Regina v John Blaikie

[2006] NSWDC 200

CITATION:	Regina v John Blaikie [2006] NSWDC 200
HEARING DATE(S):	09/10/06 - 16/10/06
JUDGMENT DATE:	19 October 2006
EX TEMPORE JUDGMENT DATE:	06/13/2009
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Application to exclude evidence refused.
CATCHWORDS:	Criminal Law - - Evidence: admissibility of evidence from claimed illegal search, identification or recognition evidence - s.357E Crimes Act 1900 (repealed).
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002
CASES CITED:	R v Rondo [2001]NSWCCA 540 Streat v Blanco (unrep, 16/08/98 NSWSC)
PARTIES:	Regina John Blaikie
FILE NUMBER(S):	06/21/0008
COUNSEL:	Ms Cinque - Crown Mr Pickin - Accused
SOLICITORS:	DPP

JUDGMENT

Introduction

1 On 9 October 2006, the date the trial of the accused was listed to commence, application was made by the accused to exclude evidence of:

i. the search conducted of the accused and his motor vehicle at about midday on 14 September 2005 at Parramatta, including evidence of finding alleged stolen items found in the vehicle or on the accused and,

ii. identification or recognition of the accused during the course of a surveillance operation conducted on the morning of 14 September 2005 prior to the accused’s arrest.

2 In relation to the application to exclude evidence of the results of the search, it was claimed that the police acted illegally, in that they purported to exercise powers to search the accused and his motor vehicle pursuant to s.357E Crimes Act (now repealed), when no such power was available and thus, pursuant to s.138 Evidence Act 1995, the evidence ought be excluded.

3 The objection to the evidence of identification or recognition of the accused by surveillance officers was based essentially upon a failure to comply with the relevant provisions of the Evidence Act, particularly s.114 of that Act, as the accused was not previously known to the identifying witnesses.

4 The objection to the evidence of identification or recognition fell away as the voir dire examination proceeded, it eventually being conceded by the accused that whilst s.114 Evidence Act applied, there were proper grounds in the circumstances for not conducting an identification parade. Given matters set out below an identification parade involving surveillance police would have been a farce. In the end it was conceded by Counsel for the accused that the relevant surveillance officers, rather than positively identifying the accused, could give evidence of the fact that they saw a person do certain things that they believed (based on the information available to them) either was the accused, or was the same person shown in a photograph of the accused circulated before the surveillance operation. There was some issue taken as to some evidence of recognition flowing from “fleeting glimpse” circumstances. However, as the evidence on the voir dire emerged, and as was conceded in submission by Counsel for the accused, the relevant surveillance officers had ample opportunity to familiarise themselves with the appearance of the accused from the photograph provided to them which is a good likeness. Further, there was a “continuous surveillance” of the person who looked like the accused from the time he left an address known to be associated with the accused until his arrest, he was a man of very distinctive features, the photograph circulated was a true likeness of the person seen on 14 September, the accused himself was photographed in the course of the claimed surveillance, the surveillance people were looking for the accused when observations were made and the accused was the person stopped at the end of the surveillance as proved by a DVD recording of that stop, detention, search and arrest.

5 The critical issue left for determination was the issue of whether the evidence of the searching of the accused, his car, and its consequences was admissible.

Relevant Legislation and Legal Principles

6 S.357E Crimes Act 1900 provided that:

“A member of the police force may stop, search and detain:

(a) any person whom he or she reasonably suspects of having or conveying anything stolen or otherwise unlawfully obtained or anything used or intended to be used in the commission of an indictable offence or

(b) any vehicle in which he or she reasonably suspects there is anything stolen or otherwise unlawfully obtained or anything used or intended to be used in the commission of an indictable offence.”

7 In R v Rondo [2001] NSWCCA 540, Justice Smart, for the Court held, on reviewing a number of authorities which elucidate the meaning of the words in s.357E “reasonably suspects” or “suspects”, that:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have probative value.

(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for a suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the surrounding circumstances. [53]

(See also Streat v Blanco (NSWSC – 16 March 1998 – unreported) per Smart J.)

The Facts of this Matter

8 From the evidence available on the voir dire examination I conclude the following facts and related matters as established to the requisite standard to enable me to ultimately determine the legal issues.

1. The accused was a person known to the New South Wales Police, and particularly in the Eastwood Local Area Command as a person who had previously committed domestic breaking and entering and stealing offences. Inspector Wellfare was the Crime Manager at that Command and Constable Sleigh joined its Anti-Theft Squad on 14 September 2005 having worked in the Command for nearly 2 years beforehand. Sleigh is the officer in charge for the purposes of these proceedings.

2. The accused had a number of modus operandi relating to theft offences known to police, but particularly was known to Constable Sleigh to drive his motor vehicle to suburban streets, park the motor vehicle, attend upon vacant houses, remove property from the houses and return it the vehicle, before driving away. Alternatively he would drive his motor vehicle conveying a dog, park the motor vehicle in the suburban street, take the dog for a walk and during the course of this activity break into domestic dwellings, steal property and return it to his vehicle.

3. He had committed, or was suspected of having committed, breaking, entering and stealing offences within the Local Area Command in the year prior to 14 September 2005. In fact as at that date he was on bail in relation to three such offences involving alleged breaking, entering and stealing offences on domestic premises in north western Sydney.

4. As at the date of his arrest in relation to the current matters he had been the subject of many intelligence reports published within the Eastwood LAC identifying him as a person of interest in the investigation of domestic breaking and entering matters. In at least one such report it had been suggested that he might be “turned over”, or as I understand the expression, arbitrarily searched, to ascertain whether he had material within his possession that evidenced such offences.

5. On 7 September 2005 a surveillance operation was requested by Eastwood LAC officers, approved by the Crime Manager, Inspector Wellfare, in order to further investigate the accused’s activities and determine whether he had committed further offences. Inspector Wellfare believed the accused, based upon his criminal history and suspected activities, to be a career criminal who was still active in committing domestic breaking, entering and stealing offences. So did Constable Sleigh, although his knowledge of those matters was not as complete.

6. A surveillance operation was undertaken on 8 September 2005. A second surveillance operation was organised to be conducted on 14 September 2005. The Team Leader was Police Officer 1061 a Sergeant of Police in the State Surveillance Branch. A team of eleven surveillance officers was organised to conduct surveillance upon the accused on the 14 September 2005. All these police have suppressed identities under the Law Enforcement (Powers and Responsibilities) Act 2002.

7. At the time of the commencement of the surveillance just after 7.30 am on 14 September 2005 the surveillance police and Eastwood Local Area Command police knew:

i. that the accused lived at or was associated with 74 Coral Tree Drive Carlingford,

ii. that he either owned or controlled several vehicles including a 1988 dark blue Ford Fairmont sedan, registration number, CQD 001,

iii. the details of his appearance and had possession of photographs of him, being a black and white photograph of him shown face on from the upper chest upwards.

8. Prior to the surveillance commencing all the surveillance officers were provided with a photograph of the accused of the character previously described. From shortly before 10.00 am on 14 September the accused was the subject of either continuous surveillance commencing at 74 Coral Tree Drive or surveillance of such a character as to satisfy me that he, at the time of arrest at approximately midday in Parramatta, was the same person upon whom surveillance had commenced. The accused’s motor vehicle was followed from the accused’s address to Baulkham Hills and ultimately to Northmead. About 10.25 am he drove into Russell Street Northmead which was a dead end suburban street and he was observed to depart Russell Street at 11.16 am. Two separate surveillance officers saw him either carry, or place, items in the motor vehicle whilst it was parked in Russell Street having previously left the motor vehicle and disappearing from sight not carrying any such items that could be seen. Three surveillance officers saw the accused and his vehicle in Russell Street. Between about 8.30 am and 5.00 pm on this day 15 Russell Street was broken into and property was stolen.

9. A member of the surveillance team kept a contemporaneous log of observations of the various members of the surveillance team. The team leader, 1061, reported the progress of the surveillance to the Crime Manager at Eastwood LAC and then Constable Sleigh.

10. By about 11.00 am Constable Sleigh, who previously had known of the accused and the interest that Eastwood LAC held in him, was aware that the accused was regarded as a person of interest in domestic breaking and entering offences, had a history of commission of such offences, had the modus operandi earlier described, was the subject of a surveillance operation that day and that the surveillance operation was in place to make observations of conduct consistent with breaking, entering and stealing offences. The Crime Manager who had approved the request for the surveillance operation in the belief that the accused was a person of interest in relation to further breaking, entering and stealing offences, provided him with some background information about the accused which Constable Sleigh did not know about.

11. By 11.30 am, Constable Sleigh, with the assistance of plain clothes police assigned from other duties, was tasked with the responsibility of directing an operation to intercept the accused. This decision was made by Wellfare on the basis that given the accused’s background, his belief as to the accused’s recent activities and having regard to the information provided by ongoing commentary from 1061 at the team leader, he believed the accused had committed an offence whilst in Russell Street Northmead. Whilst nobody had actually seen the accused break into the premises, it was reasonable on the information provided by 1061 for Sleigh and Inspector Wellfare, to conclude that the accused’s observed activities in Russell Street were consistent with him having broken into domestic premises and placed property from any breaking and entering, or related offence, in his vehicle.

12. If they were not specifically advised of that conclusion by 1061, they were aware:

i. the accused has stopped in a suburban street,

ii. he had left his vehicle for a period of time,

iii. he had placed property in his vehicle that had not been carried from it,

iv. there was no intelligence available to police that the accused had any prior connection with Russell Street Northmead,

v. the above activity was consistent with his known modus operandi.

The conclusion was reasonably open that to them an offence had been committed given their prior knowledge of the accused and other background information. Some of this information may not have been admissible and was hearsay, but it still had probative value.

13. The accused drove to Parramatta, parking in Market Street, before being observed to visit Parramatta Police Station and other places. Whilst in Parramatta he was photographed, as was his vehicle. There is no doubt that the photographs taken in the period of time from approximately 11.25 am until 11.50 am show the accused. Having regard to all the circumstances I am satisfied, beyond reasonable doubt, that the accused was the same person that police had followed from Coral Tree Drive to Parramatta. He was easily identified when observed by surveillance police, given his distinctive features.

His distinctive features include:

i. a bald head fringed by grey hair,

ii. a grey moustache,

iii. prominent nose,

iv. elderly appearance.

He was observed at relevant times wearing the same clothing. Descriptions of the clothing worn by the person under surveillance during the operation match the description of the clothing shown in the photographs of the accused taken after 11.30 am, as well as the video image of him taken at the time of his arrest around midday on the same day.

14. Whilst at Parramatta the accused was under some surveillance from Mr Sleigh whom I am satisfied was then directing operations concerning the interception of the accused. Inspector Wellfare had organised Highway Patrol Officers to assist because of the fear of a pursuit. Whilst the Highway Patrol Officers relevantly “stopped” the accused (see s.357E) they did so as agents for, and at the direction of, Constable Sleigh who at the time had operational responsibility for the interception. They had the power to “stop” the accused to administer a random breath test in any event.

15. When the accused was at Parramatta, Constable Sleigh and Inspector Wellfare, each had a reasonable suspicion, at the very least, that the accused had earlier committed an offence of breaking, entering and stealing and that property associated with that offence, or a similar offence such as entering a dwelling house to steal property etc, was in his possession, either on his person or in the motor vehicle over which he had had control since the surveillance had commenced.

16. Whilst it was Constable Sleigh who specifically directed the stopping, detention and searching of the accused, and was ultimately responsible for the execution of those matters, the operation was directed by Inspector Wellfare, allowing for his knowledge of the accused and the information available from surveillance, he had, in the terms contemplated in Rondo , a reasonable suspicion required to be established pursuant to s.357E.

17. The Highway Patrol officers, after they stopped the accused in his motor vehicle as he drove away from Parramatta, subjected him to a random breath test. The detention of the accused and the searching of the vehicle was supervised by Constable Sleigh, assisted by Constables Linsell and Mezzone, the Eastwood uniform police seconded at the request of Inspector Wellfare.

18. There is a film available of the “pursuit” of the accused (although there is no suggestion he sought to escape), the stopping of his vehicle, his detention and his arrest. The search is not completely filmed. This is because the camera within the Highway Patrol vehicle was moved to keep the accused under constant viewing and in order for that to occur the vehicle, was for some period of time, out of view. On the basis of the film and oral evidence there is absolutely no evidence of any impropriety in the stopping of the accused vehicle, his detention or the search of him or his vehicle. Whilst the sound recording is indistinct in some respects, there are contemporaneous statements made by the police and the accused recorded on the audio record, consistent with the police finding a number of the allegedly stolen items in the vehicle and bringing them to the attention of the accused. The accused either denied knowledge of the presence of relevant items in the motor vehicle or declined to comment. There is no evidence of any “loading” of the accused with stolen property at the scene of the interception. Property found within the motor vehicle is capable of being established as being the property of the two persons living at 15 Russell Street Northmead.

19. The ‘interception’ of the accused vehicle was not random or speculative. This exercise was not a “turning over” of the character suggested in a previous intelligence report published by Eastwood LAC in early 2005, as a means of detecting whether the accused had committed a crime. The combination of the intelligence published concerning the accused’s past activities, the criminal history of the accused, his known modus operandi and the conduct observed during the time he was under surveillance, reasonably provided a basis for the suspicion that was in the mind of Constable Sleigh, and for that matter Inspector Wellfare, before the operation to intercept the accused was executed.

20. The interception, detention and search was not conducted on the basis of mere “possibility” that the accused had in his possession, or there was contained within the motor vehicle controlled by the accused, “anything stolen or otherwise unlawfully obtained” or “intended to be used in the commission of an indictable offence”. The state of mind of Sleigh and Wellfare was “more than a reason to consider or look into the possibility” that the accused may be carrying stolen property.

21. That later situation may have been the case had the accused been intercepted driving away from his home shortly after 10.00 am. Particularly if the only basis for the decision to stop, detain and search, was the intelligence available to Eastwood LAC police, encapsulated in the intelligence report which sought approval of a surveillance operation prepared on 7 September 2005 by Officer Corrigan, an officer of the Eastwood LAC. This was not a random stoppage on any view of it. Based upon the observations of surveillance police, there was a suspicion (at the very least), that was reasonable in all the circumstances, that the accused had in fact committed an offence of the type for which the surveillance had been ordered to detect.

9 In reaching these various conclusions, by reference to the matters that are to be considered in determining whether there has been compliance with s.357E, I have taken into account some conflict in the evidence, including conflict that exists between what surveillance officer 1061 says that he was told by other surveillance officers, what he says he told Inspector Wellfare and/or Constable Sleigh, what they say they understood they had been told by Officer 1061 and what Inspector Wellfare and Constable Sleigh recall of the sequence of events in recruiting other police and in the directions given to Constable Sleigh to conduct the “interception” operation. These purported inconsistencies may be explained by differing recollections of the same events after an extended period of time where no detailed contemporaneous record was kept of the various communications. In any event the differences between the various accounts are in essence not significantly inconsistent. I am satisfied 1061 was reporting to Eastwood police what he was told by other surveillance police. What 1061 reported could reasonably have been interpreted by Inspector Wellfare and/or Constable Sleigh to be the report of an actual offence committed or a body of circumstantial evidence supporting such a conclusion.

Conclusion

10 Having regard to the matters outlined above I find no breach of s.357E Crimes Act in the circumstances and manner in which the accused was stopped, detained and searched. There is no evidence of any impropriety in relation to this matter. There is no evidence of the accused being “loaded”, nor was any suggestion of this made in the course of the voir dire examination. Nor was there any suggestion made to surveillance officers that they were not truthful, reliable for that matter, in their evidence of the surveillance. Of course, it was not incumbent upon the accused in any way, shape or form, to make any such suggestion in relation to any of the evidence. The success or otherwise of the application to exclude the evidence, was not dependant upon the accused’s case being put to the relevant witnesses in that respect.

11 The evidence objected to was relevant, it was thus admissible subject to any “discretion” available to exclude it. No suggestion was made that the evidence would be excluded pursuant to discretions available under s.137, or for the matter s.135 Evidence Act 1995. S.138 Evidence Act 1995 does not arise, because the evidence was not obtained improperly or in contravention of an Australian law or in consequence of any such illegality or impropriety. No issue arises therefore as to whether the Crown has established that the “desirability of admitting the evidence out weighs the undesirability of admitting the evidence that has been obtained in a way in which the evidence was obtained”.

12 Although I need not consider s.138 at this point, having regard to the evidence on the voir dire as to the admissibility of this evidence and the issues raised, I would not have concluded in any event, if I had found that there was no reasonable suspicion relevantly existing, that either Constable Sleigh, his colleagues at the arrest site, or Inspector Wellfare, acted in bad faith in determining that an operation should be undertaken to intercept the accused, detain and search him or his vehicle on 14 September 2005.

13 Therefore I conclude that, subject to those minor matters discussed in relation to the circumstances of the interview of the accused at the scene of his detention, the evidence of the search of the accused and vehicle over which he had control ought not be excluded.

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