Tasmania v Billinghurst (No 1) - [2018] TASSC 3

[2018] TASSC 3

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Billinghurst (No 1) [2018] TASSC 3

PARTIES:  STATE OF TASMANIA
  v
  BILLINGHURST, Gary Maxwell
  JONES, Adam Arnold
  LEAMAN, Christopher Adam

FILE NOS: 341/2013

420/2013
86/2014

DELIVERED ON: 13 November 2017
DELIVERED AT: Hobart

HEARING DATES: 24-27, 30, 31 October, 1-3, 6-10, 13-17, 20-24,

27-30 November, 1, 4-8, 11 December 2017

JUDGMENT OF: Estcourt J

EDITED VERSION OF RULING DELIVERED ORALLY

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Voir dire proceedings – Particular cases – Whether improper use of a power conferred by statute – Whether use of a random breath testing site to stop vehicle suspected of carrying illicit substances permitted – Whether evidence found is admissible – No contravention or impropriety – Evidence admissible.

Evidence Act 2001 (Tas), s 138
Search Warrants Act1997 (Tas), s 16
Misuse of Drugs Act 2001 (Tas), s 29
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 7A
Ridgeway v The Queen (1995) 184 CLR 19, followed.
Aust Dig Criminal Law [2686]

REPRESENTATION:

Counsel:

Crown:  A Shand, A Norton
           Mr Billinghurst:  J Crotty
           Mr Jones:  T Kovacic
           Mr Leaman:  K Baumeler

Solicitors:

Crown:  Director of Public Prosecutions
           Mr Billinghurst:  Crotty Legal
           Mr Jones:  Legal Aid Commission of Tasmania
Mr Leaman:  Legal Aid Commission of Tasmania

Judgment Number: [2018] TASSC 3
Number of paragraphs: 28

Serial No: 3/2018
File Nos: 341/2013 86/2014

STATE OF TASMANIA v GARRY MAXWELL BILLINGHURST,
ADAM ARNOLD JONES and CHRISTOPHER ADAM LEAMAN (NO 1)

REASONS FOR RULING DURING TRIAL ESTCOURT J

13 November 2017

The State seeks to lead evidence that at about 10.30pm on 25 April 2015 police seized two small bags of amphetamine of about 1 ounce each from an Eski located in the boot of a red Holden Commodore vehicle A71 XE which was intercepted by police while being driven on Main Street, Perth, by Peter James Collins also known as Roles.
Objection is taken to the admission of the evidence on behalf of the accused Jones. The objection is confined to s 138 of the Evidence Act 2001. The relevant part of that section provides:
"138 Discretion to exclude evidence improperly or illegally obtained
(1)   Evidence that was obtained —
(a)   improperly or in contravention of an Australian law; or
(b)   in consequence of an impropriety or of a contravention of an Australian law —
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."
The words "improperly" and "impropriety" in that section are not defined and should be given their ordinary meanings.
The request for the interception of the vehicle was made by Senior Constable Roy Cummings who was involved in Operation Vouch investigating the three accused in this case, and was made to then Senior Sergeant Joanne Stolp of Western Drug Investigation Services. She, in conjunction with Sergeant Luke Bishop and Sergeant Shane Flude, also of Western Drug Investigation Services, and with the seconded help of Sergeant Paul Turner and his partner from Northern Drug Investigation Services, decided to establish a random breath test site at Main Road, Perth, as means of slowing down and stopping, and thus intercepting Mr Collins' vehicle.
Mr Kovacic, on behalf of the accused Jones, submits that police did not have a power to intercept the vehicle under the Misuse of Drugs Act 2001 as the search and seizure power in relation to a conveyance does not give power to intercept. Specifically he points out police did not have such a power under the Vehicle and Traffic Act 1999.
Mr Kovacic submits that police have used the power to stop a vehicle under s 7A of the Road Safety (Alcohol and Drugs) Act 1970 without any intention of exercising powers under that Act, and that this use of an "interception power" is contrary to that Act and thus, I infer, improperly so and/or in contravention of an Australian law, or in consequence of an impropriety, or of a contravention of an Australian law.
Mr Kovacic further submits that the vehicle did not stop consensually as the evidence suggests, it only stopped because of the ruse of the police in setting up a random breath test site, which was not random. He argues that the public rely on the bona fides of police properly exercising their powers, and that by intercepting the vehicle without any intention to breath test the driver (and by not breath testing him), his detention became arbitrary.
I pause to note that the evidence of each of the named officers was taken on a voir dire on this objection, and that evidence shows that whilst it is clear that the establishment of a random breath test site was a ruse in that it was a means to the end of safely stopping Mr Collins' vehicle, while at the same time minimising the opportunity for Mr Collins to throw the drugs in the car out of the car at high speed, it cannot be said that it was a sham as other motorists were stopped and breathalysed, and had they blown over the limit they would have been processed and charged.
Moreover the evidence on the voir dire does not establish that Mr Collins was not in fact breathalysed. Sergeant Flude said that while he could not be positive, he believed that Mr Collins was breath tested just prior to Sgt Flude speaking with him. (The onus is upon the accused to establish the illegality or impropriety: Fleming v The Queen [2009] NSWCCA 233, 197 A Crim R 282 at [19], per McClellan CJ; Tasmania v Salter [2007] TASSC 33, per Evans J at [3].)
It is true that the real reason for stopping Mr Collins was not to breathalyse him, but to intercept him and search his vehicle for drugs. When the method utilised is a legitimately available and working police procedure, and not a mere sham, it does not, to my mind however, render the facilitated seizure of illicit drugs evidence that was obtained either improperly or in consequence of an impropriety. And I can see no actual contravention of an Australian law.
This must be particularly so when the police had a clear power to search and detain the vehicle once it was stationary. I refer to s 29(1) and (2) of the Misuse of Drugs Act, which provide as follows:
"29(1) In this section:
prescribed belief means a reasonable belief that a controlled substance or other thing in relation to which an offence under this Act has been committed is —
(a) in the possession of a person in any place; or
(b) on or in a conveyance in any place; or
(c) on an animal in any place.
(2) A police officer who has a prescribed belief may, without warrant and with such assistance as the police officer reasonably considers necessary, take such one or more of the following actions as may be applicable in the circumstances:
(a) search the relevant person and detain that person for the purpose of carrying out the search;
(b) search the relevant conveyance or animal and detain it for the purpose of carrying out the search;
(c) seize the relevant conveyance or animal;
(d) seize anything that may be evidence of an offence under this Act."
Furthermore, whilst on the plain text of s 29(2)(b) no power is given to police to stop or pull over a conveyance in order to, with or without assistance, conduct a relevant search, or to detain the conveyance for that purpose, s 16 of the Search Warrants Act 1997 would appear to do so. That section relevantly provides:
"16 Searches without warrant in emergency situations
(1) This section applies if a police officer suspects, on reasonable grounds, that —
(a) a thing relevant to an offence is in or on a conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed.
(2) The police officer may —
(a) stop and detain the conveyance; and
(b) search the conveyance, and any thing attached to or carried in or on the conveyance, for the thing; and
(c) seize the thing if he or she finds it there; and
(d) if in immediate pursuit of a conveyance, continue the pursuit of that conveyance onto any premises and exercise any of the powers specified in paragraph (a), (b) or (c) while the conveyance is on those premises."
So, it seems to me that even assuming that Mr Collins was not breathalysed, and even assuming that no other drivers were, and that the random breath test site was not just a ruse but in fact a sham, it would still not, to my mind, necessarily amount to an impropriety to adopt the course police adopted on this occasion.
On the evidence taken on the voir dire the police officers organising the interception understood that the investigation was ongoing and that the place and method of interception should not compromise that ongoing operation by displaying the fact of or the means of intelligence that might have led police to know that there was a significant amount of illicit drugs in the vehicle, or by displaying police knowledge of the source and/or destination of those drugs.
That consideration alone would have justified the deployment of a ruse by which to stop the car in circumstances that did not excite suspicion. Even a sham random breath test site would not, to my mind, have involved impropriety, much less the symbiotic use of three sets of police powers via the conduit of a working random breath test site.
Safety and preservation of evidence are two other reasons why the use of a working random breath test site, or even a sham site, would militate against a finding of impropriety. The police officers involved in the interception were aware that Mr Collins had an anti-police attitude, and that he might seek to evade police and/or throw any drugs out of the car if he were intercepted by a police vehicle requiring him to pull over while moving along the open road at the usual speed in the dark of night. Indeed, even beyond the random breath test site, police had obtained the required authority and had deployed road spikes ready to be activated if Mr Collins sought to evade the random breath test site.
The interception could lawfully have been effected, albeit perhaps with greater safety risks and potential consequences for the success of the police operation, but the employment of a ruse which breaks no law in its enaction is not improper, much less unlawful.
In any event, as was said in Ridgeway v The Queen (1995) 184 CLR 19, by Mason CJ, Deane and Dawson JJ said, at [37], 319:
"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community."
It follows, in my view, that I do not regard the evidence of the seizure of two bags of amphetamine from Mr Collins' car on 25 April 2013 as evidence obtained improperly or in contravention of an Australian law; or in consequence of an impropriety or of a contravention of an Australian law.
Were it otherwise, I would have needed to have recourse to s 138(3) of the Evidence Act for the purpose of deciding whether nonetheless the desirability of admitting the evidence outweighs the undesirability of doing so, given that it has been obtained in the way in which it was. That section provides as follows:
"138(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account —
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law."
The probative value of the evidence is high and the evidence is important in the proceeding which is a prosecution for trafficking against three accused where the State asserts the running of a trafficking business on a Giretti basis against all three.
I accept the following submissions made by lead counsel for the State, Ms Shand:
"27    The evidence is an important piece in the jigsaw of this circumstantial case.
28The Surveillance and TI material surrounding this event established a link between Collins prior to the intercept and all three accused: Billinghurst and Collins meet at the Shed; they are followed to Leaman's house; a vehicle matching the description of the one driven by Jones was seen to enter Leaman's property; there is TI between Billinghurst and Jones arranging to meet at 'Chris' after Jones has 'grabbed them two things'.
29The evidence has significant probative value as it confirms the presence of drugs, namely amphetamine, connected with the accused. Combined with the telephone intercept material surrounding this event, the location of the drugs validated the intelligence that was being gathered:
a)In TI between Roles and Billinghurst on the morning of the intercept, Roles says he'll send Dad down to get a 'a couple of dashes'. The presence of two ounces of amphetamine, confirmed that reference in the phone calls to car parts was a reference to drugs.
b)It also confirmed pricing of the commodity an the codes by which they spoke about money (ie single numbers referring to thousands).
30It is evidence of the wholesale nature of the operation being run by the accused given the amount of the drug involved (ie two ounces and not a street sale amount).
31It demonstrates the structure of the operation and extent of the network (ie that wholesale quantities of the drugs were being distributed to the north of the State).
32    It provides a link with Roles.
33The presence of drugs strengthens the inferential reasoning the jury is being asked to use, in relation to the presence of drugs in the tyres imported on the Spirit of Tasmania."
As to the nature of the relevant offence, it is a serious case involving allegations of a drug business being operated on a large scale over an extended period.
If, contrary to my finding, there was any impropriety or contravention of law it was of an extremely low order, and while it would necessarily be characterised as deliberate, if inadvertent as to the breach, it was motivated by sound reasons which of themselves were not improper.
Subparagraphs 3(f) and (g) of s 138(3) do not appear to me to have any application.
As to s 138(3)(h) there would have been no insurmountable difficulty in obtaining the evidence without any impropriety if the powers I have canvassed above were utilised, namely s 16 of the Search Warrants Act, and s 29 of the Misuse of Drugs Act.
It follows that were it necessary for me to conduct the balancing exercise called for by s 138(1), which I am not for the reasons given earlier, I would be of the view that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was.
I decline the application to exclude the impugned evidence.