R v Tan - [2001] WASC 275

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- TAN [2001] WASC 275

CORAM: McLURE J

HEARD: 4 & 5 OCTOBER 2001

DELIVERED : 5 OCTOBER 2001

FILE NO/S: INS 70 of 2001

BETWEEN: THE QUEEN
AND
KOK CHENG TAN

Catchwords:

Criminal law - Voir dire - Legality of entry under s 203C of the Customs Act - non compliance with ss 3H, 23F, 23G, 23N, 23P, 23V of the Crimes Act - Turns on its own facts

Legislation:

Crimes Act, s 3E, s 3H, s 3H(1), s 3Z, s 3ZG, s 23B(2), s 23F, s 23F(1),

s 23F(2), s 23G, s 23N, s 23P, s 23V
Customs Act 1901, s 183UA, s 183UA(1), s 183UA(1)(d), s 199, s 200, s 201, s 203, s 203A, s 203C, s 203C(1)(b), s 203D(2)(b), s 203D(2)(c), s 203D(2)(d), s 203J, s 203M, s 229, s 229(1)(b), s 229(1)(n)

Customs, Excise and Bounty Legislation Amendment Act 1995

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Crown: Mr H G Dembo
Accused: Mr L M Levy

Solicitors:

Crown: Commonwealth Director of Public Prosecutions
Accused: Laurie Levy

Case(s) referred to in judgment(s):

Bunning v Cross (1978) 141 CLR 54
Coco v The Queen (1994) 179 CLR 427
George v Rockett (1990) 170 CLR 104
R v Ireland (1970) 126 CLR 321
R v Pinkstone, unreported; SCt of WA; Library No 970188; 10 March 1997
R v Su [1997] 1 VR 1
R v Swaffield (1998) 72 ALJR 339
Ridgeway v The Queen (1995) 184 CLR 19

Case(s) also cited:

Nil

McLURE J: The applicant seeks orders that:
(a)all the evidence derived from a search of the applicant's room at the Hotel Ibis be excluded; alternatively
(b)the entire video of the search be excluded.

Facts

The relevant facts are not in dispute. At approximately 8.05 pm on 25 May 2000, Australian Federal Police ("AFP") officers entered Room 311 at the Hotel Ibis in Perth. Three Asian men were in the room. They were Kok Cheng Tan, Chee Kwok Wong (a Crown witness) and Ivan Lee.
No search warrant was produced by the AFP. It is said they entered the hotel room and subsequently conducted a search pursuant to the powers conferred by s 203C of the Customs Act 1901.
On 25 May 2000 as a result of information supplied to the AFP by the receptionist at the Moonlight Bay Apartments in Broome where Messrs Tan and Wong had stayed, the AFP commenced an investigation. Agent Mark Townsend was the officer in charge of the investigation. The Crown relies on agent Townsend's suspicions as the basis for the exercise of the powers under s 203C(2) of the Customs Act.
Agent Townsend briefed approximately twelve other AFP agents in relation to the investigations affecting Messrs Tan and Wong at about 1.30 pm on 25 May 2000. By that time, agent Townsend was aware of the names of Messrs Tan and Wong and that they were travelling by bus from Broome to Perth on that day.
AFP surveillance of Messrs Tan and Wong commenced at about 5.10 pm at Cataby on 25 May when two Federal agents boarded and travelled on the bus to Perth with Messrs Tan and Wong.
Approximately three hours before Messrs Tan and Wong arrived at the Ibis Hotel, agent Spence obtained search warrants under the Crimes Act. These search warrants empowered an officer to conduct an ordinary search of Mr Tan and Mr Wong and to search things found in their possession. These search warrants did not empower AFP officers to enter any premises.
After the bus arrived at Midland, mobile surveillance was maintained and Messrs Tan and Wong were followed to the Ibis Hotel. They arrived by taxi at the Ibis Hotel just before 8.00 pm and were met by Mr Lee. Agent Townsend arrived at the Ibis at about 8 00 pm that evening. The AFP officers had no prior knowledge of the intention of Messrs Tan and Wong to go to the Ibis Hotel or of Mr Lee. When agent Townsend arrived at the hotel, other agents were already present, including agent Cummins who was in charge of surveillance. Agent Cummins provided agent Townsend with relevant information including that Messrs Tan and Wong had met a third man (Ivan Lee) and that the three men had all gone up to Room 311 on the third floor with their luggage. Agent Townsend was aware that the room was registered in Mr Lee's name and was told that none of the men had left the room.
Agent McKenzie, who was in radio contact with other agents, had followed Messrs Tan and Wong from the Midland bus exchange to the Ibis. He followed the three men to the third floor of the Ibis and remained in view of Room 311 until other agents arrived. Agent Townsend had been informed by agent Cummins that an agent was at or near Room 311. Further, agent Townsend was aware that there were other Federal agents in the lobby of the Ibis Hotel and outside the hotel. He had given orders for the hotel to be sealed off.
According to agent McKenzie, no‑one left Room 311 between the time the three men first entered and when the AFP entered Room 311 at approximately 8.05 pm on 25 May 2000.
After arriving at the Ibis, agent Townsend spoke with the Hotel Duty Manager who acceded to a request to provide agent Townsend with a key to Room 311. The door to that room was locked. Agent Townsend opened the door with the key but there was a chain latch on the door. Agents attempted to force open the door and damage was done to the doorframe in the process. The occupants of Room 311 were not given the opportunity to unlatch the door before force was used. Entry into the room was made at approximately 8.05 pm. At least some agents had firearms drawn.
Agent Townsend gave evidence that he suspected that narcotic goods were in Room 311. The grounds for his suspicion were that Messrs Tan and Wong:
(1)had flight bookings organised through a travel agent who was the wife of a person known to the AFP as a drug trafficker (it was said in cross‑examination that the wife was also known to police);
(2)travelled from Sydney‑Perth‑Broome on a one‑way ticket with only an overnight stay in Broome;
(3)travelled back to Perth by bus the day after their arrival in Broome;
(4)made inquiries in relation to the location of the port, how to get there and how many ships were in port;
(5)had a large amount of cash (a wad of approximately eight inches thick);
(6)paid for services in Broome using cash rather than credit cards or travellers' cheques which were traceable;
(7)received four phone calls, one from a person with an Australian accent and three from persons with an Asian accent;
(8)did not act like tourists in that they did not leave the room much and did not engage in tourist type activities.
Agent Townsend in his 22 years in the AFP had been involved in investigating between ten and fifteen importations. He referred in cross‑examination to three, which he said were carbon copies of this investigation. One was a people smuggling investigation.
Agent Townsend did not have (and no other AFP officer had) a warrant to enter Room 311. Agent Townsend did not believe a warrant was required. Agent Townsend did not make (nor did any other AFP officer) any attempt to obtain a warrant before entering Room 311.
Agent Townsend was asked about these matters. When it was suggested that he should have immediately rung for a telephone warrant upon his arrival, agent Townsend said:
"I considered the urgency was such that I gained entry to that room at the time that I arrived at the premises."
The following exchange took place in re‑examination:
"Have you tried to obtain telephone warrants at night before?‑‑‑I have.
How long do they normally take; that's if you can find a Magistrate immediately?‑‑‑Up to an hour. On occasions it's taken me an hour and a half to 2 hours to obtain a warrant.
Did you feel that you had that amount of time up your sleeve?‑‑‑No.
In order to search this room to see if there were narcotics ‑ ‑ ‑?‑‑‑That's - yes. I thought it was a real problem in relation to the hour and the date, etcetera."
Agent Townsend was also questioned as to the need to enter Room 311. The following exchanges took place:
"Why did you need to gain entry into the room?‑‑‑I wanted to secure the narcotics which I believed or suspected were in the room from being lost or destroyed.
...
Why didn't you apply for a warrant to enter that room?‑‑‑I was concerned in relation to the time that it would have taken to obtain a warrant and believed the urgency was such that I gain entry and secure the narcotics as soon as possible."
The following exchanges took place in cross‑examination:
"You were concerned that they might get rid of the luggage?‑‑‑Not necessarily the luggage but my suspicions were that there was a possibility of getting rid of what was narcotics inside the luggage."
In cross‑examination, agent Townsend accepted that if Mr Tan and Mr Wong left Room 311, they could have been searched under the search warrants obtained earlier that day. It was also suggested that all avenues of escape had been cut off to which agent Townsend responded that he was concerned in relation to the loss of the narcotic goods. In elaboration he said he did not know how many people were in the room, that there could have been other persons on the third floor that were unknown to police, that there was a period of time before he arrived where persons concerned were possibly in that room, that the suspects could have moved from that room to another location on that floor or on other floors or could have concealed the goods in or around Room 311 and other similar possibilities.
As stated earlier, the AFP officers entered Room 311 at 8.05 pm. Video facilities were not available until 8.25 pm. During the period prior to the commencement of the video, a number of questions were put to Mr Tan. Shortly after entry into the room, agent McKenzie searched Mr Tan (without referring to the search warrant) and located a leather wallet. Agent McKenzie asked Mr Tan whether he had a passport and Mr Tan pointed to a black waist bag which agent McKenzie opened and located a Singapore passport with a photograph of Mr Tan.
Agent Townsend also gave evidence of interaction with Mr Tan. Agent Townsend communicated with Mr Tan who was said to have identified as his own a black and grey Adidas bag and a mobile phone. The bag was subsequently found to contain a significant quantity of MDMA.
The video of the subsequent search also contains relevant evidence concerning Mr Tan's positive response to questions concerning the black and grey bag, the waist bag and mobile phone. The applicant takes objection to specified parts of the video which parts are identified on the video transcript (exhibit 3).
The applicant says that ss 3H, 23F, 23G, 23N and 23P of the Crimes Act were not complied with. In particular, the AFP did not:
(i)advise the applicant of the existence of or produce the search warrant (s 3H(1));
(ii)caution the applicant (s 23F(1));
(iii)communicate the caution to the applicant in his own language (s 23F(2));
(iv)advise the applicant that he had a right to communicate with a friend, relative or a legal practitioner (s 23G);
(v)provide an interpreter and defer questioning until an interpreter was present (s 23N);
(vi)advise the applicant of his right to communicate with a consular office (s 23P).
The Crown accepts that the applicant should have been but was not cautioned pursuant to s 23F of the Crimes Act nor was he explained his rights under s 23G, s 23N or s 23P of the Crimes Act. The evidence also establishes that the obligations under s 3H(1) and s 23V of the Crimes Act were not complied with (concerning events prior to the commencement of the video).
The Crown says it seeks to rely on the video of the search to show that:
(a)the accused had previously admitted ownership of a mobile phone found in the room;
(b)the applicant admitted ownership of the black and grey vinyl bag;
(c)the waist bag found in the room contained a wallet with identification in the applicant's name, a mobile phone SIM card certificate and quantities of cash.

The Lawfulness of the Search

Division 1 of Pt XII of the Customs Act deals with the power to search and seize. Section 203C of the Customs Act materially provides:
"(1)This section applies if:
(a)an authorised person suspects on reasonable grounds that there are special forfeited goods that are narcotic goods;
(i) at, or in a container at, a place other than a Customs place; or
(ii) ...; or
(iii)in a container in the immediate physical possession of, but not carried on the body of, a person at a place other than a Customs place; and
(b)it is necessary to exercise a power under this section in order to prevent such goods from being concealed, lost or destroyed.
(2)the authorised person may, without warrant:
(a)search the place or any container at the place for narcotic goods; or
(b)...
(c)search the container in the immediate physical possession of the person for narcotic goods;
as the case requires, and seize any goods that the authorised person reasonably suspects are narcotic goods if the authorised person finds them there."
An authorised person includes an AFP officer (s 183UA(1)(d)) of the Customs Act. A container is defined (in s 183UA(1)) as including any baggage. The term "special forfeited goods" is defined to mean goods referred to in s 229(1)(b) or (n) of the Customs Act which refer to prohibited imports and prohibited exports. MDMA falls in that category.
It is to be observed that there is no express power under s 203C to enter a place for the purpose of conducting a search. However, an authorised person exercising power under s 203C may use such force as is necessary and reasonable in the circumstances but must not damage any place of which the person is apparently in charge unless:
•the person has been given a reasonable opportunity to facilitate the search by providing access to the place (s 203D(2)(c)); or
•it is not possible to give that person such an opportunity (s 203D(2)(d)).

Reasonable Suspicion

The High Court considered this matter in George v Rockett (1990) 170 CLR 104 at 115 ‑ 116. The Court said:
"Suspicion, as Lord Devlin said in Hussein v Chong Fook Kam, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.' ' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees ... Kitto J said (at 303):
'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence' as Chambers dictionary expresses it. Consequently a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. A notion which 'reason to suspect' expresses in subs (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person ... an actual apprehension or fear that the situation ... is in actual fact that which the subsection describes ...' "
Agent Townsend in his evidence and by his conduct demonstrated that he had more than a mere idle wondering as to whether or not narcotic goods were in Room 311. He mobilised a large force of AFP agents at short notice. The individual factors relied on by agent Townsend, considered in isolation, do not of themselves constitute reasonable grounds to suspect that Messrs Tan and Wong were carrying drugs. However, when considered together they comprise reasonable grounds for agent Townsend's suspicion.

Necessity

The central issue in dispute is whether it was necessary to exercise the power in s 203C in order to prevent the narcotic goods from being concealed, lost or destroyed.
Division 1 of Pt XII of the Customs Act was substantially rewritten by the Customs, Excise and Bounty Legislation Amendment Act 1995 ("Amendment Act 1995"). The Second Reading Speech materially provides:
"The first reform is to bring the power of seizure under judicial control by requiring seizures to be sanctioned by a judicial officer having regard to the appropriateness and necessity of seizure in all the circumstances, before the seizure can be effected. This appears as the new subdivision D of Div 1 of Pt XII of the Customs Act1901. A similar extension of judicial control over the granting of search warrants for evidence of an offence under the customs legislation is also proposed, and appears in subdivision C of Div 1 of Pt XII of the Act."
The scheme of the amendments is that subdivision C of Div 1 (ss 198 ‑ 202 of the Customs Act) deals with search warrants in respect of things believed to be evidential material (other than evidential material that is also a forfeited good). The term "forfeited goods" is defined in s 183UA to mean goods described as forfeited to the Crown under, inter alia, s 229 of the Customs Act. The seizure of forfeited goods is dealt with in s 203 of the Customs Act which requires that, in addition to a belief that forfeited goods are on the premises, it is also necessary to demonstrate the necessity, in all the circumstances, for seizure of the goods. A seizure warrant under s 203 authorises the executing officer or a person assisting to enter the relevant premises, to search for the goods described in the warrant and to seize the goods.
The explanatory memorandum in relation to the Amendment Act 1995 states:
"New s 203 introduces the substantive policy reform arising from the government's response to the Conroy Report in the seizure of goods area.
The essence of the reform is to bring the power of seizure under judicial control by requiring seizures to be sanctioned by a judicial officer having regard to the appropriateness and necessity of seizure in all the circumstances before the seizure can be effected.
New s 203B provides the first of two instances where the seizure of forfeited goods is to be allowed without warrant. This is where the goods are suspected on reasonable grounds to be special forfeited goods and those goods are:
(a)at or in a container at, a Customs place; or
(b)in, on, or in a container on, a conveyance at a Customs place."
The explanatory memorandum refers to s 203C of the Customs Act in the following terms:
"New s 203C is modelled on s 3T of the Crimes Act 1914 ... and sets out the second limited circumstance where goods may be seized without warrant. The circumstance arises because of the special nature of the goods concerned (ie, narcotic goods which are prohibited imports or prohibited exports) regardless of whether or not the goods are in a Customs place. New subsection (1) therefore provides that this section applies if an authorised person ... suspects on reasonable grounds that special forfeited goods which are narcotic goods are at a place other than a Customs place and that it is necessary to exercise the power under this section to prevent those narcotic goods from being concealed, lost or destroyed.
This necessity test is expressly provided to ensure that this without warrant seizure power remains restricted to emergency situations."
The parliamentary intention to limit the operation of s 203C to emergencies is reflected in the terms of s 203C(1)(b) of the Customs Act. The evidence must establish on the balance of probabilities that the use of the power is necessary in order to prevent the MDMA from being concealed, lost or destroyed.
The first issue is whether it has to be established that the goods were in fact going to be concealed, lost or destroyed. If so, the scope of the power in s 203C would be exceedingly narrow. There may be varying degrees of risk of the relevant events occurring but proof that they would be concealed, lost or destroyed would be in most cases be an insuperable obstacle. Further, to interpret s 203C(1)(b) in that way would be inconsistent with the requirement in s 203C(1)(a) that the authorised person only need suspect on reasonable grounds that narcotic goods may be at a relevant place.

The words "concealed, lost or destroyed" appear to relate to actions taken by the suspect in relation to the goods. Conduct of a suspect which would result in goods being lost or destroyed can only sensibly be contemplated, where a large quantity of drugs is involved, where the suspect perceives a threat of immediate or pending action against him by authorities. That situation would clearly fall within the rubric of an emergency. The word "concealed" is more difficult. It is to be expected that a person in possession or control of drugs would inevitably conceal them. It cannot be the case that concealment of this nature is intended, or, alternatively, would usually satisfy the necessity requirement in s 203C(1)(b) of the Customs Act. However, I do not see a requirement that the word "concealment" be read ejusdem generis with lost and destroyed in the sense referred to above.
Whether the exercise of the entry, search and seizure power without warrant is necessary is to be determined by reference to all the surrounding circumstances including the time it would take to obtain a warrant, the magnitude of the risk of the goods being concealed, lost or destroyed whether the risk can be effectively covered by other alternatives (such as the number of agents involved, the capacity to keep relevant persons under surveillance or the existence of other warrants). The risk of the goods being concealed, lost or destroyed must be more than a theoretical risk. It must be a real and appreciable risk.
After the three men had arrived at the Ibis, save for four minutes (according to the running sheets), they were under surveillance. Agent McKenzie said:
"So by the time you get to the Ibis Hotel you then speak to Mr Cummins, do you?‑‑‑Yes.
You tell Mr Cummins that they have entered the hotel?‑‑‑Yes.
Did you follow them up to the room?‑‑‑I was just behind them. I didn't see them enter the room.
But you followed them towards room 311. Is that right?‑‑‑Yes.
Did you remain in the vicinity of room 311?‑‑‑Yes, I did.
Did you tell or communicate with Mr Cummins or any other agents about where you were?‑‑‑Yes. I used my radio to contact - I can't remember which agent it was, to advise them that I was on the third floor and had the corridor sealed."
Agent Townsend referred to the urgency of the situation and to the possibility of the goods being concealed, lost or destroyed having regard to:
(1)the lack of knowledge of the agents as to whether other persons were in Room 311 (which can only realistically have occurred before the three men entered);
(2)the number of exit points from Room 311 (such as doors to adjoining rooms);
(3)the possibility of the goods being concealed somewhere in the room (or a place that could be accessed from within the room);
(4)other persons entering the room (I assume for a handover);
(5)Mr Lee or others leaving the room (I assume with the goods).
Mr Cummins' evidence was that the AFP had lost control of the "targets" by having lost sight of the three men for a short while in the hotel. On that basis he thought the time needed to make a telephone application for a warrant was too long having regard to the possibility of a handover taking place on another floor of the hotel. In cross‑examination, agent Cummins acknowledged that there were a number of occasions during the surveillance after Messrs Tan and Wong arrived in Perth that agents would have lost sight of them for a short time. These occasions did not appear to be of concern or generate emergency action. In my view, whether or not the matters in s 203C(1)(b) have been established is to be determined objectively.
It is unreasonable to rely on matters which could and should have been ascertained from other sources. There is no evidence that the Hotel Duty Manager was asked about the layout of Room 311 or whether investigations had been made as to when Mr Lee registered at the Ibis and when he was first given access to Room 311, in particular whether he accessed the room prior to meeting with Messrs Tan and Wong.
As no persons were seen to enter Room 311 after surveillance began, this was not a live issue. If Messrs Tan or Wong had left Room 311, the search warrant could have been executed. If Mr Lee or others had left the room, they could have been followed or emergency action could have been taken at that stage under s 203C(1)(a)(iii) if appropriate. There is no suggestion steps were put in train to obtain a warrant to search the person of Mr Lee or his possessions. There is no evidence that the suspects perceived any threat of impending action by authorities which would make effective concealment (or loss or destruction) a live and pressing issue.
Finally, there were no attempts to obtain a warrant under s 203 of the Act or, indeed, to ascertain how long it would take to obtain a warrant. There is no evidence that an issuing officer had been placed on standby even though it should have been obvious to agent Townsend and others that an urgent telephone warrant may be required.
On a proper construction of s 203C(1)(b) in the context of Div 1 of Pt XII, it is intended that the exigencies of the situation must be such as would prevent the authorised person from taking steps to obtain a warrant under Div 1 of Pt XII of the Customs Act. In this regard, s 203M provides an expedited procedure for the issue of a search or seizure warrant.
In conclusion, I am not satisfied that there was an emergency. In particular, I am not satisfied on the evidence that at the material time, entry into Room 311 without a warrant was necessary to prevent the goods from being concealed, lost or destroyed. The action was premature. On that basis, the entry and at least part of the search was unlawful. I say "part of the search" because Messrs Tan, Wong and Lee were expressly placed under arrest during the course of the search at which time the search and seizure powers would be underpinned by ss 3Z and 3ZG of the Crimes Act .
In the circumstances, it is unnecessary to address two other issues of construction of s 203C of the Customs Act. The first is the section does not expressly authorise entry to premises. The rules relating to the construction of statutes authorising entry to premises was considered by the High Court in Coco v The Queen (1994) 179 CLR 427. In such situations, statutory authority to engage in conduct which would otherwise be tortious must be clearly expressed in unmistakable and unambiguous language or by implication necessary to prevent the legislation being inoperative or meaningless. In my view, the express power in s 203C(2) to search at a place carries with it, by implication, the power to enter the place otherwise the search power would be inoperative or meaningless. This conclusion is reinforced by s 203D(2) of the Customs Act which envisages forced entry to a place to conduct a search where a person has been given a reasonable opportunity to facilitate the search by providing access to the place.
Further, subsection (2) of s 203C only empowers the authorised person to exercise the relevant powers. This is to be contrasted with the statutory powers in relation to search and seizure warrants which extend to "a person assisting": s 199, s 200, s 201, s 203A and s 203J of the Customs Act. Although there is some authority to the effect that at common law, persons may assist a person executing a warrant, I see no basis for extending the common law position to the narrowly circumscribed statutory right to enter, search and seize without warrant.

Discretion

The issue for determination is whether evidence (by way of admissions or real evidence) obtained as a result of the illegal entry should be excluded from the trial notwithstanding its probative value. The Court has a discretion to exclude unlawfully obtained evidence: Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19. Unlawfully obtained evidence may be excluded on grounds of unfairness to the accused or on public policy grounds or a combination thereof. The discretions overlap although the focus of each is different. The notion of unfairness to an accused was referred to by the High Court in R v Swaffield (1998) 72 ALJR 339. Toohey, Gaudron and Gummow JJ said at 354:
"Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While reliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted."
The public policy basis of the discretion to exclude unlawfully obtained evidence even where no unfairness to an accused has been demonstrated was recognised in R v Ireland (1970) 126 CLR 321. Barwick CJ (with whom McTiernan, Windeyer, Owen and Walsh JJ agreed) said at 334 ‑ 335:
"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible ... whenever such unlawfulness or unfairness appears, the Judge has the discretion to reject the evidence ... in the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand, there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price."
In the exercise of the discretion, the Court has to balance the relevant competing interests: Bunning v Cross (above); R v Swaffield at 367. In this case the factors in favour of admission include:
(i)the charges the subject of the indictment are very serious;
(ii)the evidence is of significant probative value and is of very considerable importance to the proceedings. The Crown says the evidence is necessary on the issue of whether the bag in the applicant's possession contained drugs;
(iii)the evidence does not establish that the AFP agents acted in wilful or reckless disregard of the requirements of the law in entering Room 311. Indeed, the construction of s 203C is not without its difficulties;
(iv)the nature of the conduct (illegal entry) does not affect the cogency of the evidence obtained.
I need to say something more about (iii) above. The applicant did not challenge agent Townsend's bona fide belief concerning his entitlement to enter Room 311 without a warrant. I gave serious consideration to the question whether the conclusion of bona fide belief was vitiated by the other conduct that took place on that occasion. I concluded that the other conduct was, in effect, severable.
To be weighed against those factors include the following:
(i)a statutory right to enter premises is a significant derogation from a person's common law rights in relation to privacy and property: Coco v The Queen (1994) 179 CLR 427 at 435 ‑ 436. As the applicant had been arrested after entry, the officers had power to search and seize goods in his possession. However, the position is that but for the illegal entry, the AFP would not have located the evidence on which the power to arrest arose. Thus, the subsequent events are inextricably linked with the illegal entry.
(ii)there is a strong public policy interest in ensuring that basic common law rights are not infringed by officers acting beyond the circumscribed statutory powers they have been given;
(iii)the corollary of the seriousness of the charges which is the serious potential consequences for the applicant.
I have found this a very difficult judgment to make. Factors weigh heavily in both sides of the balance. However, in the result I have concluded that public policy does not demand that the evidence obtained as a result of the illegal entry be excluded.

The Alternative Ground

The alternative ground also covers relevant exchanges with Mr Tan prior to the start of the video at 8.25 pm. The obligations in ss 23F, 23G, 23N, 23P and 23V of the Crimes Act apply if a person is under arrest for a Commonwealth offence.
Section 23B(2) of the Crimes Act says a person who is arrested includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a)the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence that is to be the subject of the questioning; or
(b)the official would not allow the person to leave if the person wished to do so; or
(c)the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
The Crown conceded that the suspects were arrested for the purposes of s 23B(2) of the Crimes Act from the time of entry into Room 311 and that the agents had not complied with the relevant provisions of the Crimes Act. After entry, agent McKenzie conducted a search of Mr Tan's person without referring to or relying on the search warrant. Agent Townsend and others questioned the applicant notwithstanding their perception (properly grounded) that the applicant had difficulties in understanding English and required an interpreter. The evidence establishes that the AFP conduct involved a deliberate disregard of the applicant's statutory rights. This involved relevant unfairness to the applicant. The following extract from R v Su [1997] 1 VR 1 (at 55) captures the applicant's situation:
"Stripped to its essentials, the case is one in which a foreign national, who, so far as the evidence went, had no familiarity at all with Australian police procedures, and whom the interviewing police officer believed had committed a very serious offence, was interviewed without being given a proper caution and without being informed of his rights. We consider that to tender that statement against him is unfair."
There was no evidence of any reasonable excuse for the deliberate disregard of the applicant's rights. There was no urgency or risk to the evidential material which dictated that the agents proceed without an interpreter with the consequences that followed. The Crown says there is no unfairness because the questions concerned the items found in Room 311 (as permitted by s 203C(4) of the Customs Act) and the applicant understood the questions. This submission is without merit particularly in light of the Crown concessions: R v Pinkstone, unreported; SCt of WA; Library No 970188; 10 March 1997. Further, it overlooks the unfairness identified in R v Su. The conduct of the agents is such that in my assessment the discretionary balance is clearly in favour of the exclusion of the relevant evidence identified by the applicant's counsel by reference to exhibit 3.
I will hear the parties on the terms of the orders (in particular to identify the excluded evidence).