R v Mathews
[2019] ACTSC 151
•4 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mathews |
Citation: | [2019] ACTSC 151 |
Hearing Dates: | 29 May and 3 June 2019 |
DecisionDate: | 4 June 2019 |
Before: | Mossop J |
Decision: | See [66] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application – vehicle seizure by police without authority – drugs found – content of “reasonable suspicion” – police powers relating to search and seizure – whether evidence should be admitted despite unlawful seizure – where evidence obtained in evidence not inadmissible |
Legislation Cited: | Crimes Act 1900 (ACT), ss 185, 209, 209(1)(b), 209(1)(c) Criminal Code 2002 (ACT), s 603(7) |
Cases Cited: | R v Caruso [2006] ACTSC 45 R v Gunner [2018] ACTSC 71 |
Parties: | The Queen (Crown) Joshua Mathews (Accused) |
Representation: | Counsel V Conliffe (Crown) J Campbell (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 159 of 2018 SCC 160 of 2018 |
MOSSOP J:
The application
The accused, Joshua Mathews, is charged with trafficking in a controlled drug other than cannabis, namely, 3, 4‑methylenedioxyamphetamine (MDA) contrary to s 603(7) of the Criminal Code 2002 (ACT). In the alternative he is charged with possessing MDA for the purpose of sale or supply contrary to s 164(3)(c) of the Drugs of Dependence Act 1989 (ACT). He also faces the following three charges transferred from the Magistrates Court:
(a)driving under the influence of a drug contrary to s 24(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CC2017/10369);
(b)possessing a drug of dependence, namely cocaine, contrary to s 169(1) of the Drugs of Dependence Act (CC2017/10371); and
(c)possessing a drug of dependence, namely methylamphetamine, contrary to s 169(1) of the Drugs of Dependence Act (CC2017/10372).
By Application in Proceeding dated 24 May 2019, he has applied for a pre-trial ruling that would exclude from the evidence at the trial two categories of evidence:
(a)evidence associated with or obtained at the execution of a search warrant on the vehicle that he was driving at the time when he came to the attention of police; and
(b)all evidence “regarding the accused person being taken into custody” including the taking of a blood sample from him and the analysis of that blood sample.
The accused contends that the evidence should be excluded pursuant to s 138 of the Evidence Act 2011 (ACT) because the evidence was obtained in consequence of an impropriety or contravention of Australian law and the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence.
The accused contends that the seizure by police of his vehicle on 18 April 2017 was without lawful authority and, as a consequence, the evidence obtained during the subsequent search of the vehicle was obtained in consequence of an impropriety or contravention of Australian law. He contends that the balancing exercise required by s 138 should lead to the exclusion of the evidence. So far as the blood sample is concerned, he submits that it was not lawfully taken because the provisions of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) which could authorise the taking of that blood were not applicable in the circumstances. He submits, therefore, that the sample was obtained as a result of an impropriety or contravention of Australian law and that it should be excluded under s 138. However, in the event that the evidence obtained as a result of the search of the vehicle is not excluded then he does not press the objection to the admission of the evidence arising from the taking of the blood sample because he wishes to rely upon that evidence as part of his defence to the trafficking charge.
The Crown case
On 18 April 2017, police attended the car park of the Jamison Centre at Macquarie in the Australian Capital Territory (ACT) in response to an unrelated aggravated burglary. At about 2:38am, police noticed a red Mitsubishi Lancer being driven erratically within the car park. Concerned about the manner of driving, the police stopped the vehicle and spoke to the driver, the accused. When speaking to the accused his appearance and demeanour caused police to suspect that he was under the influence of an intoxicating substance. Screening for alcohol produced a negative result. The accused declined consent to have his vehicle searched. The accused was taken into custody for the purposes of having a blood sample taken. His vehicle was seized by police and a search warrant was subsequently obtained in relation to that vehicle. When the search warrant was executed on 3 May 2017, a number of different drugs were located including 21.691g of pills containing MDA. These pills give rise to the charges on the indictment. A small amount of cannabis was located. Some white powder containing cocaine was located. This gives rise to the transfer charge of possession of cocaine (CC2017/10371). 3.278g of methylamphetamine was also located. The methylamphetamine gives rise to the transfer charge of possession of methylamphetamine (CC2017/10372). Also located during the search was a set of silver digital scales, a machete, various clip seal plastic bags, two hunting knives and a spoon with aluminium foil wrapped around it. Forensic testing indicated that the DNA of the accused was on the blade and handle of the machete, the blade of one of the hunting knives, the handle and blade of the other hunting knife and the exterior surfaces and inner seal of the empty clip seal bags found in the vehicle.
Relevant facts
It is necessary to describe the chronology of events in some more detail.
At about 2:35am on 18 April 2017, Sergeant Michael Banks and Constable David Nugent attended the Jamison Centre car park in Macquarie in response to an unrelated matter, an alleged aggravated burglary of a liquor store.
At about 2:38am Sergeant Banks and Constable Nugent noticed a red Mitsubishi Lancer being driven erratically within the car park. They stopped the vehicle and Constable Nugent spoke to the driver who was identified as the accused. Constable Nugent observed that the accused appeared confused and disoriented and had glassy, bloodshot eyes. Constable Nugent smelled a strong odour of cannabis coming from the driver’s side window of the accused’s vehicle.
Constable Nugent directed the accused to reverse his vehicle into one of the parallel parking bays in order to carry out a breath test. The accused reversed his vehicle a significant distance in the opposite direction before stopping again and eventually complying with Constable Nugent’s request. Once the vehicle driven by the accused was stationary, Constable Nugent smelled a very strong odour of cannabis coming from the open driver’s side window.
Due to the accused’s manner of driving, his appearance and demeanour, Constable Nugent suspected that he may be under the influence of an intoxicating substance.
Constable Nugent made a radio call to ACT police operations and requested a “pissy box”. This is a reference to a breath screening device referred to as an Alcolizer. He also asked whether there were “any RSOT units on”. The reference to “RSOT” is a reference to Road Safety Operations Team. These are the police teams whose members are trained in the use of roadside drug screening tests and oral fluid analysis to test drivers for illicit drugs. He was told that there were no such teams on duty.
Checks conducted by Constable Nugent over the ACT policing inquiry line indicated that the accused was known to have prior associations with weapons and drugs.
Whilst waiting for an Alcolizer to arrive, the accused told Constable Nugent that the vehicle belonged to him, that he had not recently consumed any alcohol or cannabis and that his vehicle did not contain any drugs or drug paraphernalia. The accused handed Constable Nugent a small amount of cannabis in a clear plastic wrap.
At 3:09am, Senior Constable Darby arrived at the car park with an Alcolizer and the accused gave a negative result for alcohol.
Following a caution, Constable Nugent asked the accused about the contents of his vehicle and observed that the accused became visibly nervous and started shaking. Constable Nugent sought the accused’s consent to search his vehicle, but the accused declined and asked to speak to a lawyer. The accused made several attempts to contact a lawyer.
Constable Nugent and Senior Constable Darby observed the accused to be talking constantly, contradicting himself, forgetting what he was talking about and having difficulty comprehending police. On multiple occasions he asked Constable Nugent for water and told him that his “mouth was dry because of the cones”, before immediately contradicting himself. Due to their observations Constables Nugent and Darby formed the opinion that the accused was under the influence of a drug.
Senior Constable Darby left the car park to swap her vehicle for a caged police vehicle so that the accused could be transported to hospital for a blood test for illicit substances.
While waiting for Senior Constable Darby to return the accused asked Constable Nugent hypothetical questions about the consequences that may result should police locate particular items in his vehicle. Constable Nugent asked the accused whether his vehicle contained any drugs or weapons and the accused began to tremble and stammer responses that were either incoherent or conflicting in nature. The accused eventually said that there were no such items in his vehicle.
When questioned further about the contents of his vehicle, Constable Nugent observed that the accused became increasingly nervous. He maintained his refusal to consent to a police search of the vehicle but explained that his vehicle contained a tyre iron and a machete which he did not want the police to seize as he needed them for protection.
The accused continued to ask hypothetical questions about the consequences of items being found during a search of his vehicle.
At 3:36am, Senior Constable Darby had returned with a caged vehicle and Constable Nugent placed the accused in police custody for the purposes of providing a blood sample to screen for illicit substances. At about this time, Sergeant Banks seized the accused’s vehicle and car key. He told the accused that his vehicle would be towed to the Australian Federal Police’s Exhibit Management Centre (EMC) in Mitchell until a search warrant could be executed on it.
At about 3:55am, Constable Nugent and Senior Constable Darby arrived at the Canberra Hospital with the accused. At 4:19am, a tow truck arrived at the car park to tow the accused’s vehicle to the EMC.
At 4:26am, a nurse at the Canberra Hospital obtained a sample of the accused’s blood for analysis. Methylamphetamine was detected in the accused’s blood sample.
At 4:29am, Constable Nugent released the accused from custody.
At 4:55am, Sergeant Banks, who had followed behind the tow truck, lodged the accused’s vehicle at the EMC.
Constable Nugent was next rostered on at 9.00pm that day and it was obviously impractical to obtain a search warrant during that shift. His next day on duty was 26 April 2017. It was only on 2 May 2017 that he obtained a search warrant. That was because his other obligations as a general duties police officer limited the time available to put the application together.
On 3 May 2017, Constable Nugent organised a locksmith to attend the EMC. There is an issue relating to the custody of the vehicle because of some uncertainty whether the keys to the vehicle were kept securely when it was at the EMC. That is an issue which will be explored at trial. It is clear that the car was ultimately opened by the locksmith without using the car keys.
Once the vehicle was opened a search of it was then conducted. During the search the drugs and other items referred to earlier were found. The vehicle was returned to the accused on 4 May 2017.
Sergeant Banks died after the events in question. At the time of his death he had not prepared a witness statement for use in the proceedings. His notebook was in evidence and transcripts of some radio communications that he made were also in evidence.
Powers to search or seize the vehicle
Counsel for the Crown did not contend that there was a lawful basis for the seizure and detention of the vehicle in the absence of the consent of the owner. The Crown did not point to any statutory provision or common law entitlement that would, in the circumstances, permit a police officer to seize the vehicle. For the purposes of s 138 “Australian law” includes the unwritten law that applies in the Territory: Evidence Act, Dictionary Pt 1 “Australian law”; Evidence Act, Dictionary Pt 2, clause 9. The denial of the common law right to possession of property owned by a person would amount to a contravention of Australian law. If the denial of that common law right did not, as a matter of construction, amount to a contravention of an Australian law then it would clearly amount to an impropriety for the purposes of s 138. Therefore, the ruling on this issue proceeds on the basis of the Crown’s acceptance that the seizure of the vehicle involved a contravention of Australian law or an impropriety insofar as it involves an unlawful taking of possession of the vehicle without the consent of the owner.
The police had powers which would have potentially authorised a search of the vehicle in the car park and hence avoided the need to seize it. Section 209 of the Crimes Act1900 (ACT) permits a police officer to stop and detain a conveyance, to search the conveyance and any container in it or on it for a thing relevant to a serious offence or a thing which was stolen or otherwise unlawfully obtained, and seize that thing. The section applies if a police officer “suspects, on reasonable grounds, that”:
(a)a thing relevant to a serious offence or a thing stolen or otherwise unlawfully obtained, is in or on a conveyance; and
(b)it is necessary to exercise a power under subsection (2) to prevent the thing from being concealed, lost or destroyed; and
(c)it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.
A serious offence means an offence punishable by imprisonment for longer than 12 months: s 185 of the Crimes Act.
There was also a power under s 188 of the Drugs of Dependence Act which would have permitted the search of the vehicle if a police officer “believes, on reasonable grounds”:
(a)that it is necessary to do so to prevent the concealment, loss or destruction of any thing connected with an offence; and
(b)that the circumstances are of such seriousness and urgency as to require the immediate exercise of the power without the authority of a warrant issued under section 187 or of an order of a court.
Given that suspicion is a less intense state of mind than belief, the argument in the present case was more directed to the former than the latter. In other words it focused on whether or not Constable Nugent and Sergeant Banks suspected on reasonable grounds the matters required by s 209 of the Crimes Act and hence would have had power to search the vehicle in the car park.
When attending the scene Constable Nugent largely dealt with the accused while Sergeant Banks, the more senior officer, dealt with the incident which had prompted the attendance of police at the Jamison Centre, namely the aggravated burglary of the nearby liquor store. Sergeant Banks obtained information from Constable Nugent about his interactions with the accused and his suspicions in relation to the accused. Because Sergeant Banks died without preparing a witness statement, the evidence about his state of mind must be derived from the evidence of Constable Nugent, transcripts of radio communications made by Sergeant Banks and the terms of his police notebook. His state of mind is significant because he was the officer who ultimately seized the accused’s vehicle and hence was responsible for what the Crown accepts was a contravention of an Australian law or an impropriety.
However, for the purposes of undertaking the balancing exercise in s 138, it is relevant to understand how the conduct engaged in by the police related to the legal powers which were, in fact, available to them. The thrust of the submissions made by counsel for the accused was that the only suspicion based on reasonable grounds that the officers had was that the accused had consumed some illicit drug. As a consequence, she contended that there were not reasonable grounds for a suspicion that the vehicle contained illicit drugs and hence the power under s 209 of the Crimes Act was not available in the circumstances. The submissions went as far as to suggest that Sergeant Banks had fabricated evidence in order to justify a statement that he made over the radio that he had reasonable grounds to believe that his car contained illicit substances.
In his police notebook Sergeant Banks recorded that the driver “stated that there was drugs in his car to [Constable] Nugent”. This record is inconsistent with the evidence of Constable Nugent who denied having told Sergeant Banks this. However, I do not accept the submission of the accused that this indicates some form of fabrication on the part of Sergeant Banks and that he did not have belief or suspicion based on reasonable grounds about the presence of drugs in the vehicle. The notes of Sergeant Banks are minimalist. The note relied upon may be a summary of the effect of the various things said to Sergeant Banks including the hypothetical questions about what police would do if various things were found in the vehicle. On the other hand it may be an error. In the absence of oral evidence from Sergeant Banks, it is not possible to say why he recorded the note in the manner he did. However, given that he was largely dependent upon Constable Nugent for his information, for the reasons which I describe below, I am satisfied that he, at the very least, suspected on reasonable grounds that there were illicit substances in the vehicle.
The accused also relied upon terms of a conversation with police operations and Sergeant Banks at 3:43am in which Sergeant Banks refers to the accused in unflattering terms and using unattractive language and refers to him being “wasted”. The accused also refers to the manner in which Sergeant Banks recounts a request made by the accused concerning his lawyer. Counsel for the accused relied upon these passages as indicating an inappropriate attitude to the accused in order to challenge the reasonableness of any belief or suspicion held by the sergeant about the presence of illicit drugs in the vehicle. While the evidence is enough to demonstrate some unfortunate use of language and statements about the accused which reflect a casually dismissive attitude which is undesirable in police communications, it is not sufficient by itself, or in combination with other evidence, to indicate any improper attitude to the accused on the part of Sergeant Banks that influenced his approach to dealing with the accused. It is not possible to make much of the statement about a request by the accused in relation to his lawyer because a critical portion of it is recorded in the transcript as being “indistinct”.
Of more significance in the circumstances of the present case is the state of mind of Constable Nugent, as the officer who dealt directly with the accused. (Senior Constable Darby also dealt directly with the accused and the evidence of her observations was consistent with that of Constable Nugent.)
I accept the evidence of Constable Nugent that he had reasonable grounds to base a suspicion that there were drugs in the vehicle. His evidence indicated that the following matters were relevant to the view which he formed at the time:
(a)the manner of driving of the vehicle when initially approached by police;
(b)that he could smell cannabis when he first approached the vehicle;
(c)that he was refused permission to search the vehicle;
(d)that he was told that there were weapons in the vehicle, namely a tyre iron and a machete;
(e)that the accused’s eyes were bloodshot and he was confused about what was going on and then became very nervous;
(f)that the accused commenced asking hypothetical questions of Constable Nugent about what he would do if particular things were found in the vehicle;
(g)that he had handed over a small amount of cannabis which Constable Nugent thought was not sufficient to explain the smell which he had perceived;
(h)that an inquiry of police indices indicated past association with weapons and drugs;
(i)the accused’s requests for water because the accused’s “mouth was dry because of the cones” before immediately contradicting himself; and
(j)the negative result of the screening test for alcohol.
While the circumstances were most obviously consistent with a suspicion that the accused had consumed illicit substances, they are certainly not limited to only such a suspicion. Constable Nugent’s evidence was that he had multiple suspicions and that it included a suspicion that there were illicit substances in the vehicle. I accept his evidence that he had such a suspicion. The matters that I have referred to above are, taken collectively, more than sufficient in my view to provide reasonable grounds for the suspicion which Constable Nugent had. I do not accept the submissions made by the accused directed at some of the matters in isolation. While, if the matters were taken individually, it might be possible to undermine the reasonableness of a suspicion based solely or largely upon that matter by reference to alternative explanations for its existence, taken together the matters have a much greater capacity to provide reasonable grounds for Constable Nugent’s suspicion.
I do not accept the submission that the failure to record the amount of cash that was taken from the accused when he was put into the caged vehicle undermines the evidence of Constable Nugent that he had a suspicion about there being drugs in the vehicle. Obviously if there were large amounts of cash then that would have been a significant additional ground for such a suspicion. However, the fact that there weren’t quantities of cash that were worth noting is not a factor which undermines the suspicion, or the reasonable grounds for it. Similarly, the fact that no statutory direction not to drive was given to the accused upon being released from detention is not a matter which undermines the existence of a relevant suspicion in Constable Nugent. For example, a direction not to drive may have not been given because the accused’s vehicle had been seized.
There was no real contest that if there were reasonable grounds for a suspicion that there were illicit drugs in the vehicle then there were reasonable grounds for suspecting the matters required by s 209(1)(b) and (c) which I have set out above.
I accept the evidence of Constable Nugent that, when Sergeant Banks returned, Constable Nugent discussed with him the behaviours that he had observed and his suspicions and the fact that the accused had returned a negative result to the alcohol screening test. I also accept that he discussed the possibility of conducting a search there or seizing the vehicle and that Sergeant Banks made the decision to seize the vehicle. I accept that as a result of his training and discussions with Sergeant Banks, Constable Nugent believed that an available alternative to conducting a search on the vehicle at that time was to seize the vehicle and to subsequently obtain a search warrant. He believed that if there was an alternative means of dealing with the evidence then that took away the urgency that would justify a search on the spot and he believed that it would be more appropriate to seize the vehicle in circumstances where the accused appeared to be under the influence of a drug. He did not consider that it was appropriate to leave the car in position without a crime scene guard. He said that given the operational requirements it would not have been practicable to proceed in that manner.
At the point of being detained, the accused did consent to one of the police officers conducting a search. However, by that stage, the police considered that it was more appropriate to proceed as they had decided to because of the limited nature of the consent, the possibility that consent might be withdrawn during the course of the search and the fact that they were operating under the understanding that there was a time limit within which the accused needed to be taken to hospital to have a blood sample taken.
Application of s 138
Section 138 provides that evidence obtained in consequence of an impropriety or a contravention of an Australian law must 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.
Section 138(3) provides a non-exhaustive list of matters which must be taken into account. I will address each one of these.
(a) the probative value of the evidence
The evidence is highly probative. Relevantly, the evidence is evidence of the presence of the methylamphetamine, cocaine and MDA in the vehicle at the time that it was searched. There is an issue as to the chain of custody of the vehicle which will be raised by the accused at trial. Given the separation in time between the accused being in the vehicle and the discovery of the drugs within the vehicle, the evidence is not as probative of possession as would be the case if the drugs were seized shortly after the accused was last present in the vehicle. However, the evidence is still of high probative value.
(b) the importance of the evidence in the proceeding
The evidence is of fundamental importance to the proceedings. Without the evidence obtained during the execution of the search warrant, each of the charges laid against the accused would fail.
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding
The offences charged are serious drug-related offences. The proceedings are criminal proceedings seeking to establish those offences. They are thus proceedings in which there is a strong public interest in prosecuting the offences and a strong public interest in protecting the rights of the accused.
(d) the gravity of the impropriety or contravention
The unlawful interference with the vehicle of the accused is a serious infringement of his rights. The conduct in question was an unlawful trespass to the property of the accused. It did not involve any trespass to his person. Given the delay by the police in conducting the search, the accused was denied his property for in excess of two weeks. The length of time taken to search and return the vehicle increased the gravity of the contravention. There is no specific evidence about the level of inconvenience suffered by the accused during that period although, having regard to the importance of the vehicular transport, it is likely that it was significantly inconvenient to be denied the use of his property during that period. The property was returned to him shortly after the completion of the search and hence does not extend beyond the period actually taken to conduct the search. The seizure of the vehicle did not involve any contumelious disregard for the rights of the accused. Instead, as in R v Gunner [2018] ACTSC 71, it arose from ignorance of the extent of police powers.
The gravity of an impropriety or contravention may be increased if it is part of a pattern of conduct. Having regard to the facts in Gunner (where the seizure of a vehicle suspected of containing drugs occurred in July 2017), the ignorance of the extent of police powers was not confined to the officers involved in the present case. Whilst conduct forming part of a pattern that extended beyond the circumstances of an individual case would generally increase the gravity of the conduct for the purposes of s 138(3)(d), two points must be noted in the present case. First, the conduct predated that addressed in Gunner so that it was not influenced by the conduct in Gunner or the court’s decision in that case. Second, the conduct was not motivated by police convenience as it involved a greater devotion of time and resources to achieve a search of the vehicle than if the search was conducted in the car park.
(e) whether the impropriety or contravention was deliberate or reckless
The impropriety or contravention was not deliberate or reckless. While the seizure of the vehicle was clearly a deliberate action, the conduct of police did not involve an intentional or reckless decision to unlawfully infringe the rights of the accused. Rather, the decision arose from an ignorance of the extent of police powers. The vehicle was seized because police thought that they had power to do so and that taking that approach would be more appropriate than conducting an emergency search of the vehicle in the car park.
(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
The accused submitted that the seizure of the vehicle involved actions contrary to the right of an accused recognised under the International Convention on Civil and Political Rights, namely Art 17 of that instrument. Article 17(1) provides “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”. The accused submitted that the seizing of his vehicle was an arbitrary or unlawful interference with his privacy, presumably on the basis that in the absence of lawful authority he was entitled to keep private the contents of his vehicle.
In assessing this aspect of s 138 it must be borne in mind that the ultimate search that was carried out upon the vehicle was one which was authorised by a search warrant and hence one which was lawful. The submissions of the accused did not identify how the seizure of the vehicle itself (as opposed to its ultimate search), would amount to an arbitrary or unlawful interference with the privacy of the accused. Rather, it was an unlawful or arbitrary interference with the property of the accused. This is the same set of circumstances in which the submission was made and rejected in Gunner and, as in Gunner (at [35]), I do not consider that there was such an interference.
(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
No proceedings have been or are likely to be taken in relation to the seizure of the vehicle.
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
Had it not been for the misconception that seizure of the vehicle was an option that was available, it is reasonably clear that Constable Nugent would have exercised the power under s 209 to conduct a search of the vehicle. The only reason that he did not exercise that power was because his understanding that the alternative course of seizing the vehicle was available which led him to consider that there was no relevant urgency for the purposes of the statutory provisions.
Had the search been conducted in the car park, it is likely that the same items would have been found. The MDA, cocaine and methylamphetamine were all located within or near a white Emporia branded box located in the lower storage compartment of the driver’s side door. Assuming that they were in that location at the time the vehicle was stopped in the car park, they would have been readily able to have been located during a search of the vehicle.
Therefore there was actually no difficulty in obtaining the evidence lawfully. The course embarked upon by the police did not involve any shortcut on their part or any greater convenience. Rather, it was more expensive, complicated and time-consuming than the alternative course available. It required the obtaining of a search warrant as well as the devotion of resources to seizing and securing the vehicle until it could be searched. Thus, while the evidence might have been obtained without impropriety or unlawfulness, it is not a case where a motivation on the part of police to short-circuit protections on an accused provides a powerful consideration supporting the exclusion of the evidence.
Result
The non-exclusive list of factors referred to in s 138 are sufficient to cover the relevant considerations in the present case.
There is clearly a significant public interest in admitting the evidence as it is the principal evidence in the commission of serious criminal offences.
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. The interference in the present case did not involve any contumelious disregard for the rights of the accused. Rather, as was the case in Gunner, it arose from a misconception that seizure of the vehicle was an available alternative to conducting an emergency search authorised by statutory provisions.
In the present case, the search took place prior to the search that was the subject of the ruling in Gunner. It is therefore not a case in which a further example of unlawful conduct on the part of police indicates an ongoing pattern of conduct despite the unlawfulness being exposed in an earlier case. As a consequence, the comments in R v Caruso [2006] ACTSC 45 at [35] referred to in Gunner, cannot be applied in a way that alters the balance between, on the one hand, the desirability of admitting evidence and, on the other hand, the undesirability of admitting evidence that has been obtained in the way that the evidence was obtained.
I consider that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way that the evidence was obtained. I will therefore rule that evidence obtained on 3 May 2017 during the execution of a search warrant on the accused’s red Mitsubishi Lancer and the presence of 3, 4‑methylenedioxyamphetamine, cocaine and methylamphetamine is not inadmissible under s 138 of the Evidence Act.
Counsel for the accused indicated that if the evidence obtained during the execution of the search warrant was admitted, then the second aspect of the application which sought a ruling in relation to the admissibility of the results of the blood test performed upon the accused at the Canberra Hospital would not be pressed. In those circumstances, it is not appropriate to consider that aspect of the application further.
The orders of the Court are:
1. The evidence obtained on 3 May 2017 during the execution of a search warrant on accused’s red Mitsubishi Lancer and the presence of 3, 4‑methylenedioxyamphetamine, cocaine and methylamphetamine is not inadmissible under s 138 of the Evidence Act.
2. The Application in Proceeding dated 24 May 2019 is otherwise dismissed.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 2 August 2019 |
0