R v Murray

[2019] NSWDC 63

District Court

New South Wales

Medium Neutral Citation:	R v Murray [2019] NSWDC 63
Hearing dates:	11 February 2019
Date of orders:	11 February 2019
Decision date:	11 February 2019
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	The admissions by the accused were obtained improperly contrary to s 281 of the Criminal Procedure Act 1986 and ought not be admitted into evidence.  The physical evidence was not improperly obtained and is admissible.
Catchwords:	CRIME – VOIR DIRE – Admissibility of evidence – Whether evidence of admission obtained by police was done so improperly contrary to s 281 Criminal Procedure Act 1986 – Whether physical evidence was obtained improperly or illegally
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	R v Cornwell (2003) 57 NSWLR 82; 141 A Crim R 164
Category:	Procedural and other rulings
Parties:	Regina (Crown) Jessica Murray (Accused)
Representation:	Counsel: Mr C Allison (Crown) Mr T Woods (Accused)   Solicitors: Solicitors for the DPP (Crown) Not recorded (Accused)
File Number(s):	2016/377646
Publication restriction:	Nil

Judgment

1. HIS HONOUR: This is a voir dire in which the accused challenges the admissibility of certain admissions made by her and also challenges the admissibility of evidence which the accused says was obtained improperly or illegally.

2. On the voir dire, statements were admitted from Detective Senior Constable Katherine Bock and Detective Senior Constable Joshua Critchley, as well as a copy of the Crown case statement.

3. Detective Senior Constable Bock has known the accused since June 2015. She originally interacted with her as a police support person in domestic violence proceedings, in which it was alleged that the accused was the victim of domestic violence practised by a male partner. According to the Detective Senior Constable’s statement, she has interacted with the accused on “numerous occasions”. The Detective Senior Constable said that she was known to the accused by her Christian name and that the accused was well aware that she was a police officer. Indeed, the Detective Senior Constable addressed the accused by her first name in the dealings antecedent to those on 16 December 2016.

4. On 16 December 2016, the accused was driving a white station wagon registered number CH-97-TX, which was registered in her name. She was seen by the police to be leaving a driveway at 10 Francis Street, Dee Why. That is an address known to the police as a “drug house”, a place where police intelligence establishes that drugs can be obtained either by a purchaser or by an intermediate dealer.

5. At about 9.15 on that evening, Detective Senior Constable Joshua Critchley was driving an unmarked police motor vehicle in which was also conveyed Detective Senior Constable Bock. The police vehicle was driven to 27 May Road, Narraweena as the two detective senior constables were seeking to serve a subpoena on a resident at that place, Mr Dane Cvijanovic. I trust I shall be forgiven by referring to this gentleman merely as “Dane”.

6. When the police vehicle arrived at 27 May Road, Narraweena, they observed the accused’s motor vehicle parked outside the address. The interior light of the vehicle had been illuminated so that the police could see the two occupants in the vehicle. Detective Senior Constable Bock immediately recognised the accused as being the occupant of the driver’s seat and Dane as the occupant of the passenger seat. Detective Senior Constable Bock had, in the past, also interacted with Dane and knew him by sight.

7. After DSC Critchley parked the police vehicle, Detective Senior Constable Bock alighted from it and approached the driver’s side door of the accused’s vehicle to speak with the occupants. As the Detective Senior Constable approached the driver’s window, which was open, the accused looked out and said, “I thought it was you”. Detective Senior Constable Bock looked into the vehicle and saw Dane holding a wad of $100 and $50 notes. He was also holding a lady’s wallet which she believed belonged to the accused.

8. Detective Senior Constable Bock then had a conversation with the accused. She asked how much the money was and was told by the accused that it was about $1,000. She went on to say that it was her pay from work, which she was giving to Dane to hold. Detective Senior Constable Bock then walked around to the other side of the vehicle, where Dane was alighting from it. Dane was sweating profusely. Detective Senior Constable Bock had not seen anyone sweat in that fashion before. She said that he was nervous and she had also formed the view, by this time, that the accused was also nervous.

9. DSC Critchley took the money that was in Dane’s hands and counted it. The cash amounted to $1,950. While that was being done, Detective Senior Constable Bock continued to speak with the accused. She asked her twice were there any drugs in the car and, on each occasion, obtained a negative response. Detective Senior Constable then asked the accused what she had been doing earlier in the evening and some intelligence was conveyed to her. The accused ended that part of the conversation by telling the Detective Senior Constable that she was just dropping Dane home. The Detective Senior Constable again asked the accused whether she had any drugs in the car and, on that occasion, obtained a positive response.

10. Immediately after that admission was made, the accused looked at the Detective Senior Constable and, using her right arm, slid that arm down her right leg, dropping a clear resealable plastic bag near the accused’s right foot. Detective Senior Constable Bock then walked back over to the driver’s door and said to the accused, “Jess, step out of the car. I am going to search you.” As there was a car driving in the street, the Detective Senior Constable asked the accused to walk around to the front of the car. Again, an admission was sought by the Detective Senior Constable and was made. She asked this question, “Do you have any drugs on you?” to which the accused responded, “Yes.” However, it was not necessary to search the accused as she reached into her bra and pulled out a small, clear resealable bag containing a small quantity of crystals. The Detective Senior Constable believed that to be methylamphetamine and subsequent assay confirmed her suspicion.

11. The Detective Senior Constable then advised the accused that she is under arrest for possession of a prohibited drug. She was formally cautioned. A search of the accused’s person did not locate any suspicious item. DSC Critchley placed the lady’s wallet on the bonnet of the accused’s vehicle and, when the wallet landed on the bonnet, a clear resealable bag fell out of it, again containing a small quantity of crystals which appeared to be methylamphetamine.

12. Detective Senior Constable Bock then began searching the vehicle. She took from the floor of the vehicle the clear resealable bag which she had seen dropped by the accused. It contained a larger amount of crystals. As I understand it, that package contained the 5.09 grams of methylamphetamine, which is the subject of the indictment, that is, it contained the drugs which it is alleged the accused had been seeking to supply to Dane.

13. The accused argues that the two admissions ought be excluded as improperly obtained and also argues that the result of all searches should be excluded as improperly obtained. If that were to be the case, then the Crown case could not proceed.

14. To me, the important question is why, in the first place, did Detective Senior Constable Bock ask the accused, “Do you have any drugs in the car?” That question was asked three times before there was a positive response. The Detective Senior Constable told me, frankly, that she formed the view that there may have been something suspicious going on for a number of reasons: (1) both the accused and Dane were behaving nervously; (2) Dane was sweating profusely, to the extent that the Detective Senior Constable had seen nothing like that before; (3) she knew, from her personal conversations in the past with the accused, that she was a consumer of methylamphetamine, and (4) she was aware that the accused had driven her vehicle earlier that day from premises at 10 Francis Street, Dee Why, which were known by police to be a “drug house”.

15. If one needed any further consideration, one such as Detective Senior Constable Bock could have raised the point of a large amount of cash in $100 and $50 notes passing one way or the other, either from the accused to Dane or from Dane to the accused. The inference to be drawn is that the lady’s wallet belonged not to Dane but to the accused, as the Detective Senior Constable believed.

16. Given those facts, it was quite open to the Detective Senior Constable to form a view that there may have been drugs in the car and there may have been a transaction taking place between the accused and Dane which involved those drugs. In the circumstances, it is my view that the Detective Senior Constable ought to have administered a caution to the accused prior to demanding of her as to whether there was any drug in her car or any drug on her person. In my view, the two admissions made by the accused were obtained improperly, that is contrary to the provisions of s 281 of the Criminal Procedure Act 1986 and ought not be admitted into evidence.

17. The argument then raised by the accused is that the production by the accused of the drugs from her bra, was, in essence, obtained improperly because it was under the threat of coercion, the threat of her person being searched, of her intimate parts being touched by a female police officer and she sought to obviate that course by producing the small bag of drugs from her bra. The accused also argues that, by extension, the search thereafter of the car in which other amounts of illegal drugs were found would also be excluded.

18. What this brings into question is the meaning of the adverb “improperly”, in s 138(1)(a) of the Evidence Act 1995 and its other use within ss 138 and 139. In R v Cornwell (2003) 57 NSWLR 82; 141 ACrimR 164, Howie J said this:

“[19] With respect to Smart A-J, I do not see that the existence of those two provisions indicates that the words of the section should be construed in any particular manner. Rather, it seems to me that the fact that the legislature thought it necessary to enact those particular provisions tends to suggest that there was a concern that the normal meaning to be attributed to the words of the section, when applied to the kind of facts and circumstances with which those two provisions are concerned, may not have resulted in the court finding that the evidence was obtained improperly or as a consequence of an impropriety. It appears to me to be significant that the provisions are concerned with evidence obtained as a result of official questioning.

[20] I am of the view that, otherwise than when s 138(2) or s 139 apply, the court should determine whether the section is engaged having regard to the particular facts and circumstances before it, but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect. On the other hand, the terms of s 138(3)(e), which subsection requires the court to take into account whether the “impropriety or contravention was deliberate or reckless”, make it clear that the conduct need not necessarily be wilful or committed in bad faith or as an abuse of power.”

The important words that fell from his Honour are that it appeared to him to be significant in the interpretation of the section that the provisions were concerned with evidence obtained as a result of official questioning. The finding of the majority of drugs in the vehicle being used by the accused did not result from official questioning.

19. The authorities collected by Mr Odgers in the 13th edition of his work ‘Uniform Evidence Law’, para [EA.138.120] tell me that the circumstances commonly encountered which lead to impropriety are entrapment, misstatement of a fact, trickery, deception, an inducement and many other matters which are completely irrelevant in the present circumstances. In my view there is no conduct on the part of Detective Senior Constable Bock which could be regarded as entrapment, misstatement, trickery or deception or an inducement offered to a witness that she would admit something or anything of that nature.

20. Bearing in mind what was said by Howie J in Cornwell and bearing in mind what the authorities establish to be “improper” conduct, I do not accept that the physical evidence obtained by the police of drugs on the person of the accused or in her vehicle was improperly obtained in contravention of Australian law and therefore I rule that that evidence is admissible.

HIS HONOUR: Now are there any further voir dire matters?

TRIAL ADVOCATE: Your Honour, perhaps not strictly a voir dire matter but there was a matter of admissibility of evidence--

HIS HONOUR: Well that’s a voir dire matter.

TRIAL ADVOCATE: Well may it please the Court.

HIS HONOUR: Yes.

TRIAL ADVOCATE: More in the nature of an objection perhaps to be dealt with by voir dire but it can be done conveniently now, it is of short compass, your Honour.

HIS HONOUR: It better be, I was here till 5 o’clock last Friday, we had a 9 o’clock start for a swearing in today, I was on the bench from about 10.30 till quarter past one sentencing somebody, then we get sent this.

TRIAL ADVOCATE: If I can just invite your Honour to turn to, for example, page 2 of Senior Constable Bock’s statement, paragraph 5, the Crown proposed not to lead any admissions that were spoken by the accused because they do not comply with 281 Criminal Procedure Act but the Crown proposed to narrate the actions by indicating Senior Constable Bock said, for example, “Jess, how much money is that” and indicate by leading the officer that there was then a conversation and move to the next physical act which in this case would be the officer walking around to the other side of the car to explain the sequence of the event but to not to elicit any admission.

HIS HONOUR: Well if you don’t want to adduce she said, I said, she said, after the initial I said, that’s of no moment to me.

TRIAL ADVOCATE: Yes. The Crown understands my learned friend takes issue with that approach which is why the Crown is raising that.

HIS HONOUR: Would you want that in or don’t you?

TRIAL ADVOCATE: He does not want, “Jess how much money is that?”, the preceding question asked by the officer to be admitted into evidence.

WOODS: Yes.

HIS HONOUR: Well I can understand - you see the money is physically in the hands of Dane. He’s also holding a female wallet but he may be a chap who does that sort of thing. I don’t know nor will the jury, right. The evidence of the money is important, I can understand that, and therefore if you are going to lead it you need to lead the whole bit because she admits the money was hers but admits that it was her wages.

TRIAL ADVOCATE: My learned friend doesn’t want that subsequent part included.

WOODS: Your Honour, I say that all of this communication between Ms Murray and Detective Senior Constable Bock are protected by section 281. The admissions are certainly protected, they are not tape recorded.

HIS HONOUR: All she admitted was that she had been paid her wages, it was payday, and she was giving the money to Dane for him to safeguard for her. That’s not an admission contrary to her interest.

WOODS: Well I say that what she says is allegedly, “I don’t know, it’s my pay from work, I’m giving it to him to hold”. I say that in order to be an admission it doesn’t need to be a full confession of wrongdoing but I say that it could be interpreted as adversely to her by the jury especially suggesting that she doesn’t know what the money is.

HIS HONOUR: That could just be an idiosyncrasy you know, you know the people who say, “No, no, no, no yes”, it could just be an idiosyncrasy.

WOODS: Could be but having spoken to my client I haven’t detected ticks of that kind and if the jury were to hear from her, as they might in the course of the trial, the jury might come to the view that she’s equivocating here and I say that it is capable of being interpreted adversely to her and in that sense it is an admission, it is against her interests and it is strictly inadmissible under section 281 of the Criminal Procedure Act because it is unrecorded.

HIS HONOUR: Well the thing here is I assume the Crown will argue that Dane had a ladies’ purse because it was her purse and he was putting his money into her purse in consideration of getting drugs from her, that’s the Crown case it?

TRIAL ADVOCATE: The Crown doesn’t put it so far as that your Honour but he’s in the car with the purse and the cash.

HIS HONOUR: That’s what you want the jury to infer.

TRIAL ADVOCATE: Well she’s in possession of the drugs in the car, there is cash associated with her wallet and another bag of drugs falls out of that wallet a short time later.

HIS HONOUR: In my view the whole of that is admissible.

WOODS: Yes, I should say your Honour that the Crown appears to particularise its case as a case of deemed supply, on the indictment section 29 of the relevant legislation is cited, there’s no necessity on the part of the Crown to prove that there’s actual transaction taking place and I say that it’s arguably irrelevant for that reason but moreover it’s prejudicial to the accused, there is equivocation in her response, it’s an admission against her interests and your Honour would exclude it, not as a matter of discretion but on the grounds that it would be an error of law to admit the evidence. I have got an authority on the subject.

TRIAL ADVOCATE: But the Crown doesn’t press it, it being admitted, the Crown is content for it not to be led but the Crown does press the question which was asked by the officer.

HIS HONOUR: Well what’s the point of having questions to which you don’t get an answer? I mean--

TRIAL ADVOCATE: The answer would be - the question was asked and then the officer moves around to the other side where the cash is being counted, that’s part of the narrative of what happened. It wasn’t just that there was nothing--

HIS HONOUR: Hang on, under paragraph 5, you have got a narrative, then you’ve got, I said, she said, I said, she said, right. Now either the whole of that conversation goes in or the whole of it stays out.

WOODS: That’s my position, your Honour, yes.

TRIAL ADVOCATE: Your Honour if we can just put paragraph 5 to the side for one moment, turning to paragraph 6.

HIS HONOUR: How long is this going to take?

TRIAL ADVOCATE: Well your Honour perhaps--

HIS HONOUR: I mean I’ve been up since half past five.

TRIAL ADVOCATE: Perhaps it can be dealt with tomorrow morning.

WOODS: I’m content for it to be dealt with tomorrow.

TRIAL ADVOCATE: The Crown will speak to my learned friend.

HIS HONOUR: Look, it has to be limited. No going on and waffle, waffle, waffle, waffle, right. Succinctly. Stick to the point.

TRIAL ADVOCATE: I take your Honour’s point.

HIS HONOUR: Because I want to get the panel - last time I asked for a jury panel in this Court it took - we asked for it at ten and it came at 3 o’clock. Right, so I want the jury panel to be here, so even if they have to wait outside for five minutes but it must be done succinctly.

TRIAL ADVOCATE: Your Honour, it needs to be done before the evidence commences which will be shortly after that.

HIS HONOUR: Well Mr Crown why do you want just a question in to which you don’t get an answer?

TRIAL ADVOCATE: Well the Crown’s position is that the answer is an admission under section 281 and not admissible. But for that, if it had been tape recorded, the Crown would have pressed it. It is not tape recorded, it seems to be that the other criteria--

HIS HONOUR: You can’t have the question then. If you can’t press the answer you can’t have the question.

TRIAL ADVOCATE: But your Honour paragraph 6--

HIS HONOUR: Well if you can’t press the rest of the conversation then you can’t press it at all Mr Crown, it’s out.

TRIAL ADVOCATE: Well your Honour the Crown will ask just to withhold a decision on that until, for example, paragraph 6.

HIS HONOUR: Yes.

TRIAL ADVOCATE: This is after the cash has been counted, the officer Bock leans into the car and speak to the accused, “Are there any drugs in the car?” Now the Crown would not - the Crown understands my learned friend is content for that to go in.

WOODS: That’s correct.

HIS HONOUR: All right, but you don’t want the denial.

TRIAL ADVOCATE: Up to where it is said that she admitted there were drugs in the car, over the page onto--

HIS HONOUR: Well you want the matter about Haberfield et cetera going out.

TRIAL ADVOCATE: No that in. The accused has asked that that be in.

HIS HONOUR: Well look, yeah what goes out according to both of you? The she said, “No”, that goes out does it?

TRIAL ADVOCATE: In effect the first part of paragraph 6 would be in.

HIS HONOUR: Yes the narrative. Now the conversation, you want the first question in?

TRIAL ADVOCATE: Well all of that on page 2 would go in.

HIS HONOUR: All of it on page 2 goes in, yes, all right.

TRIAL ADVOCATE: Because the accused has asked that it go in.

HIS HONOUR: Yes.

TRIAL ADVOCATE: The first part of the top of page 3 goes in--

HIS HONOUR: Yes.

TRIAL ADVOCATE: --but the “Do you have any drugs in the car” question--

HIS HONOUR: But that’s already ruled out. That’s a ruling I made--

TRIAL ADVOCATE: But the significance is this your Honour, the answer is “Yes”, so the Crown would not be pressing that but it’s at that point that the accused looks at the officer, slides the arm down and so the Crown says that nexus is important and it’s not an admission, something having been spoken by the accused, it is a question which is asked followed by an action the Crown will say in response to the question and so it’s just the question that is of significance there and then similarly in 7--

HIS HONOUR: Well you can adduce a statement from Bock such as “I then asked her another question, she was looking at me and then using her right hand slid her arm down to her leg”.

TRIAL ADVOCATE: Very good your Honour, that can be done.

HIS HONOUR: Yes, all right. So it is just, “I asked her another question” rather than “Do you have any drugs in the car?”

TRIAL ADVOCATE: Paragraph 7 then your Honour deals with the removal of the item from the bra.

HIS HONOUR: Yes well the I said, “Do you have any drugs on you?” She said, “Yes”, that has to come out, right.

TRIAL ADVOCATE: Yes, your Honour.

HIS HONOUR: Yes, that’s I’ve already ruled on but you can adduce evidence in accordance with the earlier ruling that she reached inside her bra and pulled out a small clear resealable bag containing a small quantity of crystals.

TRIAL ADVOCATE: It’s just without that preceding question your Honour the actions of the accused removing an item from her bra is somewhat incongruous which is why the Crown--

HIS HONOUR: Well you can adduce, you can ask the question, “I asked her another question and she then reached into her bra”.

TRIAL ADVOCATE: Thank you, your Honour.

HIS HONOUR: The jury might come back with a question, “What was the question?” to which they will get an answer, “The question was inadmissible”.

WOODS: That’s the risk your Honour, yes, speculation on the part of the jury about--

HIS HONOUR: Yes. No, no, the answer will go back, it was inadmissible and you are to ignore it.

WOODS: Yes.

HIS HONOUR: Right, anything else?

TRIAL ADVOCATE: No thank you, your Honour.

HIS HONOUR: All right, we will empanel the jury at 10 o’clock.

ADJOURNED PART HEARD TO 12 FEBRUARY 2019.

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Decision last updated: 20 March 2019