The King v Amital
[2022] NTSC 74
•12 September 2022
CITATION:The King v Amital [2022] NTSC 74
PARTIES:THE KING
v
AMITAL, James
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22117621
DELIVERED: 12 September 2022
HEARING DATES: 17 March 2022 & 27 June 2022
WRITTEN SUBMISSIONS: 28 Feb 2022, 16 Mar 2022, 17 Mar 2022, 18 Mar 2022, 9 May 2022
JUDGMENT OF: Blokland J
CATCHWORDS:
EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – law – Whether evidence obtained or received as a consequence of impropriety or contravention of an Australian law – Applicant stopped at a RBT on north side of Adelaide River – Negative breath test followed by negative drug test – Accused told police he was going to Port Keats – Police declared a random search would be performed under the Liquor Act – Detained applicant, occupants and vehicle for search under Police Administration Act.
EVIDENCE – Discretions – Exclusion of evidence – Improperly or illegally obtained evidence – Whether forfeiture offence under the Liquor Act was ‘about to be’ committed – Meaning of ‘about to be’ committed – Approach to interpretation of statutes that impair rights.
EVIDENCE – Discretions – Exclusion of evidence – Whether impropriety to detain and search under Liquor Act when point of search is 290 kilometres from general restricted community.
EVDIENCE – Discretion – Exclusion of evidence – Whether improper to detain under the Liquor Act for random search and investigate for drug offences while detained – Question of the need for caution and compliance with police general orders – Partial caution given – some acknowledgment that suspect did not fully comprehend – Compliance with Evidence (National Uniform Legislation) Act, s 139 on cautioning.
EVIDENCE – Discretion – Exclusion of evidence – International Covenant
on Civil and Political Rights – Whether breaches of Covenant – Liberty –
Freedom of movement – Privacy – Potential for discrimination on the basis
of race or social origin if Liquor Act interpreted in particular manner.
AlKateb v Godwin (2004) 219 CLR 562; Babui v O’Neill [2020] NTSC 50; Bropho v Western Australia (1990) 170 CLR 1; Coco v The Queen [1994] HCA 15; Connor v Pittaway Mendes v Pittaway [1969] VR 335; Director of Public Prosecutions (on behalf of Watson) v Kaba [2014] VSC 52; DPP v Farr [2001] NSWSC 3; DPP v Magnus Kaba [2014] VSC 52; DPP v Tamcelik (2012) 224 A Crim R 350; EM v The Queen 2007) 232 CLR 67; Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; Henwood v Balchin [2011] NTSC 84; John Holland v Industrial Court of New South Wales [2010] NSWCA 338; Johns v Australian Securities Commission [1993] HCA 53; Lacey v Attorney General of Queensland (2011) 242 CLR 573; Magrath v Goldsborough Mort Co Ltd (1932) 47 CLR 121; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission [1993] FCA 77; Momcilovic v The Queen (2011) 245 CLR 1; Munkara v Bencesevich [2018] NTCA 4; Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; Parker v Comptroller-General of Customs (2009) 83 ALJR 494; Parker v Comptroller-General of Customs [2007] NSWCA 348; Parker v Comptroller-General of Customs [2009] HCA 7; Parsens Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; Plaintiff S 157/2002 v The Commonwealth (2003) 211 CLR 476; Police v Grozev [2006] SASC 353; Potter v Minahan (1908) 7 CLR 277; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Buddee [2016] NSWDC 42; R v Goodwin [1944] KB 518; R v Haddad (2000) 116 A Crim R 312; R v Kola (2002) 83 SASR 47; R v Kovac [2021] NSWDC 85; R v Large [2019] NSWDC 627; R v Onuorah (2009) 76 NSWLR; R v Rondo [2001] NSWCCA 540; R v Secretary of State for Home Department Ex Parte Simms [2002] 2 AC 115; Richardson v Austin (1911) 12 CLR 463; Rigby v Mulhall [2019] NTSC 70; Robinson v Woolworths Ltd (2005) 64 NSWLR 612; Williams v The Queen [1986] HCA 88; Wilson v Kuhl [1979] VR 315, referred to.
Evidence (National Uniform Legislation) Act 2011 (NT); ss 138, 139.
Liquor Act 2019 (NT); s 237-239.
Police Administration Act 1978 (NT).
Traffic Act1987 (NT); s 29AA-AAFA.
International Covenant on Civil and Political Rights, opened for signature
19 December 1996, 999 UNTS 171 (entered into force 3 September 1953).
A Ligertwood & G Edmond, Australian Evidence: A Principled Approach to
the Common Law and Uniform Acts (LexisNexis Butterworths, 6th ed, 2017).
REPRESENTATION:
Counsel:
Applicant:J Bourke/ C Larkin
Respondent: L Payne/ T Grealy/ J Moore
Solicitors:
Applicant:North Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: BLO2206
Number of pages: 73
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Amital [2022] NTSC 74
No.22117621
BETWEEN:
THE KING
Applicant
AND:
JAMES AMITAL
Respondent
CORAM: BLOKLAND J
RULING ON OBJECTION TO EVIDENCE
(Delivered 12 September 2022)
Background
James Amital (‘the applicant’) is charged on indictment with one count of supply of a Schedule 2 dangerous drug, namely cannabis that was less than a commercial quantity, and the dangerous drug was supplied in an Indigenous community, contrary to s 5D(1) of the Misuse of Drugs Act 2017 (NT). He is also charged with one count of possess a traffickable quantity of the same, contrary to s 7A(1) of the Misuse of Drugs Act. The date of the alleged offending was on or about 6 June 2021.
The applicant seeks exclusion of the evidence sourced from a police search of the car he was driving under s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) ‘UEA’.
Under s 138 of the UEA, evidence obtained or received as a consequence of an impropriety or contravention of an Australian law is not to be admitted unless on balance it is desirable to admit it. The section sets out the factors a court may take into account in determining whether to admit the evidence.
Broadly, the facts which will be alleged by the Crown should the matter proceed to trial are as follows:[1] The applicant collected $8000 from the Wadeye Community. He came to Darwin and purchased 400 grams of cannabis for $8000 from an unknown source. He placed the cannabis into a cloth bag and attached it under the rear bumper of his black Kia Sorrento. On the evening of 5 June 2021, he left Darwin with passengers Patrick Amital/Jongmin, Eva Bunduck, Danielle Bunduck and began driving back to Wadeye.
It is alleged that at around 11:30pm the applicant was stopped at a Random Breath Testing (‘RBT’) station on the northern side of Adelaide River. He provided a negative result when a random breath test was administered. He also tested negative when a random drug test was taken. When a police sergeant asked him where he was going, the applicant said they were travelling back to “Port Keats”. In response to questioning, one of the occupants, Patrick Jongmin told police he had recently used cannabis. The Crown case is that police then formed a reasonable suspicion there were drugs in the car, on the basis of the conversations with the applicant and Jongmin. Additionally, suspicion was raised as it was late at night for travel from Darwin on a common supply route to Wadeye. The police officers concerned knew there was a high prevalence of cannabis use at Wadeye.
A search of the car, the applicant and other occupants was conducted, purportedly under s 120C of the Police Administration Act 1978 (NT). As well as other potentially relevant items associated with cannabis use and supply, under the car, 400 grams of cannabis was located in clip seal bags in a small cloth bag.[2] No alcohol was found.
The application for exclusion of the evidence is framed as follows:[3]
a.That all evidence obtained as a consequence of the continued detention and search on vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer is objected to and should be excluded from evidence pursuant to section 138 of the Uniform (National Evidence Legislation) Act.
There was some modification of the grounds of objection towards the end of the voir dire, though principally the grounds are:
a.That the continued detention of the vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer pursuant to s 238 of the Liquor Act 2019 (NT) was unlawful; and
b.That the continued detention and search of vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer was improper as it began with police using the Liquor power for the ulterior purpose of investigating suspicions around drug offending, and that this ulterior use of the Liquor power is improper; and
c.That the continued detention and search of the vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer pursuant to s 120C of the Police Administration Act 1978 (NT) was unlawful as there were no reasonable grounds for the continued detention or search of the vehicle or the continued detention of both James Amital and Patrick Jongmin.
The Crown opposed exclusion of the evidence on all of the grounds advanced by the applicant. Counsel for the Crown submitted: evidence on the voir dire would show the applicant was stopped by police at a random breath testing station at Adelaide River; that police indicated the car would be searched, and as a result the occupants were removed from the car.[4] The applicant returned a negative test to both the random breath test and saliva drug test. The Crown relied on the police powers contained in s 29AAB of the Traffic Act 1987 (NT) to stop the car and require the tests and on ss 237-239 of the Liquor Act (2019) NT which allows police to stop, search and detain a vehicle or person, if it is suspected on reasonable grounds that a forfeiture offence is or is about to be committed. Police may do the same with no suspicion on a random basis. Further, s 120C of the Police Administration Act 1978 (NT) permits the search of a vehicle if ‘reasonable grounds’ exist to suspect the presence of a dangerous drug.
Evidence was taken to determine whether the grounds for impropriety or contravention of an Australian law were made out and if so, whether there were any factors relevant to the exercise of the discretion under s 138 UEA.
Summary of evidence on the voir dire
Some important primary facts were agreed between the parties:[5]
Ports Keats, now known as Wadeye is a general restricted area for the purposes of the Liquor Act. Adelaide River township and surrounds, including where the stop and search occurred, is not a general restricted area for the purposes of the Liquor Act. Nor is it an alcohol protected area for the purposes of the Stronger Futures in the Northern Territory Act 2012 (Cth). The distance between Adelaide River township and Wadeye community is 291 kilometres. The approximate drive time from Adelaide River township to Wadeye community is four hours via car. The sale of takeaway alcohol is legal in Adelaide River township at the following venues:
(i)The Adelaide River Inn (including the associated Puma service station). The hours of sale are: Sunday to Friday, 10am to 10pm, and Saturdays and Public Holidays, 9am to 10pm; and
(ii)The Post Office Store. The hours of sale are Sunday to Friday, 10am to 10pm, and Saturday and Public Holidays.
In his evidence, Sergeant Bradshaw outlined his considerable experience investigating alcohol and drug trafficking, including trafficking to remote communities.[6] This included identifying involvement in drug trafficking, distribution in remote communities, conducting random operations for drug detection, operations at remote airports and working closely with the Drug Detection Dog Unit.[7]
On 5 June 2021 Sergeant Bradshaw was tasked to assist with policing work at the Adelaide River races, to prevent anti-social behaviour and conduct RBT stations.[8] He and other attending officers set up the RBT in a safe, well lit open road area with a left hand turn lane to stop vehicles “travelling south.” By “travelling south” he meant that the RBT was set up before traffic reached the town centre.[9]
The car driven by the applicant along with Patrick Amital,[10] and two female occupants, arrived at the RBT at 11:30pm, travelling south from Darwin.[11] Sergeant Bradshaw conducted the breath test on the applicant.[12] It was after he administered the RBT that the applicant told him in response to questions, he was travelling to Port Keats.[13] The applicant’s licence was valid and in order.[14] Sergeant Bradshaw had the applicant’s licence in his possession before he asked him to pull over further.[15] He asked the applicant about liquor, and to pull over to a verge on the side of the road. The applicant told him he had no alcohol with him. He had earlier told him he did not drink alcohol.
Sergeant Bradshaw said his intention was to conduct a search under ss 238-239 of the Liquor Act.[16] He said that after the breath test, when he directed the applicant to pull over, the applicant could not have known the result of the breath test.[17] He said he did not think he needed to let the applicant know the result of the breath test because he had not committed an offence.[18] He would have informed him of the result if he had committed an offence. When he asked the applicant to pull over onto the verge, the applicant complied.
Sergeant Bradshaw said it was common that people did not tell him the truth. At first he only spoke to the applicant. He thought it was quite possible other occupants had liquor with them. He stated s 238 allows him to search at random for the detection of a forfeiture offence that has, is being, or about to be committed. He said he was “looking to detect an offence that’s about to be committed by transporting liquor to Port Keats.”[19]
Asked if the fact the applicant said he was travelling to Port Keats raised concerns about drugs and alcohol, he said it was not only that factor, but also the time of the travel. In Bradshaw’s experience people used the hours of darkness, particularly late at night to travel to remote communities as they are less likely to be stopped by police.[20] Port Keats was a community where cannabis use was prevalent.[21] Asked why he conducted a liquor search, Sergeant Bradshaw said it was for the safety of the community, to enforce the powers under the Liquor Act and prevent liquor from getting into the community and causing damage.[22]
Sergeant Bradshaw also gave evidence of some recognition of the applicant or his name. The name “Amital” was “kind of familiar” to him, and he “looked him up” to check his identity and his history. He saw he had multiple convictions. At least two convictions were for cannabis, the most recent was 2014 for supplying cannabis in an Indigenous community. There was also a relevant conviction from 2005 or 2006, although there remained uncertainty about the details.[23] He said he checked the applicant’s record after he stated he would search the vehicle. His inkling that he may have recognised the applicant was not crystallised until he saw the applicant’s criminal history.[24] It was then that his suspicions turned to drugs. He had not completed the salvia test to detect drugs at that time, although it was administered before he directed the applicant over to the side of the road.
He knew he had the authority under the Traffic Act 1987 (NT) to administer the drug test at random.[25] He asked the applicant whether there were drugs in the car and the applicant said there were none.
After speaking to the applicant, Sergeant Bradshaw spoke to Patrick Amital, the front passenger. Asked if it was standard procedure to have a conversation with a passenger, Sergeant Bradshaw said “I was trying to build my grounds to search the vehicle under s 120 of the Police Administration Act.” During the course of Sergeant Bradshaw’s conversation with Patrick, Bradshaw asked him about drugs and Patrick indicated he was a cannabis user. Bradshaw believed Patrick said the last time he used was in Darwin, and he thought Patrick said something that indicated he was in possession of drugs. Bradshaw said Patrick then effectively recanted that potential admission.[26]
Sergeant Bradshaw said it was after the conversation with Patrick that he decided he would search the car. He had reasonable grounds to suspect there were drugs in the vehicle and on the occupants.[27] In terms of “building [his] grounds to search the vehicle” he referred to the time of travel and the applicant’s history but he said he was not at the point where he had reasonable grounds to search under s 120C of the Police Administration Act until he had the conversation with Patrick. The conversation with Patrick gave him reasonable grounds to suspect and enabled the search.[28] He informed the occupants of the car about his intention to search the vehicle after the conversation with Patrick.[29]
Sergeant Bradshaw accepted English “certainly” was not the first language of people living at Wadeye. He acknowledged Murrinh Patha was their first language.[30]
Sergeant Bradshaw said he searched Patrick and the applicant but did not find anything. He turned his attention to the back of the vehicle and started searching.[31] When he searched the floor of the boot, he noticed a very strong smell of cannabis and it was evident to him that cannabis was concealed underneath the vehicle, where it was found in a coloured cloth bag. Fourteen ounces of cannabis with receipts and paperwork were in the bag.[32]
He said he spoke to Patrick and the applicant separately. He cautioned the applicant after the search. The USB of Sergeant Bradshaw’s body-worn video was tendered and shown during the voir dire.[33] Relevant parts of the conversations captured on body-worn video will be set out later in these reasons.
Sergeant Bradshaw accepted that in the exercise of the power to conduct a random search, he was relying on a ‘forfeiture offence’ under the Liquor Act ‘being or about to be committed.’ When the applicant was directed from the road over to the nearby grass verge, Sergeant Bradshaw agreed the applicant was not free to leave, he was detained.[34] The car and all passengers were detained under the Liquor Act.[35]
Sergeant Bradshaw agreed the applicant was not cautioned. The right to silence was not explained. He did not explain the conversation would be captured on body-worn video.[36] He was asked about police ‘General Order Q1 Questioning and Investigations.’ He agreed the General Orders would have applied to him at that time. In re-examination he was taken to a portion of ‘General orders Q2 Questioning people who have difficulties with the English language: the “Anunga” Guidelines,’ in particular 2.2: ‘Investigators must determine, as part of the investigation whether or not a particular suspect is entitled to the benefit of the guidelines.’ Sergeant Bradshaw said the applicant was very well spoken, responsive and there were no issues around understanding him. He accepted the guidelines referred to suspects but when he was talking to the applicant, he was not a suspect.
He said Patrick Amital was not a suspect until he told him he used drugs.[37] He thought Patrick Amital was evasive, his questions to Patrick were not complicated. Patrick Amital’s responses indicated that he understood what was being asked.
Sergeant Bradshaw agreed that Wadeye was approximately 291 kilometres from Adelaide River; that it is a four hour drive; that it is legal to possess and purchase alcohol in Adelaide River and that between Adelaide River and Wadeye there are also areas where it is legal to possess alcohol, as not all areas are general restricted areas.[38] Sergeant Bradshaw asked the applicant where he was going and he said Port Keats. Bradshaw did not ask if he was stopping at Adelaide River or anywhere between Adelaide River and Wadeye.
He agreed that certain answers the applicant gave were verified. For example, the applicant said he had not been drinking which was verified by the breath test. He said that he had not smoked cannabis which was confirmed by the salvia test. Sergeant Bradshaw thought that when he asked the applicant if he had a criminal history, the applicant said “no.” It was suggested to him that what the applicant actually said was “a long time ago.”[39] The later suggestion is confirmed by the body-worn video. He agreed there was nothing about the applicant’s demeanour that made him suspicious of cannabis.[40] He stated “Nothing about his demeanour, no”, the implication being there were other factors that made him suspicious.[41]
It was while Acting Sergeant Green was conducting a drug test on the applicant, that Sergeant Bradshaw walked around the car to Patrick. He agreed Patrick gave him his date of birth. He had no relevant history. He agreed he did not caution Patrick, did not tell him he had the right to remain silent and did not tell him or any of the occupants that their answers were being recorded. Asked if he had any power to look up Patrick’s history, given he was a passenger, Sergeant Bradshaw said he could look up anyone he liked when he was conducting an investigation. Patrick was an occupant of the vehicle at the time when Sergeant Bradshaw was about to conduct a search under the Liquor Act. He said his grounds for conducting a search under s 120C of the Police Administration Act had not evolved at that point, but Patrick was still in custody.[42]
Sergeant Bradshaw acknowledged s 239 of the Liquor Act gives the power to “stop, detain and search.” He agreed the section does not say “question.” He said that when he spoke to Patrick he was suspicious as to the presence of cannabis and said “I was concerned about it, yes.” That was why his first question to Patrick was “do you smoke ganja Patrick?” He said he was questioning Patrick as to his knowledge of cannabis in the vehicle. He said he heard himself say on the body-worn footage “I’m not worried if you smoke ganja.” He disagreed he was misleading Patrick into divulging information. He confirmed that he was trying to establish his grounds to enable a s 120C search. He disagreed it was his intention to mislead or that Patrick was in fact misled. He agreed it was after asking about Patrick’s use of “ganja” and some further questions, that Bradshaw told them he was going to search the vehicle; and he agreed he said words to the effect of “I’m going to search you because you’ve told me you smoke ganja” and that he was worried that Patrick smoked ganja.[43]
Sergeant Bradshaw agreed that the passengers were speaking in a language that was not English and that police General Orders required him to make enquiries as to a person’s capacity to understand the English language. He said he believed Patrick understood what he was asking him. Patrick did not indicate any difficulty in understanding what Bradshaw was saying, nor did Bradshaw get that impression. He said his focus was on getting information as to the presence of cannabis and Patrick responded to a question from him that indicated he was in possession of drugs, although he could not remember “word for word” what was said.[44]
In re-examination Sergeant Bradshaw was asked whether, when he exercised the power to call the applicant over, he had suspected that an offence against the Liquor Act was committed. He said “no, it was a random search.” He said he stopped the vehicle for a random breath test and when the applicant said he was going to Port Keats, it turned into a random search for liquor. At that time the applicant was not a suspect.
Sergeant Bradshaw was taken to Q1 of the General Orders, para 2.2 which he read out: “During the investigation – investigatory stage, members are entitled to put questions to any person, whether suspect or not, from whom they believe useful information may be obtained. If, however, the person being questioned is a person suspected of having committed a relevant offence, regardless of whether they are in custody the interviewer must electronically record the conversation if practicable for any confessional material to be admissible. See s 143 of the Police Administration Act.” Sergeant Bradshaw acknowledged that a relevant offence was an offence punishable by imprisonment of more than two years. In that case, conversations must be electronically recorded. He said the applicant was not a suspect at that time and at the point of asking Patrick about drugs, Patrick was not a suspect.[45]
Senior Constable Green assisted with the search of the vehicle. He was tasked to administer the saliva test on the applicant and then took names from some of the passengers.[46] Asked if it was common practice to administer the saliva test after a random breath test, he said it was “on occasion” but they would not test every person. In this case, the vehicle had been directed from the road for further actions in order to conduct a liquor search on the basis that it was travelling to Port Keats. Green was only aware of the applicant’s vehicle being searched that night, no other vehicle was. He said there were two ladies and two children in the back. The children were laying across the rear seat on the laps of the adults. The children were asleep.[47]
Once everyone was out of the vehicle, Senior Constable Green assisted Sergeant Bradshaw with the search of the car by providing light. At the time he did not know what power was being exercised to search, though his understanding when giving evidence was that he was using s 120C of the Police Administration Act.[48] He said he did not know why the vehicle was being directed off the road but he would have assumed it was for a liquor search. He assumed when he was asked to conduct the saliva drug test that the random breath test would have already been done. He was not familiar with the applicant, nor did he know his destination at the time. He said the applicant was present when he stated the drug test was negative, as the applicant had heard him announce the result in response to a question from Sergeant Bradshaw. The test takes five minutes to develop. He agreed all occupants of the car were being detained at the time and none were free to leave.
Officer Jimmy Parimeros saw Sergeant Bradshaw speaking with Patrick in the context of conducting a traffic apprehension and the RBT. Officer Parimeros spoke to the other occupants, not to the applicant. They told him they were “going towards Port Keats.”[49] He said he could hear Sergeant Bradshaw talking with the applicant and explaining he would do a search under s 120C of the Police Administration Act. He then assisted with the search of the car and located some of the items. He heard Sergeant Bradshaw tell the applicant that he had reason or grounds to suspect there were drugs inside the vehicle. Officer Parimeros agreed that when the vehicle pulled over to the side of the road he could not say anything about the circumstances of the people in the vehicle.[50] At that point he did not know why the vehicle was being detained. He agreed it was not until Sergeant Bradshaw announced the search that he was aware of the reason the car was detained and became aware that it was a search under s 120C of the Police Administration Act.
Constable Gemma Farmer was also on duty. She noticed other police officers at the back of the applicant’s vehicle. She assumed they were going to conduct a search so she assisted by removing items from the back of the boot. At that stage she noticed a strong smell of cannabis, so she assumed it was a s 120C search. She said she removed a jerry can and the smell of cannabis became overpowering when Sergeant Bradshaw lifted the plastic flooring from the boot.[51] Asked if she was told at any time why she was searching the vehicle; she said she had assumed and recalls Sergeant Bradshaw saying that the applicant had a history for drug supply, but did not recall him saying a date.[52]
Police powers relevant to the lead up to the search of the vehicle
It has been held that when a series of interactions between police and a citizen in a traffic stop situation are required to be analysed, an approach which may be adopted by a court when asked to consider whether police have properly exercised their powers is as follows:[53]
It is necessary for a court to proceed step-by-step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their enquiry.
The step-by-step approach is a useful approach to take in this matter as the application to exclude evidence requires some analysis of the authority of police to act under the Traffic Act, the Liquor Act, and the Police Administration Act, all within the context of determining an application to exclude the evidence under s 138 of the UEA. Section 138 of the UEA provides:
138Exclusion of improperly or illegally obtained evidence
(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; 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.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(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.
Section 138 allows a court to exclude certain evidence when its terms are engaged, subject to a discretion to admit it.[54] Once evidence is shown to have been unlawfully or improperly obtained, it must be excluded unless a court is persuaded to exercise its discretion to admit it.[55]
As Riley CJ held in Rigby v Mulhall,[56] the section requires a two-step process. First determining whether the evidence was obtained unlawfully, improperly, or as a consequence of either. Second, if so obtained whether the evidence should be admitted despite the impropriety or unlawfulness on consideration of the non-exhaustive factors listed under s 138(3). In EM v The Queen,[57] it was held the balancing exercise between the desirability and undesirability of admitting the evidence constitutes the discretionary component of the provision.
The party seeking exclusion, in this instance the applicant must establish that the evidence was obtained unlawfully or improperly or as a consequence of the same on the balance of probabilities.[58] Once that onus is satisfied the party seeking admission, in this instance the Crown bears the onus to establish that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained.
In Parker v Comptroller-General of Customs,[59] French CJ relied on the Oxford English Dictionary definition of ‘improperly’:
The relevant ordinary meanings of “improper” include “not in accordance with truth, the fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”.
In Robinson v Woolworths Ltd, Basten JA held an applicant must establish the standards of propriety against which a claim of impropriety will be measured,[60] and the conduct in question must be quite inconsistent with that standard.
In terms of the meaning “contravention of an Australian law” French CJ said:[61]
… “Contravention” refers to [T]he action of contravening or going counter to; violation, infringement, transgression.
Without essaying an exhaustive definition, the core meaning of “contravention” involves disobedience of a command expressed in the rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of the statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.
Drawing on Parker v Comptroller-General of Customs, Ligertwood and Edmond suggest use of the words ‘improperly’ and ‘in contravention of’ reflect the idea that the discretion extends beyond activities that are technically unlawful and ‘applies to other activities that would bring courts into disrepute if they were simply condoned. The essence of this discretion is weighing of the public interest in rectitude of decision against the notion that citizens’ rights be maintained within the administration of justice’.[62] Such an idea is reflected in a number of the reported decisions on this subject.[63]
Authority to conduct a breath test, drug test and analysis
It is agreed by both parties that there was no impropriety or contravention of an Australian law when Sergeant Bradshaw required the applicant to pull over and stop for the purpose of administering a breath test. Section 29AAB of the Traffic Act allows police to direct a driver to pull over ‘without’ reasonable suspicion of an offence, for the purpose of requiring a breath test and a saliva test. Once pulled over, the power to conduct a breath test, breath analysis or saliva test is covered by s 29AAC of the Traffic Act. As mentioned, both tests returned negative results.
Section 29AA provides that a person who is required to submit to a breath test, must comply with the directions given by police. The requirement to submit to a breath test must take place within four hours of either a specified event (which is not relevant here) or from being directed to pull over.[64]
In certain circumstances, none which apply here, a person may be arrested after being directed to pull over and directed to submit to a breath test.[65]
Similar provisions with adaptions for context apply to the requirement to pull over and submit to a salvia test to determine whether there is a prohibited drug in the person’s body.[66]
Unless there was some other power to hold the applicant, passengers and car, the applicant was free to leave at the conclusion of both tests returning a negative result. Without any further lawful authority to hold them, the applicant, passengers and car would have been free to leave.
After considering all of the evidence, I find that after the breath and salvia tests were completed, attending police then detained the occupants and car in order to search the car for alcohol purportedly under the Liquor Act. After telling Sergeant Bradshaw he was going to Port Keats, and the associated conversation, Bradshaw told the applicant to pull off onto the verge. Sergeant Bradshaw began to investigate whether any drug offences were committed when the applicant and others were detained under the Liquor Act. After a conversation with Patrick, Sergeant Bradshaw concluded he had reasonable grounds for a drug search under s 120C of the Police Administration Act.
Authority to detain and search the vehicle and persons under the Liquor Act
I find, as is clear from the above summary of evidence, Sergeant Bradshaw intended to conduct a search under ss 238-239 of the Liquor Act after the tests under the Traffic Act and the conversation he had with the applicant. He directed the applicant to pull off onto the verge.
Sergeant Bradshaw was explicit about the source of his authority to do so and no other authorisation or power was suggested to be available at that time. Sergeant Bradshaw told the Court that at the time of directing the applicant to pull off onto the verge, he did not hold ‘reasonable grounds’ to suspect dangerous drugs in the vehicle. His questioning of the applicant indicated he was going to ‘check’ for alcohol. After the direction to pull over and after Bradshaw conducted a check of the applicant’s criminal record and licence, the following exchange took place:[67]
Bradshaw:James your name sounds familiar. Have we talked to each other before?
James Amital: (Inaudible)
Bradshaw:Never been in trouble with Police?
James Amital: Long time ago
Bradshaw:What sort of things for?
James Amital: (Pause) can’t remember
Bradshaw:Can’t remember what you’ve been in trouble for? Hey, um, we’re going to check for alcohol. I know where I know you from. Is there anything else in this car that we should know about? I’m only asking you to be honest. You know what I’m talking about?
James Amital: Yeah.
Bradshaw:Ganja.
James Amital: No.
Bradshaw:No ganja in this car? No.
James Amital: We just went in to see (inaudible)…in hospital.
Bradshaw:What, your missus?
James Amital: My mum.
Bradshaw:Your mum, is she alright?
James Amital: Yeah.
Bradshaw:Alright. Um, can we do a drug test?
Green:Yep
Bradshaw:You been smoking ganja, James?
James Amital: No, not for a long time.
Bradshaw:When was the last time you smoked ganja?
James Amital: Mmm, back in my younger days.
Part 10, Divisions 3 of the Liquor Act sets out the police powers of entry, search and seizure. Section 234 stipulates the powers ‘must not’ be exercised except in relation to a ‘forfeiture offence’:[68]
Part 10 Special search and seizure powers
Division 1 Application and interpretation
234 Forfeiture offences
The search powers in Division 3 and the seizure powers in Division 6 must not be exercised except in relation to a forfeiture offence.
A ‘forfeiture offence’ means an offence against s 45 of the Liquor Act (unauthorised sale of liquor); s 46 of the Liquor Act (unauthorised supply or service of liquor); s 173 of the Liquor Act (bringing, possessing, consuming or supplying liquor in a general restricted area); s 183 of the Liquor Act (bringing, possessing, consuming or supplying liquor in a special restricted area); and s 294 of the Liquor Act (intentionally purchasing liquor when the sale of liquor is not authorised by licence).
Division 3 of the Liquor Act provides:
Division 3 Special search powers
237 Search on suspicion of forfeiture offence
An inspector or a police officer may, without a warrant, exercise the powers specified in section 239 if the inspector or officer suspects on reasonable grounds that:
(a)a forfeiture offence was committed, is being committed or is about to be committed; and
(b)it would not be reasonably practicable to obtain a warrant to investigate the forfeiture offence.
238 Search on random basis
An inspector or a police officer may, without a warrant, exercise the powers specified in section 239 on a random basis to detect whether a forfeiture offence was committed, is being committed or is about to be committed if the search is conducted:
(a) within a general restricted area or a special restricted area; or
(b)in relation to a vehicle, vessel or aircraft that the inspector or officer suspects on reasonable grounds to be travelling to a general restricted area or a special restricted area; or
(c)in relation to a driver, passenger or member of the crew of a vehicle, vessel or aircraft referred to in paragraph (b), whether on board or not; or
(d)in relation to baggage or cargo that the inspector or officer suspects on reasonable grounds to be destined for travel to or delivery to a general restricted area or a special restricted area.
239Search powers
The following powers may be exercised by the inspector or police officer under this Division:
(a)enter and search premises;
(b)stop, enter, search, remove and detain a vehicle, vessel or aircraft;
(c)stop, detain and search a person;
(d)search any thing found:
(i)on or in the premises entered or searched under paragraph (a); or
(ii)on or in the vehicle, vessel or aircraft stopped, entered, searched, removed or detained under paragraph (b); or
(iii)on the person stopped, detained or searched under paragraph (c).
An exercise of power under s 237 (search on the basis of suspicion) and s 238 (search on a random basis) is conditioned inter alia on a ‘forfeiture offence’ that ‘was committed, is being committed or is about to be committed’.
The forfeiture offence which was potentially open was an offence against s 173 of the Liquor Act, namely bringing liquor into a general restricted area. The applicant was not in or near a restricted area at the time of apprehension so it could not be said that a forfeiture offence was or is being committed in the terms of s 238. Whether it was “about to be committed” requires further analysis.
As s 238 of the Liquor Act permits a search on a ‘random basis’ to detect whether a forfeiture offence is being committed or is about to be committed, no ‘suspicion on reasonable grounds’ nor any suspicion at all need be held by the police officer. However, if the appropriate suspicion is held and other conditions are met, it seems police could rely on both sources of authority. Whatever the case, the legislative requirements for each power to be exercised must be strictly observed.
In terms of an approach to the construction of a statutory provision such as s 238, it is important to bear in mind that a random search represents an intrusion into common law or basic rights, consequently such a provision should be read or construed strictly.[69] To subject a person or their property including as here, a car containing personal items, to detention or a search represents a general interference with those rights. In Babui v O’Neill,[70] Grant CJ said an interference by way of search of a person requires “scrupulous observance” of the conditions imposed on the exercise of the power.[71] The exercise of the power on this occasion under ss 238-239 of the Liquor Act resulted not only in the search of some of the occupants but also detention of all occupants and the car. Those actions are clear intrusions into basic rights.
The Crown argued the threshold for police to lawfully use the powers in s 238 is low;[72] and that all that is required under s 238 is a reasonable suspicion the vehicle is headed towards the general restricted area. The officer need not have a reasonable suspicion in relation to a forfeiture offence being committed.
As is evident from the agreed facts, while the Crown agrees that the surrounds of Adelaide River and the township itself is neither a general restricted area nor a special restricted area, Sergeant Bradshaw was told by the applicant that he was headed to Port Keats. The Crown submitted that as a result, and given Sergeant Bradshaw’s experience about late night travel to communities, it can be concluded a forfeiture offence against the Liquor Act was likely to be committed.[73] Accordingly, in the Crown’s submission police had the power to search the applicant for alcohol.[74]
When ascertaining the objective intention of the legislature, I am mindful of the fallacy pointed out by Griffith CJ in Richardson v Austin:[75]
…As to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a statute than first of all to assume that the legislature had a particular intention, and then, having made up one’s mind what that intention was to conclude that the intention must necessarily be expressed in a statue and then proceed to find it.
If the Crown’s construction of s 238 is correct, it does lead to some extreme results. It would mean that every driver in the Northern Territory could, for example be apprehended at any point along the Stuart Highway, and if their final destination was a community or town covered by a general restricted area or a special restricted area, the driver, car and occupants could be subject to a random search. This would apply no matter how far away the community was from the point of the random search. There are alcohol restricted areas over many parts of the Northern Territory. A person driving to Maningrida from the NT/SA border could be liable to a random search, even though the destination of Maningrida is likely to be days away. Of course if the text of the Liquor Act clearly provides for random searches hundreds of kilometres from the targeted general or special restricted area, the legislation prevails and searches of this kind would be lawful. However, the rules of statutory interpretation require strict adherence to the words in context and would prevent a result of that kind.
In my view the proper construction of ss 237 or 238 does not lead to such a result. These reasons will concentrate on s 238, search on a random basis, as that is the section Sergeant Bradshaw relied on to search the applicant, passengers and the car,[76] after administering the RBT and drug test.
To exercise the powers of search authorised by s 239 of the Liquor Act, both ss 237 and 238 require the search must be to detect ‘whether a forfeiture offence was committed, is being committed or is about to be committed.’ It is difficult to accept here that such an offence was ‘about to be committed’ when the general restricted area of Wadeye/Port Keats was 291 kilometres from the RBT and the stop and search point.
The conditions set out in s 238 of the Liquor Act which permit the exercise of search powers contained in s 239 requires first that the search be on a random basis; second that it be conducted ‘to detect whether a forfeiture offence was committed, is being committed, or is about to be committed’ (emphasis added); and, relevantly (b) in relation to a vehicle ‘that the inspector or officer suspects on reasonable grounds to be travelling to a general restricted area or a special restricted area.’
There were some foundational facts on which to conclude conditions (1) and (3) were made out, but not, in my view condition (2) that a forfeiture offence ‘is about to be’ committed. The applicant’s car was on the northern side of the Adelaide River township, it was not in a restricted area, nor was it in common parlance, ‘about to go’ into a general restricted area.
Travelling in the night to Port Keats/Wadeye was likely to have made Sergeant Bradshaw somewhat suspicious given his experience of grog and drug runners late at night, but the place where he exercised the Liquor Act powers was still 291 kilometres away from Port Keats/Wadeye, a drive which would take approximately four hours.[77] Alcohol may be purchased and consumed during specified hours in Adelaide River, [78] and according to Sergeant Bradshaw’s evidence, there are other points on the road to Port Keats/Wadeye which are not general restricted areas.[79] The fact the destination was Port Keats/Wadeye, or “towards Port Keats” as some of the passengers stated does not seem on a plain application of s 238 to amount to a forfeiture offence ‘about to be committed.’ ‘About to be committed’ means just that. In my view it refers to potential offenders who are much closer to ‘the limit’ as it is referred to in some communities. In other words, closer to the start of the delineation of the general restricted area from the unrestricted areas, or some other indication that a forfeiture offence is ‘about to be committed’.
I do not think, as the Crown has submitted that the only information about destination Sergeant Bradshaw had to rely on was the stated destination of Port Keats. The Crown pointed out that the applicant offered no further information to Sergeant Bradshaw such as whether he was stopping somewhere on the way or even drinking or hiding alcohol somewhere along the way. In my view the stated destination was hours away which tends to detract from any notion the applicant was ‘about to’ commit a relevant offence. The conversation set out above in these reasons between Sergeant Bradshaw and the applicant has little detail, as might be expected in the circumstances. The applicant had no alcohol with him in any event. To talk to Sergeant Bradshaw about whether he would stop, drink it or hide it along the way, would not have made any sense. It is unremarkable that there was no further information forthcoming on that point.
As mentioned, the Crown contended the only test that must be met in order to exercise the powers of search under the Liquor Act was that Sergeant Bradshaw suspected on reasonable grounds the car was travelling to a general restricted area.[80] The Crown relied on the following passage from Smart JA in R v Rondo:[81]
….. [W]hat 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 the suspicion which the police officers formed. In answering that question regard must be had to the source of the information and its contents, seen in the light of the whole of the surrounding circumstances.
With respect, that approach is accepted in general terms, but here there is no dispute about the information Sergeant Bradshaw was acting on when he sought to invoke powers under the Liquor Act. He said it was to be a random search because the applicant was travelling to Port Keats, coupled with the time of night. Either way, he was only authorised to conduct a search, whether on reasonable suspicion or randomly, if a forfeiture offence was ‘about to be committed.’ There is in my view some imminence express or implied in the phrase ‘about to be committed.’
The phrase ‘is about to be committed’ is not defined in the Liquor Act. Section 3 sets out the ‘purposes’ of the Liquor Act:
Purposes
(1)The primary purpose of this Act is to minimise the harm associated with the consumption of liquor in a way that recognises the public's interest in the sale, supply, service, promotion and consumption of liquor.
(2)The secondary purposes of this Act are:
(a)to protect and enhance community amenity, social harmony and community wellbeing through the responsible sale, supply, service, promotion and consumption of liquor; and
(b)to regulate the sale, supply, service, promotion and consumption of liquor in a way that contributes to the responsible development of the liquor industry and associated businesses in the Territory; and
(c)to facilitate the diversity of licensed premises and associated services for the benefit of communities in the Territory; and
(d)to regulate the sale, supply, service, promotion and consumption of liquor in a way that stimulates the tourism and hospitality industries.
(3)To achieve its purposes this Act:
(a)regulates the sale, supply, service, promotion and consumption of liquor; and
(b)prohibits certain products and activities in relation to the sale, supply, service, promotion and consumption of liquor; and
(c)provides for the appointment of persons to administer and enforce compliance with this Act; and
(d)establishes offences and processes to enforce compliance with this Act.
(4)A person exercising a power or performing a function under this Act must have regard to the primary and secondary purposes of this Act and must exercise the power and perform the function in a way consistent with those purposes.
Although the purpose of the Liquor Act is clearly directed to harm minimization and sets out a regulatory framework including the establishment of offences and enforcement mechanisms, the purposes set out in s 3 do not have a bearing on how enforcement powers are to be construed, save that it has been held that the search and seizure powers are conferred in aid of the principal purpose.[82]
The relevant Second Reading speech refers to the existence of random searches in general terms, but does not shed light on the meaning of ‘about to be committed’. The Attorney General and Minister for Justice said:[83]
There is a separate and additional power to conduct random searches of persons and premises in order to enforce the strict liquor prohibitions of restricted areas. The power allows random searches within general and special restricted areas and in relation to persons and goods travelling to restricted areas. These powers do not allow entry of residential premises when read in conjunction with the clause relating to entering residential premises. Places and things can be searched, and inspectors and police have the powers to stop and detain vehicles, vessels, aircraft, or persons for the purpose of conducting such searches.
The applicant contends s 238 of the Liquor Act must be strictly construed to minimise the encroachment upon rights and freedoms at common law in accordance with the principle of legality. The principle of legality was established in R v Secretary of State for Home Department Ex Parte Simms,[84] and has since been quoted with approval by the High Court in Plaintiff S 157/2002 v The Commonwealth,[85] and AlKateb v Godwin.[86] In Ex Parte Simms, Lord Hoffman said:[87]
The principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the Courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the Courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
In Coco v The Queen,[88] the joint judgment emphasized ‘fundamental right, freedom or immunity’, possibly in preference to ‘common law right’ but that is not a significant distinction in this case in terms of the scope of the principle:
The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The Courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in a context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
The principle of legality has been applied in cases which construe parts of the Liquor Act.[89]
Even taking into account that random search provisions are in place to allow the search of persons and goods travelling to restricted areas and that the principal purpose of such a power is harm minimization,[90] that overall context does not displace the need to conform to the particular words namely, that an offence is ‘about to be committed.’
When the current Liquor Act 2019 was debated in the Legislative Assembly, a ‘statement of compatibility with human rights’ (‘statement’) was tabled.[91] The statement declares the Liquor Bill 2019 to be ‘compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).’[92]
Most of the statement is directed to how the Bill deals with measures directed at the regulation of supply, service, the banned drinkers register and their compatibility with the Right to Equality and Non-discrimination under Articles 2, 3, 16 and 26 of the International Covenant on Civil and Political Rights (‘ICCPR’). When the statement deals with Article 12(1) of the ICCPR, freedom of movement and choice of residence, the statement acknowledges some interference based on stop and search powers, relevantly:[93]
Elements of the Bill may interfere with the free movement of persons, as police officers and inspectors are empowered to conduct searches, and to stop vehicles and make enquiries in relation to purchases of liquor.
These search powers are limited to the requirement for the inspector or police officer to form a reasonable suspicion that the person has committed, is committing, or is about to commit such an offence. It is also subject to the limitation that it must not be reasonably practicable to seek a warrant. It is also a limitation of this power that it can only be used to enter residential premises without the consent of an occupier of the premises in a general or special restricted area.
The Bill allows an inspector or police officer to search a vehicle, … person… at random where the vehicle…person or premises is in a general restricted area or special restriction area. The clause also allows for random searches outside a restricted area, where there is a reasonable suspicion that the vehicle…person is travelling to or from a restricted area.
The statement assesses the human rights implications on an interpretation of the Liquor Bill which proceeds on the basis that the powers are limited to offences the person has committed, is committing, or is about to commit; but also on the basis there is a reasonable suspicion that the vehicle is travelling to a restricted area.
Although not expressed as common law rights, the statement is also concerned with basic, internationally accepted rights under the ICCPR, Article 12: freedom of movement and choice of residence; Article 17: Freedom from arbitrary or unlawful interference with privacy. In terms of the International Convention on the Elimination of All Forms of Racial Discrimination, the statement recognises the Bill continues and creates substantial liquor restrictions, and provides more intrusive powers to enforce those restrictions. It acknowledges the restricted or controlled areas targeted by the scheme are primarily Aboriginal communities and public spaces, which will have the effect of impairing the enjoyment and exercise of the rights and freedom of Aboriginal persons to privacy and freedom of movement to a greater degree than non-Aboriginal persons. However, reliance is placed on special measures and the statement provides ‘these measures are taken for the sole purpose of securing adequate advancement of these same persons, who are disproportionately affected by alcohol-related harm.’[94]
The statement indicates the legislature has had some regard to the intrusion into basic rights in some parts of the Liquor Act. The intrusion into those rights should not be expanded by a broader reading of the search provisions, which would disregard the phrase ‘about to be committed’. In line with the authorities already cited, such a broad reading of the section which would authorise random searches to take place whenever a person is travelling to a general restricted area, should not prevail. To attribute a meaning of the kind urged by the Crown would require ‘clear and unambiguous words,’[95] ‘irresistible clearness,’[96] or ‘with a clearness which admits of no doubt.’[97]
Police authority to stop a driver and randomly check a licence and car registration have been held to require consideration of the rights to liberty, freedom of movement and privacy.[98] Further, an aspect of the common law right to freedom of movement includes a qualified right to drive on public roads. The right must be exercised according to law.[99] All rights can be qualified or abrogated by legislation but in order for a court to comply with the principle of legality, when a constructional choice is open, statutes must be construed to avoid or minimise their encroachment upon basic rights and freedoms.[100]
If the legislature had intended to authorise inspectors or police officers to randomly search any vehicle travelling to a general or special restricted area, the statute would have said so. It would then be perfectly lawful for police to randomly stop a driver and search a vehicle 271 kilometres from a general restricted area. Indeed it would be lawful for police to search a vehicle entering the Northern Territory via the NT/SA border town of Kulgera travelling to Maningrida, a general restricted area about 2000 kilometres away, or from Kulgera to Wadeye/Port Keats, a slightly shorter distance. The Court must strive to give meaning to every word of a provision.[101] The statute does not provide for random searches for travelling to any general restricted area, the random search can only take place ‘to detect whether a forfeiture offence was committed, is being committed or is about to be committed.’[102]
The words detect whether a forfeiture offence ‘is about to be committed’ must be given meaning. As indicated, in my view on a plain reading this cannot mean a person is hundreds of kilometres away and hours away from the scene of the potential offending. The phrase implies some immediacy. The applicant argued it is a matter of fact and degree. The applicant referred to the Macquarie Dictionary entry for ‘about to’ which is defined as ‘on the point of (doing something)’: about to leave.
Stroud’s Judicial Dictionary of Words and Phrases entry ‘about to’ states:
“About to [do something]”. A person is not “about to” do something merely because he has an intention to do it – R v Goodwin [1944] KB 518 (“about to commit” an offence, Prevention of Crimes Act 1871 (C112) s 7). The idea is more that the person is just ready to do the thing in question: see, for example, Bentsen v Taylor Sons & Co (No2) [1893] 2 QB 274, per Esher MR (construing “now sailed, or about to sail” in a charter part).[103]
Parts of R v Goodwin (‘Goodwin’) have been applied in Australia without criticism, although none of the statutes discussed in the Australian cases, use the phrase ‘about to commit’.[104]
In Connor v Pittaway Mendes v Pittaway,[105] Pape J dealt with a case stated about the interpretation of the offence of loitering ‘with intent to commit a felony’ under the Vagrancy Act 1966 (Vic). Reliance by one party on Goodwin was not successful, in part because Pape J said Goodwin required that ‘The evidence must show that the accused was then and there about to commit an offence’. Pape J said it would be quite wrong to rely on that statement with respect to a charge of frequenting or loitering with intent under the Vagrancy Act as Goodwin was concerned with the Prevention of Crimes Act ‘which specifically requires proof that the defendant was about to commit an offence,’ which was not a requirement under the Vagrancy Act. All of this leads to the conclusion that ‘about to commit an offence’ must be given meaning.
The powers of search of vehicles, persons and other relevant things under the previous Liquor Act of 1978 (‘previous Act’) were predicated on an inspector or police officer reasonably suspecting a relevant offence ‘has been, or is being or likely to be, committed.’[106] The previous search powers were therefore conditioned on broader criteria than the current Liquor Act. The conditions contained in the previous Act are not as strict as the current Act and do not require that an offence is ‘about to be committed’, but rather ‘likely to be committed’.
The parties drew attention to cases under the previous Act. Differences in the previous Act and facts of the cases are readily distinguishable from the facts and circumstances here. Not a great deal can be drawn from those cases when considering this matter. However, for completeness those cases will be outlined briefly.
Henwood v Balchin was an appeal against a Magistrate’s ruling rejecting a submission that cannabis found in two cars, the product of a search for alcohol was unlawful.[107] Initial inquiries on whether alcohol or drugs were in the car was denied by the occupants. Police informed the occupants they would search both cars. The prosecution relied on s 95(2) of the previous Act which as mentioned was expressed differently from the current act. At that time the Act relevantly provided:
…an inspector may, without warrant (a) do one or more of the following on a random basis for the detection of a relevant offence that has been, or is being or is likely to be, committed: (i) stop, enter, search and retain a vehicle…; (ii) stop, detain and search a person … (iii) search a thing in connection with the exercise of a power under subparagraph (i) or (ii).
Section 101AN(2) was a search provision in similar terms. There was no requirement that an offence was ‘about to be committed.’ When searching for alcohol, police came across cannabis, thus it was held upon finding some cannabis they had a reasonable belief there were illicit drugs in the cars and so could lawfully continue to search in bottles and containers.[108] In any case it may be noted that in Henwood v Balchin,[109] the appellants’ cars were required to stop 30 kilometres from Maningrida. On the facts, that is distinguishable from the current matter.
In Babui v O’Neill,[110] police officers in Wurrumiyanga attended the wharf to conduct a search of people arriving on the ferry from Darwin to determine whether any had alcohol in their possession. The officers had no ‘reasonable suspicion’ within the meaning of the previous s 95(1) that a relevant offence had been, was being, or was likely to be committed by any particular person on the ferry. The searches were conducted ‘on a random basis for the detection of a relevant offence’ pursuant to power conferred by s 95(2). As passengers alighted from the ferry, adult passengers were searched on the beach.[111] Grant CJ held that the search was randomly, and thus lawfully conducted. There was a strong nexus between search powers being executed and the ability to detect prescribed offences. In Babui the passengers had already arrived in a restricted area. Under both the previous Act and the current Liquor Act a random search in the actual restricted area is likely to comply with the Act. Babui is quite removed from this case on its facts.
The applicant submitted ‘about to be committed’ is a matter of fact and degree. While that may be so, in my view that phrase means what it says ‘about to be committed’. It is on the point of offending. In the context of how offences of this kind can take place, such a meaning makes sense. As an example, many communities have markers for the beginning of a general restricted area, colloquially known as ‘the limit’.[112] Some people drink at ‘the limit’ and wander or drive through the restricted area with drinks in hand or in their vehicles. Some go backwards and forwards. When intending to go home from ‘the limit’, with alcohol, they are about to commit the offence. There are doubtless other examples of how offences of this kind are ‘about to’ be committed, but that is one example of how this offence may be committed.
The phrase ‘about to be committed’ is reminiscent of the discredited ‘last act’ test in the common law of attempt, and was applied in some Griffith Code States until it was criticised and fell into disuse.[113] Criminal responsibility for offences under the Liquor Act, is governed by Part IIAA of the Criminal Code 1983 (NT).[114] An attempt under s 43BF(2) of the Criminal Code occurs when the person’s conduct is ‘more than preparatory’ to the commission of the offence. Essentially what is required is that the accused does acts which are ‘sufficiently proximate to the intended commission of the crime’.[115] Intention to commit the offence must be proven.[116] In my view the phrase ‘about to commit an offence’ covers acts which are more proximate to the offence being committed than does the law of attempt. If the objective intention was to allow random searches whenever a car was heading to a general restricted area with the requisite intent, the legislature could have provided for a random search whenever an offence under the Liquor Act was ‘attempted’.
The police power to arrest a person without warrant under s 123 of the Police Administration Act is enlivened when police believe on reasonable grounds that a person has committed, is committing or ‘is about to commit an offence’ I could not find case law on ‘is about to commit an offence’ in the context of s 123, though it would be highly unlikely if arrests which relied on the words ‘about to commit an offence’ were permitted in anything other than reasonably immediate circumstances of an offence about to be committed.
The detention of the applicant, other occupants and the car in order to ‘search’ was an impropriety as the conditions of ss 237-238 were not complied with.
Reasonable grounds to suspect a dangerous drug?
As can be seen from the summary of evidence, Sergeant Bradshaw told the Court he was “building [his] grounds” for reasonable suspicion of the presence of dangerous drugs, but until he had the conversation with Patrick he did not hold such a suspicion. His reason for speaking to Patrick was to establish those grounds.
Section 120C of the Police Administration Act provides;
A member of the Police Force may, without warrant, stop, detain and search the following;
(a) an aircraft, ship, train or vehicle if the member has reasonable grounds to suspect that a dangerous drug, precursor or drug manufacturing equipment may be found on or in it;
(b) any person found on or in an aircraft, ship, train or vehicle being searched under paragraph (a);
(c) a person in a public place if the member has reasonable grounds to suspect that the person has in his or her possession, or is in any way conveying, a dangerous drug, precursor or drug manufacturing equipment.
The Crown submissions about s 120C of the Police Administration Act proceed on the basis that police had the power to search under both the Liquor Act and under the Police Administration Act after Sergeant Bradshaw spoke to the passengers. Police can exercise dual search powers. The Crown made reference to a comment in Henwood v Balchin:[117]
… there is nothing to suggest that a vehicle stopped and searched under the Liquor Act (NT) cannot upon the finding of illicit drugs, subsequently give rise to a reasonable belief by police officers sufficient to enliven power under s 120 of the Police Administration Act.
I adhere to that reasoning in general, though in Henwood v Balchin it was clear police were utilising their powers to search under the Liquor Act and then found cannabis and continued searching the two cars and various containers.
In this case not only has it been found there was no authority to embark on a Liquor Act detention and search in the circumstances, but Sergeant Bradshaw was clear that after speaking to Patrick he sought to exercise powers only under s 120C of the Police Administration Act. Under s 239 of the Liquor Act there was no power to investigate other offences, which was acknowledged by Sergeant Bradshaw. It was after questioning the applicant for up to 10 minutes that he then questioned Patrick, trying to “build [his] grounds” for a search under s 120C. The questioning of Patrick raises issues of fairness of the questioning, particularly with respect to the likelihood of misleading him with the question “I don’t care if you smoke ganja”, and later stating “I’m searching you, because you’ve told me you smoke ganja”. The questioning of Patrick was played during the voir dire. Through no fault of anyone, much of the recording is inaudible, but I will set out in full what has been heard after it was re-played in chambers. The first section covers the questioning when Patrick was still in the car. The second section covers questioning after cannabis was found under the car which although is not relevant to building the grounds for suspicion, illustrates more of the exchange, giving some insight into language issues and alerting police to the fact that Patrick contested his and the applicant’s involvement in placing the cannabis under the car at that time.
Conversation between Sergeant Bradshaw and Patrick Jongmin from 8 minutes and 50 seconds
Bradshaw:Hi Sir, what’s your name?
Patrick:Patrick
Bradshaw: What’s your last name?
Patrick:Jongmin
Bradshaw: Jongmin?
Patrick:[Inaudible]
Bradshaw: What’s your date of birth Patrick?
Patrick:[Inaudible]
Bradshaw: 25. 6. 80… can you talk louder?
Patrick:[Inaudible]
Bradshaw: 19 84 thanks mate
Patrick: Yeah [inaudible]
Bradshaw: 19 90[4/5]?
…
Bradshaw: Smoked ganja Patrick?
Patrick:[Inaudible]
Bradshaw: When was the last time you smoked ganja?
Patrick:[Inaudible]
Bradshaw: Today?
Bradshaw: I’m not worried if you smoked ganja… last week though? Buy any ganja in Darwin?
Patrick:[Inaudible]
Bradshaw: Sorry you did? When?
Patrick:[Inaudible]
Bradshaw: When? Yeah when did you buy ganja in Darwin?
Patrick:[Inaudible]
Bradshaw: Do you have any ganja on you at the moment?
Patrick:[Inaudible]
Bradshaw: You have?
Patrick:[Inaudible]
Bradshaw: Sorry?
Patrick:[Inaudible]
Bradshaw: [Inaudible]… Because I’m worried you’ve got ganja on you now from what you’ve told me.... and I probably, I’m gonna search ya… because of what you’ve told me you smoked ganja [inaudible] have you got ganja on you right now?
Patrick:[Inaudible]
Bradshaw: ... I’m gonna search ya… so if I search ya I’m not gonna find anything?
Patrick:[Inaudible]
Bradshaw: You’re not convincing me you [your you] know what I mean?
Patrick:[Inaudible]
Bradshaw: I got reasonable grounds to suspect you got ganja on you. You wanna show it to me or do you want me to find it for myself?
Patrick:[Inaudible]
Bradshaw: You’ve got nothing on you? Alright yeah we’re gonna search… search the car
Is there anything… so you don’t have to tell me anything if you don’t want to… but if you want to help us out and tell us if there’s anything in this car we should know about?
Patrick:Nothing
Bradshaw: Nothing? Okay
Hey ahhh James, there’s your licence I don’t want to hang on to it accidentally
I’ll get you to jump out first Patrick… search you…
Just stand there… can you empty your pockets onto that seat for me… so if you have anything in your pockets put it on that seat… got nothing?
Patrick:[Inaudible]
Bradshaw: Just some Panadol?
Patrick:[Inaudible]
Bradshaw: Alright let me. I’ll search ya… get it over and done with…just stand… put your hands up there for me,… hands up there… you a gang member?
Patrick:[Inaudible]
Bradshaw: Yeah? You in a gang? Which one? Evil warriors or Judas Priest?
Patrick:Ahhh …
Bradshaw: Hey? Which one?
Patrick:Judas Priest
Bradshaw: Judas Priest? Alright. Go stand at the front there for me yeah?
Conversation between Sergeant Bradshaw and Patrick Jongmin from 30 minutes 35 seconds
Bradshaw: Hey Patrick… yeah no I wanna ask you a couple questions … we found this ganja underneath the [back thing] ... in a bag underneath the car
Patrick:Not me [inaudible]
Bradshaw: You don’t know anything about it?
Patrick:[Inaudible]
Bradshaw: That’s his? He’s saying it’s yours
Patrick:[Inaudible]
Bradshaw: What do you reckon? Is he lying or ... what
Patrick:[Inaudible]
Bradshaw: You’re not lying? ... hang on… I can’t hear you because of this truck
Who owns this ganja?
Patrick:[Inaudible]
Bradshaw: Is it his?
Patrick:[Inaudible]
Bradshaw: Is it his though? … Ja um James?
Patrick:[Inaudible]
Bradshaw: Is it his or not?
Patrick:[Inaudible]
Bradshaw: How do you know?
Patrick:[Inaudible]
Bradshaw: Huh… jump … jump out … come and talk to us
Patrick:Yeah I was … I was coming for ... for visit …
Bradshaw: Yeah. Who? Who was coming to visit?
Patrick:I don’t know
Bradshaw: Who put it under the car?
Patrick:Ahh must be ahh someone
Bradshaw: Coz do you own this car?
Patrick:Yeah [inaudible] missus
Bradshaw: Your missus?
Patrick:Yeah
Bradshaw: Alright
No but who… Who put it under the car do you know?
Patrick:[Inaudible]
Bradshaw: I’m just tryna work out the truth mate. Because it’s a lot of ganja and I um… I can either arrest everyone or arrest the bloke who done it
Patrick:[Inaudible]
Bradshaw: Ah you know I can charge everyone… in this car with [inaudible]… I know… I’m just tryna work out who has it. Who put it there and who has it
Patrick:No one’s put it there
Bradshaw: Well whose taken this ganja? ... you or him? Or these ladies?
Patrick:No [inaudible]
Bradshaw: Sorry? I couldn’t hear you mate
Patrick:Our ladies
Bradshaw: Is it theirs? Which one?
Patrick:[Inaudible]
Bradshaw: Everyone’s lying to me I think ay
Patrick:Yeah tell him [inaudible]
Bradshaw: Alright… give me a second.[118]
The first part of the conversation took place when the applicant, Patrick, the other occupants and the car were detained, purportedly under Liquor Act powers, even though the random search powers could not have been exercised at that time. Using the search powers under the Liquor Act to investigate, or in Sergeant Bradshaw’s words, build reasonable grounds for suspicion is in my view prohibited by the terms of s 234 of the Liquor Act. In any event, it was not proper to use those powers under the Liquor Act to investigate or ‘build’ reasonable suspicion for another offence.
As can be seen from the summary of facts, and the transcripts of the body worn camera footage, after the search under the Liquor Act had been announced but before announcing the search under s 120C, Sergeant Bradshaw questioned Patrick about cannabis immediately, not about alcohol. After he told the applicant he would search the car for alcohol, Sergeant Bradshaw immediately went to the subject of cannabis.
Neither the applicant nor Patrick were cautioned. There is one point towards the end of the first conversation with Patrick set out earlier that Sergeant Bradshaw tells him he does not have to tell (Bradshaw) anything. By that time, he has questioned Patrick about his use of ganja. It was after this conversation Sergeant Bradshaw said he had reasonable grounds and ‘it was all 120C’. Other passengers were not cautioned.
The Crown submitted a caution in respect of the applicant and Patrick was not required as they were not suspects at the time they were questioned. However, it must be remembered that both were detained at the time under the Liquor Act and were immediately or shortly thereafter, questioned about cannabis. Sergeant Bradshaw was somewhat inconsistent about whether Police General Orders applied at the time,[119] on the one hand stating they did apply to the applicant, then later agreeing the applicant was not a suspect. He said Patrick was not a suspect until he said he used drugs. In re-examination he accepted he was not a suspect. I cannot determine whether at various points Sergeant Bradshaw determined the applicant was a suspect for the offence of supply cannabis, but it is apparent he was treated in some respects as a suspect, but without safeguards as would be expected under Police General Orders. After Patrick gave information about his use of drugs, I conclude both the applicant and Patrick became suspects. There was an attempt to partially caution Patrick, although it was wholly insufficient to meet the requirements of both sets of General Orders.[120]
Further, on balance, the questioning of Patrick was likely to mislead him on the purpose of the questioning, given obviously English was not his first language. General Order Q2 clearly applied and was not complied with at all. It was misleading to ask “I’m not worried if you smoke ganja” in the context of the overall questioning set out above. This was likely to induce Patrick to speak more about cannabis which Sergeant Bradshaw was clearly worried about. It is this very conversation which was the last element contributing to the establishment of reasonable grounds for suspicion.
A further related issue is whether there was compliance with s 139 of the UEA:
139Cautioning of persons
(1)For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a)the person was under arrest for an offence at the time, and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and
(c)before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(2)For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:
(a)the questioning was conducted by an investigating official who did not have the power to arrest the person, and
(b)the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and
(c)the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
(3)The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.
(4)Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.
(5)A reference in subsection (1) to a person who is under arrest 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 an 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.
(6)A person is not treated as being under arrest only because of subsection (5) if:
(a)the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or
(b)the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.
The effect of a failure to caution under s 139 of the UEA is that exclusion of the questioning will be required under s 138 unless its admissibility can be justified.[121] If s 139 is engaged, the Court is required to find an impropriety in accordance with s 138(1) of the UEA has taken place. Here, the question is whether the applicant and Patrick were under arrest before questioning commenced without a caution. The applicant argued s 139(5)(b) of the UEA covered circumstances of ‘constructive arrest’ as on the evidence police ‘would not allow the person to leave if the person wished to do so’. The Crown relied on s 139(6)(b) on the basis that the applicant and passengers were not under arrest but merely being detained while police searched the car under s 238 of the Liquor Act and s 120C of the Police Administration Act. On the findings made thus far, the Crown’s contention must fail. Sergeant Bradshaw disavowed reliance on powers under the Liquor Act. From the time of the first round of questioning with the applicant and when he commenced questioning Patrick, he had commenced an investigation for cannabis while utilising the powers of detention he said he had under the Liquor Act. That amounted to a misuse of the powers he assumed he was exercising.
Section 139(6) of the UEA Act does not apply as the detention of the people and the car was not in accordance with law. Those powers under the Liquor Act were not the powers relied on to search the occupants of the vehicle and the car. The powers were used to investigate another matter, namely cannabis offences, therefore it was not a bona fide exercise of power.[122] Section 139(6) of the UEA did not affect the operation of s 139(5) and the applicant and other occupants were under arrest albeit constructive arrest at the time they were questioned by police.
It was an error to rely on the Liquor Act powers to apprehend and detain. During the period of detention assumed to be under the Liquor Act, Sergeant Bradshaw commenced investigation for cannabis offences and pursued the investigation until he had reasonable grounds under the Police Administration Act. He agreed there was no power to conduct a criminal investigation under s 238 of the Liquor Act.
A similar issue arose under a completely removed legislative regime in the New South Wales case of R v Buddee.[123] A car was apprehended for an RBT. The driver produced her licence. A breath test was taken. The reading was negative. When the police officers approached the car they began to ask questions about photo frames containing memorabilia from the movie Scarface in the back of the car. A caution was delivered. The officer did not specify what the caution was about but asked the driver, who owned the photo frames, to which she answered that they were hers. The officer asked if there was any ‘ice’ in the vehicle and the driver said “No, well at least I don’t think so”. The officer then said police would search the car and the driver was not to touch an ice pipe in the car. The passenger was to leave the car as well. The officer cautioned the driver and questioned her again. She agreed the contents of a tin looked like ice but she did not know the quantity. She was arrested for possession of a prohibited drug. In later questioning, further information about drugs was obtained from the driver. The police account of the incident was found to be against the objective evidence provided in the records and the Court concluded that the road safety power to pull people over for a random breath test was ‘selectively relied upon to pull people over on a hunch or mere suspicion that they might be involved in crime’.[124] After dealing with the authorities relevant to intrusions on liberties by the state,[125] McClintock DCJ said;[126]
Police do have power to arrest on reasonable suspicion. Police do not have the power to arrest for questioning or facilitating an investigation. At common law police had no authority to stop the vehicle and or subject the driver or passenger to questioning, to detain them or search them or their car. If it exists, that authority had to be found in statute.
A person should be regarded as having submitted to compulsion where, without the application of threat or application of physical restraint, he or she reasonably believes the choice to do otherwise does not exist.
After reviewing further authorities it was said that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating occupants or searching vehicles for crime detection.[127] I draw a similar conclusion here. Liquor Act powers of random search cannot be used to interrogate occupants or search cars for crime detection.[128]
In R v Large,[129] police stopped a car for a RBT but no test was administered. Following questioning, the accused and a passenger were removed from the car, cautioned and a search conducted. The stop was considered to be ‘proactive policing’. It was held the car was stopped for an ulterior purpose ‘[T]o make inquiry of the occupants of the car in order to ascertain whether they were involved in criminal activity, including drug supply’. It was held police were acting on a ‘hunch’ in the absence of reasonable suspicion.[130]
Buddee and Large were applied in R v Kovac on a similar issue of an investigation commencing after a car was stopped by police.[131] It was said in Kovac a police officer can make general conversation or ‘chit chat’ with a person.[132] At [42] the Court concluded ‘it can be stated that police are not empowered to ask certain questions that the legislation expressly provides is empowered upon certain criteria being met’. A number of examples of such powers were given. In Kovac it was held the caution required upon arrest should have been given by police at the time they were asking investigative questions. Even though in Kovac the accused was not under arrest, it was held no power was available for police to ask investigative questions that have the potential to circumvent the right to silence.[133]
Police in the Northern Territory are authorised to take a person into lawful custody, including for questioning,[134] though the person will need to be arrested and taken before a court as soon as practicable, unless they are being held for a ‘reasonable period’ under s 137(2) of the Police Administration Act to enable questioning and investigation. No claim is made to s 137 for authority to arrest and investigate, as the only authority was based on the Liquor Act for random search and detention, notwithstanding another power was relied on for the search. Further, this was not an arrest under s 123 of the Police Administration Act. At the time of the detention there was no suggestion there were reasonable grounds for arrest under s 123.
It is concluded here, police did not have authority when acting under the Liquor Act to ask investigative questions in order to build a suspicion for another offence.
Interesting questions arise about whether the dual powers under the Liquor Act and the Police Administration Act can both be enlivened at once or, whether the Liquor Act powers can be relied on, whether or not Sergeant Bradshaw formed the belief he could search for drugs under s 120C of the Police Administration Act. Ultimately, the Crown submitted whether or not Sergeant Bradshaw formed the reasonable suspicion under s 120C was irrelevant as the car was being searched in any event under the Liquor Act and during that search the cannabis would have been found.
The Crown relies on the authority police have to exercise dual search powers, even though Sergeant Bradshaw disavowed reliance on the Liquor Act powers for the actual search.[135] The Crown submits he was mistaken. In many situations, reliance on dual powers or mistaking the source of power by a police officer or other official exercising the power is unexceptional. In John Holland v Industrial Court of New South Wales; Parsens Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales Spiegelman CJ said:[136]
In the context of the exercise by an arm of the executive of a statutory power it is now the better view that a decision will not be invalidated if the holder of the power purports to exercise an inappropriate head of power, when another head of power was available.
When a power is exercised when there is a mistake in the source of the power does not result in invalidity. Validity or otherwise depends on whether the power existed.[137]
These cases concern mistaken powers, but here Sergeant Bradshaw relied on s 238 of the Liquor Act to detain the car and its occupants when such a power was not available. Even if my conclusion is wrong, there was no power to investigate other offences. Bradshaw used the Liquor Act power in any event to build grounds to acquire a reasonable suspicion under s 120C of the Police Administration Act to justify searching the car and occupants. The power under the Liquor Act was used for general criminal investigation or drug investigation, with barely a mention of alcohol in the questioning. As Sergeant Bradshaw said, it was “all s 120C”. It was a misuse of the power. It was not a bona fide use of the Liquor Act power.
In any event, it has been held the principle cited above from John Holland ‘is not a universal and categorical proposition’.[138] Here the information gathered to support or build the suspicion on reasonable grounds was mostly improperly or unlawfully obtained.
That said, once all of the information was in the possession of Sergeant Bradshaw, he did have, in my view reasonable grounds to suspect cannabis was in the car. The information was: the car was being driven to Wadeye; many people use cannabis at Wadeye; the time of driving was late, based on Bradshaw’s experience; it was a time when drug dealers try to take cannabis into Wadeye to lessen to risks of detection; acknowledgement by Patrick Jongmin that he smokes cannabis and on one interpretation of the body worn footage, had cannabis on him although he changed what he said; the applicant’s previous history including supply cannabis in 2014 and earlier unspecified cannabis offences. Not all of these pieces of information are of significant weight, but together they were in my view, enough to sustain a suspicion on reasonable grounds there was cannabis in the car or on some of the occupants. That was not the primary issue in this matter. The problem was that the information was obtained improperly or in contravention of an Australian law.
Application of the criteria in s 138 UEA
The following improprieties or contraventions of Australian Law have been identified which led to the evidence being obtained. These should be considered cumulatively from the time the applicant was told to pull off of the road onto the verge of the Stuart Highway, north of Adelaide River for a liquor search.
It was an impropriety to require the car and occupants for search under the Liquor Act as there was no evidence there was ‘about to be’ a forfeiture offence committed. It was a contravention of Australian Law under s 234 of the Liquor Act to ignore the statutory directive that search and seizure powers under the Liquor Act ‘must not be exercised except in relation to a forfeiture offence’ and instead that power was used to investigate generally or for cannabis offences.
It was an impropriety not to have cautioned Patrick Jongmin and the applicant once they were to be asked questions about cannabis. Although technically an impropriety with respect to the applicant, nothing was forthcoming and I will not consider it further. It was a related impropriety to tell Patrick Jongmin that Sergeant Bradshaw was “not worried if [he] smoked ganja” as that was likely to induce him to speak freely on that subject when Bradshaw was in fact worried he smoked cannabis. The combination of those matters led to the search for and evidence of cannabis and I was told, certain admissions later by the applicant. I turn to the matters to be taken into account under s 138(3) of the UEA.
The probative value of the evidence and the importance of the evidence in the proceeding
If the cannabis seized is excluded from evidence, the prosecution case would be very difficult, although not impossible to maintain. The definition of ‘supply’ in s 3 of the Misuse of Drugs Act is extremely wide:
(a)give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration or in the expectation of fee reward or consideration; or
(b) offer to do an act mentioned in paragraph (a); or
(c)do, or offer to do, an act preparatory to, in furtherance of, or for the purpose of, an act mentioned in paragraph (a);
and includes barter and exchange.
If it can be proven, as was originally part of the case, that the applicant collected money from members of the Wadeye community to purchase cannabis in Darwin, an alternative way to prove the case is to call witnesses from Wadeye in a case of this kind to give evidence to that effect. Such a process would entail obtaining information that money was provided to the applicant who offered to obtain cannabis or ‘administer’ its supply. It is unlikely there would be a great deal of cooperation from witnesses in Wadeye, but it is an alternative way of proceeding.
Notwithstanding that option, the probative value of the evidence is high in terms of its capacity to prove the applicant knew he was carrying cannabis. Further, the evidentiary presumption under s 40 of the Misuse of Drugs Act which provides an evidential onus on an accused who is an occupier of a place where a drug is found enhances the probative value. The importance of the evidence is that it is central to the current Crown case and the case would likely fail without it.
The nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceedings
The prosecution of drug offences in the Northern Territory is a necessary and serious matter given the high numbers of people vulnerable to drug induced mental health conditions and the social deterioration which is acknowledged in sentencing cases which particularly affect Aboriginal communities. The maximum penalty for count 1 is imprisonment for 9 years. The maximum penalty for count 2 is imprisonment for 7 years. There is a strong public interest in the prosecution of offences of this kind.
The amount of cannabis is not a commercial quantity. Cannabis is a Schedule 2 drug under the Misuse of Drugs Act and although all offending of this generic kind is serious, it is not at the higher end of offending, whether considered by quantity or the type of drug This is one of the less serious examples of offending of the kind seen in this Court. It is not violent offending, although sometimes violent consequences can be traced to heavy use of cannabis or behaviours associated with seeking out cannabis. It is prevalent offending. The applicant has a previous conviction for cannabis supply offending in 2014.
In terms of the defence, Patrick’s answers to Sergeant Bradshaw indicated there would be some dispute as to whose cannabis it was, though I do not give his answers much weight.
Whether the impropriety or contravention was deliberate or reckless
I do not conclude Sergeant Bradshaw’s initial detention of the car and occupants to be a deliberate flouting of the Liquor Act. He appeared to believe he was acting in compliance with the Liquor Act when he directed the car to the verge. This action took place shortly after two random tests. It is likely he gave little thought to the Liquor Act.
After that point, I have concluded he was to some extent reckless in his questioning of the applicant and Patrick Jongmin as he commenced a general investigation while still relying on the powers of the Liquor Act. He obtained information from Patrick Jongmin without compliance with a number of General Orders or s 139 of the UEA. He acknowledged after some questioning of Patrick that ‘You’re not convincing me you know what I mean’. This was acknowledgment Patrick lacked some understanding. The ‘caution’ that followed was inadequate. It was not a full caution, was non-compliant with the Anunga guidelines and there was no attempt to obtain interpreter services, even though that may have been difficult at the time. Phone interpreters are sometimes an option in unusual circumstances. Of more significance was the remark about not being worried about Patrick using cannabis.
That said, Sergeant Bradshaw’s manner and demeanour was appropriate, indeed he appeared to be reasonably friendly towards the applicant and Patrick, although it is unlikely to have been perceived by them in that way. Sergeant Bradshaw sounded as though he knew Wadeye well. As the questioning of Patrick was the catalyst for the search, the questioning of Patrick is a significant factor. The questioning or the impropriety that resulted was to some degree reckless as Sergeant Bradshaw was well aware of the relevant General Orders and the need to take care not to mislead a person even if unintentionally.
Whether the impropriety or contravention was contrary to or inconsistent with a right of a person’s recognised by the international Covenant of Civil and Political rights
Mention has already been made of the ICCPR in the context of the interpretation of the Liquor Act and the use made of the Covenant when the Legislative Assembly debated the Liquor Bill.
Article 9 of the ICCPR provides for the right to liberty and security of the person and that a person not to be subject to arbitrary arrest or detention, except in accordance with procedures established by law. Although the breach here is not a substantial incursion of the ICCPR, as procedures were not followed under the Liquor Act, the applicant and occupants were wrongfully detained from the time police told them to pull over for a search under the Liquor Act. Similarly, as the detention was not according to law as the applicant was not ‘about to commit’ a forfeiture offence under the Liquor Act, he should not have been subject to the preliminaries of a random search. This impaired his right to liberty of movement under Article 12(2) and interfered with his privacy under Article 17 as searches of his and the other occupant’s person was not authorised by law.
Article 2 of the ICCPR provides that the rights of all the individuals be recognised in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. As mentioned above, the Legislative Assembly considered potential racial discrimination under the Convention on the Elimination of All Forms of Racial Discrimination against the regime of restricted areas under the Liquor Act.
If the police interpretation of the circumstances under which detention and search can be authorised by the Liquor Act is permitted to stand, there is potential for indirect racial or social origin discrimination. On the police interpretation, anyone travelling to a community which is a general restricted area could be detained and randomly searched, even though the community of destination is hundreds or thousands of kilometres away. The vast majority of people who reside in general or special restricted areas are Aboriginal people. Whenever an Aboriginal person is travelling to their home community or visiting another, they could be subject to a random search. That would seem to call for an examination of whether such an interpretation of the Liquor Act was discriminatory on the basis of race or social origin. Of course if such a person was ‘about to commit’ a forfeiture offence, the operation of the law may be reasonable or justifiable even if it has a disproportionate operation on Aboriginal people who live in liquor restricted communities, but not otherwise. There is not any reason to ‘place a fence around criminal laws of general application’ on the basis that they do not attract the operation of principles of discrimination law.[139]
Although the incursions into the ICCPR are not substantial in terms of how long the applicant and others were detained and subject to searches, the consequences of any continuation of the practice is potentially damaging for members of the Aboriginal community and police and others who enforce the laws. These matters have been taken into account.
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
There is no evidence of, or concerns expressed by either party or a witness about any sanction or disciplinary action to be taken. This factor has no reference here.[140]
The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law
Cannabis supply charges of this kind are regularly brought before the Courts in the Northern Territory. As mentioned already, this is prevalent offending. The reason the prevalence is well known is because charges of this kind are regularly laid and placed before the courts frequently resulting in convictions. Nothing in this judgment, aside from perhaps underlining the need to comply with the Acts which govern search, seizure and the UEA changes that.
I am not persuaded it is desirable to admit the evidence. The desirability of admitting the evidence does not outweigh the undesirability of admitting evidence that has been obtained as described.
The evidence obtained in consequences of the improprieties and the contravention of an Australian law will be excluded, namely the cannabis and any associated evidence including the questioning of the occupants of the car, save for the short questioning of the applicant set out above in the reasons.
I will hear counsel on how the matter will proceed.
------------------------
[1] This summary is drawn from ‘Statement of Alleged Facts’, 15 June 2021, which was not tendered as an exhibit but provided to the Court for context.
[2] The weight was corrected before the formal charge and at the voir dire hearing was acknowledged to be 379.7 grams. Nothing turns on that point for relevant purposes here.
[3] Applicant, Notice and outline of objections in the voir dire, 28 February 2022.
[4] Outline of submissions, 16 March 2022 at [3].
[5] Agreed facts pursuant to s 191, Evidence (National Uniform Legislation) Act, 11 March 2022.
[6] Transcript, The Queen v James Amital, 17 March 2022, at 7.
[7] Ibid at 7-8.
[8] Ibid.
[9] Ibid at 20.
[10] Sergeant Bradshaw referred to Patrick Jongmin as Patrick ‘Amital’ in his evidence, therefore ‘Amital’ is used in this part of the summary. Nothing turns on the different names for these purposes. It appears both names were used by Patrick Jongmin. At times he will be referred to as ‘Patrick’ in these reasons.
[11] Transcript, The Queen v James Amital, 17 March 2022 at 8.
[12] Ibid at 20.
[13] Ibid at 9. Although ‘Port Keats’ is now known by the Murrinh Patha name ‘Wadeye’, the applicant, who is from Wadeye referred to Wadeye as Port Keats. This summary of evidence here will use the name used by each witness. Otherwise the area will be referred to as Wadeye/ Port Keats.
[14] Ibid at 21.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid at 9.
[20] Ibid.
[21] Ibid at 14.
[22] Ibid at 9-10.
[23] Ibid at 23.
[24] Ibid.
[25] Ibid at 21.
[26] Ibid at 11.
[27] Ibid at 10.
[28] Ibid at 10-11.
[29] Ibid 11-12.
[30] Ibid at 20.
[31] Ibid at 12.
[32] Exhibit 2; five photos taken at the scene.
[33] Exhibit 4, Body-worn footage relevant to Sergeant Bradshaw.
[34] Ibid at 22.
[35] Ibid.
[36] Ibid.
[37] Ibid at 31.
[38] Ibid at 23.
[39] Ibid at 24.
[40] Ibid at 24-25.
[41] Ibid.
[42] Ibid at 25.
[43] Ibid at 26.
[44] Ibid at 28.
[45] Ibid at 30.
[46] Ibid at 32.
[47] Ibid at 33.
[48] Ibid at 34.
[49] Ibid at 39.
[50] Ibid at 41.
[51] Ibid at 45.
[52] Ibid at 48.
[53] Director of Public Prosecutions (on behalf of Watson) v Kaba [2014] VSC 52; 44 VR 526 at [450], per Bell J, quoting Binnie J of the Supreme Court of Canada in Nolet [2010] 1 SCR 851 at [4].
[54] Robinson v Woolworths Ltd (2005) 64 NSWLR 612.
[55] DPP v Farr (2001) 118 A Crim R 299; [2001] NSWSC 3 at [75]; per Smart AJ; Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28], per French CJ; DPP v Tamcelik (2012) 224 A Crim R 350 at [107]-[118] per Garling J.
[56] [2019] NTSC 70 [16].
[57] (2007) 232 CLR 67; HCA [46] at [95] per Gummow and Hayne JJ.
[58] Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494, 500-501.
[59] [2009] HCA 7 at 29; 83 ALJR 494.
[60] [2005] NSWCCA at [37]; 64 NSWLR 612.
[61] Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494 at [29]-[30].
[62] Andrew Ligertwood and Gary Edmond, Australian Evidence A Principled Approach to the Common Law and Uniform Acts, (Lexis Nexis, 6th Edition) at 111-112.
[63] See e.g, R v Haddad (2000) 116 A Crim R 312 at [69]-76], per Spigelman CJ.
[64] Traffic Act s 29AAC(2).
[65] Ibid at 4-6
[66] Traffic Act, ss 29AAF-29AAFA.
[67] Body-worn footage of Sergeant Bradshaw.
[68] Liquor Act s 234.
[69] Babui v O’Neill [2020] NTSC 50 at [14], Grant CJ dealing with the repealed previous version of ss 237-238 citing Coco v The Queen [1994] HCA; 179 CLR 427; Lacey v Attorney General of Queensland (2011) 242 CLR 573; Momcilovic v The Queen (2011) 245 CLR 1 at 46; R v Kola [2002] 203 at [39].
[70] Ibid.
[71] Babui v O’Neill [2020] NTSC 50 at [17].
[72] Transcript, The Queen v Amital, 27 June 2021, at 15.
[73] Crown’s Outline of Submissions, 16 March 2022 at 20.
[74] Ibid.
[75] (1911) 12 CLR 463 at 470.
[76] See Liquor Act, ss 239(b) and (c).
[77] Agreed facts, 11 March 2022 at 3 and 4.
[78] Ibid at 5.
[79] Other general restricted areas along the way to Wadeye/Port Keats do not necessarily attract criminal sanction. It is a defence under s 173(d) of the Liquor Act if the liquor is being transported through a general restricted area.
[80] Crown, Supplementary submissions in reply to defence submissions; 9 May 2022 at 8.
[81] [2001] NSWCCA 540.
[82] Babui v O’Neill [2020] NTSC 50 at [10]-[11], per Grant CJ, dealing with similar provisions under the previous Liquor Act (NT).
[83] Northern Territory, Parliamentary Debate, 15 May 2019, 6306 (Natasha Files), Legislative Assembly of the Northern Territory Explanatory Note, Clause 235 is to the same effect.
[84] [2002] 2 AC 115 at 131 per Lord Hoffman.
[85] (2003) 211 CLR 476 at [30] per Gleeson CJ.
[86] (2004) 219 CLR 562 at [19] 11, per Kirby J.
[87] [2002] 2 AC 115 at 131.
[88] (1994) 179 CLR 427 at 437. See also Bropho v Western Australia (1990) 170 CLR 1 at 17-18 and Daniels Corporation v ACCC (2002) 213 CLR 543 at 582.
[89] Babui v The Queen [2020] NTSC 50.
[90] Above in 84.
[91] Prepared in accordance with the Thirteenth Assembly Sessional Orders (part 12.3) as adopted on 24 August 2017.
[92]Ibid.
[93] Ibid.
[94] Ibid.
[95] Bropho v Western Australia (1990) 170 CLR 1 at [17].
[96] Potter v Minahan (1908) 7 CLR 277 at 304.
[97] Magrath v Goldsborough Mort Co Ltd (1932) 47 CLR 121 at 128.
[98] Director of Public Prosecutions (on behalf of Watson) v Kaba [2014] VSC 52; 44 VR 526.
[99] Ibid.
[100] Momcilovic v The Queen (2011) 245 CLR 1 at [43], per French CJ.
[101] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [71], per McHugh, Gummow, Kirby, Hayne JJ.
[102]Liquor Act ss 237, 238.
[103] Stroud’s Judicial Dictionary of Words and Phrases, Vol 1, 8th Edition at 6-7.
[104] Wilson v Kuhl; Ryan v Kuhl [1979] VR 315 concerning the charge of ‘found armed with an offensive weapon’, per Mc Garvie J citing Goodwin said ‘If the defendant was at the material time armed with an offensive weapon, he was found armed with it…he was so found when he was discovered or seen armed with it. Goodwin was distinguished in Mansfield v Kelly; Langley v Bull [1972] VR 744, with respect to the offence of being ‘found drunk’; similarly see Lynch v Hargrave [1971] VR 99 concerning the phrase ‘finds offending’.
[105] [1969] VR 335.
[106] Liquor Act 1978 s 95(1)(a).
[107] [2011] NTSC 84.
[108] Ibid at [39]-[40].
[109] [2011] NTSC 84 at [14].
[110] [2020] NTSC 50.
[111] Ibid at [20], per Grant CJ.
[112] Although there is no material to suggest and I cannot remember if Wadeye has such a sign or marker.
[113] The test was accepted in R v Chellingworth [1954] QWN 35 and criticised in R v Williams [1965] QWN 86, 95, 92-102.
[114] Liquor Act, s 8.
[115]R v Onuorah (2009) 76 NSWLR 1 at [30], dealing with the similar Criminal Code (Cth); s 11.1.
[116] Criminal Code, s 43BF(4).
[117] [2011] NTSC 84 at [40].
[118] Body-worn footage of Sergeant Bradshaw.
[119]Exhibits 5 and 6.
[120]Exhibits 5 and 6.
[121]Andrew Lighterwood and Gary Edmond, Australian Evidence, A Principled Approach to the Common Law and Uniform Acts, (Lexis Nexis, 6th Edition) at 5.134.
[122]In a different statutory context see Severind v R [2017] NSWCCA 80 at [90].
[123][2016] NSWDC 42, McClintock DCJ.
[124]Ibis at [80]-[81].
[125]DPP v Magnus Kaba [2014] VSC Bell J; Williams v The Queen [1986] HCA 88; 1986 161 CLR 278).
[126]R v Buddee [2016] NSWDC 422 at [93].
[127]Ibid at 105.
[128]See also Grant CJ in The Queen v Gehan [2019] NTSC 91 on using Traffic Act powers to investigate drug offending.
[129][2019] NSWDC 627.
[130]Ibid at [106] Per Norris QC DCJ.
[131][2021] NSWDC 85, Priestly SC, DCJ.
[132]Ibid at [37].
[133]Ibid at [54].
[134]See provisions of the Police Administration Act; ss 137-138.
[135] Supplementary submissions in reply to defence submissions, 9 May 2022 at [1], [12]-[15].
[136] [2010] NSWCA 338 at [95].
[137] Johns v Australian Securities Commission [1993] HCA 53; 178 CLR 408 at 426, per Brennan J; at 469 per McHugh J; see also Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; 198 CLR 513 at 618 per Gummow J.
[138] Police v Grozev [2006] SASC 353 at [64] per Doyle CJ; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission [1993] FCA 77; 40 FCR 409 at [6], per Black CJ.
[139] See Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16 at [30]-[33] per Basten JA who criticised my judgment in Munkara v Bencesevich [2018] NTCA 4, in my view the criticism is fair, although I doubt the result would have been different in Munkara.
[140] Parker v Comptroller-General of Customs [2007] NSWCA 348; 232 FLR 362.
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