R v Jimenez

[2000] NSWCCA 390

Reported Decision: 119 A Crim R 299

New South Wales

Court of Criminal Appeal

CITATION:	R v Jimenez [2000] NSWCCA 390
FILE NUMBER(S):	CCA 60002/00; 60057/00
HEARING DATE(S):	26 July 2000
JUDGMENT DATE:	6 October 2000
PARTIES :	Regina v Glen Jimenez
JUDGMENT OF:	Fitzgerald JA at 1; Smart AJ at 12; Ireland AJ at 69

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0323
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	RJ Button PG Berman
SOLICITORS:	TA Murphy SE O'Connor
CATCHWORDS:	Criminal law - police not using video recorder present at scene during critical part of search - verdict unsupportable - correct procedures on search - inconsistent police evidence
LEGISLATION CITED:	Nil
CASES CITED:	M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR 439
DECISION:	Appeal against conviction allowed; conviction and sentence quashed. Enter a verdict of acquittal on the charge of supplying a prohibited drug (heroin) on 25 November 1998. Crown appeal against sentence dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60002/00
CCA 60057/00


FITZGERALD JA
SMART AJ
IRELAND AJ

Friday, 6 October 2000

REGINA v Glen JIMENEZ
JUDGMENT

1   FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Smart AJ. 2   At the Court’s request, the Director of Public Prosecutions provided the Court with what was described as the “Education Package for Video/Audio Recordings of Search Warrants and Planned Operations” which was current at the time when heroin was allegedly found on the appellant’s person. The Director also informed the Court that there is an “updated version applicable today”. Hopefully, the present version is more precise and specific than the 1998 version. 3   However, the 1998 “Education Package” plainly recognised the need for police officers to avoid problems such as that which has arisen on this occasion. The first page commenced with the following paragraphs:

“The execution of search warrants has been identified by the commissioner, in his reform of the NSW Police Service Phase One document, as a high risk area for police corruption. He has specifically mentioned the Video Recording of Search Warrants in the Phase One Reform Agenda, in point 115.
As a result, Standing Operating Procedures for the Video/Audio Recording of Search Warrants and Planned Operations have been developed. These SOP’s represent a comprehensive best practice guideline outlining duties and responsibilities for video operators.
…”

4   In the Introduction section of the “Education Package”, attention is drawn to point 115 in the Phase One Reform Agenda, which it is said requires that “..by the 1st January, 1997, practice and procedure guidelines be developed for audio/video recording of the execution of search warrants.” The following paragraph reiterates that Standard Operating Procedures “addressed this reform by providing a comprehensive best practice guideline outlining duties and responsibilities for video operators.” 5   The first page in the section of the Education Package headed “Standing Operating Procedures” contains the following “Statement of Principle”:

“The searching of premises and the seizure of property/exhibits is a high risk policing function, considering the opportunities and temptations police face when locating stolen goods, illicit drugs and/or money. From time to time, the credibility and integrity of police actions have been questioned.

As part of the continuing commitment of this Service to improve professionalism and personal accountability. Standing Operating Procedures for the Execution of Search Warrants have been developed.

It is during the execution of search warrants that video recording provides the most reliable account of what occurred and serves as an additional valuable tool to eliminate both corruption and unjustified complaints. For this reason Standing Operating Procedures (SPO’s) for Video/Audio Recording of Search Warrants and Planned Operations have been developed.

These standing operating procedures for video/audio recording of search warrants and planned operations, with emphasis on the seizure of property/exhibits, are intended as a guide. They can and should be enhanced as appropriate depending upon the type of search and or operation involved.”

6   The next section, headed “General,” commences with a note directing that the following Standard Operating Procedures “be read in conjunction with those relating to the execution of search warrants. ….” The Standard Operating Procedures then given include the following:

“…..

…. The purpose of the video camera is to give a “moving picture” following the location of property until its recording and, where practical, the storage of the exhibit in an exhibit bag.

The video camera should record the location of items found through to the recording of those items. This includes, weighing drugs and counting money etc.

….

….
Sufficient batteries should be on hand to ensure the type of recording required can be completed.

Unfavourable inferences can be drawn at court if the recording is stopped before a job is complete or at a crucial moment. The excuse that “the batteries were flat” is hardly professional.”

7   The evidence given by the police officers against the present appellant must be read against the background of the Police Services’ directions to police officers contained in the Education Package. Further, although the punishment of those guilty of serious offences such as the supply of heroin is important, it is now understood that the protection of accused persons from the risk of false evidence from police officers is critical to the administration of justice and serves the interests of the community and the Police Service in addition to those of the accused. When police officers follow unsatisfactory procedures, police evidence implicating an accused person and attempting to explain why unsatisfactory procedures were followed must be sceptically scrutinised. It is impermissible to proceed on an assumption that the police would not fabricate evidence or, at worst, only do so if an accused is guilty. The criminal justice system entitles accused persons, not police officers, to the benefit of any reasonable doubt. 8   Although the jury saw and heard the witnesses and had the primary responsibility for determining the appellant’s guilt or innocence, this Court is required to set aside a conviction based on the jury’s verdict if the Court is satisfied that a reasonable jury ought to have experienced a reasonable doubt which could not have been resolved by reference to the demeanour of the prosecution witnesses. Criminal Appeal Act 1912 s 6(1). Jones v R (1997) 191 CLR 439, 451. 9 These principles are easier to state than to apply in practice. Extreme deference is paid to the verdict of a properly instructed jury, and the appellant accepts that the jury was correctly instructed in this case. On the other hand, it is legitimate to have regard to the opinion of other judges. Smart AJ is satisfied that the jury should have had a reasonable doubt about the appellant’s guilt. That was plainly also the opinion of the trial judge, who, like the jury, saw and heard the witnesses. Smart AJ has drawn attention to some of her Honour’s remarks. In addition, her Honour gave a formal certificate that this was a fit case for an appeal by the appellant against his conviction on the ground that “[t]here is a serious question of fact which needs review.” 10 Whether or not the appellant is guilty, I am persuaded that, having regard to the unsatisfactory aspects of the prosecution evidence, the jury should have had a reasonable doubt about his guilt. 11 Accordingly, I agree with the orders proposed by Smart AJ. 12 SMART AJ: Glen Jimenez appeals against his conviction of supplying a prohibited drug namely heroin (48.6 grams) on 25 November 1998. That quantity was allegedly found on the appellant’s person. The Crown case was one of deemed supply. The appellant challenges the jury’s verdict on the ground that it was unreasonable and that the jury should have entertained a reasonable doubt as to his guilt. The trial judge was critical of the conduct of the police and the excuses which they gave for their shortcomings. She thought that there was much force in the argument that the police had “fitted up” the appellant with the drugs allegedly found upon him. 13 The police were conducting a controlled operation, the target of which was Harold Brett Goodsell. About 2.30pm on 25 November 1998 Senior Constable Bell obtained a search warrant from a magistrate permitting the police to enter and search Goodsell’s premises at unit 63/103 Victoria Street, Potts Point. He was suspected of dealing in and supplying heroin and the police wished to search his unit for heroin. 14 The appellant stated that he had known Goodsell for some time. During the latter part of the afternoon he went to Goodsell’s unit to buy some heroin which he had been using. The appellant said that while at the unit he had smoked some of Goodsell’s heroin and chatted. He had a couple of smokes. Goodsell left the unit to buy some ice creams. The appellant remained in the unit and dozed. At that stage the appellant had not purchased or taken delivery of any heroin. He had $200 and wished to purchase for $160 two small amounts of heroin which Goodsell usually sold in small balloons. No transaction had taken place prior to Goodsell leaving the unit and his subsequent arrest. 15 About 5.50pm Goodsell was arrested in Hugh Street, Potts Point. Bell handed the search warrant to Detective Sergeant Maricic. Bell and Snr Constable Luck escorted Goodsell to the Kings Cross police station. Shortly after 6pm Maricic accompanied by Senior Constables Lindwall, Spencer and Stace and Constable Langthorne attended at the unit. Prior to entering the unit the police knocked loudly on the door and called out. There was a delay of a minute or so before the door was opened. 16 Present in the unit were the appellant and a lady known as Lizette Reveco. According to the police when they entered the flat the appellant was in the bathroom washing his face. Some officers thought he was perspiring profusely around the head. 17 The appellant was asked by Stace to come into the lounge room. He was escorted there and seated on a lounge. Senior Constable Reynolds told the appellant that they were just waiting for the independent police officer to arrive. Spencer had a video recorder. 18 Shortly before 6.30pm Bell, Luck, Goodsell and Sergeant Ford (Acting Inspector) entered the unit. Ford was not part of the drug team. His task was to observe what took place and receive any complaints. Bell served the occupiers’ notice of the search warrant upon Goodsell and that was recorded by the video machine. Spencer then made a video recording of the condition of the entire premises prior to the commencement of a search. 19 While the video record was being made Lindwall moved over to the bathroom door near to the appellant. According to Lindwall the appellant said that he was feeling sick and needed to vomit. Lindwall alleged that he noticed that the appellant was sweating and had a distressed look. 20 Lindwall asked the appellant to wait until the video filming was finished. A few minutes later the appellant stated that he needed to be sick. Lindwall called Maricic over and the appellant insisted that he needed to go to the toilet as he felt like being sick. 21 Lindwall and Maricic said that they escorted the appellant to the bathroom. Maricic placed a plug in the basin and told the appellant to be sick there. The appellant stood poised over the basin for a few seconds and then straightened up. 22 Both Lindwall and Maricic asserted that they noticed that the appellant’s right-hand went to the front of his jeans. Lindwall stated that he told the appellant to keep his hands out of his pockets. Lindwall claimed that he noticed at this time that the top button on the appellants jeans was undone. Lindwall stated that he took hold of the appellant turned him away from the basin and told him that he was going to be searched. Lindwall asserted that he asked the appellant if he had anything on him that he shouldn't have and that the appellant said, “No.” 23 Lindwall stated that he removed an amount of crunched up toilet paper from the appellant's left hand jeans pocket and $200 in cash from the appellant's right-hand jeans pocket. In his statement made on 27 November 1998 Lindwall made no reference to Spencer coming to or into the bathroom to film the money. The impression created by the statement is that Spencer was called into the bathroom later and that all filming took place later, that is, after two balloons containing heroin found on the appellant’s person were removed. When Lindwall was asked in cross examination why he made no reference in his statement to the filming of the money he stated that he did not have access to the video when he made his statement. It is not easy to accept that Lindwall would forget the filming of the money as the money was the first item found and the appellant was asked to count it in front of the camera. The statement was made two days after the incident. 24 Spencer said that after making a sweep with the camera of the premises his attention was drawn to the bathroom. He believed that one of the police in the bathroom called him to the bathroom. In his statement Spencer made no reference to the finding of the money and the filming of the $20 notes, his withdrawal from the bathroom area into the remainder of the unit and his subsequent return to the bathroom area at Maricic’s behest to film the two balloons. His account of watching the search does not fit well with evidence of the other witnesses as to his position in the flat and being called to the bathroom area. He recalled Lindwall placing a pair of latex gloves on his hands, opening the fly of the appellant’s trousers, placing his hands inside the appellant’s underpants and subsequently holding 2 balloons. 25 Maricic stated that after the appellant had entered the bathroom and moved his right hand to the front of his jeans Lindwall told him that he (Lindwall) was going to search him and asked if he had anything on him which he shouldn’t have. The appellant said “No”. Lindwall commenced to search the appellant and removed $200 from his pocket. At that stage, according to Maricic, Spencer entered the bathroom by co-incidence. Maricic asserted that he had not directed or called for Spencer. He had just walked into the bathroom. On Spencer entering the bathroom Maricic said that it was 6.47pm. The ensuing conversation was recorded as was the counting of $200. 26 Maricic stated that after the counting of the $200 and the conversation Spencer left the bathroom and the video camera was switched off. 27 Lindwall stated that he told the appellant that he was going to search down the front of the appellant’s pants. Lindwall, who was wearing latex gloves, at this stage, said that he undid the fly of the appellant’s jeans and pulled out his underpants. 28 Lindwall stated that he noticed a large green balloon wrapped item, that he asked the appellant what was down the front of his pants but the appellant did not reply. Lindwall said that he placed his hands inside the appellant's underpants and removed a large green coloured balloon containing a rock like substance. Lindwall said that he next removed from inside the appellant’s underpants a large white balloon wrapped item also containing a rock like substance and showed them to Maricic. Maricic gave evidence to the same effect. Upon Lindwall removing the green balloon Maricic asserted that he said to the appellant, “How did that get there?” and the appellant replied “I don’t know.” 29 Both Lindwall and Maricic stated that after the white balloon wrapped item was seized Maricic went to the bathroom door and called out to Spencer to come in and video the items located. He did so. Maricic said that he said to the appellant “The video has just been turned back on.” The appellant was placed under arrest and cautioned. This was recorded. Spencer then left the bathroom area. 30 A strip search of the appellant took place. Maricic stated that he then had a conversation with Spencer and he entered the bathroom with the video camera. Maricic stated that he said, “The video is now back on. Prior to the video being switched on, whilst a proper strip search was being conducted of Mr Jimenez, Detective Bell remarked, ‘I think that’s rock’ and Mr Jimenez indicated, ‘Yeah, that one’s rock.’ Mr Jimenez said, ‘No, I didn’t, I didn’t say anything.’” This conversation was recorded. 31 An unusual situation has arisen. The video recording camera was available in the flat. Lindwall had stated his intention to search the appellant. Lindwall and Maricic were suspicious that the appellant had some drugs on his person. There was plenty of time and opportunity to place the appellant in a position where the search could be filmed and to have Spencer film the search. At that stage the searching of the appellant was an important, if not the most important, aspect of the police entry and search. Despite all this, the search of the appellant was not filmed. Events of obviously less importance had been filmed. Curiously, after the items wrapped in the balloons are alleged to have been recovered from the appellant they were filmed. The police unit carrying out the entry and search was the Kings Cross Drug Unit and the officers involved were experienced. 32 In cross examination Maricic confirmed that Spencer was not present while the critical search was undertaken and the two balloon wrapped items were allegedly removed from within the underpants of the appellant. Maricic also agreed that after Lindwall had pulled out the appellant’s underpants and asked him “What have you got in your pants?” he could have held up the search for a moment or so while he had Spencer come back into the bathroom with his video camera and film the search. However, Maricic protested that this was with hindsight and denied that he and Lindwall had “loaded up” the appellant with the balloons. Maricic conceded that he had been instructed to use video cameras to avoid disputes as to what had occurred. Maricic denied that the bathroom door was ever closed. 33 Maricic, as the officer in charge of the operation, stated in his evidence in reply that he was unable to give any explanation as to why he did not ask Spencer to come in and film the actual search by Lindwall. 34 Bell, who made his statement on 30 November 1998, said that he saw Maricic and Lindwall escort the appellant to the bathroom and that a short time later he (Bell) walked to the bathroom. He heard Lindwall say to the appellant “Glen, I’m going to search you…” Bell stated that he saw Lindwall locate $200 in the appellant’s right hand jeans pocket and heard Maricic call for Spencer to enter the bathroom. As Spencer did so, Bell left. Bell stated that a short time later he again entered the bathroom and saw Lindwall holding a green balloon and a white balloon. He noticed that Spencer was filming with the video camera and that Maricic was holding a recorded conversation with the appellant. Bell did not suggest that he had seen the search. 35 Reynolds, who made his statement on 5 December 1998, said that he walked to the entrance of the bathroom about a minute after the appellant was escorted there by Maricic and Lindwall. Reynolds stated that he saw Lindwall searching the appellant including undoing the all button fly and looking down the appellant’s underpants. He heard the appellant state that there was nothing down the front of his pants and Lindwall state that he was going to place his hand down the front of appellant's underpants and remove the item down there. 36 Reynolds stated that he saw Lindwall open the top of the appellant’s underpants, place his hand down the front of such underpants and remove a large green coloured blue wrapped item. He asserted that Lindwall again placed his hand down inside the appellant's underpants and removed a white coloured blue wrapped item. Reynolds said that Maricic then called for Spencer to video the items located. Reynolds stated that he then left the bathroom area. Reynolds could not recall anything about the finding of any money. He did not recall any conversation about money. He could not recall Spencer filming the counting of some money by the appellant. He was unable to pinpoint the movements and positions of Spencer at any given time. He could not remember the sources on which he drew to make his statement. He would have talked to other officers. 37 Ford, who did not make his statement until 14 October 1999 and relied on the notes he made on the Independent Officer’s form, stated that after the appellant, Maricic and Lindwall went into the bathroom he stood adjacent to the bathroom door and saw that the appellant was being searched. Ford stated that Spencer was video recording what was taking place and he (Ford) was looking over his shoulder. Ford said that he saw that the appellant was holding something in his hands which he believed to be money and that he then returned to the lounge room. Spencer also moved away from the bathroom. Ford then heard Maricic call out something. He said that both he and Spencer walked over to the bathroom and Sergeant Maricic told him of finding drugs in the appellant's underpants. 38 Ford said that Spencer filmed Lindwall holding two balloons, one in each hand. A short time later Lindwall conducted a full strip search of the appellant. 39 Luck, who made his statement on 28 November 1998, said that shortly after Bell had explained the details of the search warrant he saw Lindwall, Maricic and the appellant leave the lounge area and walk into the bathroom. The door was closed. Spencer was over near the kitchen area of the unit and not using the video camera at that point of time. A short time later Lindwall opened the door and spoke to Spencer who walked into the bathroom area with the video camera. Luck believed that the bathroom door was closed again but he could not be “a hundred per cent sure.” After several minutes Lindwall came out of the bathroom along with Maricic and the appellant. Lindwall handed Stace two balloons, one of which was green and the other was white. 40 The items allegedly located in the appellant’s underpants were subsequently examined for the presence of fingerprints but no identifiable fingerprints were located. If the appellant had placed the balloons containing heroin in his underpants there is at least an even chance that he would have done so with his bare hands. Lindwall was wearing latex gloves. It is possible that even if the appellant had used his bare hands that an identifiable fingerprint was not obtained on the balloons. 41 The appellant, who gave evidence, did not dispute that he was present in the flat at the time of the execution of the warrant. I have earlier summarised his account of the events of the afternoon after he arrived at Goodsell’s flat and prior to Goodsell leaving the flat at 5.30pm. The appellant said that after smoking heroin he became a little fuzzy in the head, just wanted to sit down and felt very relaxed. He dozed off. The knocking on the door woke him up and he went to the bathroom and washed his face and hands. This was to help him wake up. He said that when he went to the flat he did not have either a green or a white balloon containing heroin. Nor did he take possession of such balloons at the flat. 42 A police officer had come into the bathroom and asked him to come outside. He was escorted from the bathroom. He sat down in the lounge room. He was asked by Maricic what he was doing there and who he was waiting for. He was not a heavy user and had just started to use so that his body was not adjusted to heroin consumption. He said that he was feeling queasy and asked if he could go to the bathroom with one of the officers, probably Lindwall. He told the appellant to wait. After the premises had been filmed he was escorted by Maricic and Lindwall to the toilet. A plug was put in the basin and he was told that if he wanted to be sick to do so in the basin. For a very short period he hovered over the basin but was not sick. 43 The appellant denied that he made any movement towards the front of his jeans or towards the toilet. He said that Maricic asked him if he had anything in his pockets, that he replied “yes” and pulled out, inter alia, $200 cash. The appellant conceded that it could have been Lindwall who located the money. He was asked by Maricic to count the money out in front of the camera. He observed the officer with the camera standing near the door at the entrance to the bathroom filming. Then he and another police officer left. 44 The appellant said that he, Maricic and Lindwall were facing the doorway. Maricic was in front of him and Lindwall was behind him. He was moved further into the bathroom. Lindwall spun the appellant around so that he had his back to the bathroom doorway. At this point he could only see Lindwall. They said, “We’re going to search you.” They asked him numerous times if he had anything on him that he should not have. He replied in the negative. Lindwall asked him to hold his shirt up and undid the fly of his jeans and pulled his underpants out. With his shirt held up this blocked the appellant’s view of Lindwall’s hands. The appellant could not see what Lindwall was doing with his hands with respect to the appellant’s underpants. Then Lindwall let go of his underpants and told Maricic that he had found something. By that point of time the appellant had dropped his shirt. Lindwall held up two balloons. He believed that it was Maricic who called out. Suddenly, two or three other police officers entered the bathroom. The officer with the camera turned up a little later. Maricic endeavoured to question the appellant but the appellant told him that he (the appellant) did not wish to say anything. He was strip searched. He denied that he said anything about the contents of the balloons. 45 In cross examination the appellant denied that Lindwall placed his hands inside the appellant’s underpants at some stage. He said that Lindwall asked him to put his shirt down and that that was when he saw the balloons in his right hand. The appellant said that he did not realise when Lindwall produced the balloons that it was going to be suggested that he had a large quantity of heroin upon his person. He did not know what was in the balloons. He agreed that it crossed his mind in the bathroom that the police might suggest that there was heroin in the balloons. He agreed that it was clear to him that the police were loading him up with something probably a prohibited drug. The appellant agreed that he was shocked and outraged. He was shown the video. He said that he was in a state of confusion and more scared than outraged. He felt powerless. 46 The Crown Prosecutor tried to make considerable capital out of the appellant having exercised his right to silence, not complaining to Ford, not controverting what Maricic said (except as to the alleged admission as to rock), being polite to him and not looking outraged or sufficiently outraged on the video film. The appellant said he was not prepared to stand up for himself. 47 It was pointed out that the appellant did controvert the police allegation that he had said there was rock in the balloons. However, that was in the context of the police trying to extract on video an admission from him that he had said words to that effect. 48 The appellant was in a position of considerable disadvantage at the flat. There were a considerable number of police officers present there, that is, about nine of them. Goodsell was under arrest and the appellant had only met the lady that afternoon. The appellant, indeed most citizens, would have felt overwhelmed in the situation. It is quite unrealistic to expect the appellant to make complaints to Ford. He regarded him as another police officer and not a source of comfort or independence. To describe Ford as an independent police officer does not advance matters. Nor could the appellant be expected to confront Maricic or Lindwall having regard to what the appellant alleged and the presence of so many police officers in the relatively small flat. When the members of the court viewed the video they did not think that any useful assistance could be gained from the appellant’s demeanour as shown on the film. Some of the questions in cross examination did not sit easily with the appellant’s right to silence. 49 Under s 6(1) of the Criminal Appeal Act 1912 the Court of Criminal Appeal is required to set aside a conviction if it is of the opinion that the verdict of the jury should be set aside on the basis that it is unreasonable, or cannot be supported on the evidence. This has led to the formulation of the question whether the court thought, that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at 493 per the majority (Mason CJ, Deane, Dawson and Toohey JJ). In Jones v The Queen (1997) 191 CLR 439 at 451 after referring to this question as propounded in M Gaudron, McHugh and Gummow JJ said:

“The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
“in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
The majority judges explained the application of the test as follows:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

This court must make its own independent assessment of both the sufficiency and quality of the evidence.

50   The Crown case has a number of unsatisfactory aspects. The most important one is the absence of a video record of the search of the appellant at the flat. It was the search of the person of the appellant which was alleged to have yielded up the 2 balloons containing heroin. The absence of such a record is very hard to accept when an officer had filmed the counting of $200 - found on the appellant, a matter of little, if any, significance. It seems that the officer just stood by while the critical search took place. Lindwall and Maricic had determined that a body search was to take place. Neither Maricic nor Lindwall instructed the officer with the camera to film the search even when the fly on the appellant’s jeans had been undone, his underpants had been pulled out and Lindwall and Maricic believed there were items in the appellant’s underpants. In the context, the suspicion was of illicit drugs. For arrangements not to be made to film the search when the video camera was in the flat in such circumstances is surprising. Such a failure raises questions as to what was happening especially when the police were experienced and members of the Drug Unit. 51   Feelings and opinions of unease and doubt are further compounded when some of the officers advance unconvincing excuses for the failure. Lindwall’s suggestion that the reason for not filming the critical search was that it would be an invasion of the appellant’s privacy is precious. He then tried to justify not filming the search by saying that after the search of the appellant’s underpants it was intended to strip search him. Later in cross examination he advanced as one reason the need to avoid running out of batteries. As the critical search occurred early in the police search and it was obviously important this reason lacked validity. At about the time of the critical search Lindwall seemed to agree that there were five police officers in the bathroom (Maricic, Spencer, Bell, Stace and himself) as well as the appellant. It may be that this was immediately before the critical search. The evidence on this point is not entirely clear. 52   In his statement, Spencer claimed to have stood at the bathroom door while Lindwall stood directly in front of the appellant with Maricic nearby. Spencer said that he heard Lindwall say, “Glen, I’m going to search down the front of your pants okay.” He said that Lindwall placed a pair of latex gloves on his hands (at that time), undid the appellant’s fly, pulled it open and said, “What’s down the front of your pants?” The appellant replied, “Nothing”. Lindwall said, “I’m going to place my hand down the front of your underpants and remove the item that is down the front of your pants, okay.” 53   Spencer asserted “Lindwall appeared, from where I was standing to place his right hand down the front of the accused’s underpants whilst holding the underpants out with his left hand … Lindwall removed his right hand and I saw that he was holding a medium sized green balloon which appeared to contain an object.” Spencer said that after transferring that balloon to his left hand … “Lindwall placed his right hand inside the defendant’s underpants and removed a medium sized white balloon which appeared to contain an object … Lindwall … showed [the balloons] to … Maricic, I activated the video recorder and commenced recording … I made a close up recording of these items. I continued recording as … Maricic spoke to the defendant.” 54   When Spencer was pressed as to why he had not activated the video recorder when the body search commenced he back-peddled and gave a number of excuses. He said that he did not activate the video recorder when Lindwall said that he was going to place his hand down the front of the appellant’s underpants and remove the item “Because we don’t leave the camera recording at all times, only when items are located” and “Because the purpose of the recorder is to video any items located in situ, it is not to record the entire search.” He referred to the constraints imposed by batteries and the restraints of the tapes. Spencer agreed that he suspected that Lindwall might find something. He agreed that his investigative mind was “twigged” when Lindwall asked the appellant what was down the front of his trousers. 55   When pressed further as to why he had not activated the video Spencer said that he could not see the front of the appellant’s underpants from where he (Spencer) was. The appellant was a little bit askew. Spencer claimed that he could not film Lindwall removing the green balloon from down the front of the appellant’s underpants from where he (Spencer) was. Spencer said that he could not see Lindwall’s hand going down the front of the appellant’s underpants. He assumed that from what he had heard Lindwall state. Spencer did not film when Lindwall first produced and held up the green balloon. Spencer does not appear to have asked Maricic or Lindwall to put the appellant in a position where the critical part of the search could be filmed. The material in Spencer’s statement as to what he apparently saw was heavily qualified by him in cross examination to such an extent that the impression created by his statement is misleading. 56   Spencer said later, that it would have been difficult to get into position to film the search. He advanced two further reasons, concern about the safety of the officers and privacy. These excuses lacked substance. 57   The appellant relied on what were claimed to be serious inconsistencies in the Crown case. I have already touched upon those relating to the search of the appellant’s person and the filming of that search. The point whether the top button of the appellant’s jeans was undone and that could be seen is not one of sufficient moment to cause any qualms about the verdict. Of more substance is the failure of Lindwall and Spencer to make any mention in their statements of the appellant’s alleged admission that the substance in the balloons or one balloon was “rock”. Lindwall’s explanation for the omission, namely that the conversation was jut a comment between Bell and Stace is hard to accept when it is alleged that the comment was adopted by the appellant. Of itself this is not of great consequence especially as the appellant denies making the statement alleged or any admission. 58   The appellant relied on the irrationality of him having the drugs on his person when he had the opportunity to dispose of them prior to the police entering the flat. The heroin had a significant value especially if mixed with other substances to increase its bulk. The street value when so mixed was quite substantial. Its wholesale value is unknown. Any drug operative would be reluctant to lose about 48 grams of heroin. 59   The appellant also relied on the absence of fingerprints on the balloons. While this is a point worth making it is not decisive. There could be a number of explanations. It is, however, true that there is no independent corroboration of the police case in a situation where serious questions arise as to it. 60   In her summing up the judge gave various standard directions of law and explained the elements of the offence. She outlined the case for the Crown and the case for the appellant. She highlighted the importance of the search of the appellant’s person. At SU 11-12 she said:

“Before you can find the accused guilty in this case you must be satisfied beyond reasonable doubt that the two balloons of heroin were in fact found in the accused’s underpants by the police officers as they allege. You are not asked to make a choice between the police officers and the accused as to whose version you prefer. The Crown must satisfy you that the police are telling the truth. In order to establish that fact beyond reasonable doubt, the Crown must eliminate any reasonable doubt which the version given by the accused may have raised in your minds. You must approach this evidence of the police officers that the drugs were found on the accused with caution because the circumstances in which the drugs were said to have been found by them may make that evidence unreliable. I do not say that the circumstances must make the evidence unreliable. That is a matter for you and not for me to decide. It is for you and not me to decide whether any evidence is reliable or not. My task is no more than to warn you of the possibility that such evidence may be unreliable and to explain why that is so to enable you to exercise the caution which is required in determining whether to accept that evidence and what weight is given to it.”

61   The judge explained why the police evidence may be unreliable mentioning the absence of any electronic record of the critical part of the search, the presence of the police officers, the absence of any independent person and the isolation of the appellant. She pointed out that the police were trained witnesses. She explained that in all the circumstances which prevailed it was easier for the police to fabricate their evidence than for the appellant to have evidence available to challenge what they have said: 62   At SU 15 the judge said:

“You must be satisfied beyond reasonable doubt that the accused did have the drugs on his person, as the police officers have said before, you can take that into account as establishing that the accused is guilty of this charge. In deciding that issue, you must keep in mind the warning which I gave you, that is about the circumstances in which the search was conducted and you must approach the evidence of the police officers on this issue with caution because it may be unreliable.
If, after considering the warning and the other arguments which have been put before you, you are nevertheless convinced beyond reasonable doubt that the accused had the drugs in his underpants as alleged by the police officers, then you should take that into account in determining whether the accused had in his possession the balloons which were shown to contain drugs.”

63   While the judge outlined the contentions of both parties and referred briefly to the facts she did not discuss the evidence in any detail. The trial extended over five days and the factual issues emerged clearly enough from the cross examination of the police officers. 64   No complaint was made of the Summing Up which was balanced and fair. It has caused me to hesitate about and reflect upon intervening. 65   In her remarks upon sentence the judge said:

“Although the search was being video taped there was no filming of the incident in which the heroin was found in the prisoner’s trousers. The evidence of the officers concerned as to why it was not filmed was in my view quite unsatisfactory. Equally the evidence of the officer charged with the filming of the search was at variance with the other officers engaged in the search to the extent that the officer charged with filming said that he was present in the bathroom when the drugs were found and the other officers all said that he was not present but was called into the bathroom after the drugs had been found.
The prisoner maintained throughout the trial that the drugs were not in his trousers but that he was “fitted up” by the police. There is, in my view, much force in the argument. Nonetheless the prisoner was convicted by the jury and falls to be sentenced accordingly.”

66   These are important observations. It is apparent that the judge had considerable doubt whether the conviction was correct. In the whole of the circumstances it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant. The evidence as to the non-filming of the search of the appellant’s person was unsatisfactory. The excuses advanced to justify such non filming lacked weight. The video camera was available in the flat and used to record minor matters but not what mattered. No good reason was advanced for taking such a course. The need to film the critical part of the search was obvious to all. The purpose of having a video camera at any search is to avoid disputes. My grave doubts are strengthened by the inconsistencies in the Crown evidence as to the search and the filming. 67   In the whole of the circumstances I have a reasonable doubt as to the guilt of the appellant and the jury should also have had a reasonable doubt. The conviction cannot stand. As a consequence the Crown appeal against sentence fails. 68   I propose the following orders:

a) Appeal against conviction allowed; conviction and sentence quashed;
b) Enter a verdict of acquittal on the charge of supplying a prohibited drug (heroin) on 25 November 1998;
c) Crown Appeal against sentence dismissed.

69   IRELAND AJ: I agree with the judgment and orders of Smart AJ and with the additional remarks of Fitzgerald JA.

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