R v Wurrawilya - [2011] NTSC 68

R v Wurrawilya [2011] NTSC 68
PARTIES: THE QUEEN
v

CHERELLE ROSEMARY WURRAWILYA

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   21020992
DELIVERED:   2 SEPTEMBER 2011
HEARING DATES:   28 & 29 JULY 2011
JUDGMENT OF:   MILDREN J
REPRESENTATION:
Counsel:
Plaintiff:   M Nathan
Defendant:   J Brock & G Lewer
Solicitors:
Plaintiff:   Office of the Director of Public Prosecutions
Defendant:   North Australian Aboriginal Justice Agency
Judgment category classification:    C
Judgment ID Number:   Mil 11499
Number of pages:   11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Wurrawilya [2011] NTSC 68
No 21020992
BETWEEN:

THE QUEEN

Plaintiff

AND:

CHERRELLE ROSEMARY WURRAWILYA

Defendant

CORAM: MILDREN J
REASONS FOR JUDGEMENT
(Delivered 2 September 2011)

This is an application under s26L of the Evidence Act (NT) challenging the admissibility of confessional evidence which the Crown intends to lead at the accused’s trial.
Background facts
The accused is charged with one count of unlawfully supplying a dangerous drug, namely cannabis plant material, to another person or persons, unknown, contrary to s5(i) and 2(a)(iv) of the Misuse of Drugs Act (NT). To this charge, the accused has pleaded not guilty.
The Crown case is that at about 3pm on Friday 18^th June 2010 police attended at the Vincent Air Terminal on Lancaster Road, Darwin Airport in order to screen passengers about to board a flight to Groote Eylandt for drugs. This was a routine operation. Altogether four officers attended, including Detective Senior Constable Barton and Detective Sergeant Craig Windebank. Accompanying the police was a drug detection dog. Initially the dog was taken to the luggage area, whilst Detective Senior Constable Barton and Detective Sergeant Craig Windebank remained outside of the terminal building. The dog did not react. Detective Senior Constable Barton and Detective Sergeant Craig Windebank then entered the terminal. The awaiting passengers were asked to all stand in a line. The dog then was employed to detect drugs in the hand luggage and on the person of the passengers. The dog reacted positively to the person of the accused, who was waiting with her nine year old daughter to board the aeroplane.
At about 3.15pm Detective Senior Constable Barton escorted the accused and her daughter into a conference room to the side of the waiting room in order to conduct a search of the accused’s person. At this stage the accused was not told that she was under arrest. It is not in contention that the power to conduct the search and to detain the accused for that purpose was authorised under s120C(c) and s120E(a) of the Police Administration Act (NT).
The first conversation
After entering the conference room Detective Senior Constable Barton shut the door and then told the accused that as the dog had reacted to her, she would have to search her person and clothing for drugs. Detective Senior Constable Barton could not remember the exact words she used. Her evidence was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wurrawilya

Details

AGLC: R v Wurrawilya [2011] NTSC 68
Case: [2011] NTSC 68
Decision Date: 02/09/2011

CaseChat Overview and Summary

The case of R v Wurrawilya involves the accused, who has pleaded not guilty to the charge of unlawfully supplying a dangerous drug, cannabis plant material, to unknown persons. The issue before the court is the admissibility of confessional evidence that the Crown intends to present at the trial. The Crown's case hinges on the search conducted by police officers at the Darwin Airport, where a drug detection dog reacted positively to the accused, leading to the discovery of cannabis plant material. The key legal issue is whether the accused's statement made during the search constitutes a confessional statement that can be admitted as evidence.

The court examined the circumstances under which the accused made the statement and whether it was a voluntary response to the police officer's inquiry. The officer had cautioned the accused before the search began, asking if there was anything on her that the officer should know about, to which the accused replied "No." The court found that the accused's response was spontaneous and not a result of any coercion or suggestion from the police. The court concluded that the statement was a voluntary confession and therefore admissible as evidence.

The court's reasoning focused on the voluntariness of the statement and the absence of any undue influence or coercion by the police. The court determined that the accused's statement was made freely and voluntarily, without any prompting or leading questions from the police. The court also considered the context of the search and the fact that the accused was not under arrest at the time the statement was made. The court found that the statement was a confessional statement and therefore admissible under the law.

The court ordered that the confessional statement made by the accused during the search be admitted as evidence in the trial. The court also noted that the admissibility of the statement did not depend on the legality of the search itself, but rather on the voluntariness of the statement made by the accused. The court's decision ensures that the Crown can present the statement as part of its case against the accused.

Orders

Orders of the court

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Background

Background to the litigation

This is an application under s26L of the Evidence Act (NT) challenging the admissibility of confessional evidence which the Crown intends to lead at the accused’s trial. Background facts The accused is charged with one count of unlawfully supplying a dangerous drug, namely cannabis plant material, to another person or persons, unknown, contrary to s5(i) and 2(a)(iv) of the Misuse of Drugs Act (NT). To this charge, the accused has pleaded not guilty. The Crown case is that at about 3pm on Friday 18th June 2010 police attended at the Vincent Air Terminal on Lancaster Road, Darwin Airport in order to screen passengers about to board a flight to Groote Eylandt for drugs. This was a routine operation. Altogether four officers attended, including Detective Senior Constable Barton and Detective Sergeant Craig Windebank. Accompanying the police was a drug detection dog. Initially the dog was taken to the luggage area, whilst Detective Senior Constable Barton and Detective Sergeant Craig Windebank remained outside of the terminal building. The dog did not react. Detective Senior Constable Barton and Detective Sergeant Craig Windebank then entered the terminal. The awaiting passengers were asked to all stand in a line. The dog then was employed to detect drugs in the hand luggage and on the person of the passengers. The dog reacted positively to the person of the accused, who was waiting with her nine year old daughter to board the aeroplane. At about 3.15pm Detective Senior Constable Barton escorted the accused and her daughter into a conference room to the side of the waiting room in order to conduct a search of the accused’s person. At this stage the accused was not told that she was under arrest. It is not in contention that the power to conduct the search and to detain the accused for that purpose was authorised under s120C(c) and s120E(a) of the Police Administration Act (NT).The first conversation After entering the conference room Detective Senior Constable Barton shut the door and then told the accused that as the dog had reacted to her, she would have to search her person and clothing for drugs. Detective Senior Constable Barton could not remember the exact words she used. Her evidence was that she cautioned her before the search began. She said that she told the accused that because the dog had reacted, she would have to search her. She said to the accused, “Do you have anything on you? You don’t have to tell me if you don’t want to but the dog has reacted. That is why we have brought you into this room. We’re going to conduct a search but is there anything on you that I should know about?” The accused replied “No.”At this time, Detective Sergeant Craig Windebank remained outside of the conference room. The accused was asked to remove her long sleeved chequered shirt, underneath which was a t-shirt or tank top. The accused was non-responsive, and the request was repeated, and she removed her shirt and gave it to Detective Senior Constable Barton who found nothing hidden in it. Detective Senior Constable Barton then asked the accused to place her arms on the wall in order to conduct a “pat-down.” The accused went to raise her arms, but instead, removed a package from her brassiere. The package was like a cryovac plastic bag inside which were deal bags of what looked like, and was later found to be, cannabis plant material. Detective Senior Constable Barton placed the package on a table and then conducted a physical search of the accused which was uneventful.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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