Tasmania v Hodges - [2022] TASSC 45

[2022] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Hodges [2022] TASSC 45

PARTIES:  STATE OF TASMANIA
  v
  HODGES, Shaun Edward

FILE NO:  860/2019
DELIVERED ON:  27 October 2021
PUBLISHED ON:  26 July 2022
DELIVERED AT:  Hobart
HEARING DATE:  27 October 2021
JUDGMENT OF:  Brett J

CATCHWORDS:

Criminal Law – Circumstantial drug trafficking case – Evidence improperly obtained during search of private premises – Desirability of admitting the evidence outweighs the undesirability of admitting the evidence – Evidence admitted.

Evidence Act 2001 (Tas), s 138.
Misuse of Drugs Act2001 (Tas), s 29.
DPP v Marijancevic [2011] VSCA 355, 219 A Crim R 344, referred to.
George v Rockett (1990) 170 CLR 104; Samoukovic v Brown [1993] TASSC 78, considered.
Roy v O'Neill [2020] HCA 45, 385 ALR 187, applied.
Aust Dig Criminal Law [2684]

REPRESENTATION:

Counsel:
             State:  M Allen
             Accused:  J Sawyer
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Derwent and Tamar Chambers

Judgment Number: [2022] TASSC 45
Number of paragraphs: 39

Serial No 45/2022
File No 860/2019

STATE OF TASMANIA v SHAUN EDWARD HODGES

REASONS FOR RULING BRETT J

27 October 2021

The accused has been charged with one count of trafficking in controlled substances, in particular cocaine, methylamphetamine and diazepam. The case against him is asserted on a Giretti basis, in that he carried on a trafficking business between 14 January and 17 July 2019. The prosecution case as to the existence of that business is substantially circumstantial. It relies upon an inference of guilt arising from the following evidence:
(a) During a search conducted by police on 12 July 2019 of a holiday apartment that had been rented by the accused for the two preceding nights, police found quantities of cocaine, methylamphetamine and diazepam, as well as a significant amount of cash and other paraphernalia consistent with drug trafficking. None of the drugs found on this occasion constituted a trafficable quantity.
(b) During the same search, police located a mobile telephone apparently in the possession of the accused. Several messages downloaded from the telephone are consistent with the conduct of a drug trafficking business over the period alleged in the indictment.
(c) On 17 July 2019, a vehicle being driven by the accused was stopped by police and searched. Police located a further quantity of cocaine, a significant amount of cash and further paraphernalia, including a tick sheet. A mobile telephone was also located on this occasion, with further messages consistent with drug trafficking. Again, the quantity found in the car was less than a trafficable quantity.
The accused was interviewed by police after each search. He admitted possession of some of the drugs for the purpose of personal use only, but did not admit selling or trafficking in drugs.
The defence objects to the admission of any evidence arising from either search. This includes, of course, the drugs as well as the mobile telephones and the messages contained in them. The basis of the objection is that both searches were conducted unlawfully, and the evidence should be excluded having regard to the provisions of s 138 of the Evidence Act 2001. I have heard evidence on voir dire in order to determine the objections. Clearly, if both objections are successful, the evidence supporting the charge will be virtually non-existent, and the prosecution will fail.
Section 138 provides that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or such a contravention, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way. The onus of establishing the impropriety or illegality is on the accused. If I am satisfied of that matter, then the prosecution must satisfy me that the evidence should be admitted, having regard to the balancing exercise specified in the section. In making this determination, I am required to take into account the matters set out in s 138(3), although I note that these considerations are not exclusive.
The evidence presented on voir dire for the purpose of my determination of these objections consists entirely of the testimony of prosecution witnesses, and some documents. The accused did not present evidence, but the records of his police interviews were admitted into evidence.

12 July 2019

The accused had rented the holiday apartment for the two nights immediately preceding the search. A booking confirmation suggests that the accused booked the apartment through an online booking site on 10 July 2019. The manager of the apartments, Emily Rossiter, said in evidence that she believed that the accused would have received a written confirmation by email which would contain the terms and conditions of rental, but there was no evidence before me concerning a communication of that nature or content of any such terms or conditions. Her evidence was that "as a general rule", the checkout time for an apartment was 10am, and that she believed that this information was "generally" provided to every guest. However, there was no specific evidence that this information had been agreed with or communicated to the accused. In any event, Ms Rossiter's evidence suggested that the checkout time of 10am is not strictly enforced. She said that if there is a new rental coming in on the day of vacation, as there was on 12 July, then an effort will be made to have the tenant vacate the premises as close to 10am as possible. There is no specific process for checkout. The guest is simply asked to leave the key on the bench when leaving the premises.
The events which led to the police search commenced at around 10.15am, when the cleaner, Susan Vince, went to the unit and knocked on the door. There was no answer, but she could hear the television. Her purpose in knocking was to gain access to the apartment so that she could clean it, in preparation for the guest coming in that afternoon. She telephoned Ms Rossiter and was instructed to enter the premises. She did so, using her duplicate key, and found the apartment empty, although it was clear that the accused had not removed his belongings. According to Ms Vince, this was not an unusual situation, and the usual practice in such circumstances was to place the guest's belongings to one side and start the cleaning. She started doing so, but soon located a dinner plate in the microwave, containing "lines of powder" which she thought might be drugs. She contacted Ms Rossiter again and was told to stop cleaning the unit, and that Ms Rossiter was going to contact the police. Ms Vince went to clean another unit and, while she was doing that, she heard noises consistent with the accused having returned to his apartment. She again contacted Ms Rossiter and was told the police were on their way. She left the front door of the apartment block open for them. When the police arrived, she met them, told them that she thought that the accused had returned to the apartment and pointed out the door to them. She did not accompany them to the apartment.
Ms Rossiter confirmed Ms Vince's testimony concerning the telephone contact. In the initial call, she was told that the guest was not present but that Ms Vince had found what she thought were drugs in the microwave. Ms Rossiter said that she was concerned about the guest's welfare because there had been no contact with her, for example, to request a late checkout, and, accordingly, she called the police "non-emergency number". Her purpose was to enquire as to whether police had had any contact with the accused, and to locate his whereabouts. She denied that she telephoned the police because of the drugs. In fact, she said she was not concerned about the drugs and that she "was happy to just wash (the drugs) down the sink". However, it is clear from a recording of her telephone call to the police radio room that she told the police that she thought that illegal drugs may have been left in the room. Her evidence was that the police simply said that they were going to attend to investigate and she assumed that this was normal procedure and that the police were entitled to do so. She contacted Ms Vince to tell her that the police were on their way. She did not agree that she had expressly authorised the police to enter the apartment to investigate the presence of drugs, and there is no conversation to that effect during the telephone call. However, it does seem clear from her evidence that she had no issue with police going into the apartment if it was not occupied, in order to enquire as to the whereabouts of the accused.
Sergeant Preshaw and Constable Von Wald were tasked by radio to attend the apartments. The call was received at around 10.40am, and it would seem that they proceeded to the apartment block immediately thereafter. Both say that they were told by the radio room that a cleaner had found what appeared to be drugs in the microwave at the premises. They believed that they were attending to investigate whether there were illegal drugs in the apartment. Although they were initially told that the occupant of the apartment was not present, it is clear from their evidence that as soon as they arrived at the apartments and spoke to Ms Vince, they were made aware that the accused had returned to the apartment. Ms Vince also told them about the plate she had found in the microwave, and that she believed that the powder "might have been drugs". Neither police officer asserted that they had been given permission by either Ms Rossiter or Ms Vince to enter the apartment without the consent of the accused. In fact, Sergeant Preshaw said that when they spoke to the cleaner and were told that the accused had returned, she also told them that they would "need to go and knock on the door".
It is clear from Constable Von Wald's body camera footage that, before knocking, Sergeant Preshaw covered the peephole in the door with his finger. He agreed he did this, and explained that it was for operational safety reasons, that is, to ensure that the occupant was not aware that it was police knocking on the door. In any event, after the knock, the accused opened the door. The footage shows Sergeant Preshaw immediately stepping into the apartment, saying at the same time that the police want to have a chat with the accused. The accused is clearly surprised, and mumbles assent as the officers are stepping through the door. They then tell him why they are there, that they believe that drugs have been located in the microwave, and that they intend to search the premises. It is difficult to tell from the footage how the accused responded to this, but he is clearly compliant with the requirements of the police. Sergeant Preshaw said in evidence that "he mumbled something about personal use". Police then proceeded to search him and the apartment. They located the drugs, phone, paraphernalia and cash. After locating those items during the search, Sergeant Preshaw telephoned his brother, a detective at Southern Drug Investigation Services, who suggested to Sergeant Preshaw that he should obtain a telephone warrant. He did so, but by then the search of the apartment was virtually complete. The only further evidence located after that was the diazepam tablets, which were found during a search of the accused's vehicle.
The defence asserts that the entry into the premises and subsequent search were unlawful. It is also submitted that the personal search of the accused was unlawful.
It is well established that any person who enters on private premises, even for a lawful purpose, without the consent of the owner or occupier, is a trespasser. This applies to a police officer: see Roy v O'Neill [2020] HCA 45, 385 ALR 187 per Keifel CJ at [11]. In some circumstances, a consent or licence to enter a property is implied by law. An example is in respect of residential premises, where the law implies a licence to walk to a door, knock on it and, if the door is answered, speak to the person inside. The licence can be revoked at any time at will: Roy v O'Neill per Bell and Gageler JJ at [34-35].
In this case, the issue is complicated by a number of factors, including the nature of the premises and the rights, inter se, of the owners of the apartment and the accused in respect of the accused's occupation of the apartment. The prosecutor relies upon an assertion that the accused's licence to occupy the apartment had ended at 10am, in accordance with the terms and conditions of his tenancy. It is submitted that, accordingly, he had no right to still be in the room and, therefore, no right to refuse entry by police. I do not accept this argument. Firstly, as already noted, it is not clear that these terms and conditions applied to the agreement between the apartment business and the accused. Further, and in any event, the argument misses the point. Even if it was the case that the accused's licence to be on the premises had come to an end at 10am, and that under his contract with the apartment business, he could no longer lawfully exclude its representative from the room, this in itself does not address the authority of the police to enter the room. In the absence of any other lawful basis for entry, the authority of the police to be in the apartment building, and to enter the apartment in question, depended entirely on the express consent of the owner of the apartments, represented in this case by the management, and any lawfully authorised employee. There is no basis for any form of implied licence that would permit the police to enter the apartment, in the absence of such consent.
In respect of this question, Ms Rossiter's clear evidence was that she did not contact the police for the purpose of having them enter the premises to investigate the potential drugs in the microwave, but rather was concerned about the whereabouts of the accused. In her conversation with the radio room, she advises that upon arrival at the premises, police should speak to the cleaner, who will then give them access as required. It can be inferred from this that Ms Vince had lawful and sufficient authority to act as her agent for the purpose of granting police access to the building or rooms within it. I accept that it is implicit in Ms Rossiter's evidence that she had contemplated that it may be necessary for the cleaner to let the police into the apartment, but, of course, this was on the basis of her understanding that the accused was not present. However, he had returned by the time police arrived, and the cleaner did no more than let police into the building, point out the door of the apartment, and inform them that the accused had returned and was inside. Nothing in the evidence of either police officer suggests that he believed that he had the consent of the owner, or indeed any other authority, to enter the apartment without the consent of the accused. In my view, it is clear that the apartment manager had made entry by police into the apartment conditional upon the consent of the accused, and both police officers understood this. This understanding on their part is entirely consistent with their actions in knocking on the door prior to entry.
The only other way in which lawful entry without consent of the accused could have been achieved, was by authorisation arising from legislative provision. In the circumstances of this case, this could only have been by possession of a valid search warrant issued under the Search Warrants Act 1997. There is nothing in the Misuse of Drugs Act 2001 that permits police to enter premises without such a warrant. Division 1 of Part 4 of that Act deals with police powers in respect of matters arising under the Act. There is nothing in those powers that would have permitted entry to the apartment in the absence of the occupier's consent.
Of course, both officers claimed that they did actually obtain permission from the accused for their entry into the apartment. Both officers agreed that Sergeant Preshaw knocked on the door and it was answered by the accused. As to what happened next, the officers gave the following answers. Constable Von Wald said:
"Okay. Now, after you'd spoken with the cleaner, what did you and Senior Constable Preshaw do?……Walked up some flights of stairs, and went and knocked on the door of apartment seven.
Okay, and what happened after you'd knocked on the door?……A male answered the door. Senior Constable Preshaw had a conversation with him and asked him – said to him we wanted to come in and have a chat to him. He said, 'Yeah,' so we went in."
Sergeant Preshaw said:
"Okay. Now, you went to the door. What happened at the – at the door?……I went to the door, I knocked on the door. I covered the – the peephole that you can see who was at the door just so that the person inside didn't know who was knocking on the door until they actually opened the door.
Yes?……The defendant Shaun Hodges who is present in court opened the door, and I said to him that – that we needed to have a chat and that I was going to come inside. And he said, 'Yep,' and we went inside."
On the common version of the police officers, the lawfulness of their entry into the apartment arises from the accused communicating his consent by saying "yes" when Sergeant Preshaw requested that he have a chat with them. However, it is abundantly clear from the body camera footage that, as soon as the accused opened the door of the apartment, the police entered and thereafter gave him no choice about their presence or their intention to search him and the apartment. It is clear that he did not know that it was police outside the door when he opened it. This was the intended effect of covering up the peephole. Sergeant Preshaw explained that he did so for operational safety reasons, in particular, to prevent the occupant from realising that it was police knocking on the door, which might in turn provoke a dangerous reaction.
I am satisfied that entry was achieved without the consent of the accused, and, therefore without any authority from the owner of the apartment. I am satisfied that police entered the apartment before, and irrespective, of the grant of permission to do so from the accused. By the time the accused mumbled "yep" to Sergeant Preshaw's comment about having a chat, the question of police entry into the apartment was a fait accompli. He did not provide true permission in the exercise of a free agreement. Because the owner's permission for their entry was dependant on the consent of the accused, it follows that the police entered the apartment unlawfully, that is, as trespassers.
The next question which arises concerns the lawfulness of the searches once police gained entry to the apartment. This question is intertwined with the lawfulness of the entry. As already noted, almost immediately after entry, the police proceeded to search both the accused and the apartment, and located the relevant evidence. They did this before seeking a telephone search warrant. Once again, the authority of the police to search the premises, and the accused, depended upon either his consent, or authority conferred by legislative provision. Both officers suggested that they relied upon a combination of both.
Constable Von Wald said:
"All right, and did you speak to this person at any stage after entering the unit?……Once he'd finished talking with Senior Constable Preshaw I cautioned him based on what he'd said to Senior Constable Preshaw.
All right. And once that had happened what was the next thing that was done?……So, I cautioned him based on what he'd said because I'd formed the belief then that there's possibly drugs in the room. Senior Constable Preshaw has - we wanted to have a look around, is there anything you want to tell us about?', and he said 'No', so we proceeded to give him a quick search to make sure there was nothing dangerous on him or any drugs on him.
Alright, and what was your state of mind in relation to the possibility of drugs on him?……Well based on what he'd said right at the start and the information we'd received from the cleaner, we wanted to confirm what the substance on the plate in the microwave was and whether he had any drugs on him or if there was other drugs in the apartment."
In further evidence, he referred to a "prescribed belief" which seemed to be a reference to s 29 of the Misuse of Drugs Act, but the belief did not extend beyond "a belief that he is quite likely to have drugs on him". When I asked him what he meant by "prescribed belief", he said:
"There's evidence beyond reasonable doubt that he's potentially either got drugs on him or there might be drugs elsewhere in the unit. So – I'm then allowed to then go and search him, ask him certain questions. Without a warrant."

Sergeant Preshaw gave similar evidence. He said they searched the accused "for our operational safety and to make sure he had nothing on him ... that could hurt us". In relation to drugs, he said:
"We'd formed the belief by that stage ... that he might have drugs on him ... as well as operational safety, the search of him at that stage was conducted, we had the prescribed belief that he might have drugs on him."
In their evidence, both officers also suggested that the accused had agreed to the searches. However, it is clear that this suggestion was based on their observation that the accused did not object to the searches. For example, Sergeant Preshaw agreed that he did not ask the accused whether he consented to a search. The high point of his position was that nothing that the accused said or did suggested that he did not want the police there.
It is abundantly clear from the officers' evidence and the body camera footage from Constable Von Wald, that the reality of the situation is that the accused had no choice as to whether or not these searches were conducted, once the police pushed their way into the apartment. It is disingenuous to suggest that he had a choice at that point. The camera footage shows Sergeant Preshaw telling the accused very soon after entry that police intended to search the apartment. There is no suggestion that he has a choice about this matter. The police were doing what they could have done had they had a warrant, but of course they had not taken that step at this point in time. The existence of permission is a question of fact. I am satisfied that there was no such permission in this case. On the contrary, the officers gave the accused no choice about a search because both believed that they were entitled to search both him and the apartment. Their understanding of the basis of their entitlement seemed to be a combination of "operational safety reasons" and their incorrect understanding of "a prescribed belief", and what such a belief entitled them to do.
Further, there is no evidence that police had, at any time, obtained permission from the management of the apartment block to conduct a search of the apartment. It may well be that the officers believed that management had contacted police because of the drugs, and hence assumed permission to search for those drugs. It is clear, I think, that this was a misunderstanding arising from the relatively vague nature of the call from Ms Rossiter and the way in which the radio room passed on the information to the police officers tasked to attend the premises. I will return to this question shortly. It is sufficient for present purposes to observe that no actual permission to search the apartment had been given by its owner or owner's agent.
The power of the police to coercively search or detain the accused without warrant was subject to their lawful entry to the premises. Under s 29(2) of the Misuse of Drugs Act, a police officer who has a prescribed belief may, without warrant, search and detain a person and seize anything that may be evidence of an offence under that Act. However, that provision does not apply to private premises unless the police officer "forms the prescribed belief only after having lawfully entered the premises", s 29(2A). The term "private premises" is not defined, but I am satisfied that it would include premises of the nature relevant to this case. Because the police did not lawfully enter the premises, s 29(2) has no application, and did not provide authority for the searches, irrespective of the belief held by the police as to the presence of drugs in the apartment or on the person of the accused. I am not aware of any other legislative basis for the powers which the police purported to exercise on this occasion. It follows that the police acted unlawfully by searching the apartment and the accused.
The unlawfulness of the subsequent seizure of the relevant evidence is not cured by the belated telephone search warrant. It is clear that that warrant was obtained on the basis of what had been unlawfully discovered by the two officers during their search of the premises. It may well be that a valid warrant could have been obtained before the officers entered the apartment, simply on the basis of a reasonable suspicion arising from the information that had been given to them by Ms Vince or in Ms Rossiter's telephone call. I note that under s 5 of the Search Warrants Act, an issuing officer may issue a warrant to search premises "if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, ... any evidential material at the premises". It seems to me that the information made available to police prior to their entry into the apartment would have satisfied this requirement and, hence, a search warrant could have been obtained at that point. That is clearly what the officers ought to have done. I will return to this question when considering the s 138 factors. However, before I conduct that exercise, it is useful to first consider the question of whether the other evidence obtained during the search of the motor vehicle on 17 July 2019 was obtained lawfully. This is because one of the s 138 factors will be the importance of the evidence in the proceeding.

17 July 2019

The relevant evidence was located by 1/C Constable Whelan and Senior Constable Williams as a result of a search of the accused's motor vehicle, conducted after they had intercepted the vehicle. The reason given for interception was a registration check, which the police officers claimed was based on information from the police computer, relevant to the registration number of the vehicle, that suggested that the vehicle was unregistered. On the basis of that information, police were clearly entitled to stop the vehicle and speak to the driver, and the defence have not suggested otherwise.
After the interception, a decision was made by Constable Whelan to search the vehicle. In evidence, she asserted that her authority to conduct the search was because she had formed a "prescribed belief" that the accused "had possession of ... an illicit substance in the vehicle for himself". Constable Whelan was clearly purporting to act on the basis of the authority conferred by s 29 of the Misuse of Drugs Act. This provision authorises a police officer to, among other things, search a vehicle without warrant if she had "a reasonable belief that a controlled substance is … in a conveyance". A belief is something more than mere suspicion, but less than actual knowledge based on proof. There must be grounds for the belief, but certainty and proof are not required. This point was made by the High Court in George v Rockett (1990) 170 CLR 104 at 116:
"The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
Further, the requirement that the belief be reasonable means that it must be based on reasonable grounds. This question is to be judged by the Court by applying an objective test: Samoukovic v Brown [1993] TASSC 78, per Zeeman J.
When asked to explain the grounds for the belief, Constable Whelan relied on the following:
· Information she had obtained from the police database. After the vehicle had been stopped, she searched the database on the computer in the police vehicle. This informed her that the accused had "quite a few drug driving matters processing before the court, and also a matter that related to a firearm".
· The physical appearance of the accused. She described this as follows:
"When I very first spoke to him I noticed that he was very anxious, fidgety and he had dilated pupils, dry mouth. And – and I thought he was under the influence of an illicit substance from – from my – from what I observed."
At a later point in her evidence, she said that the accused's eyes "were particularly dilated and I couldn't see ... his pupils filled up his eyes and they're huge".
It is also reasonable to observe that the context of this assessment was her earlier observations of the accused, which occurred well before the interception, and drew the attention of the police to the vehicle in the first place. In cross-examination concerning these observations, Constable Whelan said that he did not seem to be a relaxed person and she had a "gut feeling" that gave rise to suspicion.
Ms Sawyer challenged the credibility of Constable Whelan's evidence about the basis of the search, and in particular that the decision to search was based on a genuinely held belief that a controlled substance was present in the vehicle. Defence counsel submits that I should conclude that the search was actually conducted because of general suspicion of the accused about a number of matters, and the assertion of a prescribed belief is falsely made by Constable Whelan to retrospectively justify a search that would otherwise be unlawful. The challenge is substantially based on footage from the police officer's body worn camera. In the footage, Constable Whelan can be heard discussing the matter with Senior Constable Williams at the police car after an initial conversation with the accused, in which she says that she intends to search the vehicle to look for a firearm. Senior Constable Williams, in evidence, provided more detail about the information obtained from the computer. She said that it included intelligence that the accused had previously been found in possession of a pen gun when stopped by police. In cross-examination, Constable Whelan explained that her comment to Senior Constable Williams was a reference to operational safety reasons for the search, but maintained her evidence that, in her mind, the basis of the search was a belief that there were illicit drugs in the vehicle, having regard to both the information obtained from the computer and the appearance of the accused. She also explained that her decision was made quickly and in circumstances in which she was attempting to process a lot of information in her head, and that she did not verbalise all of her thoughts to Senior Constable Williams.
I accept Constable Whelan's evidence as to the existence of her belief. I am satisfied that the belief crystallized in her mind when she returned to the vehicle and spoke to the accused a second time, before commencing the search. This is consistent with the body worn camera footage, because it is during this second conversation that she indicates to him that she will be conducting the search. Before doing so, she refers to the drug driving charges that are processing, and asks the accused whether he has been under the influence of drugs in the last 24 hours. When he denies this, she says "Because your eyes are telling me that you have". These aspects of the footage corroborate her evidence as to the formation of the requisite belief and the reasons for it. I am satisfied that by the time she made the actual decision to search, and commenced the search, she had formed a belief that there were illicit drugs in the vehicle.
Further, I am satisfied that the basis of the belief as articulated by Constable Whelan, which include her initial suspicions, her observations of the physical indicia displayed by the accused, and the information obtained from the police database during the computer search, provided objectively reasonable grounds for her belief. In applying s 29, it should be borne in mind that the provision is intended to provide police with powers, including with respect to the search of vehicles, in operational circumstances in which there may be insufficient time or opportunity to obtain a warrant. The constraint on the exercise of those powers is the possession of a prescribed belief. Because it is a power which it is intended to be used in operational circumstances, the formation of the prescribed belief is likely to be in the type of circumstances described by Constable Whelan, that is, a belief which derives from the incremental accumulation of a number of discrete pieces of information, gathered and mentally processed quickly, eventually coalescing in the relevant belief. Provided the belief is actually held, a further constraint on the exercise of the powers is that it must be held on objectively reasonable grounds, but an assessment of objective reasonableness must take account of the circumstances in which the belief is formed. Having regard to all of the circumstances, I am satisfied that Constable Whelan believed that there was a controlled substance in the vehicle, and this belief was based on objectively reasonable grounds.
Senior Constable Williams also gave evidence of her belief. It seems clear that, as she described it, her belief was inadequate to justify the exercise of the power of search under s 29. It should be noted that she did not purport to have the same close observation of the accused as Constable Whelan. However, it is not necessary that both officers hold the requisite belief. Section 29 expressly contemplates that a police officer acting lawfully under that provision may be assisted as she "reasonably considers necessary". The possession by Constable Whelan of the requisite belief was sufficient to render the search lawful, and it was not necessary for both officers to hold that belief.
It follows that there is no basis under s 138 for the exclusion of the evidence of the search of the vehicle and the location of the cash and drugs found during the course of that search. That evidence will be admitted.

Application of s 138(3) – the search of the apartment

Having taken into account the various considerations set out in s 138(3), I am satisfied that the desirability of admitting the evidence obtained from the searches of the apartment and the accused on 12 July 2019 outweighs the undesirability of admitting evidence obtained in the way that it was. I acknowledge that, in this case, there is a fine balance between the various considerations. There is no question that, viewed objectively, the unlawful entry by police into private premises, and what followed, is a matter of real concern, and courts need to be vigilant to ensure that evidence obtained in such a way is not admitted as a matter of course. However, in the circumstances of this case, I am influenced by the following factors:
·     The evidence is of high probative value and of significant importance to the conduct of the prosecution case. It is unlikely that the prosecution would succeed simply based on the evidence of the search of the vehicle. The evidence of the text messages on the telephone, in particular, is of considerable importance.
·     The crime of trafficking is an extremely serious crime. It is prevalent, and trafficking in illegal drugs causes enormous harm to the community. There is a public interest in the prosecution of such crimes.
·     The police officers concerned were general duties officers without experience in drug investigations. Sergeant Preshaw, who then held the rank of Senior Constable, had only been conducting general policing duties for a short time after having spent 12 years in search and rescue. Constable Von Wald was a junior officer with 2 years' experience as a police officer at the time of these events. It is apparent from the evidence, and conceded by the officers, that they did not have an adequate understanding of their powers. In my view, they did not knowingly or deliberately act unlawfully. However, it is relevant and should be borne in mind, that, as they acknowledged, they did not take the time or make the effort to properly ascertain their powers. I think the forceful and determined way that they dealt with the accused, particularly without first making the effort to clarify their powers, was inappropriate and deserves censure, but this is not a case of police consciously using investigative techniques known to them to be unlawful to obtain evidence that would not otherwise be available to them. They clearly had sufficient grounds to obtain a search warrant before entering the premises, and had they done that, their subsequent actions would have been lawful.
·     To some extent, the police officers' inaccurate understanding of their lawful powers can be mitigated by the confusion inherent in the communication to them of their task. The information which they received was relayed to them by the radio room. On the basis of that information, they reasonably believed that they had been asked by the management of the apartments to investigate the presence of drugs. I am satisfied that this was a genuine belief and arose from a misunderstanding, having regard to the indirect nature of the communications. The confusion was also contributed to by the fact that the accused had been absent from the premises, but had returned between the time that the request was made for the police to attend, and their actual attendance.
·     Further, this is not a case of police acting in defiance or contravention of the rights of the occupant of a permanent residence. The constraints and safeguards around entry by police into private premises, including the need to obtain a search warrant, are founded on deep and longstanding notions of individual privacy and the sanctity of a person's home, and its protection from the wrongful intrusion of the authority and power by the State. Bell and Gageler JJ made this point in the opening paragraph of their reasons for judgment in Roy v O'Neill (above) at [31]:
"In the Australian way of thinking, a home is a sanctuary. This sentiment is reflected in common expectations and common practices: 'the habits of the country'. Those habits are founded on an ingrained conception of the relationship between the citizen and the state that is rooted in the tradition of the common law. The conception can be traced to the Jacobean resolution of the Court of King's Bench that 'the house of every one is to him as his castle ... as for his repose'." [Footnotes omitted.]
·     While that fundamental rationale remains important in this case, its force and significance is somewhat reduced by the circumstances of the accused's occupation of the apartment. Clearly, this was not his home, but rather short term rental accommodation that he had occupied for only two nights. Although he was entitled to privacy in that accommodation, he was in the apartment on the extended licence of the apartment owners, and was, on any view of the circumstances, due to leave. Of course, the owners of the apartment were also entitled to protection from trespass by the police, and to choose to preserve the privacy of their clientele. However, the police were only there in the first place because they had been contacted and asked to attend by management. Ms Rossiter's cryptic request of the radio room made a substantial contribution to the misunderstanding of the responding police as to why the apartment's management had requested their assistance. These factors mitigate against the need for a sanction against the police by way of the exclusion of the evidence.
·     Finally, it is relevant that the officers did eventually realise the limitations of their understanding of their powers, and did, in fact, seek advice from the drug squad. As soon as this occurred, it was made clear that there was a need to obtain a warrant. They acted on that advice immediately. I infer from this that there is no unlawful practice among police which is "widespread or entrenched", a factor which, if it existed, would weigh in favour of excluding the evidence: (see DPP v Marijancevic [2011] VSCA 355, 219 A Crim R 344 at [65]). The unlawfulness in this case resulted from a discrete mistake by relevantly inexperienced police officers.

The balancing of these factors weighs in favour of admission of the evidence. Accordingly, the impugned evidence of and arising from the searches conducted on 12 July 2019 will be admitted. Both objections are overruled.