Nicholas v Cann - [2018] NTSC 83

CITATION:Nicholas v Cann [2018] NTSC 83
PARTIES:NICHOLAS, Sally
v

CANN, Sharon and CANN, Michael

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 33 of 2018 (21740534) and LCA 34 of 2018 (21740537)
DELIVERED:  30 November 2018
HEARING DATE:  27 November 2018
JUDGMENT OF:  Barr J
CATCHWORDS:

CRIMINAL LAW – Prosecution appeal from Local Court – summary proceedings – voir dire – s 95(1)(a) Liquor Act permits search and seizure without warrant where inspector reasonably suspects commission of a relevant offence – ‘inspector’ includes police officer – Local Court held police officer did not have objectively reasonable grounds for suspicion – held search unlawful – evidence of alcohol found during search of respondents’ residence excluded – Local Court erred in application of statutory test – “reasonably suspects” – error of law – police officer’s suspicion was reasonable – evidence lawfully obtained – appeal allowed – remitted to Local Court for hearing
CRIMINAL LAW – Evidence – s138 (1) Evidence (National Uniform Legislation) Act – whether evidence improperly obtained – Police General Order relating to warrants – policy of Police General Order considered – primary purpose is obtaining evidence which is admissible – protection of civil rights of members of public not primary purpose – Police General Order cannot detract from powers given to Police Officer under legislation – search was lawful – evidence not improperly obtained
Liquor Act, s 95(1)
Local Court (Criminal Procedure) Act, s 163(3), s 177(2)
Evidence (National Uniform Legislation) Act, s 138(1)
Hope v Bathurst City Council (1980) 144 CLR 1; George v Rockett (1990) 170 CLR 104; Prior v Mole (2017) 261 CLR 265; Zheng v Cai (2009) 239 CLR 446; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Parker v Comptroller-General of Customs (2009) 83 ALJR 494, applied
Tiver Constructions v Clair (1992) 110 FLR 239; Dobbs v Ward (2003) 1 Qd R 158; The Queen v Layt [2018] NTSC 36, referred to
REPRESENTATION:
Counsel:
Appellant:M Hilder-Achurch
Respondents:  R Murphy
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondents:  Murphy and Associates
Judgment category classification:    B
Judgment ID Number:  Bar1812
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Nicholas v Cann [2018] NTSC 83

No. LCA 33 of 2018 (21740534) and LCA 34 of 2018 (21740537)
BETWEEN:

SALLY NICHOLAS

Appellant

AND:

SHARON CANN and MICHAEL CANN

Respondents

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 30 November 2018)
Introduction

This is a prosecution appeal against the decision of a judge of the Local Court to exclude evidence obtained by police during a search, without warrant, of the respondents’ home. The search took place on 25 August 2017, in purported reliance on s 95(1)(a) Liquor Act.
As a result of the search, the respondents were charged on complaint with having a quantity of alcohol under their control in an alcohol protected area.[1] They were also charged with a number of firearms and wildlife offences, based on evidence obtained in the same search of the respondents’ home. In addition, the first respondent was charged on indictment with assaulting a police officer in the execution of his duty, hindering the same police officer and resisting a member of the police force.
In voir dire proceedings held on 15 May 2018, the respondents challenged the admission of evidence obtained as a result of the police search. After hearing the evidence of several police officers and submissions from counsel, Judge Cavanagh found that the officer in charge of the search of the respondents’ home did not have a sufficient basis to reasonably suspect the commission of a relevant offence. His Honour held that the entry and search without warrant was unlawful, and excluded crucial prosecution evidence.[2] The respondents were then acquitted of all charges.
This appeal is brought pursuant to s 163(3) Local Court (Criminal Procedure) Act.
Search without warrant
The Liquor Act, s 95(1)(a), allows an inspector (a police officer is taken to be an ‘inspector’ for the purposes of the section) without a warrant, to do a number of things, including to enter and search an area of land, whether or not it is the general restricted area, and to seize a thing that the inspector reasonably believes to be related to a relevant offence.
The condition precedent to the exercise of the power of entry and search is that the inspector “reasonably suspects a relevant offence has been, or is being or likely to be, committed”.
Meaning of suspicion
In George v Rockett,[3] the High Court considered the conditions precedent to the issue of a search warrant under Queensland legislation which contained the expressions “reasonable grounds for suspecting” and “reasonable grounds for believing”. After noting that ‘suspicion’ and ‘belief’ are different states of mind, the Court explained the meaning of suspicion as follows:
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.
The Court in George v Rockett then referred with approval to the statement made by Kitto J in Queensland Bacon Pty Ltd v Rees[4] that 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’ …. a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.”
The lawful exercise by Sgt Kennon of the power conferred by s 95 Liquor Act required first that he actually suspect that a relevant offence had been, was being, or was likely to be committed.
The relevant offence was that the respondents had alcohol under their control (in their residence) in an alcohol protected area, contrary to s 75 of the Liquor Act (NT) read with s 8 of the Stronger Futures in the Northern Territory Act (Cth).
It was not in dispute in the court below or on appeal that Sgt Kennon had the relevant suspicion. The judge found expressly or by implication that the officer did in fact suspect but that, although he thought he had justification, “he was just wrong”.[5] Given that suspicion is no more than a “positive feeling of actual apprehension or mistrust, amounting to a slight opinion”, suspicion was established on the evidence. The issue for determination was whether Sgt Kennon reasonably suspected the commission of a relevant offence.
Meaning of “reasonably suspects”
The insertion of the word “reasonably” into the statutory provision requires that there be objectively reasonable grounds for the suspicion. As the High Court stated in George v Rockett:
When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[6]
In my opinion, there is no useful distinction to be drawn between “reasonably believes” and “believes on reasonable grounds”.
However, just as the grounds for a belief may leave “something to surmise or conjecture”,[7] so too the grounds for suspicion – a lesser or lower level state of mind – may also leave some matters to surmise or conjecture.
Facts relied upon by the complainant/appellant
In early August 2017, when Sgt Kennon was at the Katherine police station, planning and preparing to carry out a scheduled operation in Wadeye, he had a conversation with Senior Sgt Harden, who was normally posted at Wadeye, but who was acting in a temporary capacity in Katherine.[8]
In the course of the conversation, Harden told Kennon that he had received a phone call from an anonymous caller from Palumpa. The caller had told Harden that “there was alcohol at the Palumpa manager’s residence, being Sharon and Mick Cann’s house, and the alcohol was stored in a cupboard in the main bedroom of the residence”.[9]
As to the kind of alcohol, Kennon said he was not sure but he believed that Harden said “XXXX” [beer].[10] Kennon said in evidence that he was sure Harden had used the phrase “stored there”. Kennon also said that Harden told him that the anonymous caller had seen the alcohol at the location described.[11]
Kennon did not give evidence about when Harden had received the anonymous call; that is, he did not say whether Harden had said anything to him about when he, Harden, had received the call.
Harden’s evidence enabled an approximate time period to be fixed for the anonymous call. He said that he was at Katherine police station when he received the call.[12] He believed that the call was made in August 2017, because he had done “two relieving stints at Katherine as acting officer in charge”, one in August and one in September 2017. He thought he had been in Katherine for approximately two weeks at the time he took the call.[13] Harden’s evidence would therefore suggest that the anonymous call was received by him approximately 10 days to 14 days before Kennon entered and searched the respondents’ home on 25 August 2017.
Harden described the conversation as very brief. The transcript of his evidence reads as follows:[14]
They stated that they had been – had gone to the Canns or (inaudible) but I can’t recall the exact circumstances and that Sangore (?) knew or were told there was alcohol in one of the cupboards in the bedroom of the house.
Harden subsequently spoke to Kennon and informed him “in an informal manner” about the information he had received. That conversation took place the same day of the conversation or the next day.[15] He said that he had no reason to disbelieve the information, and so passed it on to Kennon to see what he wished to do with it.
Kennon also said he had “no reason to believe [the information about the alcohol at Palumpa at the Canns’ residence] to be not true”.[16] Because the information he received from Harden “sounded credible”, Kennon immediately checked the police information report system and found an information report relating to Michael Cann, to the effect that he had been in possession of alcohol some 12 months earlier at Palumpa Station.[17]
Kennon then determined that the Canns’ residence would likely be a place that police would look at in the course of their upcoming operations. His evidence was as follows: [18]
As I said we were still planning the finer details of going out there, which warrants and what searches we were going to do. And as a result of that information, I deemed that that would be a likely place we would look at.
Why was that? --- Because on the current information I suspected there’d be alcohol there. The term ‘stored’ to me indicated that alcohol was being stored at the location, not just simply a small amount of alcohol that would be consumed and not be there. And based on my experience of working in lots of remote communities and doing this job for a long time, there is a vast difference between Caucasians and indigenous people when it comes to the storage of alcohol. ….
Tell the court about your experience in this role conducting these kinds of enquiries? --- In my experience Caucasian people in these communities who aren’t supposed to have alcohol will actually store more alcohol and keep it for a longer period. They will not drink all their alcohol in one sitting. If I get information about a Caucasian person having alcohol I know that it is going to be there for some time. Indigenous people, if I hear they have alcohol in the community, that needs to be acted on immediately because that alcohol will be drunk that night and will be gone.
When you interrogated your … information report system and you discovered that old information report relating to Michael Cann, what did you think then, if anything? --- I thought that it was an ongoing thing. The information from 12 months ago and then the current information indicated to me that Michael Cann at least was still in possession of alcohol.
In relation to the evidence given by Kennon as to the drinking/storage patterns of Caucasian people in remote communities, compared to indigenous people, I am mindful of observations made by members of the High Court comprising the majority in Prior v Mole.[19] The appellant in that case argued that, in the context of the arresting officer’s limited engagement with the arrested person at the scene, policing experience could not validly support the officer’s belief as to the matters required by s 128(1)(c) Police Administration Act, specifically a belief that the appellant would commit an offence by continuing to drink in a regulated public place. The officer had reached that belief, in part at least, as a result of his experience with persons other than the appellant. The Court, by majority, dismissed the appeal. Kiefel and Bell JJ held that it was not irrational to take into account observed patterns of human behaviour in predicting the likely behaviour of an individual.[20] Nettle J made this observation: [21]
Granted, experience may sometimes breed prejudice, which is regrettable. Prejudice is irrational and does not afford reasonable grounds for decision-making, and in the case of a police officer it is unacceptable. But knowledge born of experience is not irrational – it is empirical – and, depending on the experience of a police officer, may properly comprise a significant part of the officer's crime detection and prevention armoury.
I bear in mind that the ‘weight’ of evidence of objective circumstances required to found a reasonable belief is greater than for a reasonable suspicion. As the authorities make clear, reasonable suspicion requires less. In my opinion, Sgt Kennon’s experience in relation to the drinking/storage patterns of Caucasian people in remote communities was a matter which he was properly entitled to take into account in reaching his suspicion.
Kennon also gave evidence about a briefing session he conducted at Wadeye in relation to the intended search of the respondents’ home premises. During the briefing, Kennon was advised by Constable Diamond that he had received similar information about the Canns being in possession of alcohol at the house which police intended to search.[22]
Another police officer at the briefing declared a conflict of interest and asked not to participate in the search because he admitted to having consumed alcohol with Mr Cann when he had first arrived at Wadeye. While this was referred to in evidence, it does not seem to have been a material factor in Kennon’s suspicion.
In his evidence, Diamond said that, some one to three months prior to the search of the respondents’ home, while he was at the Wadeye Police Station, he had received information or a complaint by phone. His evidence was a little unclear, but at one stage he summarised it himself as follows:[23] he had spoken by phone to a Caucasian person, an anonymous caller, who told him that he had been told by a ‘local’ that everyone was drunk at Palumpa and that the grog had come from the Palumpa Station. Diamond thought the person may have said the Palumpa Station manager, but the person had not actually named Mr Cann.[24]
Kennon said that the information he received from Diamond furthered the suspicion he already had, that there would be alcohol at the respondents’ address in the Palumpa community.
The Local Court’s reasons
Judge Cavanagh delivered ex tempore reasons, which I set out below:[25]
I have evidence from Kennon he seemed to have a better memory of an anonymous phone call than Harden, that Harden passed on to him that he’d received an anonymous phone call at Katherine a couple of weeks before the 25^thof August.
That there was some XXXX in the bedroom of the Cann family at Palumpa Station.
He conceded that he didn’t know how long it had been there, he didn’t know how much grog was there, he dissembled about whether it could have been drunk in the 2 weeks. In my view he dissembled about when it could have been drunk within the 2 weeks that it was there.
That he had decided that in terms of planning from when they went that they would do a search of the house under the Liquor Act, that phone call together with some intel. Intel, something on the police records that 12 months before that there’d been some intelligence of grog at the station was enough.
He’s turned up in plain clothes with a police vehicle, with other vehicles and uniformed officers.
In respect of that telephone call which he has it, is the basis really of the reasonable suspicion and I really don’t think that further information on the day or the day before from the Wadeye constable helps a lot. Him having already decided that that was the basis of his reasonable suspicion.
But going back to that telephone call Harden gave his evidence about it in a very vague fashion, said “there’s a very brief conversation”, then said “very short and brief conversation”, “can’t recall most of it”, “they need to go, hurry up”, it was of a brief nature, a very brief nature. “Can’t recall most of it right now”, “can’t recall the amount or the kind grog it was”, can’t recall the date in August, assumes it was in August.
Just like the constable in Wadeye, no notes, no reduction in to a document that can be used to substantiate the reasonable suspicion.
He passed it on Kennon and I quote, “as an informal matter” in the big meeting room there, I suppose over a cup of tea I infer. He had no other information regarding the grog.
He had no reason to disbelieve, thought it was possible, it’s all rather unsatisfactory really.
Vague, informal, a brief conversation from an anonymous phone call.
Kennon agrees there’s no information so far as he was concerned of grog running, trafficking. Remembering he’d been told apparently by that constable that had been at Palumpa employee drunk quite some time before.
There’d been no real follow up to this anonymous phone call, being that there were two to corroborate it, to ask around, to strengthen any idea or inference that these people had grog in their house.
The thought that comes through to me is that if someone wants to be anonymous and make a brief telephone call, for example that the school teacher at Maningrida’s got grog without a permit in a bedroom and that’s all that police can march in to that house and that bedroom and search it is an anathema to me and to the public and I can’t imagine that the legislature thought that would be enough to found reasonable belief such that enforcement of the state can walk in to someone’s bedroom just on that telephone call without anything further.[26]
A bedroom in a house of a couple, their private – their privacy enshrined, intimate relations, kids, babies, who knows, to have uniform people walk in and search it and no doubt it would have been searched thoroughly on an anonymous phone call that has really not been followed up with much more.
I don’t think founds – meets the test or reasonable suspicion and in my view that search was unlawful and I do so find. [underline emphasis added]
To the extent that the judge’s reasons might have suggested adverse credit findings against Kennon, for example, by his Honour’s use of the word ‘dissemble’ (twice), or the observation that Kennon had not recorded the information he received in written form (which may have suggested unreliability), the judge corrected any possible misinterpretation of his remarks when he later stated that he had found the evidence of Kennon “credible and reliable”, and that he did not believe that Kennon had “acted capriciously”.[27]
Judge Cavanagh appears to have given no or no proper consideration to the collateral information provided to Kennon by Diamond at the briefing, referred to in [26], [28] and [29] above. His Honour’s remarks suggest that, because Kennon already suspected the commission of an offence and had made a decision to search and enter by the time of the briefing, any further information relied on by him to further or consolidate that suspicion was not relevant. That is not the law. The test at law requires consideration as to whether there were objectively reasonable grounds for Kennon’s suspicion at the time of entry and search. Relevant to the present case, the test was not whether there were objectively reasonable grounds for Kennon’s suspicion at the time of a briefing which took place some hours before the search. The additional information was capable of adding to the objective grounds for Kennon’s suspicion at the time of entry and search, and Kennon’s evidence was that the additional information “furthered” his suspicion.

As to his Honour’s statement, underlined by me: “I can’t imagine that the legislature thought that would be enough to found reasonable belief”, it is important to bear in mind that the objective of statutory construction is “to give to the words of a statutory provision the meaning that the legislature is taken to have intended them to have”.[28] In relation to the expression “legislative intention”, the High Court explained in Zheng v Cai that one does not attribute a collective mental state to legislators, since that would be a misleading use of a metaphor.[29] Rather, the preferred construction by the court of a statute is reached by the application of rules of interpretation. In Lacey v Attorney-General (Qld),[30] the High Court affirmed what had been said in Zheng v Cai, and continued as follows:
The application of the rules [of interpretation] will properly involve the identification of a statutory purpose, which may appear from an express statement of the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit in may be identified by reference to common law and statutory rules of construction.
Further as to the statement extracted at the start of the previous paragraph, it appears that his Honour may have had in mind the test for ‘reasonable belief’, rather than ‘reasonable suspicion’, or at least that he may have been conflating the distinct tests. His Honour’s subsequent statement that there had been “no real follow up to this anonymous phone call … to strengthen any idea or inference that these people had grog in their house” suggests that he was requiring confirmatory evidence of the information provided by the anonymous caller to Harden, which the law does not require.
The information given to Harden by the anonymous caller, and relayed to Kennon, was very specific as to the alcohol storage location. Although the information was provided anonymously, that specificity would tend to make the information more credible. Kennon said that he was also influenced by the use of the word ‘stored’, which to him suggested quantity kept over a period of time. Kennon did follow up, in terms of reading a police intelligence report that similar information about the second respondent had been provided 12 months earlier. Moreover, Kennon’s suspicion was increased (he used the word “furthered”) by the information he received from Diamond at the briefing session referred to in [26], [28] and [29] above.
The information available to Kennon thus comprised one report received two weeks before the search, another report received one to three months before the search, and a third report received some 12 months before the search. In addition to the specific facts reported on each occasion (in particular on the last occasion), the combination reasonably suggested a pattern of behaviour or a tendency, on the part of the second respondent at least, to have alcohol in his possession or control in an alcohol protected area. Kennon was justified in adding to the factual matrix his knowledge based on experience of the drinking/storage patterns of Caucasian people in remote communities, referred to in [23] above. Even if alcohol were consumed, the pattern of behaviour or the tendency referred to could well have involved the store of alcohol being replenished. For that reason, the possibility that the stored alcohol (the subject of the August 2017 report to Harden) might have been consumed in the intervening two weeks before the search did not undermine Kennon’s suspicion so as to render it unreasonable.
In this context, I repeat my observation in [14] above that the grounds for suspicion may leave some matters to surmise or conjecture.
It is a question of law as to whether, on the facts as found or on the undisputed evidence, Kennon reasonably suspected the commission of a relevant offence,[31] the test being whether there were objectively reasonable grounds for Kennon’s suspicion. As mentioned in [30], his Honour found the evidence of Kennon credible and reliable, and on the facts identified by me above, there was more than sufficient to reasonably ground a suspicion. It follows that his Honour erred in determining to the contrary. Because I have found that there were objectively reasonable grounds for Kennon’s suspicion, it is not necessary to further analyse his Honour’s reasons.
My conclusion to this point is that the entry and search of the respondents’ home was lawful.
Respondents’ contention – evidence improperly obtained
In their notice of contention, the respondents contend that the search was improper because it was a ‘planned operation’ carried out without a warrant, in breach of Police General Order “Search Warrants”.[32] The argument proceeds that evidence of the respondents’ possession or control of alcohol was “obtained improperly” and therefore, pursuant to s 138(1) Evidence (National Uniform Legislation) Act 2011 (NT), should not have been admitted.
A party seeking to exclude evidence pursuant to s 138 Evidence (National Uniform Legislation) Act 2011 (NT) has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the Court that it should be admitted. There is thus a two stage process. The party seeking the admission of evidence obtained improperly or in contravention of an Australian law has the burden of proof of facts relevant to matters weighing in favour of admission. That party also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.[33]
I turn to consider whether the evidence was obtained improperly. The meaning of the term “improperly” was recently considered by Grant CJ in The Queen v Layt,[34] and I do not need to repeat what was said there.
It is not absolutely clear that the Police General Order applies to a search without warrant by a police officer who is acting as an inspector under the Liquor Act. The Liquor Act is not mentioned in par 5 of the General Order; nor is it mentioned in pars 16 and 17. However, the point has not been fully argued and, for the purposes of the present appeal, I will assume the General Order does apply.
The respondents rely in particular on part of par 12 of the Police General Order, which reads as follows: –
The General Order should be considered in all circumstances or situations where members are empowered to execute a warrant, to search pursuant to a statutory power, or under a warrant of arrest. Members are to be mindful that different types of search warrants have corresponding legislative requirements which must be complied with to ensure admissibility of any evidence obtained.
The respondents then rely on par 49.3 of the Police General Order which reads as follows:
Authority to enter - will normally be authorised under a Warrant to Search and/or Arrest. Unless serious or urgent circumstances exist, a warrant should be sought for all planned operations …
The respondents’ contention is that, because the search was a “planned operation”, and there was no urgency, par 49.3 of the Police General Order was breached, and the search therefore rendered “improper”.
Consideration
It is important to consider the policy of the Police General Order in deciding whether non-compliance rendered the search of the respondents’ home improper, or not.
The policy statement in par 1 of the Police General Order states that the “conduct of thorough, objective and professional investigations in accordance with relevant legislative and procedural requirements is essential for achieving effective outcomes and reinforcing a professional image of the NTPF”. The reference to “achieving effective outcomes” may be appropriately linked with the purpose stated par 12 of the Police General Order: “to ensure admissibility of any evidence obtained”.
I have concluded that a primary purpose of the Police General Order is to ensure that police officers obtain evidence which is admissible, that is, evidence which is not rendered inadmissible by statutory or regulatory non-compliance. Protection of the civil rights of members of the public is not a primary purpose, although it may be an incidental purpose.
Par 13 of the Police General Order suggests a further purpose for the General Order, namely that compliance with its terms “provides a basis to assist members in carrying out their duties in this sometimes contentious area in a manner that will limit adverse public or media comments or complaints.” That ties in with the reference in par 1 to “reinforcing a professional image of the NTPF”. Those paragraphs indicate a concern with the reputation and image of the Northern Territory Police Force, consistent with the “overarching values” set out in par 20 of the Police General Order, which include professionalism, minimisation of confrontation, consideration and care, as well as risk management. Again however, the purpose of maintaining the reputation and image of the Northern Territory Police Force, laudable though it may be, is not concerned with the protection of the civil rights of members of the public.
Par 13 of the Police General Order includes the following statement:
Members are expected to exercise initiative and take action according to the circumstances. Non-compliance with this General Order as with others will be viewed in the totality of the circumstances. Members will be required to provide sound reasoning and compliance with legislative requirements when deviating from this General Order.
I reject the respondents’ argument that the evidence in contention was obtained improperly, or as a result of an impropriety, the suggested impropriety being that it was contrary to the Police General Order. Even if the submission of Mr Murphy is accepted, that compliance with the Police General Order would have provided useful “checks and balances”, the Police General Order cannot lawfully detract from powers given to a police officer under legislation. The Liquor Act trumps the Police General Order. Moreover, there is no reason why the powers of a police officer under s 95 Liquor Act should be subject to a non-statutory constraint which does not apply to an inspector who is not a police officer. Sgt Kennon had the power of search and seizure without warrant, pursuant to s 95(1) Liquor Act. Even if the Police General Order had some role to play, Kennon was able to demonstrate compliance with legislative requirements in support of his non-compliance.
The criticism of Sgt Kennon, in par 15 of the respondents’ written submissions, that he said in cross-examination: “This is General Orders; I was operating under legislation” is misconceived; the sergeant was correct.
Orders
Mr Murphy submitted that, if this Court found for the appellant, it should apply the ‘proviso’ in s 177(2)(f) Local Court (Criminal Procedure) Act, and dismiss the appeal on the basis that no substantial miscarriage of justice has actually occurred. The difficulty with that submission is that justice was not done in the Local Court, because admissible evidence was not considered by the trial judge and the appellant’s case was prematurely terminated. The trial effectively came to an end as a result of the judge’s decision in the voir dire proceeding. In the circumstances, this Court cannot conclude that there has been no substantial miscarriage of justice.
Pursuant to s 177(2)(d) Local Court (Criminal Procedure) Act, the appeal should be allowed and the case remitted to a differently constituted Local Court for hearing or further hearing.
I direct the parties to submit a draft of the orders they contend should be made by this Court as a consequence of my decision. As found by me in [39] above, the entry and search of the respondents’ home was lawful. I invite submissions from the parties as to the further orders (if any) I should make in relation to the evidence excluded by his Honour. If the parties are not in agreement, the matter can be listed for further argument.
--------------------

[1] An offence charged contrary to s 75B(1) Liquor Act, read with s 8 Stronger Futures in the Northern Territory Act (Cth). The liquor the subject of the charge included a 30-pack carton of XXXX Gold beer cans, a further 10 cans of XXXX Gold beer, a bottle of rum and several bottles of liqueurs.

[2] I presume his Honour did so pursuant to s 138 Evidence (National Uniform Legislation) Act.

[3] George v Rockett (1990) 170 CLR 104 at 115.8.

[4] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.

[5] T 42.

[6] George v Rockett (1990) 170 CLR 104 at 112.3.

[7] George v Rockett (1990) 170 CLR 104 at 116.4; Prior v Mole [2017] HCA 10; (2018) 261 CLR 265, at [73] per Nettle J.

[8] T 5.9.

[9] T 6.9. This was Kennon’s evidence of what Harden had said to him.

[10] T 7.2.

[11] T 7.4.

[12] T 29.5.

[13] T 30.5.

[14] T 30.

[15] T 31.3.

[16] T 7.7.

[17] T 8.2.

[18] T8.5 – 8.9.

[19] Prior v Mole [2017] HCA 10; (2017) 261 CLR 265.

[20] The context of their Honours’ conclusion was as follows (at [18]), per Kiefel and Bell JJ: “Mr Prior was right to submit that Constable Blansjaar’s belief about how he, Mr Prior, was likely to behave was informed at least in part by Constable Blansjaar’s experience of other people. This is not to accept that it is irrational to take into account observed patterns of human behaviour in predicting the likely behaviour of an individual.”

[21] At [71].

[22] T 11.3.

[23] T 34.8.

[24] T 35.2.

[25] T 40-41.

[26] underline emphasis added.

[27] T 42.5.

[28] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78], per McHugh, Gummow, Kirby and Hayne JJ.

[29] Zheng v Cai (2009) 239 CLR 446 at 455-456 [28].

[30] Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 592 [44], per French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ.

[31]See, for example, Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J; Tiver Constructions v Clair (1992) 110 FLR 239 at 245, per Martin and Mildren JJ; Dobbs v Ward [2002] QSC 109; (2003) 1 Qd R 158 at [21].

[32] Exhibit 2 in the Local Court proceeding.

[33]Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28], per French CJ. See also R v Sophear Em [2003] NSWCCA 374 at [63].

[34] The Queen v Layt [2018] NTSC 36 at [72] – [75].