale ground 1(a); Olsen ground 1).

The proposed grounds thus raise two central issues for determination on this application. The first issue is whether the judge erred in concluding that the impropriety, that he found, was a result of the carelessness or error on behalf of the two police officers, and that, as such, it came within the ‘middle spectrum’ of impropriety. The second issue is whether it was reasonably open to the judge to conclude that the desirability of admitting the evidence outweighed the undesirability of receiving evidence that had been unlawfully obtained. The resolution of the second issue depends, to a significant degree, on the resolution of the first issue.

Legal principles

The principles, that apply to s 82 of the Act, and to s 138 of the Evidence Act, were not in issue on the hearing of this application. Before considering the competing submissions made by the parties in respect of the two issues that we have outlined, it is convenient, first, to set out, briefly, the relevant principles that apply to s 138 of the Evidence Act.

It has been recognised that the terms in which s 138 is expressed, and the purpose which it is designed to serve, have been derived significantly from the principles which related to the common law discretion to exclude evidence that had been illegally or improperly obtained. These principles were developed in a series of decisions of the High Court including Bunning v Cross,[7] Cleland v The Queen,[8] R v Ireland[9] and Ridgeway v The Queen.[10] In essence, the common law discretion, and s 138, are based on the recognition by the law that the admission of evidence, which has been obtained by unlawful or improper means, creates a tension between two important, but competing, requirements of public policy, namely, on the one hand, the conviction of those who commit criminal offences, and, on the other hand, the undesirability of the court’s countenancing unlawful conduct or significant impropriety by those whose responsibility it is to uphold the law.[11] As Barwick CJ stated in R v Ireland:

Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence … In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.[12]

[7](1978) 141 CLR 54 (‘Bunning’).

[8](1982) 151 CLR 1.

[9](1970) 126 CLR 321 (‘Ireland’).

[10](1995) 184 CLR 19 (‘Ridgeway’).

[11]Bunning (1978) 141 CLR 54, 74 (Stephen and Aickin JJ); Ridgeway (1995) 184 CLR 19, 31 (Mason CJ, Deane and Dawson JJ).

[12]Ireland (1970) 126 CLR 321, 335 (Barwick CJ).

While s 138 of the Evidence Act involves, in essence, the same balancing exercise between the two competing aspects of public policy identified in the authorities, there are two principal differences between the common law discretion and s 138. First, s 138 alters the burden of proof. While the onus is on the accused to establish the relevant impropriety on the balance of probabilities, once that impropriety is established, the burden shifts to the prosecution to establish, under s 138(3), that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained illegally or improperly. Secondly, s 138 is not expressed as a discretion, but, rather, it is expressed in mandatory terms.

However, notwithstanding those differences, it is accepted that, in essence, the principles that applied in determining the discretionary issue at common law are, with appropriate adjustment, applicable to the determination of the admissibility of evidence under s 138 of the Evidence Act.[13] Although, as we have stated, s 138 of the Evidence Act does not, strictly, involve the exercise of the discretion, nevertheless the value judgment, that is inherent in a court evaluating and balancing the competing factors referred to in s 138(3), is such that appellate courts have applied, to an appeal from a decision of a judge under s 138, the principles that are applicable to the determination of an appeal from the exercise of a judge of a judicial discretion.[14] Thus, it was accepted by the parties that this application attracts the operation of the principles defined in House v R.[15]
[13]See, eg, Robinson v Woolworths Ltd (2005) 64 NSWLR 612, 618 [22]; DPP v Marijancevic (2011) 33 VR 440, 445 [17] (Warren CJ, Buchanan and Redlich JJA) (‘Marijancevic’); Parker v Comptroller (General) of Customs (2007) 243 ALR 574, 590 [58] (also 232 FLR 362) [58] (Basten JA) (‘Parker’).
[14]DPP v MD (2010) 29 VR 434, 440–441 [27]–[29] (Maxwell P, Nettle and Harper JJA); Marijancevic (2011) 33 VR 440, 445, [13]–[14].
[15](1936) 55 CLR 499.

The submissions in relation to the first issue, and indeed also in relation to the second issue, on this application focussed on the judge’s characterisation of the impropriety, which the judge found against the police, for the purpose of sub-paras (d) and (e) of s 138 of the Evidence Act. The authorities recognise that a key factor in the equation, codified in sub-s (3), is the nature and degree of the impropriety by which the relevant evidence has been obtained.[16] Sub-paragraph (e) reflects the following passage from the judgment of Stephen J and Aickin J in Bunning v Cross, which is relevant for the purposes of this application:

If the unlawfulness was merely the result of a perhaps understandably mistaken assessment by the police of the inferences to be drawn from what they observed of the appellant’s conduct this must be of significance in any exercise of discretion. Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it. …
To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions … Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction. If other equally cogent evidence, untainted by any illegality, is available to the prosecution at the trial the case for the admission of evidence illegally obtained will be the weaker.[17]

[16]Parker (2007) 243 ALR 574, 592 [65] (Basten JA).

[17]Bunning (1978) 141 CLR 54, [78]–[79].

Bearing in mind those principles, we now turn to the first issue, namely the characterisation by the judge of the police impropriety, and the submissions that the parties made in respect of it.

First issue — characterisation of the police impropriety: submissions

On behalf of Murray, it was submitted that the judge erred in finding that the conduct of the police was careless and mistaken, and that it should be characterised as falling into the ‘mid-range’ of impropriety. In particular, it was submitted that the conduct of the police in question involved a senior police officer, Sergeant Jones. No clear evidence had been identified how the police could have entertained a reasonable suspicion that drugs were present in the vehicle. Instead, it was submitted, the police had regard to irrelevant matters. The fact that three young males were driving at 11:00 pm in a BMW, and that the sergeant considered that their conduct resembled that of a known drug dealer, were irrelevant to the formulation by him of the requisite reasonable suspicion. It was further submitted that in the circumstances Sergeant Jones had wrongly decided that none of the occupants of the BMW should leave until they were exonerated, and thus he cast an inappropriate onus on the applicants to dispel whatever suspicion he held. In those circumstances, it was submitted that the judge erred in failing to find that the search was conducted in wilful and deliberate disregard of Sergeant Jones’ obligations pursuant to s 82 to satisfy himself that he had reasonable grounds for the suspicions he claimed to have held. Alternatively, it was submitted that the judge erred in failing to find that the police acted in at least a reckless disregard of the requirements of s 82 of the Act as to how they were to proceed.

On behalf of Hale, it was submitted that the judge erred in his characterisation of the conduct of the police in the circumstances of the case. Sergeant Jones was a senior officer who expressly relied on his experience of similar circumstances over a period of years. The error that he made was not attributable to inexperience or youth. The fact that Sergeant Jones erroneously believed he possessed a power to arbitrarily search cars and vehicles, because he was not positively satisfied that no drugs were present there, was a fundamental misunderstanding which, if it persisted, would inevitably result in further unlawful searches by him. Counsel submitted that, in effect, Sergeant Jones did not pay any heed to the requirements of s 82, but, rather, he adopted a test of his own which cast a burden on the applicants to prove their innocence of any criminality. In that way, the impropriety of the search went beyond mere carelessness, but, rather, was the result of the police being reckless as to the extent of their powers.

Counsel further submitted that Sergeant Jones based his suspicion, that there were drugs on the applicants or in the vehicle, on factors that were quite troubling, namely, that the vehicle was a BMW, that Olsen comported himself in a manner similar to that of drug dealers with whom he had dealt in the past, that Murray was ‘squirming’, and that the ‘demographic’ was of three males in the age group of 20 years to 30 years. It was submitted that those matters were not proper bases for a suspicion by Sergeant Jones that there were drugs on the applicants or in the vehicle.

It was further submitted that, if the judge was correct in accepting that the police conduct was ‘careless or mistaken’, that carelessness was of such a gross nature involving a senior police officer as to make it unreasonable to conclude that it was desirable that the evidence, that had been obtained, should be admitted. Accordingly, counsel submitted that the judge erred in concluding that the conduct of the police fell into the middle range of the spectrum of improper conduct, and, at worst, could be characterised as careless or mistaken.

On behalf of Olsen, it was submitted that the conduct of Sergeant Jones could not be characterised as isolated and accidental non-compliance with the requirements that were stipulated in s 82 of the Act. In particular, it was submitted that Sergeant Jones’ evidence, taken as a whole, demonstrated, at the very least, a reckless disregard of the law, because he had failed to educate himself as to the objectively acceptable standard of satisfaction of the pre-conditions, for the exercise of the power of the search, that were stipulated in s 82 of the Act.

Counsel further submitted that the conduct of the police officers constituted an unlawful arrest and false imprisonment of each of the applicants. In support of that submission, counsel referred to and relied on evidence by Sergeant Jones, in cross-examination, that his state of mind, at the time of the search, was that the applicants would be ‘detained’ in the vehicle unless and until the police investigations exonerated them. Sergeant Jones did not have any power to require the applicants to remain in or about the vehicle, and his direction that they do so, constituted an unlawful arrest and false imprisonment by him of them. That circumstance, it was submitted, compounded the impropriety of the search conducted by the police of the applicants and of the vehicle. In support of that proposition, counsel relied on Director of Public Prosecutions v Hamilton,[18] in which it was held that a person, who is suspected by police of committing the offence of obtaining property by deception, did not have any obligation to stop when requested to do so, or to answer questions asked of him, before being placed under arrest.
[18](2011) 33 VR 505.

In response, it was submitted on behalf of the respondent that there was no finding by the judge that the applicants had been unlawfully detained, and that such a finding could not have been sustained on the evidence. In particular, it was submitted that the conduct of Sergeant Jones, in directing or requesting the applicants to remain in the vehicle, did not constitute an arrest or imprisonment by him of them. Further, no applicant gave evidence in support of an assertion that he had been detained in the vehicle. On the evidence, therefore, it might be safely assumed that each applicant was content to comply with the advice given to them by the police that they remain in the vehicle. Further, it was submitted that if any of the applicants were detained in the vehicle, there was no causative link between that detention and the finding by the police of methylamphetamine in the four large clip seal bags that were located in the centre console of the vehicle.

Counsel for the respondent further submitted that the conclusion by the judge, that the conduct of the police was neither reckless nor deliberate in its illegality, was reasonably open to him. Their conduct must be viewed as a response by them to an unexpected situation that was unfolding at the time. They did not have time or leisure to reflect on the decisions that they were making. Counsel referred to the matters adverted to by Sergeant Jones in his evidence, namely, that the BMW sped away from the police, and sought to evade the police, by secreting itself in a side street where it might not be easily located. The fact that the vehicle stopped, rather than continuing to flee, gave rise to a reasonable suspicion that the occupants were seeking to dispose of or conceal incriminating material in or about the vehicle. The explanation given by Olsen, for being out of the vehicle, could easily be discounted, since at no time did he seek to relieve himself while the police were present. In addition, the police were entitled to take into account the demeanour of each of the applicants, including the severe nervousness of Hale, and the restless conduct of Murray which indicated that he was drug affected. The fact that the applicants were in a hurry, because they needed to go to dinner, and they were doing so after 11:00 pm on a Monday night, was a further basis for appropriate suspicion.

Counsel for the respondent accepted that it was not open to the respondents to challenge, on this application, the finding by the judge that the suspicion held by the police, that there were drugs on the applicants or in the vehicle, was not reasonable. However, it was submitted that the grounds, underlying the suspicions held by the police, could not have fallen far below the requisite standard set by s 82 of the reasonableness of such a suspicion. In those circumstances, it was submitted that the moral culpability of the police was low. Accordingly, it was submitted that the judge did not err in finding that the breach by the police of s 82 of the Act was not deliberate or reckless, and that the judge did not err in concluding that the impropriety of the police, conducting that search, fell within ‘the middle of the spectrum of improper conduct’.

Conclusions on first issue

The principal question, in relation to the first issue, is whether the judge erred in finding that the breach by the police of s 82 of the Act was a result of carelessness or mistake on their behalf as to the requirements of that provision, and whether the judge erred in concluding that the ‘impropriety’, that he found against the police in that regard, fell within the middle range of ‘improper conduct’ for the purposes of s 138 of the Evidence Act.

As we have mentioned, in order that police be entitled to search a person, or a vehicle, under s 82 of the Act, the police must first have ‘reasonable grounds for suspecting’ that there is a drug of dependence in or on the person or the vehicle. Those requirements are, of course, important. Any search, whether of a person or of premises, is an interference with the rights of the individual. It is important that the statutory prerequisites, to undertaking such a search, be properly and carefully observed and fulfilled before such a search is undertaken.

In order to balance the rights of the individual with the importance of detecting criminal conduct, the law ordinarily requires that a search not be undertaken unless the police officer has first obtained a warrant for the purposes of doing so. However, clearly, there are occasions when a search must be effected without the police first obtaining such a warrant. Police are regularly confronted with situations where they have reason to suspect that a person, or a place, may be in possession of an item or items that might be important in establishing the proof of criminal conduct by that person, or by someone else. In such a case, if the police were required first to obtain a warrant, the evidence might be disposed of or lost. Section 82 of the Act addresses the circumstance where police might reasonably suspect that there is a drug of dependence in or upon a person or a vehicle, in circumstances in which it would not be practicable first to obtain a warrant in order to be able to conduct an effective search for those drugs.

Clearly s 82 is the legislative response to the prevalence and deleterious nature of drugs of dependence, and to the reality that, not infrequently, police would be confronted with situations in which they have reason to suspect the existence of drugs, but do not have time or opportunity to obtain a warrant before undertaking that search for them. It is in that context that s 82 seeks to balance, on the one hand, the need for an effective criminal justice system, with, on the other hand, the need to protect the individual from arbitrary invasions of privacy and property.[19]
[19]Cf George v Rockett (1990) 170 CLR 104, 110.

In considering whether a police officer has reasonable grounds for suspicion, under s 82, it is important to bear in mind, first, that s 82 requires a police officer to have reasonable grounds for a suspicion, and not for a belief, that a drug of dependence is on a vehicle or a person in a public place. The distinction between suspicion, on the one hand, and belief, on the other hand, is fundamental to determining the reasonableness of the suspicion.

In George v Rockett,[20] the High Court was concerned with s 79 of the Criminal Code Act 1899 (Qld), which provided for the issue by a justice of a warrant, in circumstances where, there were both ‘reasonable grounds for suspecting’ the existence in a house of anything with respect to which an offence has been committed, or anything as to which there are ‘reasonable grounds for believing’ that such item is intended to be used to commit an offence. The court was therefore concerned with the use, by s 79, of the requirements for reasonable grounds for both ‘suspecting’ and for ‘believing’. In analysing the difference between the two concepts, the Court stated:

Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”.’ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.[21]

[20]Ibid.

[21]Ibid 115 (citation omitted).

The Court then referred to a passage in the judgment of Kitto J in Queensland Bacon Pty Ltd v Rees,[22] in which the issue was whether a payee had reason to suspect that a debtor was unable to pay its debts as they became due, for the purposes of s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J stated:

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes—a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.[23]

[22](1966) 115 CLR 266.

[23]Ibid 303.

As we have mentioned, s 82 of the Act contemplates circumstances in which police have reason to suspect the existence of a drug of dependence on a person or in a vehicle, but where it would not be practical for the police to be able to apply for a warrant to search the person or vehicle. Not uncommonly, police would be required to undertake a search in circumstances such as those that took place in the present case, namely, where the police have occasion to intervene, or intercept a vehicle, and in circumstances in which there are grounds for suspecting that the person or vehicle, or both, are holding illegal drugs of dependence. Thus, the context of the particular search must be taken into account, and given appropriate weight, when the question arises whether the police had reasonable grounds for suspecting that there is a drug of dependence in a vehicle or in the possession of a person in a public place.

Before turning to the judge’s characterisation of the conduct of the police in this case, it is necessary first to deal with the submission, made on behalf of Olsen, that in the course of the search the police wrongly arrested and detained the applicants.

In support of that proposition, counsel for Olsen relied on the directions given by Sergeant Jones, particularly to Olsen, that he return to the vehicle and remain in it. Counsel also relied on answers given by Sergeant Jones, in cross-examination, as to his state of mind, namely, that he intended that the applicants be ‘detained’ in or about the vehicle until they were ‘exonerated’ or made statements as witnesses.

In our view, the evidence falls well short of establishing that, at any relevant time, the police wrongly detained or apprehended any of the applicants. In order to demonstrate that the direction, given by Sergeant Jones, caused the applicants to be falsely imprisoned, it must be demonstrated that, in some way, it unlawfully restrained their liberty.[24] That is, there must have been conduct by the police that compelled the applicants to remain in the vehicle against their will.[25] The answers given by Sergeant Jones, in cross-examination, as to his state of mind at the time, might be relevant to his intention, but were not relevant to a determination of the question whether, at the time, there was any action by the police, or direction given by them, that could constitute a detention by them of the applicants.
[24]R v Rahman (1985) 81 Crim App R 349, 353; see also Bird v Jones (1845) 7 QB 742, 744; Myer Stores Ltd v Soo (1991) 2 VR 597, 611 (O’Bryan J), 625–6 (McDonald J) (‘Myer Stores’).
[25]McFadzean v CFMEU (2007) 20 VR 250, 264–5 [41]–[45].

In that respect, counsel for Olsen relied on the directions given by Sergeant Jones to Olsen, twice, that he return to, or remain in, the vehicle. However, in the context in which the interchange between the police and the three applicants took place, such a direction could not be characterised as an unlawful detention by the police of the applicants. In the committal proceeding, Sergeant Jones stated that he told Olsen to return to the vehicle for the purposes of the safety of the police, because there were two police, and three applicants. No evidence was given that Sergeant Jones, in any way, compelled Olsen to comply with that directive, apart from the fact that it was given by a member of the police force, no doubt, with the advantage of the authority given to him by his uniform. In that context, the following passage from the judgment of Goff LJ in Collins v Wilcock[26] is apposite:

… the word ‘detaining’ can be used in more than one sense. For example, it is a common place of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be ‘stopping and detaining’ the latter. There is nothing unlawful in such an act. If a police officer so ‘stops and detains’ another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or the threat (actual or implicit) to use force if the other person does not comply, then his act in there by detaining the other person will be unlawful.[27]

[26](1984) 1 WLR 1172.

[27]Ibid 1180; see also Myer Stores (1991) 2 VR 597, 611 (O’Bryan J), 632 (McDonald J).

In addition, none of the applicants gave evidence that, as a result of the direction so given to them by Sergeant Jones, they were not at liberty to leave the vehicle or move from it. Neither Hale nor Murray gave any evidence that they attempted, or desired, to leave the vehicle. Olsen was requested or, indeed, directed, to return to the vehicle, but he did not give any evidence that, in any way, that direction or request obstructed his capacity to leave the vehicle if he so desired.

For those reasons, there is no substance in the proposition made on behalf of Olsen that he, or the other applicants, were wrongly detained or arrested. In addition, as pointed out by counsel for the respondent, if there were such false imprisonment or arrest, it had no causal relationship with the finding, by police, of the methylamphetamine that was located in the centre console of the vehicle.

The decision in Director of Public Prosecutions v Hamilton,[28] relied on by counsel for Olsen, does not enhance the contention that at the time of the search the applicants were falsely detained or imprisoned by the police. In that case, a police constable, suspecting the defendant to have committed the offence of obtaining property by deception, sought to speak to the defendant, who thereupon fled. After his subsequent apprehension, the defendant was charged with resisting a member of the police in the execution of his duty contrary to s 52(1) of the Summary Offences Act 1966. The judge held that the magistrate had been correct in concluding that, as the defendant had fled before he was placed under arrest, he had no obligation to stop when requested to do so, so that his action in fleeing from the police did not constitute an act of resisting the constable in the execution of his duty. That case was concerned with whether a suspect has an obligation to comply with the request by a police officer to stop and talk to the police, before the suspect is placed under arrest. It does not affect the question whether the applicants, when directed to remain in the vehicle, were thereby in some way detained by the police, notwithstanding that they were not then under arrest. As we have stated, on the evidence in this case, there was no basis upon which to conclude that the applicants were wrongly detained in the vehicle at the time of, or before, the search.
[28](2011) 33 VR 493.

We now turn to the principal question that is raised in respect of the first issue that we have already outlined, namely, whether the judge erred in concluding that the breach, by the police, was careless, rather than deliberate or reckless, and whether the judge erred in considering that the conduct of the police fell within the ‘middle of the spectrum of improper conduct’ for the purposes of s 138 of the Evidence Act.

The respondent initially relied on a notice of appeal in this matter, in which it contended that the judge erred in failing to find that there were reasonable grounds for the suspicion entertained by the police in accordance with s 82 of the Act. However, in submissions, the respondent did not press that ground. In order to succeed, the respondent would need to demonstrate that the conclusion by the judge, that there were no such reasonable grounds, was not reasonably open to the judge. The respondent accepted that reasonable minds might differ in an assessment of what is reasonable in the circumstances, so that it would not be possible to demonstrate that the conclusion by the judge, that there were no such reasonable grounds in this case, was erroneous. Nevertheless, as the respondent submitted, it is necessary for the Court, on this application, to make some assessment of the extent to which the grounds, relied on by the police, fell short of those which might be characterised as reasonable.

As we have noted, Sergeant Jones, and Constable Smith, each formulated their suspicion, that there were drugs on or about the applicants or the vehicle, in the course of the dynamic circumstances which unravelled after the BMW vehicle, containing the three applicants, cut across the path of the police vehicle in Derby Street. It could be fairly accepted that, as the vehicle accelerated hard away from the police vehicle at that stage, the police were justified in entertaining suspicions about the vehicle, or the occupants of it. Those suspicions would have been strengthened by the conduct of the vehicle in turning left into Kent Street, while still travelling at speed, and then left again into Sunshine Street, in order to evade apprehension or interception by the police. Further, the conduct of the vehicle, in then stopping in Sunshine Street, could reasonably give rise to an apprehension that the occupants were seeking to dispose of, or secrete, some item or thing which, if discovered by the police, might incriminate them. That suspicion would have been enhanced by the conduct of Olsen in alighting from the vehicle, and commencing to walk away from it. It would have been further fortified by the false explanation given by Olsen for the fast and erratic manner in which the vehicle had been driven, and for his being out of the vehicle at the time the police intercepted it. In addition, the police were well justified in being sceptical about the explanation by the occupants of the vehicle, that they were hurrying to attend a dinner in Brunswick at 11:00 pm on a Monday night.

Further, and notwithstanding the submissions made by the respondent, the police, as experienced police officers, were entitled to take into account, in their assessment, their observations of the demeanour and conduct of each of the applicants. It was significant that Hale became increasingly nervous when speaking with the police. As Sergeant Jones pointed out, ordinarily, a person who is intercepted by the police in a vehicle, might be somewhat nervous at the outset, but generally such persons’ nerves subside rather than increase as they interact with the police. The conduct of Murray was, in the opinion of the police, consistent with, and indicative of, a person who was then affected by a drug of dependence, and, in particular, by the consumption of methylamphetamine. Sergeant Jones entertained suspicions about Olsen, because he comported himself in a manner that was consistent with that of other drug traffickers with whom Sergeant Jones had dealt. We would accept that that factor, if it stood alone, would fall well short of constituting a reasonable ground for suspicion. However, it was relevant to the assessment by Sergeant Jones, as the police officer on the spot, of all the factors that were being revealed to him that were indicative of the possible existence of drugs on or about the applicants or the vehicle.

It was the experience of the police officers that the presentation of the three applicants generally fitted the profile of persons who were commonly involved in the consumption and trafficking of drugs of dependence. In particular, they both noted that the three applicants, who were between 20 years of age and 30 years of age, were travelling in an expensive vehicle, namely, a BMW coupe, which was the type of vehicle not uncommonly used by persons of that profile who were involved in the trafficking of drugs. Once again, that circumstance, standing alone, would not be sufficient to found a reasonable basis for a suspicion that the three applicants had been using, or were involved in trafficking, drugs. However, it was a relevant factor which the police were entitled to take into account, along with the other circumstances, in assessing whether they had a sufficient suspicion to entitle them to invoke the power of search under s 82 of the Act.

In addition, the police gave evidence that the three applicants were evasive when asked to whom the vehicle belonged. When questioned on a number of occasions to provide that information, the applicants did no more than state that it belonged to a friend. Sergeant Jones gave evidence that it was his experience that those involved in dealing with drugs, or who were drug users, would register their vehicles in the names of other people, so that if they were intercepted by police, they can claim that the vehicle belongs to someone else.

In our view, taking those matters together, the judge would have been well justified in concluding that the two police members did have reasonable grounds for suspecting that there were illegal drugs of dependence on or about the applicants or the vehicle. However, as accepted by counsel for the respondent, in circumstances such as occurred in this case, a conclusion as to whether the suspicion of the police was based on reasonable grounds, is a conclusion on which reasonable minds might properly differ. Thus, for the purpose of this application, this Court accepts and proceeds upon the conclusion of the judge that, while both the police each suspected that there were illicit drugs in the possession of the applicants or on or about the vehicle, that suspicion was not based on reasonable grounds. Nevertheless, for the reasons that we have stated, we do not consider that the grounds, relied on by the police, fell measurably short of those which would be sufficient to constitute reasonable grounds.

In that respect, as we have stated, the police were confronted with, and working in, a dynamic situation that was evolving over a short period of time. On the evening in question, they were not looking for the applicants or their vehicle. Rather, the observations that they made, and the conclusions they drew from them, took place in a situation which developed quickly, and which required them to call on their experience and judgment in order to make a decision in the circumstances in which they found themselves. The police did not have the advantage of being able to reflect at leisure on the factors that aroused and underlay their suspicions. Rather, as is so often the case with the police, they were required to act on the basis of their observations, their experience and, indeed, their instincts, almost instantaneously. In those circumstances, accepting the finding by the judge that the police did not have reasonable grounds for their suspicion under s 82, we consider that the judge was correct in concluding that the breach, that he found by the police of s 82, was due, at most, to carelessness or mistake, and that it was not a deliberate or reckless breach.

In the course of his submissions, counsel for Hale relied, to a substantial extent, on evidence by Sergeant Jones that he advised the applicants he was not satisfied there was not something either on them or in the vehicle which he believed to be drugs so that he was going to search the vehicle and the applicants under the provisions of the Act. Counsel submitted that, in that way, Sergeant Jones did not invoke or advert to the requirements of s 82 of the Act, but, rather, he applied his own test, which placed an onus on the applicants to exonerate themselves.

The passage from Sergeant Jones’ evidence, relied on by counsel in support of that submission, followed a long passage from the sergeant’s evidence, in which he outlined the various factors which had given rise to his suspicion that there were drugs either in the vehicle or on the applicants, and which we have just outlined. Based on those matters, the evidence of Sergeant Jones was that he suspected that there were drugs either on the applicants or in the vehicle. The judge found, as a fact, that Sergeant Jones did entertain that suspicion, and that finding by the judge was not in issue on this application. Having reached that stage of suspicion, it was therefore natural for Sergeant Jones to refer to it, and to refer to the fact that the explanations given by the applicants, for their presence in the vehicle, and their conduct, had not dispelled that suspicion. In that way, Sergeant Jones did not ‘invent’ his own test for making a search of the applicants or the vehicle, but, rather, he identified the suspicion that he held, and the fact that it had not been allayed by, but was magnified by, the accounts given to him by the applicants of their conduct and their presence at that time.

In this context, we note that it was not put to Sergeant Jones, or Constable Smith, in cross-examination at the voir dire, that either of them had deliberately breached, or ignored, the requirements of s 82 of the Act, or that they had acted in entire disregard of those requirements. In the circumstances that we have outlined, clearly there was no scope for any such proposition to be advanced in cross-examination of either witness. Sergeant Jones stated the bases upon which he formed the suspicion that there might be drugs in the possession of the applicants or in the vehicle. As mentioned, the judge found, as a fact, that the police held that suspicion. In other words, the police held the suspicion, on a subjective basis, that was stipulated by s 82 of the Act. The judge found that the bases, upon which Sergeant Jones formed that suspicion, were not sufficient to be reasonable. His Honour considered that the error, and the approach of Sergeant Jones, was due to a misunderstanding by him of the requirements of s 82 of the Act. We observe that, in our view, it would seem that, to the extent that the grounds relied upon by Sergeant Jones were insufficient to constitute reasonable grounds, that deficiency was due to an erroneous application by him of s 82, rather than a misunderstanding of it. Further, as we have stated, the issue whether the grounds, relied on by Sergeant Jones, were reasonable, is a matter on which reasonable minds might properly differ. On any view, there was, in our view, no basis upon which the judge could conclude that the police had acted in either deliberate or reckless disregard of the requirements of s 82 of the Act.

The conclusions, that we stated, derive some support from the decision of Barr J, of the Supreme Court of the Northern Territory, in Forrester v Mattson.[29] Each case, of course, depends on its own individual facts. Nevertheless, the decision in that case is instructive. In Forrester, the appellant appealed against convictions imposed by a Magistrates’ Court for being in unlawful possession of methamphetamine, and a methamphetamine pipe. On appeal, it was submitted that the evidence, that he was in possession of that substance and the pipe, was obtained by police wrongly searching him under s 120C(c) of the Police Administration Act. That section authorised a member of the police force, without warrant, to stop, detain and search a person in a public place if the member has reasonable grounds to suspect that the person has in his possession a dangerous drug. Barr J rejected the submission that the police, in that case, did not have such reasonable grounds, stating:

Counsel for the respondent argues on this appeal that the following factors accumulated so as to give Constable Melhuish reasonable grounds to suspect that the appellant had in his possession a dangerous drug. The appellant was stopped by police at 2:00 am walking in a suburban park in an area where there was a high incidence of drug use and drug-related crime. His behaviour was decidedly odd. He was apparently intoxicated with a substance, evidenced by slurred speech and some unsteadiness. Finally, he attempted to conceal his wallet or at least to keep police attention away from his wallet. Counsel for the respondent contends that these matters, in combination, gave the member reasonable grounds within s 120C(c) Police Administration Act.
I accept the respondent’s submission. The evidence was sufficient to establish reasonable grounds to suspect that the appellant had in his possession a dangerous drug. There was a genuine basis in fact for the officer’s suspicion. The appellant has thus failed to prove that the stop, detention and search without warrant were not authorized by s 120C(c) Police Administration Act.[30]

[29](2016) 309 FLR 142 (‘Forrester’).

[30]Ibid [22]-[23].

In this case, the assessment by the judge, that the conduct of the officers fell into the ‘middle of the spectrum of improper conduct’, was made by reference to a categorisation of improper conduct, under s 138, in DPP v Marijancevic.[31] The passage of the Court’s judgment, relied on by the judge, should not, of course, be regarded as an exhaustive prescription of particular categories of impropriety under s 138. Rather, the various instances mentioned, in that passage, were intended to indicate, in broad terms, an appropriate assessment of impropriety or illegality for the purposes of s 138(3)(d) of the Evidence Act.
[31](2011) 33 VR 440, 458 [67] (Warren CJ, Buchanan and Redlich JJA).

In the present case, given our conclusions concerning the conduct of Sergeant Jones and Constable Smith, the characterisation by the judge, that the conduct of the officers fell into the ‘middle of the spectrum of improper conduct’, was, if anything, with respect, somewhat generous for the purposes of the applicants. As we have stated, accepting the judge’s conclusion that the police did not have reasonable grounds for their suspicion, we do not consider that the matters, on which the police relied, fell measurably short of what would be necessary to constitute such reasonable grounds in the circumstances in which the police found themselves on the evening in question.

For those reasons, we reject the submissions made by the applicants that it was not open to the judge to conclude that the breach by the police of s 82 of the Act was due to mistake or carelessness, and that the judge erred in assessing that the conduct by both officers fell into the middle of the spectrum of improper conduct.

Second issue — whether open to judge to conclude that desirability of admitting the evidence outweighs undesirability

A number of the submissions, made on behalf of the applicants in respect of the second issue, depended upon a finding in their favour, in respect of the first issue, that the judge erred in failing to conclude that the impropriety, found by the judge, was deliberate or reckless. However, some further submissions were made, in support of the proposition that it was not open to the judge to conclude affirmatively in favour of the prosecution that the evidence was admissible, on the assumption that this Court concludes that the judge did not err in determining that the impropriety, found by him, was due to mistake or carelessness on behalf of the police.

Counsel for Hale submitted that the prosecution gained an advantage from the illegal conduct of the police, which would not have been otherwise available to it, because the evidence could not have been obtained by lawful conduct. In particular, there was no basis upon which a search warrant could have been granted to permit a search of the vehicle. The illegal search was inconsistent with the right to privacy recognised by the International Covenant on Civil and Political Rights.[32] There were no other proceedings by which the improper conduct of the police could be sanctioned.
[32]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

Counsel further submitted that there were serious aspects to the impropriety. Sergeant Jones was a senior officer, and the error that he made was caused by a fundamental misunderstanding of an important power held by the police. It was submitted that Sergeant Jones took into account matters which were quite inappropriate, including the make of the vehicle, the age group to which the applicants belonged, and their general demeanour. In those circumstances, it was submitted that it was not open to the judge to conclude that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been improperly obtained.

Similar submissions were made on behalf of Olsen. It was noted that ordinarily, in order to conduct a search, a police officer must obtain a search warrant. A search, such as that which was conducted in this case, constitutes a significant intrusion on the rights of the applicants as members of the public. The requirement by s 82, that the suspicion of the police must be based on reasonable grounds, is an important protection, and, it was submitted, in the present case, the bases relied on by the police for their suspicion fell well short of reasonable grounds.

Counsel for Murray did not advance any further submission in respect of the second issue than the submissions that were made in respect of the first issue.

In response, counsel for the respondent noted that it had been conceded before the judge, and was conceded in this application, that the evidence, obtained on the search, was of significant probative value, and that the offences with which the applicants were charged were serious. He submitted that it was erroneous to suggest that, in circumstances as those which occurred in this case, the police should take time to reflect on whether their grounds for suspecting the presence of drugs on a person or in a vehicle were reasonable. He submitted that the impropriety, found by the judge, was not particularly serious. Further, it was relevant that the evidence obtained on the search could not otherwise have been available to the prosecution if the search had not been conducted at that time.

Section 138(3) of the Evidence Act specifies eight matters, which the Court is obliged to take into account in determining the admissibility of the evidence that is in issue. It is accepted on behalf of the applicants that the evidence, obtained from the search, was of significant probative value, and that it was central to the proof of the charge of trafficking against each of the three applicants. Further, it was conceded that the offence was serious, carrying as it does a 15 year maximum sentence. Each of those concessions were properly made. In the absence of the finding of the quantity of methylamphetamine in the console of the vehicle, the prosecution could not proceed. The evidence itself is of high probative value. The offence of trafficking a drug of dependence is serious. There is a high public interest in the apprehension, prosecution and conviction of those involved in trafficking illicit substances, and, in particular, methylamphetamine. As counsel for the respondent has submitted, the availability and consumption of that substance has become quite extensive throughout Victoria. It is the experience of the courts that the consumption of methylamphetamine has frequently contributed to the commission of serious offences, including offences involving significant acts of violence.[33]
[33]Haddara v The Queen [2016] VSCA 168 [49].

As we have found in respect of the first issue, in our view the judge did not err in his characterisation of the seriousness of the impropriety, and in his conclusion that the impropriety was not deliberate or reckless. It is significant that, if the impugned search had not taken place, the evidence, which is sought to be excluded, could not have been obtained by the police and would not be available in the prosecution of the applicants. This was not a case in which the police deliberately took a short cut to obtain evidence that might otherwise have been available to them. Rather, in the circumstances of the case, and as found by the judge, the police made an error of judgment in circumstances in which they were called upon to make a decision, almost spontaneously, in the circumstances that evolved on the evening in question.

Taking into account that analysis, in our view it was clearly open to the judge to conclude that the desirability of admitting the evidence outweighs the undesirability of evidence that had been improperly obtained. Accordingly, the submissions made on behalf of the applicants to the contrary are rejected. We accept the submission made on behalf of the respondent that the decision of the judge to admit the evidence was not only reasonable, but it was quite correct in the circumstances.

Conclusion

For the foregoing reasons, we reject each of the applications for leave to appeal against the decision of the judge to admit the evidence of the search conducted by police of the applicants, and of the vehicle in which they were travelling. It follows that the applications for leave to appeal should be dismissed.

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Citations

Marshall Murray (a pseudonym)[1] v The Queen [2017] VSCA 236

Most Recent Citation

Director of Public Prosecutions v Green [2021] VCC 1033

Cases Citing This Decision

8

Duran (a pseudonym) v The King [2023] VSCA 314

Johnston (a Pseudonym) v The King [2023] VSCA 49

Slater (a Pseudonym) v The Queen [2019] VSCA 213

Cases Cited

11

Statutory Material Cited

0

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DPP v Marijancevic [2011] VSCA 355

Parker v Comptroller-General of Customs [2007] NSWCA 348

[2017] VSCA 236

6 September 2017