R v Gunner
[2018] ACTSC 71
•16 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gunner |
Citation: | [2018] ACTSC 71 |
Hearing Date: | 27 February 2018 |
DecisionDate: | 16 March 2018 |
Before: | Mossop J |
Decision: | The evidence obtained on 27 July 2017 during the execution of a search warrant on the black, Subaru Impreza that had been driven by the accused and, in particular, all evidence associated with the seizure of 8.245g of heroin and $5205 in Australian currency from within the vehicle, is not inadmissible under s 138 of the Evidence Act 2011. |
Catchwords: | EVIDENCE – ADMISSIBILITY – application of s 138 Evidence Act 2011 (ACT) – vehicle seized by police without authority – vehicle subsequently searched pursuant to warrant – drugs found – mistaken belief that seizure was lawful – whether evidence was “in consequence” of impropriety or contravention of Australian law – whether evidence should be admitted despite unlawful seizure - evidence admitted |
Legislation Cited: | Crimes Act 1900 (ACT), s114C, 209 Criminal Code 2002 (ACT), ss 603(7), 604, sch 1 pt 1.2, Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 47B |
Cases Cited: | Australian Securities and Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 271 ALR 164 R v Helmhout [2001] NSWCCA 372; 125 A Crim R 257R v Kuzma (unpublished decision of Walmsley AJ, transcript dated 18 March 2016) Re Application by Huy Huu Lee Lee [2009] ACTSC 98; 212 A Crim R 442 |
Parties: | Christopher Michael Gunner (Applicant) The Queen (Respondent) |
Representation: | Counsel J Maher (Applicant) S McLaughlin (Respondent) |
| Solicitors Kamy Saeedi Law (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCC 271 of 2017 SCC 276 of 2017 |
MOSSOP J :
Introduction
This is an application for a pre-trial ruling in relation to the exclusion under s 138 of the Evidence Act 2011 (ACT) of evidence obtained in consequence of an impropriety or a contravention of an Australian law.
Overview of Crown case
The accused is charged with trafficking in a controlled drug other than cannabis, namely, heroin under s 603(7) of the Criminal Code 2002 (ACT). He also faces a variety of related charges which have been transferred: two charges of possession of property suspected of being the proceeds of crime, possessing a drug of dependence (namely methylamphetamine), possessing a prohibited substance (namely heroin), unlawful possession of stolen property, and driving with a prescribed drug in his oral fluid.
On 25 July 2017 a police officer conducted a traffic stop on the accused. He tested negative on an alcohol screening test but returned a positive result on a drug screening test and was taken into custody. When taken into custody police located $4212.35 on his person. His oral fluid was subsequently tested and found to contain methylamphetamine. At the time of the traffic stop, police requested his consent to search his car, a black, Subaru Impreza. He declined. After his detention for the purposes of drug testing, his car was seized and taken to the Australian Federal Police Exhibit Management Centre.
On 27 July 2017, police obtained a search warrant under the Drugs of Dependence Act 1989 (ACT) (DOD Act) which authorised the search of the vehicle. Police conducted the search the same day. They located within the vehicle:
(a)a total of 8.245g of heroin, which is the subject of the count on the indictment;
(b)$4835 in an envelope under the driver’s seat, $320 under the trim near the rear passenger door, and $50 within a cup-holder in the centre console, which collectively are the subject of a charge of possessing property suspected of being the proceeds of crime.
On 14 August 2017, police executed a search warrant at the accused’s home where substantial sums of money, heroin, methylamphetamine, multiple telephones, zip-lock bags, scales and a stolen bicycle were found.
The evidence obtained during the search of the vehicle is therefore of central significance to the charge of trafficking of heroin contrary to s 603(7) of the Criminal Code. One of the charges of possession of property suspected of being proceeds of crime contrary to s 114C of the Crimes Act 1900 (ACT) relates to the money found upon the accused person at the point of his detention for the purposes of drug testing as well as the money found during the search of his vehicle. Therefore, the evidence of money found during the search of the vehicle is part of the evidence proposed to be led to support the charge.
The application
By application in proceedings filed 2 February 2018, the accused seeks a ruling that the evidence obtained on 27 July 2017 during the execution of the search warrant upon his vehicle not be admitted into evidence under s 138 of the Evidence Act. More specifically, the accused seeks the exclusion of “all evidence associated with the seizure of 8.245 g of heroin and $5205 in Australian currency from within the Subaru”. The essential ground upon which the application is based is that the seizure and continued detention of the vehicle by police after the detention of the accused was unlawful and that there was a causal link between the unlawful seizure and detention of the vehicle, the obtaining of a warrant and the seizure of the evidence sought to be excluded. The accused contended that the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence.
Evidence
The accused read an affidavit of his solicitor, dated 1 February 2018, which exhibits various documents from within the prosecution brief of evidence. The Crown called Sergeant Christian Phelan who gave oral evidence and was cross-examined. Sgt Phelan was the police officer who conducted the initial traffic stop upon the accused’s vehicle and who was responsible for the seizure and removal of that vehicle to the Australian Federal Police Exhibit Management Centre.
Sgt Phelan has been a police officer for 21 years and a sergeant for approximately 10 years. He gave evidence that the traffic stop involving the accused was conducted a short distance from a property which had come to police attention as a possible house from where drugs were being trafficked. The vehicle driven by the accused had been observed by Sgt Phelan to be coming from a laneway adjacent to that house. The screening test for alcohol proved negative. Sgt Phelan observed that the accused was shaking a little bit and appeared a little bit nervous. He called, by radio, for the attendance of other police who were able to administer a drug screening test. That resulted in a positive test, the detention of the accused for the purposes of further testing and the discovery on his person of an amount of currency. The officer suspected that the currency located on his person was the proceeds of crime. He had that suspicion because of the fact that it was located in the vicinity of a house involved in trafficking drugs, the large amount of currency, the nervousness of the accused, the fact that he declined to permit a search of his vehicle, and some checks over the radio which indicated that he was linked by police intelligence to drug activity.
In cross-examination he agreed that in response to his request for consent to search the vehicle, the accused said that he wanted to get legal advice and that heightened Sgt Phelan’s suspicions. Sgt Phelan said to him “I’m going to obtain a search warrant for your vehicle”. Sgt Phelan did not tell him that he was going to seize the vehicle. He agreed with the proposition that his intention or desire was to search the vehicle because he suspected it might contain drugs.
Sgt Phelan said he seized the vehicle because he suspected that it was being used to transport money that was the proceeds of crime and that it may also have had drugs inside the vehicle. He did not have any suspicion as to any particular type of drugs.
In relation to the potential for obtaining a warrant so as to permit the car to be searched where it had been stopped, his evidence was as follows:
(a)
He did not consider that obtaining a telephone warrant was an option. In
cross-examination he said that his understanding was that if possession of drugs was suspected, then a phone warrant was precluded. Although the basis for this opinion was not explained, his opinion on this point was not the subject of challenge or criticism.
(b)He agreed with the proposition that following the detention of the accused, the circumstances were not so urgent as to require an emergency search on the vehicle.
(c)Because it was approximately 3 pm he did not think that he would be able to get to Court to obtain an ordinary warrant. He had made enquiries with his immediate supervisor as to whether there were any other police available to assist him in obtaining a warrant and the supervisor told him that there were no other police available to assist him at that time.
(d)He commenced preparing the warrant application the next day (26 July 2017) and then obtained it from a deputy registrar of the Supreme Court on 27 July 2017.
(e)He described his purpose in seizing the vehicle as being that it was a vehicle that was being used to transport the proceeds of crime, being the currency that was found on the accused, and also that he suspected that there may be drugs in the vehicle.
His evidence about whether he had power to seize the vehicle was as follows:
It was my belief that my power to seize that vehicle, like any evidence that I would come across on the street, whether or not it be, for instance, a - a bloody shirt that I thought was involved-linked to a crime, or a package that was addressed to someone that was sealed addressed linked to a crime. I thought it was-I’d be using the same powers I would be there in seizing the vehicle at that time. I suspected it was linked to a crime.
In relation to whether it was possible for him to have left the car on the street where it had stopped and subsequently obtained a warrant, he said:
The vehicle was approximately 500 m from the address that it had come from. As I said to you previously, there was intelligence to suggest that drugs were being trafficked from that address. If there was anything in that vehicle, I doubt whether or not it would still have been there the following day.
In cross-examination he said:
… So you had a suspicion-at that point you had a suspicion that there were drugs in the accused’s vehicle?---Yes.
And you wished to conduct a search of it?---Yes.
But at that point in time, you felt or you believe you had no power to conduct a search-at that specific time?---That’s right.
So your evidence is that you made a decision to seize the vehicle?---Yes.
You believe you had a power to do so?---Yes.
And the intention was to see the vehicle and then obtain a warrant to search the vehicle?---Yes.
In relation to whether or not he could have obtained a warrant without seizing the vehicle, his evidence in cross-examination was:
Would you agree if I said that you would have still be able to get a warrant without having sees the car?---A warrant, what, for the car?
If you hadn’t seized the vehicle?---Yes.
Could you have still apply for a warrant?---For that vehicle?
Yes?---Yes, I could have. But it wouldn’t have made sense.
It wouldn’t have made sense, because you’ve given evidence that you doubted that there would be any evidence in it the following day had you not seized it?---That’s right.
So in essence, you’re saying that there was a risk that the evidence suspected might be present on 25 July might be gone by the next day if you didn’t see the vehicle?---Yes.
He accepted that if the accused had been released from detention, as he was, police would have had no power to stop him from collecting the vehicle from the roadside (so long as the accused did not drive it as he was subject to a direction not to drive under s 47B of the Road Transport (Alcohol and Drugs) Act 1977 (ACT)).
He agreed that although he had told the accused that he suspected there were drugs in the vehicle, he did not disclose to the accused that he suspected that the accused committed the offence of possessing proceeds of crime.
In re-examination, he was asked about his evidence to the effect that there was no urgency for a search after the accused had been detained. He said that was because “the defendant couldn’t hop in his vehicle and drive away” and, as such, there was no urgency. He was then asked why, in those circumstances, he considered it necessary to seize the vehicle. His evidence was:
(a)he was unable to obtain a warrant at that time;
(b)he seized the vehicle because he believed that the money on the accused person was the proceeds of crime and he suspected there may be drugs in the vehicle;
(c)he believed that if he left the vehicle by the roadside and returned the subsequent day with a warrant “that vehicle wouldn’t have been there, or would have been broken into and whatever was in that vehicle would no longer have been there”.
Application of s 138
The case was argued on the basis that the relevant provision was s 138(1)(b) of the Evidence Act. That applies where evidence is obtained “in consequence of an impropriety or of a contravention of an Australian law”. It requires that the evidence not 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”.
The Crown conceded that the seizure of the vehicle was not authorised by law. Therefore the seizure involved, at the very least, a trespass to property. The submissions of the Crown accepted that it was either an impropriety or of a contravention of an Australian law for the purposes of the section.
However the Crown did contend that the obtaining of the evidence was not “in consequence of” any such impropriety or contravention. It is necessary to deal with this issue first before going on to consider the factors set out in s 138(3) relevant to the balancing exercise contemplated by s 138(1).
Causation
The evidence was obtained “in consequence of” the seizure of the vehicle. That is because the seizure of the vehicle allowed it to be preserved in the state that it was when it was being driven by the accused and any items within it not interfered with by the accused or any other person prior to the obtaining of a search warrant. That was the express purpose for which it was seized. As a matter of fact, the discovery of the material during the search occurred following the seizure of the vehicle and the conduct of the search where, when and in the manner that it was the result of Sgt Phelan taking possession of the vehicle. It is therefore the case that "the evidence can be directly linked to the impropriety": Re Application by Huy Huu Lee [2009] ACTSC 98; 212 A Crim R 442 at [31]. That in the counterfactual situation that the car was not seized a warrant might have been obtained and executed anywhere that the car was located and that the car may possibly have contained the same evidence as was in fact obtained does not detract from the actual causal chain present in this case.
Therefore the evidence was obtained “in consequence of” the seizure of the vehicle.
Section 138(3) factors
Section 138(3) provides an inclusive list of matters required to be considered for the purposes of exercising the discretion under s 138(1). It is convenient to address, as the parties have done, those considerations individually. They adequately cover the matters relevant to determining whether or not “the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained”.
(a) The probative value of the evidence
The finding of the drugs is highly probative of the fact that the accused possessed or transported th drugs and hence of the offence of trafficking, particularly in circumstances where the Crown places reliance upon the presumption of trafficking in s 604 of the Criminal Code.
The finding of money in the car in combination with the money found upon the person of the accused is also highly probative in relation to the charge of possession of property suspected of being the proceeds of crime.
(b) The importance of the evidence in the proceeding
The Crown placed principal reliance upon the evidence of the presence of heroin in the vehicle for the purposes of the charge on the indictment, namely trafficking in heroin. As I have pointed out above (at [6]), the evidence about what was found in the vehicle is of central significance to the charge on the indictment, namely trafficking in heroin. While there were some other indicia of trafficking and some small quantities of heroin found during a search of the accused and his home on 14 August 2017, the Crown case as particularised in the case statement relies, in relation to the actus reus of the offence, solely upon the presence of the heroin in the vehicle on 25 July 2017.
In relation to the money found, that is an important part of an essential element of the alleged offence of possessing property suspected of being the proceeds of crime. However, some of the money relied upon in relation to this offence was found upon the person of the accused rather than inside the vehicle.
(c) The nature of the relevant offence … and the nature of the subject matter of the proceeding
The relevant offence is trafficking contrary to s 603(7) of the Criminal Code. The charge relied upon the presumption in s 604 of the Criminal Code relating to possession or transport of a trafficable quantity of heroin namely 5g: see Criminal Code, sch 1, pt 1.2, item 86. The maximum penalty for the offence if proven is imprisonment for 10 years or a fine of $150,000 or both.
The other relevant offence is possession of property suspected of being the proceeds of crime contrary to s 114C of the Crimes Act. That carries a maximum penalty of two years imprisonment or a fine of $30,000 or both.
(d) The gravity of the impropriety or contravention
The unlawful interference with property is a serious infringement on the rights of a citizen. The conduct amounted to an unlawful trespass to the property of the accused. It did not, however, involve any deprivation of his personal liberty or intrusion into his home. It did not involve any invasion of his privacy. To the extent that his privacy was invaded by entry into and search of the vehicle, that was, when it occurred, authorised by a warrant. It did not involve any contumelious disregard of the rights of the accused but instead arose from ignorance of the extent of police powers. It did not involve any particular adverse consequences for the accused other than the obvious deprivation of the vehicle until the search was conducted.
(e) Whether the impropriety or contravention was deliberate or reckless
The actions of Sgt Phelan in seizing the vehicle were clearly deliberate actions. However, his conduct did not involve a deliberate or reckless decision to unlawfully infringe the rights of the accused. Rather, his decision to act as he did arose from a rather surprising ignorance of the extent of his powers. He proceeded as he did because he thought he was entitled to. He did so with the intention of subsequently obtaining a warrant to permit lawful entry into and search of the vehicle. Because of that mistaken belief as to his entitlement to seize the vehicle as he did, he failed to give proper consideration to the alternative powers that were available to him.
Because of his mistaken belief in his entitlement to seize the vehicle, he did not deliberately infringe the rights of the accused nor was he reckless in the sense of having “some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation of a conscious decision to proceed regardless or alternatively a ‘don’t care’ attitude generally”: R v Helmhout [2001] NSWCCA 372; 125 A Crim R 257 at [33].
(e) Whether the impropriety or contravention was contrary to a right of a person recognised by the International Covenant on Civil and Political Rights (ICCPR)
The accused submitted that the unlawful seizure and arbitrary detention of a vehicle until a search warrant could be obtained was contrary to art 17 of the ICCPR. Article 17(1) provides “No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”. The submissions of the accused did not explain which of these elements were relied upon. In the circumstances it could really only be an allegation of arbitrary or unlawful interference with the “privacy” of the accused. What was involved was a seizure of a vehicle with the subsequent entry into and search of that vehicle being authorised by a warrant. The accused provided no authority for the proposition that the seizure of the vehicle in those circumstances involved an arbitrary or unlawful interference with his privacy. I do not consider that there was such an interference.
(f) Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention
No other proceedings are likely to be taken in relation to the unlawful seizure of the vehicle. The accused points, in particular, to the likely absence of disciplinary proceedings and submitted that this is a factor increasing that the need for curial disapproval of the actions of police.
(g) The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
The accused submitted that there was no other lawful basis to seize, detain or search the vehicle in the circumstances. He submitted that this tells against the admission of the evidence because, in those circumstances, to allow the evidence would “[undermine] protections that benefit all members of society and particular those innocent members who may find themselves wrongly suspected of criminal activity”: The matter of Re Application by Huy Huu Lee Lee [2009] ACTSC 98; 212 A Crim R 442 at [68].
The Crown submitted that police had the power to search the vehicle on the roadside pursuant to each of s 209 of the Crimes Act and s 198 of the DOD Act. Therefore the impropriety made it no easier to obtain the evidence and instead delayed the obtaining of that evidence.
Perhaps the more usual situation accommodated by this consideration is a situation in which a police officer takes a shortcut which involves an impropriety or contravention of Australian law in order to obtain evidence that could not have been obtained, or could only have been obtained, by a more formal legal process such as the obtaining of a search warrant. An example of that is the decision in the R v Kuzma (unpublished decision of Walmsley AJ, transcript dated 18 March 2016). In that case, a police officer trespassed on premises and discovered an item of stolen property and only subsequently obtained a warrant to search the premises. Because of the unlawful conduct by the police in trespassing, the evidence was excluded.
It has been pointed out that this factor will often be either neutral or equivocal. That is because there would be a stronger case for excluding evidence if there was no power to obtain it lawfully. There will also be a strong case for excluding it if there was a power to obtain it lawfully but no real effort was made to comply with the relevant legal requirements: Parker v Comptroller-General of Customs [2007] NSWSC 348; 243 ALR 574 at [61]; Australian Securities and Investments Commission v Sigalla (No 2) [2010] NSWSC 792; 271 ALR 164 at [128].
In the present case, notwithstanding the submissions of the accused, I consider that it would have been possible for the officer to obtain the evidence lawfully had he not been under the misapprehension that he had a lawful entitlement to seize the vehicle. His evidence that there was no urgency surrounding the situation which he faced because the accused had been taken into detention was given in the light of his misunderstanding that he was entitled to seize the vehicle. The other evidence that he gave was to the effect that it was not possible to obtain a warrant in the time available and that he believed the vehicle was likely to be interfered with if left where it was on the street. It might have been possible for a police officer to stay with the vehicle, but such an officer would not have had a right, as against the owner or an agent of the owner, to prevent the removal of the vehicle (in the absence of the exercise of powers under s 188 of the DOD Act or
s 209 of the Crimes Act). Sgt Phelan might have been able to make an application for a warrant to the duty magistrate later that afternoon or evening. Neither of these possibilities were explored in the evidence and it was not suggested by the accused that the significance of the unlawful seizure of the vehicle was increased by either of those possibilities. It would have been reasonably open to the officer, had he not been under the misapprehension about his powers, to form the view that the circumstances were “serious and urgent” for the purposes of s 209 of the Crimes Act. The threshold of “suspects” in s 209 is lower than that of “believes” in s 188 of the DOD Act and was likely to be able to be satisfied by the officer’s state of mind. The availability of other powers which could have been exercised in the circumstances is, in the present case, a factor which tends to reduce the significance of the impropriety or contravention because it indicates that what was achieved unlawfully would probably have been achieved lawfully in the absence of the mistaken belief on the part of the police officer.
Result
In the present case there is clearly a significant public interest in admitting the evidence as it is the principal evidence of the commission of a serious drug trafficking offence and, to that extent, the admission of the evidence is desirable.
On the other hand, it is clearly undesirable that police officers interfere with the property of citizens in a manner that is not authorised by law. In the present case, the conduct of Sgt Phelan did not involve any contumelious disregard for the rights of the accused. Rather, his unlawful seizure of the vehicle arose from a surprising ignorance of the extent of police powers in the circumstances. As demonstrated by the ultimate application for a warrant, the intention of the officer was only to make entry into the vehicle when that was clearly lawfully authorised.
The assessment of the “undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained” will be influenced by the Court’s perception of the prevalence of the impropriety or contravention of Australian law. That was made clear by Crispin J in relation to reliance upon defective warrant in R v Caruso [2006] ACTSC 45 at [35] where His Honour said:
I accept that it is also in the public interest that the power provided by s 187 of the Act be properly exercised and if the apparent pattern of ill-considered warrants is continued this factor will, no doubt, assume progressively greater weight. In the long run, courts cannot tolerate a continued disregard of legal requirements that are intended to provide procedural safeguards against the unjustified infringement of rights and it is not inconceivable that further cases will arise in which judges feel compelled to reject potentially crucial evidence on this ground.
See also R v Ljubic [2013] ACTSC 125 at [10]; ALRC 26 Evidence vol 1 [964].
The present case did not fall into any such established pattern of police conduct. Clearly the position would be different if the perception of the Court was that conduct such as this was an example of a pattern of police conduct or was motivated, not by ignorance but by resource constraints or police convenience. However, in the present circumstances, I consider that 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.
Therefore I rule that the evidence obtained on 27 July 2017 during the execution of a search warrant on the black, Subaru Impreza that had been driven by the accused and, in particular, all evidence associated with the seizure of 8.245g of heroin and $5205 in Australian currency from within the vehicle, is not inadmissible under s 138 of the Evidence Act 2011.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 16 March 2018 |
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