Police v Thao Phuon Nguyen

[2010] NSWLC 15

Local Court of New South Wales

CITATION:	Police v Thao Phuon Nguyen [2010] NSWLC 15
JURISDICTION:	Criminal
PARTIES:	NSW Police Thao Phuon Nguyen
FILE NUMBER:
PLACE OF HEARING:	Local Court Campbelltown
DATE OF DECISION:	05/19/2010
MAGISTRATE:	Magistrate O'Brien
CATCHWORDS:	Voir dire- Section 138 Evidence Act - illegal or improper police conduct - meaning of impropriety- meaning of obtained in consequence of - causation- police powers of search, arrest and entry - admissions- exercise of discretion to exclude.
LEGISLATION CITED:	Evidence Act 1995 Road Transport (Safety and Traffic Management) Act 1999 Law Enforcement (Powers and Responsibilities) Act 2002 Criminal Procedure Act 1986
CASES CITED:	R v Coulstock (1998) 99 A Crim R 143 Parker v Comptroller- General of Customs [2007] NSWCA 348 Robinson v Woolworth’s Limited [2005] NSWCCA 426 Fleming v R [2009] NSWCCA 233 Ridgeway v The Queen (1995) 184 CLR 19 DPP v Carr [2002] NSWSC 194 DPP v Coe [2003] NSWSC 363 Haddad & Treglia (2000) A Crim R 132 DPP v AM [2006] NSWSC 348 DPP v CAD and Others [2003] NSWSC 196 R v Doolan [2001] ACTSC 69 Michaels v R (1995) 184 CLR 117 R v Rondo (2001) 126 A Crim R 562 R v Horton (1998) 104 A Crim R 306 R v Esposito (1998) 105 A Crim R 27 R v Camilleri [2007] NSWCCA 36 Em v The Queen (2007) 232 CLR 67 The King v Lee (1950) 82 CLR 133 R v Dalley (2002) 132 A Crim R 169 R v Gilham [2008] NSWSC 88
TEXTS CITED:
REPRESENTATION:	Sgt R Loomes Ms J Glancey of counsel
ORDERS:	Objection overruled- evidence admitted

INTRODUCTION

1. Thao Phuon Nguyen has been charged with the following offences, all of which are said to have occurred at Glenfield on the morning of 9 June 2009:

i) Resist officer in execution of his duty namely Jarrod Cook.

ii) Hinder officer in execution of his duty namely Jarrod Cook.

iii) Assault officer in execution of his duty namely Jarrod Cook.

iv) Receive stolen property namely items of clothing to the value of $10,940.

v) Unlawfully obtain goods on property namely $8,710 cash.

vi) Unlawfully obtain goods on property namely items of clothing to the value of $10,940.

vii) Possess prohibited drug being 0.07 grams of heroin.

viii) Possess prescribed restricted substance being 3.2 grams of methadone.

ix) Possess prescribed restricted substance being 1 x oxazepam tablet.

2. Pleas of not guilty were entered to all matters and the hearing commenced before me on 1 April 2010 with Sgt Loomes appearing for the prosecution and Ms Glancey of counsel for the accused. At the outset Ms Glancey indicated that there was a preliminary question to be determined as to the admissibility of much of the prosecution evidence. The resolution of this issue proceeded on the voir dire with evidence being given by the three police officers who were present at the time of the accused’s arrest, those officers being cross examined and the respective representatives then making detailed submissions to me. Those submissions were received on 15 April 2010 and my decision on the preliminary question of admissibility was reserved until today.

3. The thrust of Ms Glancey’s submission is that the majority of the prosecution evidence against her client should be excluded, it being, she contends, the result of unlawful or improper police conduct of a type that would trigger my determining to exclude it in the exercise of my discretion under section 138 of the Evidence Act 1995 . That section is in the following terms:

(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.

4. Ms Glancey’s argument was put on the basis of the following four distinct heads of illegality or impropriety being advanced:

i) That the stop by police of a vehicle driven by Ahmet Fahri at a time shortly before the accused’s arrest was unlawful and/or improper, and

ii) That the subsequent arrest of Ahmet Fahri was unlawful and/or improper, and

iii) That the subsequent entry by police into the accused’s premises was unlawful and/or improper, and

iv) That the conduct of police in effecting the arrest of the accused was unlawful and/or improper.

5. Ms Glancey argued that these four bases, both separately and in combination with one another, gave rise to the need for me to exercise my discretion to exclude. Before considering each of the matters relied upon by Ms Glancey it is necessary to set out the factual matrix alleged by the prosecution and my findings in that regard having regard to the evidence given and the submissions made. It needs also to be borne in mind that the onus of persuasion lies on the accused, she being the party seeking to establish that the evidence falls within the terms of section 138(1). If that is found by me to be the case then the onus shifts to the prosecution to satisfy me that the desirability of admitting the evidence outweighs the undesirability of admitting it in the circumstances in which it was obtained – See R v Coulstock (1998) 99 A Crim R 143 at 147.
THE FACTS


6. On the morning of 9 June 2009 the accused was inside her home at Unit 74/8 Kikori Street, Glenfield. As events transpired she no doubt wishes she had remained there. At the same time Acting Sgt Cook along with Constables Navin and Daly were working in the Macquarie Fields Local Area Command in plain clothes and in an unmarked police vehicle. At about 11.20am and while travelling on Canterbury Road, Glenfield police observed a dark blue Mercedes Benz sedan registered number AJK 74H. The vehicle was displaying red “P” plates. In circumstances to which I will shortly refer the Mercedes Benz motor vehicle, which was being driven by the accused’s boyfriend Ahmet Fahri, was stopped outside the accused’s premises. The police then spoke to the driver Mr Fahri, he was placed under arrest, a search of the interior of the vehicle was undertaken and items that police believed to be drugs were located. Police then placed the drugs found on the boot of the motor vehicle. After the drugs (which were believed by police to be heroin due to their method of packaging) were placed on the boot of the vehicle, the accused left her premises and approached them and Mr Fahri. She asked police “What’s going on” and was told that Mr Fahri was under arrest for possession of drugs. She replied to police “You’re fucking lying, you dogs planted that”, and it is alleged that the accused then thrust herself across the boot, grabbed the items that the police believed to be drugs and placed them in her mouth. A struggle ensued with police seeking to extract the drugs from the accused’s mouth. It was during this struggle that the offences of assault police, resist police and hinder police are said to have occurred. The accused was then placed into the rear of a caged vehicle that had arrived at the scene.

7. These events, it is to be noted with regret, had occurred in the presence of the two year old child of the accused. It was no doubt clear to all those present that arrangements would need to be made for the care of that child given that his mother and her boyfriend had been arrested. It is then according to police that they entered the accused’s premises to collect a mobile phone so that a family member of the accused could be contacted to care for the child, and so as other child essentials including clothing, nappies and bottles could be located. The police say that they had the accused’s permission to enter her premises. Upon entry the police observed silver pieces of foil on a table, along with three mobile phones. A further examination of the premised revealed a substantial number of items of clothing with price tags attached. A crime scene was then established and a search warrant of the premises was later executed. Items of property, being clothing to the value of $10,940, cash in the sum of $8,710 and a quantity of illicit drugs were seized by police pursuant to that warrant.

8. After the accused’s arrest she was transported to Campbelltown Hospital where certain imaging tests were undertaken. She was returned to the Macquarie Fields Police Station at about 11.30pm where she was electronically interviewed and then charged with the offences before the Court.

THE INITIAL STOP

9. As I have already noted, Ms Glancey has vigorously challenged the legality and/or propriety of the stopping by police of Mr Fahri’s vehicle. The thrust of her contention is that the stop was entirely capricious and without any legal basis. To consider this submission I must analyse in some more detail the evidence given as to this aspect, and the relevant law pertaining to the exercise by police of their power.

Constable Navin’s Evidence


10. His evidence given both in statement form and orally was that he was driving the unmarked police car south along Canterbury Road, Glenfield when he saw the vehicle driven by Mr Fahri turn right into Kikori Place. He followed the vehicle into Kikori Place and activated all warning lights and sirens on the police vehicle causing the vehicle to stop outside the accused’s premises. His evidence was that he remained in the police car and that Acting Sgt Cook and Constable Daly conducted the further dealings with Mr Fahri. He said that he was later spoken to by Constable Daly (after the accused’s arrest) and directed into the house to locate the accused’s phone.

11. He was cross examined by Ms Glancey and the following emerged:
§ That it was his decision to stop the vehicle.
§ That the purpose of the stop was to conduct a random breath test and that there was no other reason for the stop.
§ That he was not directed by Acting Sgt Cook to stop the vehicle and that the decision to do so was his alone.
§ That there was no discussion in the police car regarding the stopping of the vehicle.
§ That the random breath test was conducted by Acting Sgt Cook.
§ That he agreed that his statement dated 18 June 2009 did not contain any reference as to why the vehicle was stopped.
§ That it was only after other police had spoken to Mr Fahri and returned to the police vehicle that he alighted from the vehicle.
§ He denied that the reason the vehicle was pulled over was that checks on the vehicle had been conducted and that those checks revealed police intelligence that the vehicle may be involved in drug distribution. He said that this information was only available to police after the initial contact with Mr Fahri. This denial was despite the Fact Sheet that he had prepared containing the following – “Police conducted a check on the vehicle which revealed it had recent intelligence in relation to the supply of heroin in the Liverpool area. Police have activated all warning lights and sirens and have stopped the vehicle outside 74/8 Kikori Place, Glenfield.” – Given these words in the Fact Sheet there is some real question that arises as to the reliability of the denial by Constable Navin as to the reason the vehicle was pulled over. This unreliability is further demonstrated by conflict between Constable Navin’s evidence and the evidence of other police as to the issue of the stop, to which I will shortly refer.

Acting Sgt Cook’s Evidence


12. This officer’s statement was tendered on the voir dire. He also gave oral evidence. His evidence was that on this morning police were travelling south on Canterbury Road, Glenfield. Constable Navin was driving, he was seated in the front passenger seat and Constable Daly was in the rear. He observed the vehicle driven by Mr Fahri make a right hand turn in front of the police vehicle into Kikori Place. He said the vehicle had slowed prior to turning into the street and that he had a clear view into it as it passed. He observed only one person in the vehicle and said “I think we will stop that car”. Police then followed the vehicle into Kikori Place, where Constable Navin activated the police lights and siren. The vehicle then stopped outside 74/8 Kikori Place. Acting Sgt Cook opened the police car door before it had stopped, as he was concerned that the driver may try to exit the vehicle and enter the house. As he approached the vehicle he saw that there was a young child on the front seat who was not wearing a seat belt. He told Mr Fahri to remain in the vehicle. Constable Navin then approached and began to speak with the driver and administered to him a breath test. Mr Fahri then exited the vehicle, as did the child. The child then ran to unit 74 followed by Acting Sgt Cook. His evidence was that the accused opened the door allowing the child to enter, acknowledged that the child was hers and then closed the door. Acting Sgt Cook then returned to Constable Navin and Mr Fahri.

13. In cross examination the following emerged:
§ That he was the most senior officer in the police car.
§ That his attention and/or suspicion in respect of the Mercedes motor vehicle was initially drawn to it when it pulled in front of the police vehicle which he said was forced to slow down. He described this variously as the car “cutting in front” and “a reckless way of driving” yet conceded that there was nothing in his 11-page statement, which was prepared on the following day, to that effect.
§ That he had directed Constable Navin to stop the car. This is in contrast to what Constable Navin suggested in his evidence.
§ That the vehicle was not stopped for a random breath test but due to its manner of driving. This is in contrast to what Constable Navin suggested in his evidence. Somewhat surprisingly, Constable Navin the driver of the vehicle offered no evidence whatsoever in respect of the vehicle’s manner of driving.
§ When pressed, he suggested that he decided to pull the car over because it had committed an offence but agreed that no reference to such an offence was contained within his statement in circumstances where such detail would ordinarily be included.
§ That there was no police intelligence on the vehicle before it was stopped.
§ That it was Constable Navin who approached the driver and administered a breath test. This is in contrast to Constable Navin’s evidence.

14. Constable Daly, who had used Acting Sgt Cook’s statement to refresh her memory of the incident, corroborated Cook’s evidence to the effect that he had said in vehicle that Mr Fahri’s vehicle was to be stopped but did not otherwise give evidence as to why the stop occurred. She did not offer any evidence as to the manner in which the vehicle was being driven.

15. Ms Glancey’s submission is that there is no explanation for the vehicle stop that could be relied upon. She referred to the discrepancies in the police evidence and to the absence of any detail in the statements of the officers dealing with either a random breath test or an inappropriate manner of driving. She observes that no evidence is offered of police speaking to Mr Fahri as to his manner of driving after they had approached him; as she submits one might expect. It is relevant to note that the inconsistency between police extends to which of the officers approached the car and who it was that conducted the random breath test.

16. Sgt Loomes contends that while there may be confusion and inconsistency as to the steps that the respective officers took in the stop of the vehicle this is reflective of a lack of communication by them with one another rather than anything else. He points out that no matter which version put forward for the stop, each of them is entirely legitimate. He says, and I accept as uncontroversial that police have a power to stop motor vehicles to conduct a random breath test - see section 13 of the Road Transport (Safety and Traffic Management) Act 1999 or if they believe a traffic offence has been committed or for the safe and efficient regulation of traffic - see section 185 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) . What he says is clear is that no matter who actually performed the test there is evidence before the court that a random breath test did take place, and further, that there is no evidence called by Ms Glancey to the contrary.

17. Given the onus that must be discharged, Ms Glancey must satisfy me on balance that the stop by police of Mr Fahri was either (a) improper, or, (b) in contravention of an Australian law. If I am satisfied as to either of these matters, then I must be further satisfied that relevant evidence was consequently obtained against this accused person, and if so I am then required to consider the exercise of the discretion bestowed within section 138 of the Evidence Act .


18. In respect of the vehicle stop, there does not appear to me to be any unlawful conduct by police. That is, they were not in breach of any law at the time of the stop and Ms Glancey does not really contend to the contrary or point to any identifiable illegality. The police had a well-established legal right to stop the vehicle whether that be because of some minor driving indiscretion or for the purpose of administering a breath test. The real question it seems to me is whether the stop was, in all of the circumstances that existed, improper.

19. In Parker v Comptroller – General of Customs [2007] NSWCA 348 at paragraph 55 Basten JA put the question in this way:
‘’The real issue is to identify the scope of an impropriety which will result in the qualified exclusion of evidence where there has been no unlawfulness, in the sense of a contravention of an Australian law’

20. What is meant by the term ‘impropriety’ has been the subject of consideration by the New South Wales Court of Criminal Appeal in a number of decisions including Robinson v Woolworths Limited [2005] NSWCCA 426, and more recently in Fleming v R [2009] NSWCCA 233. Both of these decisions made reference to the decision of the High Court in Ridgeway v The Queen (1995) 184 CLR 19, which was decided prior to the enactment of the Evidence Act. In that case Mason CJ Deane & Dawson JJ said at 37 that:

“the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances”
In both Robinson and Fleming the Court of Criminal Appeal held that the principles identified in Ridgeway should be applied to section 138 of the Evidence Act in determining the issue of whether a particular set of events constitute an impropriety.

21. In Robinson , Basten JA with whom Barr J agreed, said as follows at paragraph 23:
“It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. Thirdly, the concepts of “harassment” and “manipulation” suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced.”
In Fleming , McClellan CJ at CL adopted wholeheartedly these comments by Basten JA.


22. In the present matter I am not persuaded that the vehicle stop by police of Mr Fahri was improper, my already having concluded that it was not unlawful. In my view the community accepts and expects that police have a wide general power to stop motor vehicles whether that be because a traffic offence has occurred or because police have determined to conduct a random breath test. Ms Glancey does not persuade me on behalf of the accused that the standards expected of police by the community were breached in this instance. If I am wrong as to that, then in any event I would not regard the police conduct in stopping the vehicle as any more than a minor blurring or contravention of those standards. Further I do not believe that there is any evidence before the court that suggests or could be regarded as suggesting the “encouragement, persuasion or importunity in relation to the commission of an offence” as referred to in Robinson . There was no procurement or inducement by police to this accused to participate in or commit any offence as a result of the vehicle stop carried out by them of Mr Fahri. The only evidence before the court, being that of police, indicates that the stop was for one of two identified purposes neither of which was either unlawful or improper. It is to be borne in mind that it is for the accused to establish to the contrary and I do not accept that she has done so.

23. Having determined that there was no unlawful or improper conduct is in effect the end of the matter so far as the vehicle stop is concerned. Such a finding means that I need not further consider the terms of section 138. Given however the way in which the matter was conducted and in the event that I am wrong as to this initial finding, I will deal now with the other aspects of section 138 being the issue of whether evidence was “obtained” against this accused as a consequence of the vehicle stop and if it were whether my discretion pursuant to the section would be exercised so as to exclude it.

24. In DPP v Carr [2002] NSWSC 194, Smart AJ was required to deal with what was meant by the word “obtained” within section 138. In that case, the DPP submitted that just because words and actions by Mr Carr followed in time an impropriety by police did not mean that the evidence of those matters was obtained within the meaning of the section. His Honour accepted that submission (para 52). In Carr , the Magistrate had adopted what might be described as the “but for” test. That is, but for the police illegality the subsequent events would not have occurred. Ms Glancey has put a similar submission to me in this case. Smart AJ in considering this “but for” aspect said “ I would read the remarks of the magistrate as being confined to the facts of the present case. They should not be applied more broadly”. In Carr His Honour referred to the importance of the police conduct and the alleged offending being “ closely related and interconnected” . In this matter it is to be observed that the police conduct complained of in respect to the stop does not relate to the accused before the court but to a third party (Mr Fahri) and that it was the accused herself who voluntarily and without any encouragement or solicitation by police became involved in the fracas that then developed outside her home. It is also to be borne in mind that the evidence garnered by police in respect of the charges before the court that this accused faces could not conceivably have been within the contemplation of police at the time of the vehicle stop. It was only after this accused subsequently and deliberately involved herself in the developing events that any evidence that allegedly points to her having committed any criminal offence became available to police.

25. In DPP v Coe [2003] NSWSC 363, Adams J also had cause to consider the issue of whether evidence had been “obtained” within the meaning of section 138. That case was similar to the present matter in the sense that the alleged illegality was said to have been directed towards a third party rather than the accused. In Coe the accused was charged with a series of assault offences upon a police officer, which offences were alleged to have taken place following an unlawful arrest by police of a friend of the accused, which arrest had occurred in the presence of the accused. The factual similarity to the circumstances here will be clear. His Honour noted the definition of “obtained” within the Oxford English Dictionary, 2 ^nd Edition to be: “ To come into the possession or enjoyment of (something) by ones own effort, or by request; to procure or gain, as the result of purpose and effort; hence generally to acquire, get”.

26. Adams J took the view that this dictionary definition was the sense in which the word “obtained” was used in section 138 and that accordingly, the assault by Mr Coe upon the police officer had not been obtained by the actions of the officer. His Honour went on to indicate at paragraph 12 that “ It seems to me that something more than a mere causal link………or ” trigger” is necessary before S.138 comes into play”. After considering the way in which the word “obtained” was interpreted by Smart AJ in Carr His Honour said this at paragraph 24;
“It will be seen from the above discussion that Smart AJ considered that ‘obtained’ was the practical equivalent of ‘caused’ or ‘stemmed from’. For the reasons that I have given, I am, with the greatest respect, unable to agree with this interpretation. The word ‘obtained’ is in ordinary parlance and should not be unduly or artificially restricted: Haddad & Treglia (2000) A Crim R 132 per Spigleman CJ at [73] but it cannot apply more widely than circumstances which fairly fall within its ambit. Where ‘real evidence’ is indeed obtained as a result of impugned conduct, then the case would, of course, come within the purview of the section, even if the conduct was not undertaken for the purpose of acquiring evidence. Where, however, the evidence in question is that of offences which have been caused by the impugned conduct, it does not seem to me that the evidence will have been ‘obtained’ unless something more is shown than the mere causal link: the circumstances must be such as to fit fairly within the meaning of ‘obtained’, almost invariably because the conduct was intended or expected (to a greater or lesser extent) to achieve the commission of offences. In some cases, of which Robinett and Carr may be examples, there could be such an expectation that offences will result from the impugned conduct that it will be reasonable to say, as an objective matter, that they were ‘obtained’ by that conduct but these situations will be rare”.
I do not believe that one could reasonably say that any conduct by police in this matter could generate an expectation of the offences with which this accused is charged.

27. In DPP v AM [2006] NSWSC 348, Hall J also had cause to consider the meaning of “obtained” within section 138. In that case it was submitted to His Honour that Adams J in Coe had adopted a narrow approach and Smart AJ in Carr a broad approach to the meaning of the word. In AM police had attended at a shopping centre to investigate a broken window. When they were leaving the defendant who was a young person, used offensive language toward them. Police stopped their vehicle, returned to the scene and an incident involving some physical interaction of a kind that is unfortunately familiar to the Local Court then developed. The young person was arrested for using offensive language and was subsequently alleged to have committed the further offences of resist officer in the execution of duty and assault officer in the execution of duty. The issue in the case was the propriety or otherwise of the young person’s arrest, and whether the evidence of it had been relevantly “obtained”. His Honour noted that the observations of Adams J in Coe as to “obtained” were obiter and indicated his disagreement with certain of them. He said at paragraph 80 and following of the judgment;

80 With the greatest respect to the view expressed by Adams, J. in Coe (supra) at [24], I am unable to agree with all that is therein stated. Before identifying the area of disagreement, I record the following propositions:-

(a) Where a law enforcement officer intentionally engages in purposive action designed or expected to procure or induce the commission of offences, then plainly evidence of those offences will have been “obtained” in relation to them.

(b) Where a person is subject to an ill-advised or unnecessary arrest but the suspected offender acts in a way which amounts to a disproportionate reaction, an issue may arise, as it did in Coe, as to whether that offence can, as a matter of causation, be said to be a consequence of the arrest.

(c) In other circumstances, however, offences that stem from an ill-advised and unnecessary arrest, may objectively be considered the anticipated or expected outcome and so “obtained” for the purposes of s.138.

81 The reservation that I have expressed in the preceding paragraph relates to the observation of Adams, J., that in the context of offences that are said to stem as an unintended consequence from an arrest, that there is a need to establish “conduct that was intended or expected (to a greater or lesser extent) to achieve the commission of offences” as a necessary and separate element in order to satisfy the notion of “obtained” in that context.

82 In the passages quoted from the judgment of Adams, J. set out in paragraphs [77] and [78] above, the proposition is advanced that in cases of the kind referred to in the preceding paragraph, the word “obtained” in s.138(1) requires, in addition to a causal nexus, that the impugned conduct must either be “intended” or “expected” to achieve the commission of offences. However, cases involving an ill-advised or unnecessary arrest which result in unintended consequential offences by definition lack a purposive element. In other words, offences stemming from such an arrest occur without any intention on the part of the arresting officer to provoke such offences. It is, for that reason, that I cannot agree with Adams, J. that in such cases the word “obtained” cannot be satisfied unless the causal nexus is also accompanied by “something more” in the nature of “intended” conduct. I do, however, with respect agree with his Honour’s observation that in order in such cases for evidence to be “obtained”, it may, in some such cases, be necessary that the conduct (the arrest) be of a kind that could be “expected” to give rise to the commission of further offences. The reference to an “expectation” by Adams, J. in Coe may, in some cases, be a material aspect and Robinett and Carr could, as his Honour observed, be seen as examples of that proposition.

83 However, I should add that in relation to the term “obtained” in s.138(1), the reference by Adams, J. to a need in some cases for there to exist circumstances from which the commission of offences may be expected seems to me not to involve or require proof of an element additional or separate to the essential causal relationship. Reference to what might be expected to follow from certain conduct essentially, in my opinion, relates to the likelihood of an event occurring. In other words, whether one thing might be expected to give rise to another is really an aspect that is related to causation – how likely is an arrest, for example, to give rise to particular conduct? This essentially involves questions of predictability and anticipation. I do not, with respect to the observations of Adams, J. on this aspect, see that as a separate or additional matter (the “something more”) distinct and separate from the question of causation. Whether one matter can be said to be expected to give rise to or be the cause of another will often depend upon the intensity of the relationship between them or, as Adams, J. observed, whether there was a “close link” between them

28. While there are clearly some areas of disagreement between Adams J and Hall J, it does seem to me that it is agreed between them that in some cases it may be necessary for there to be an expectation that the improper conduct of police would lead to the commission of further offences before evidence could be regarded as relevantly “obtained”. Hall J expresses this in terms of the likelihood of an event occurring and notes that it is in essence a question of causation. It is also to be observed that the facts of the matter I am dealing with are more closely aligned to those in Coe than in AM, the critical similarity being that the alleged police impropriety relates to a third party rather than the accused, so giving rise to a significant issue of causation.

29. On the facts that I am dealing with and the evidence before me at this point, I do not accept that any conduct by police in relation to the vehicle stop could be said to have given rise to the expectation or likelihood that the accused would subsequently conduct herself in the way that she did by voluntarily assuming a role in the events that transpired. In my view there is no causal nexus between the alleged improper vehicle stop and the charges before the court that this accused faces. This was for all intents and purposes a relatively routine traffic stop by police, the fact that it quickly escalated into something more had no causal relationship with the stop itself and was principally as a consequence of the accused’s own behaviour. It could not reasonably be regarded as being due to any behaviour by any other person. Further, the alleged offences that this accused faces could not be said to have been procured or obtained by the act of the police in stopping the car of a third party, even if that third party, as it appears to be the case here, was in a personal domestic relationship with the accused. It follows from all of the above that any evidence pertaining to this accused was not in my view relevantly “obtained” for the purpose of section 138 as a consequence of the vehicle stop of Mr Fahri.

30. If I am in error as to the questions of both the impropriety and/or illegality of the stop, and as to whether the evidence was relevantly “obtained” then the discretionary question posed by section 138 would fall to be considered. Given the way in which Ms Glancey’s argument was advanced I will deal with this issue later in these Reasons, my findings in that regard being equally relevant to each of the four heads of illegality or impropriety relied upon by her.


THE ARREST OF MR FAHRI


31. Constable Navin’s statement does not make any specific reference to the placing of Mr Fahri under arrest or the basis for doing so, although it may be inferred that it was for the possession of the drugs that police believed they had located inside the vehicle. Acting Sgt Cook’s statement indicates that Mr Fahri was placed under arrest for traffic related offences prior to any search of the vehicle being undertaken. His oral evidence would indicate that prior to his speaking to Mr Fahri and advising him of that fact, he believed that Constable Navin had already placed him under arrest for a licence offence as he had a Field CAN book with him. Constable Navin made no mention of this. Acting Sgt Cook’s evidence was that Mr Fahri then aroused his suspicion by amongst other things, providing him what turned out to be a false name. Acting Sgt Cook said that Mr Fahri said his name was Tyson Joseph and that given his complexion and his Middle Eastern or Mediterranean appearance he found this to be unusual. He said further that Mr Fahri’s use of the word “chief” in reference to him during their discussions was also unusual, this being a term generally used by inmates to refer to corrective services or police officers.

32. Ms Glancey submits that there was no basis for an arrest of Mr Fahri and that the evidence that was subsequently acquired by police, following the search that then ensued, should be excluded. Sgt Loomes says that given the false identity provided by Mr Fahri police had no alternative but to arrest him and that there was nothing unlawful or improper in their doing so, and further that the search of his vehicle which followed was entirely appropriate. He points out in respect of the search that the only evidence before the court is that of Acting Sgt Cook who asked Mr Fahri if he had any objection to the vehicle being searched and was told by Mr Fahri that he did not.

33. As was observed by Barr J in DPP v CAD & Others [2003] NSWSC 196 at paragraph 7, “The law about the arrest of and commencement of criminal proceedings against persons ....................... for minor offences is uncontroversial. Arrest should be reserved for circumstances in which it is clearly necessary” . His Honour there noted “It is inappropriate for powers of arrest to be used for minor offences where the defendants name and address are known, where there is no risk of his departing and where there is no reason to believe that a summons will not be effective”. There is a long line of authority that makes it abundantly clear that the power of arrest, which is a compulsive and extreme power should be used only when absolutely necessary. It involves the deprivation of a citizen’s liberty and is clearly a most serious and significant step. In R v Doolan [2001] ACTSC 69, Madgwick J expressed this principle in the following terms: - “The position of an arresting police officer and that of an arrested citizen if often one of some difficulty. One must start from the rights of the citizen (my emphasis). People are not to be deprived of their liberty except according to law”. In Michaels v R (1995) 184 CLR 117, Gaudron J observed that “Personal liberty is the most important and fundamental of common law rights”.

34. The power of police to arrest without warrant is contained within Section 99 of the LEPRA . That section is in the following terms;
99. Power of police officers to arrest without a warrant
(1 )A police officer may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.
(2 )A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
(a) to ensure the appearance of the person before a court in respect of the offence,
(b) to prevent a repetition or continuation of the offence or the commission of another offence,
(c) to prevent the concealment, loss or destruction of evidence relating to the offence,
(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,
(e) to prevent the fabrication of evidence in respect of the offence,
(f) to preserve the safety or welfare of the person.
(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before a authorised officer to be dealt with according to law.


35. Subsections (1) and (2) of section 99 give police the power to arrest in certain specific circumstances. Subsection (3) absolutely prohibits police from arresting persons unless the officer suspects on reasonable grounds that it is necessary to do so to achieve at least one of the six purposes referred to therein. It follows that if one or more of these six purposes are not met then given the terms of the statutory prohibition any purported arrest would be unlawful. The question to be determined then is, can it be said that it was lawful for police to arrest Mr Fahri in this instance? This requires a consideration to the extent necessary, of the six purposes set out within section 99. One must also bear in mind what the Court of Criminal Appeal in R v Rondo (2001) 126 A Crim R 562 said constitutes a reasonable suspicion, that being what is required in the mind of the police officer in exercising his power of arrest. In Rondo a reasonable suspicion was said to be;
- Less than a reasonable belief but more than a possibility, and
- Not arbitrary, and
- To be considered in light of the information in the mind of police at the time.

36. The only evidence before the Court going to the arrest of Mr Fahri is that of Acting Sgt Cook. His statement makes it clear that his suspicion was aroused in respect of him by firstly the giving of a name that, as it transpired, was false, and secondly because Mr Fahri referred to him as “chief”. It was then that he was placed under arrest for what he indicated were “traffic related matters”. The evidence would seem to suggest that those matters were one or more of; not make right hand turn safely, or some derivative thereof, passenger not wear seat belt or drive while unlicensed. In the normal course none of these relatively minor offences could warrant the police officer exercising his power of arrest.

37. Turning then to a consideration of the various purposes within Section 99(3) of the LEPRA.
(a) to ensure the appearance of the person before the court
In my view Mr Fahri giving to police a false name satisfied this purpose. Not only did the name given arouse Acting Sgt Cook’s suspicion, but also those suspicions turn out to be well founded. As Sgt Loomes submitted, correctly in my view, the police officer was entitled to place him under arrest so as to confirm and/or verify his identity, thus ensuring that he would appear before the court. Without such action by the officer, there could not be any assurance that Mr Farhi would in fact so appear. Subsections (b) to (f) inclusive are not relevant to the circumstances of this matter and there is no evidence to suggest that any of these purposes needed to be met by Mr Fahri’s arrest. In any event, my finding that the purpose in subsection (a) is met is sufficient to validate and confirm the legality of the arrest.

38. In the event that I am wrong as to this aspect and the arrest was unlawful or improper, then for the reasons I have already set out I would not find that any evidence against Ms Nguyen was relevantly “obtained” as a consequence of that illegality or impropriety. As to the search of the vehicle that followed the arrest it is to be noted that after the arrest police received information to the effect that the vehicle being driven by Mr Fahri may be involved in the distribution of heroin and other drugs within the Glenfield area. I am satisfied that this intelligence, coupled with all of the other circumstances existing at the time, gave rise to a reasonable suspicion in the mind of Acting Sgt Cook that the vehicle may have been used, or may contain something used, in or in connection with the commission of a relevant offence; or may contain a prohibited drug. These factors would each singularly and viewed together have given police an entitlement to search the vehicle in accordance with section 36 of LEPRA. Further, the only evidence available to me at this time is that Mr Fahri consented to the search being conducted. In my view there is no basis for excluding the evidence of the search or the evidence of what was located during it, being a small plastic bag containing 6 pieces of foil folded in a way consistent with the common packaging for deals of heroin. In the event that I am in error as to the legality of the search then for the reasons already indicated I am not satisfied that any evidence against this accused was relevantly obtained as a consequence thereof.

THE ENTRY INTO THE ACCUSED’S PREMISES

39. This aspect can be dealt with relatively briefly. The issue is whether following her arrest this accused gave police consent to enter her premises so as to collect a phone so that arrangements for the care of her two-year-old child could be made. The permission is said to have been given to Constable Daly who, despite its importance, makes no note of it at the time, or any reference to it in her statement made five weeks later. Constable Daly gave evidence and was cross-examined at some length. I found her to be a reliable witness. She accepted that she had made no notes of the conversation but said that she could recall its terms being to the following effect:
She said, “Have you got anyone to look after the child”
The accused replied, “My phone is in the kitchen. I need you to go and get my phone so I can ring my family”.
Constable Daly had a clear recall of the conversation because this was the first occasion that she had been involved in the execution of a search warrant as part of the Intelligence Response Team. I accepted her evidence as to this, there was in my opinion a ring of truth to it. It is also to be noted that I received no other sworn testimony as to the question of permission being granted to police to enter the accused’s premises, and further that it was not put by Ms Glancey in her extensive, thoughtful and thorough cross examination of Constable Daly that the conversation had not in fact taken place. I accept that it did and that police did have permission to enter the premises.

40. Unlike the vehicle stop and Mr Fahri’s arrest, the evidence that police came into possession of following the entry into the accused’s premises was clearly “obtained” as a consequence of that entry. No issue of causation or remoteness can arise in that regard. In the event that I am in error as to the police being entitled to enter the premises and given that the obtaining element is clearly made out, this would leave for consideration the exercise of my discretion pursuant to section 138 of the Evidence Act . I will consider this aspect shortly. 41. Ms Glancey further argued that the conversation between the accused and Constable Daly was an admission within the meaning of section 281 of the Criminal Procedure Act ,1986 and that it should be excluded because it was not recorded by police or adopted by the accused. The definition of “admission” contained within the Criminal Procedure Act is to be given the same meaning as that contained in the Evidence Act . In the Dictionary to the Evidence Act an admission is defined as a “previous representation that is;
(a) made by a person who is or who becomes a party to a proceeding (including a defendant in a criminal proceeding); and

An admission has been held to include any form of representation whether by conduct, oral or in writing and includes inculpatory and exculpatory statements which may turn out to be harmful to the accused- See R v Horton (1998) 104 A Crim R 306 and R v Esposito (1998) 105 A Crim R 27. Any statement adverse to an accused in the outcome of the proceedings is to be considered an “admission” for the purpose of the section. Ms Glancey contends that the giving of consent by her client for police to enter her premises is adverse to her in the proceedings given what it was that police discovered upon their entry. Having regard to the terms of section 281 her submission can only relate to the indictable offence with which the accused is charged, being that of receiving stolen property. While the representation by the accused was no doubt made in the course of official questioning, having regard to the wide interpretation given that phrase, I am not satisfied that the representation by the accused allowing the police to enter her premises was an admission. The statement made by the accused could not of itself be regarded as adverse to her, as all it concerned was police entering her premises to provide care for her son. It was what flowed consequentially from the representation rather than the representation itself that gives rise to matters adverse to the accused and accordingly cannot in my view be regarded as an admission.

THE ARREST OF THE ACCUSED

42. At the tail end of the voir dire and in what seemed something of an afterthought, Ms Glancey identified the conduct of police when the accused was arrested for the offences of assault officer and resist officer as giving rise to a further basis to exclude evidence. She submitted that during the arrest police had exceeded their powers to search the accused, by forcibly opening her mouth in breach of sections 21A (2) and 21A(3) of LEPRA . This forcible opening of her mouth was apparently for the purpose of retrieving the drugs that the accused was said to have placed there. In my view, this submission goes to the substantive question of whether police were acting in the execution of their duty at the time of these alleged offences, rather than to the question of the admissibility of that evidence on the voir dire. I am not persuaded that the evidence obtained by police at this point of the incident should be excluded on the basis submitted and I decline to do so. That is not to say however that the matters raised by Ms Glancey may not warrant further consideration later in the proceedings.

THE SECTION 138 CONSIDERATIONS

43. In the event that I am in error as to –
the legality or impropriety of the vehicle stop, or
the legality or impropriety of Mr Fahri’s arrest and search, or
the legality or impropriety of the police entry to the accused’s home, or
the relevance of the police conduct when the accused was arrested, or
the fact that the evidence subsequently acquired by police following the vehicle stop and the arrest and search of Mr Fahri was not relevantly “obtained” in connection with this accused;
then I must, given the way the voir dire was conducted, indicate my view, in the exercise of my discretion as to the admissibility of such evidence. Section 138 of the Evidence Act provides a discretion to exclude evidence once that evidence has fallen within its terms. It is concerned with balancing public interests of ensuring “ obedience to the law in the gathering of evidence and enforcement of the laws in respect of offenders” – See R v Camilleri [2007] NSWCCA 36 at paragraph 31. In Em v the Queen (2007) 232 CLR 67, Gummow and Hayne J J in considering the unfairness discretion under section 90 of the Evidence Act, adopted the statement of the High Court in The King v Lee (1950) 82 CLR 133 at 155 that “it is in the interests of the community that all crime should be fully investigated with the object of bringing malefactors to justice and such investigations must not be unduly hampered”. Of course, this statement has equal application to a consideration of the section 138 discretion . The more serious the offending, the greater the public interest in the conviction of an offender – See R v Dalley (2002) 132 A Crim R 169 at paragraphs 3 to 7. Similarly, the more egregious the illegality or impropriety accompanying the obtaining of the evidence, the more likely it is that the balance will fall in favour of the evidence being excluded – See R v Gilham [2008] NSWSC 88 per Howie J at paragraph 22.

43. Section 138(3) sets out a series of factors that the court must taken into account in the exercise of its discretion to exclude, and I will consider each of those in turn;

(a) the probative value of the evidence
In this matter the probative value of the evidence is high. In Camilleri it was held that “ the fact that the evidence is of high probative value will weigh in favour of its admission”. Here the evidence of items discovered during a search of the accused’s premises, following the events that have been described, could not be other than highly probative, it being evidence that can and in fact does rationally affect the assessment of a fact in issue in the proceedings.
(b) the importance of the evidence in the proceedings
In this matter the evidence is critically important. Without the evidence that is sought to be excluded there would be no case for this accused to answer.
(c) the nature of the relevant offence, ............ and the nature of the subject matter of the proceeding
Ms Glancey submitted that the offences before the court were low-level offences and as a result the court would be less likely to admit the evidence. I do not accept this submission. The accused faces charges all of which carry significant custodial penalties upon conviction. It is not as if any of these offences are “fine only” offences. She is charged with the possession of drugs and other restricted substances, as well as receiving a large quantity of stolen clothing valued at almost $11,000 along with goods in custody of $8,710 cash. Further, she is alleged to have assaulted and hindered police in the process of her arrest. In my view, the offences here charged are of a nature that would militate towards the admission of evidence, rather than its exclusion.
(d) the gravity of the impropriety or contravention
As will be clear from these Reasons I have not found any such impropriety or contravention established. If however I were in error then I would conclude that any relevant police “misconduct” was not grave and can be fairly characterised as minor.
(e) whether the impropriety or contravention was deliberate or reckless
I would conclude that any impropriety or contravention was neither deliberate nor reckless. At its highest it was mistaken and did not involve any calculated or determined attempt to interfere with the rights of the accused or, for that matter, any other person including Mr Fahri.
(f) (g) (h) Not relevant

44. After careful consideration I have concluded that if I had been required to determine the question, I would have admitted the evidence in the exercise of my discretion, the desirability of that admission clearly outweighing the undesirability of admitting it. These are serious offences, and the community has an interest and indeed an expectation that such alleged criminal conduct will be fully ventilated and determined, particularly, as is the case here, (when viewed in respect of this accused) that if there were any illegality or impropriety then same was of a minor nature.

45. It follows from all of the matters set out above that the objection to the admission of the police evidence is overruled and the evidence is admitted.