The Queen v Baker - [2021] NTSC 11

CITATION:The Queen v Baker [2021] NTSC 11
PARTIES:THE QUEEN

v
BAKER, Rachel

TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY

JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21851049
DELIVERED: 11 February 2021

HEARING DATE:  14 January 2021
JUDGMENT OF:  Brownhill J
CATCHWORDS:
EVIDENCE – Admissibility of evidence – whether evidence obtained from
police search of vehicle should be excluded – s 135 of Evidence (National
Uniform Legislation) Act 2011 (NT) – whether police search of vehicle
lawful – s 120C of Police Administration Act 1978 (NT) – reasonable
grounds to suspect a dangerous drug may be found – police officer found to
have subjectively held suspicion – facts found to be sufficient to induce
reasonable grounds of suspicion in a reasonable person – police officer’s
experience capable of informing suspicion – information in intelligence
reports capable of informing suspicion – time, place and circumstance may
be used in development of reasonable suspicion.
Evidence (National Uniform Legislation) Act 2011 (NT) s 138
Misuse of Drugs Act 1990 ss 5(1), 8(1)
Police Administration Act 1978 (NT) s 120C
R v Gehan [2019] NTSC 91, applied.
George v Rockett (1990) 170 CLR 104; Prior v Mole (2017) 261 CLR 265; R
v MacKenzie [2103] 3 SCR 250; R v Nguyen (2013) 117 SASR 432; Rigby v
Mulhall [2019] NTSC 70; Walsh v Loughnan [1991] 2 VR 351, referred to.
REPRESENTATION:
Counsel:
Appellant:N Loudon
Respondent:  M Thomas
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  John Toohey Chambers
Judgment category classification:    B
Judgment ID Number:  Bro2104
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Baker [2021] NTSC 11

No. 21851049
BETWEEN:

THE QUEEN

Appellant

AND:

RACHEL BAKER

Respondent

CORAM: Brownhill J
REASONS FOR DECISION
(Delivered 11 February 2021)
Background

The accused is charged on indictment with supplying a commercial quantity of cannabis plant material contrary to s 5(1) of the Misuse of Drugs Act 1990 (‘MODA’) (Count 1), and with possessing $32,100 in cash being property obtained from the supply of cannabis plant material contrary to s 8(1) of the MODA (Count 2). The maximum penalties for the offences are imprisonment for 14 years and 25 years respectively.
The Crown alleges that the accused and Steven Tipungwuti-Peris (‘the co-accused’) were in a relationship, residing in Darwin. The accused grew up in Galiwinku on Elcho Island. Between January 2017 and September 2018, the accused and the co-accused sourced commercial quantities of cannabis and arranged for it to be sent, by various means, to Galiwinku for supply. From time to time, they would travel to Galiwinku, stay there and supply cannabis themselves from the house they stayed in. When they were not in Galiwinku, they would also have others supply cannabis in the community on their behalf. If they were in Galiwinku, the accused would take the cash from the supply of cannabis back to Darwin with her on her person. If they were not in Galiwinku, the accused and co-accused used various means to obtain the proceeds from the sale of the cannabis. On 22 May 2018, the accused booked for herself, the co-accused and two other persons a charter flight from Galiwinku to Jabiru. They travelled to Jabiru and were met there by the co-accused’s uncle, who drove the four of them from Jabiru to Darwin.
As the vehicle approached Corroboree, it was stopped by Police. They conducted a random breath test on the driver. The co-accused was sitting in the front passenger seat and the accused was sitting in the back seat with the other two people who flew from Galiwinku on the charter flight. The occupants were removed from the vehicle and Police conducted a search of the vehicle in the exercise of the power conferred by s 120C of the Police Administration Act 1978 (NT). In the course of that search, Police located three packages inside some women’s shoes that were in a sports bag belonging to the accused in the boot of the vehicle. The packages contained $32,100 in cash, contained in clip seal bags bound with rubber bands and tightly duct taped. The cash was seized and is the subject of the charge in Count 2.
The accused’s objection
At a voir dire held on 14 January 2021, the accused contended that all evidence obtained as a consequence of the search of the vehicle, particularly in relation to the $32,100 in cash, should be excluded pursuant to s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’). The grounds of the objection were that the search of the vehicle was unlawful because Police had no reasonable grounds to suspect that a dangerous drug might be found in the vehicle.
Ruling
At the voir dire, I concluded that there were reasonable grounds to suspect that a dangerous drug may be found in the vehicle, and ruled that the evidence obtained as a consequence of the search of the vehicle bearing registration “BP3GEEL” on 22 May 2018 is not excluded by operation of s 138 of the ENULA. These are my reasons for doing so.

The operation of s 138 of the ENULA

Section 138(1) of the ENULA provides that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
“Impropriety” is not defined in the ENULA. Essentially, the conduct in question must be inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement, and it must be clearly and significantly inconsistent with those standards.[1]
The search of the vehicle
Section 120C of the Police Administration Act provides:
Searching without warrant
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 exercise of the power required the searching police officers to have reasonable grounds to suspect that a dangerous drug may be found in the vehicle. Those grounds must have existed in both the subjective and objective senses, which I will come to. If there were not grounds in both senses, the search was “improper” within s 138 of the ENULA.[2]
The section requires reasonable grounds for a suspicion, not a belief. Suspicion and belief are different states of mind, and suspicion is a state of conjecture or surmise where proof is lacking.[3] Suspicion denotes a less positive state of mind than belief, but some factual basis for the suspicion must be shown because a suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion but without sufficient evidence.[4] To be reasonable grounds, there must exist some facts which are sufficient to induce the state of mind (suspicion) in a reasonable person.[5] The question is not resolved by reference to the rules of evidence or the application of a test related to the balance of probabilities.[6] The evaluation of the reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise.[7]
The accused relied on the case of Rigby v Mulhall [2019] NTSC 70, in which Riley AJ found that there were insufficient grounds on which to reasonably suspect that a dangerous drug may be found in a vehicle. The grounds proffered were that the vehicle was being driven by the respondent (the defendant) who was the subject of police intelligence information to the effect that he was involved in transporting drugs between Palmerston and Katherine and the rural areas at night; the vehicle was driving around 3am; the respondent had a day job; and the vehicle was seen leaving a service station. The Court found the quality of the intelligence information was subject to serious concerns. It held that the fact that the respondent’s wife and baby were also in the vehicle, dressed in pyjamas, was inconsistent with a suspicion that the respondent was undertaking a drug run and consistent with a late night trip to the service station for some domestic need.
As CJ Grant observed in R v Gehan [2019] NTSC 91 at [43], there is limited utility in examining the particular circumstances which have been subject to consideration in other cases about the legitimacy of Police searches because the assessment in each case will turn on its own circumstances. The facts in other cases can, however, be illustrative. His Honour sets out the facts from a number of other cases in his reasons at [44]-[50].
The grounds for the suspicion
The officer who formed the suspicion and initiated the search was Detective Sergeant Kenneth Bradshaw (‘DS Bradshaw’). I received an affidavit made by him on 17 February 2020, which annexed copies of intelligence reports and he also gave oral evidence on the voir dire. He is an experienced police officer with a long history of working in Indigenous communities in the Northern Territory (‘NT’), specifically in drug supply investigations in remote NT communities.
He gave evidence that from early 2017 onwards, Police had been receiving intelligence information from various police and other human sources indicating that the accused and the co-accused were involved in the supply of drugs on Elcho Island and Bathurst Island. He explained that as at March 2018 the amount and nature of information was such that an investigation was commenced into the drug supply activities of the accused and the co-accused. His evidence was that the intelligence information so received was recorded in the NT Police system which generated the intelligence reports attached to his affidavit. DS Bradshaw’s evidence was that he was, as at 22 May 2018, aware of the content of the intelligence reports as he was “tasked” by the Intelligence Section of the NT Police in relation to those reports as they were created.
A number of the intelligence reports annexed to the affidavit disclose information to the effect that either the accused or the co-accused or both of them were supplying drugs on Elcho Island or on Bathurst Island. One intelligence report disclosed that a search of the vehicle they were travelling in located 500 unused clip seal bags in the glove box.
DS Bradshaw also gave evidence that, prior to 22 May 2018, Police had obtained and he was aware of the statements of the accused’s bank account with the Traditional Credit Union and various deposit slips and Australia Post money orders. Those documents indicated that large amounts of cash were leaving the Elcho Island community and going to the accused and the co-accused. DS Bradshaw’s evidence was, in his experience, that such a large amount of money leaving a community is nearly always linked to the supply of drugs. He said this suspicion was enhanced by the pattern of the transactions, which involved multiple deposits on a single day or across a few days. This pattern of depositing cash in smaller amounts suggested to him that efforts were being made to avoid alerting the bank to avoid the bank reporting suspicious money transactions. Similarly, there were Australia Post money orders payable to the same persons being sent from Galiwinku to various post offices in Darwin with a similar pattern of multiple amounts across the same day or a few days.
On the basis of this information, DS Bradshaw stated he believed that the accused and the co-accused were supplying cannabis on Elcho Island and Bathurst Island. However, the source and location of the cannabis being obtained by the accused and the co-accused was unknown.
DS Bradshaw was also aware that, on 25 February 2018, the accused had flown on a charter flight from Elcho Island to Jabiru, having paid $1600 in cash for the flight, and that she had done so under what DS Bradshaw believed was a false name. She and the co-accused lived in Darwin. A commercial carrier operates a direct flight from Galiwinku to Darwin, which would have provided a far cheaper option. DS Bradshaw considered this to raise the possibility that the drugs were being sourced in Jabiru or somewhere between Jabiru and Darwin. DS Bradshaw gave evidence that, in his experience, drugs are commonly found on charter flights to or from communities which are paid for in cash. The accused making arrangements for a similar flight to occur on 22 May 2018 was a factor that led DS Bradshaw to suspect that the accused and co-accused were collecting drugs from their source, or carrying drugs from Elcho Island, and seeking to avoid the drug detection measures in Darwin. This led him to suspect they would be in possession of drugs.
He arranged for Jabiru police to patrol the Jabiru airport and undertake distance surveillance so that, if the accused and co-accused arrived on the flight and were picked up in a vehicle, Police would know what vehicle they were travelling in. When he was informed by Jabiru police that that occurred, he made the decision to stop the vehicle with the accused and co-accused in it at a truck stop south of Corroboree and search it for drugs. When that vehicle was stopped for a random breath test of the driver, the driver told Police he had driven from Darwin to Jabiru to pick up the co-accused, and DS Bradshaw saw that the vehicle held the accused and the co-accused. He then determined to search the vehicle and its occupants pursuant to s 120C of the Police Administration Act.
DS Bradshaw’s evidence was that his suspicion that the vehicle contained a dangerous drug was based on his holistic assessment of everything that had occurred up to that point in time, as contained in the information in the intelligence reports, the information in the bank and money order transactions, and mostly the travel movements between Elcho Island, Jabiru and Darwin.
Assessment of the grounds
I have no doubt that DS Bradshaw subjectively held a suspicion on the grounds identified in his evidence.
The question then becomes whether there was adequate supporting material for that suspicion and a rational connection between the material and the suspicion, or whether DS Bradshaw’s state of mind was mere speculation or idle wondering based on tenuous connections. The information, material or circumstances must be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the suspicion; and the sufficiency of the information, material or circumstances to induce that suspicion in a reasonable person must be capable of appearing to the satisfaction of the court.[8]
The accused argued that there was no information of which DS Bradshaw was aware which specifically indicated that there would be drugs in the vehicle. In my view, there is no requirement to that effect. A suspicion on reasonable grounds that there are drugs in the vehicle may be found on the basis of other information. So much is apparent from the decision in R v Gehan.
Knowledge born of experience is not irrational and, depending on the experience of a police officer, may properly comprise a significant part of the officer’s crime detection and prevention armoury. Where an officer has encountered circumstances of a kind which, by reason of his or her previous experience, he or she rationally associates with an identified class of committed or anticipated offending, the occurrence of those circumstances may reasonably lead the officer to conclude there is a significant probability of that identified class of offending taking place.[9]
The fact that, in the police officer’s experience, charter flights paid for in cash are commonly found to be carrying drugs, was a matter which was capable of informing the suspicion, although not in and of itself sufficient to found a reasonable suspicion in these circumstances.
The quality of the information contained in the intelligence reports was sufficient, in my view, to be capable of informing the suspicion. It had been given varying grades of reliability, but there were multiple reports that the accused and co-accused were involved in supplying cannabis on Elcho Island and Bathurst Island which came from a number of sources.
Time, place and circumstance may also be used in the development of reasonable suspicion, and may be used in conjunction with other facts and information.[10] The fact that the accused and co-accused flew by a charter flight to Jabiru, rather than on the commercial flight to Darwin, and then drove to Darwin, was a matter capable of informing the suspicion. A rational inference is that they did so to avoid the drug detection capacities at the Darwin airport because they were carrying drugs. Similarly, the fact that they had also done so a month earlier, under false names (that is, Aboriginal names which were not known to DS Bradshaw as names used by the accused or co-accused), could rationally give rise to a similar inference. Alternatively, the unknown location of the source of the cannabis was a matter capable of informing the suspicion because it offered another explanation for the diversion to Jabiru, which had been done more than once including once under other names.
The accused placed considerable emphasis upon DS Bradshaw’s statement that his suspicion was “mostly” based on the travel movements, which the accused said were insufficient on their own as there was no rational connection between that information and the suspicion that the vehicle contained drugs. In my view, DS Bradshaw’s evidence was clearly to the effect that his suspicion was based on more than just the travel movements and included all of the information referred to above and his experience in investigating the supply of drugs in Indigenous communities.
Without more, the mere facts that there were three other people in the vehicle, and it was being driven by one of those others, are not rationally inconsistent with the suspicion that the vehicle contained drugs belonging to the accused and the co-accused.
I reached the conclusion that DS Bradshaw did have reasonable grounds to suspect the presence of dangerous drugs in the vehicle.
That conclusion made it unnecessary to consider whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. Had I concluded that there were not reasonable grounds for suspicion, I would have ruled the evidence obtained as a consequence of the search inadmissible. That is so notwithstanding the extremely high probative value of the evidence and its importance to the prosecution case, the seriousness of the offence, and the fact that there was no deliberate impropriety on the part of police. That result would flow from the importance which must be attached to ensuring that law enforcement officers entrusted with powers which abrogate fundamental liabilities pay close attention to the conditions and limitations on the exercise of those powers.

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[1] R v Gehan [2019] NTSC 91 at [9] per Grant CJ.

[2] Ibid at [35] per Grant CJ.

[3] George v Rockett (1990) 170 CLR 104 at 115.

[4] Ibid at 115-116.

[5] Ibid at 112.

[6] Walsh v Loughnan [1991] 2 VR 351 at 357, cited in R v Gehan at [39].

[7] R v Nguyen (2013) 117 SASR 432 at [21] cited in R v Gehan at [40]. See also R v MacKenzie [2103] 3 SCR 250 cited in R v Gehan at [41].

[8]R v Gehan [2019] NTSC 91 at [55], citing Prior v Mole (2017) 261 CLR 265 at [4], [24], [98]-[100].

[9] R v Gehan [2019] NTSC 91 at [61], citing Prior v Mole at [71], and at [62].

[10] R v Gehan at [58].