The Queen v Ireland
[2020] NTSC 47
•28 July 2020
CITATION:The Queen v Ireland [2020] NTSC 47
PARTIES:THE QUEEN
v
IRELAND, Keith
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21942679
DELIVERED: 28 July 2020
HEARING DATE: 10 June 2020
JUDGMENT OF: BARR J
CATCHWORDS:
EVIDENCE – Evidence (National Uniform Legislation) Act s 138 – Police stopped the accused’s vehicle at random breath testing station (RBT) in purported pursuance of s 29AAB (1) Traffic Act – RBT stop a pretext – Real purpose was to search for drugs – Cannabis found in accused’s vehicle – Evidence improperly obtained – Police could have lawfully stopped the vehicle under s 120C Police Administration Act 1978 – Held the desirability of admitting the evidence outweighs the undesirability of admitting evidence in the way in which it was obtained – Evidence of search and seizure admitted
Evidence (National Uniform Legislation) Act, s 138 (1), s 138 (3), s 142 (1)
Police Administration Act 1978, s 120C
Traffic Act 1987, s 29AAB (1)Parker v Comptroller-General of Customs [2009] HCA 7; Parker v Comptroller-General of Customs [2007] NSWCA 348, 83 ALJR 494; R v Kola [2002] SASC 203, 134 A Crim R 310; The Queen v Gehan [2019] NTSC 91, referred to
REPRESENTATION:
Counsel:
Crown:S Lapinski
Defendant:N Redmond
Solicitors:
Crown:Office of the Director of Public Prosecutions
Defendant:Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Bar2004
Number of pages: 21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Ireland [2020] NTSC 47
No. 21942679
BETWEEN:
THE QUEEN
AND:
KEITH IRELAND
CORAM: BARR J
REASONS FOR DECISION
(Delivered 28 July 2020)
The accused is charged with the intentional supply of a commercial quantity of the Schedule 2 dangerous drug cannabis on 18 November 2019.
The Crown alleges that, at some time prior to 18 November 2019, the offender and a number of co-offenders pooled together an amount of $5,000 which they planned to use to purchase cannabis in Adelaide and then transport the cannabis back to Tennant Creek.
In pursuance of the plan, the accused drove his Toyota vehicle from Tennant Creek to Adelaide, where he purchased 1.44 kg of cannabis packaged in seven Cryovac bags. He then hid the bags of cannabis inside two ten-litre water boxes, which he then placed in the boot of his vehicle.
On the return journey to Tennant Creek, the accused’s vehicle was stopped and searched by police. Although the true purpose of stopping the vehicle was to investigate or detect trafficking in cannabis, Police officers stopped the vehicle using the powers contained in s 29AAB (1) Traffic Act 1987, and even subjected the accused to a breath test. I consider below the circumstances in which the police purported to use Traffic Act powers rather the power contained in s 120C Police Administration Act 1978 to stop the vehicle before undertaking a search of the vehicle.
After the vehicle was stopped and searched, the cannabis was found and seized. The accused was taken to the Tennant Creek police station where he participated in a formal interview with police. He made full admissions in relation to his offending, although he declined to disclose the identity of his co-offenders.
Issues on the voir dire
Counsel for the accused submits that the stopping of the accused’s vehicle was unlawful or improper in that police impermissibly used the random breath test power for the ulterior purpose of providing an opportunity to search the vehicle, or to establish a suspicion to enable such search.[1]
The defence submissions are directed at the unlawful or improper stopping of the accused's vehicle. Counsel for the accused acknowledges that, once the vehicle had been stopped, the apprehending police officers detected the distinctive smell of cannabis coming from the vehicle, and as a result had the power to search the vehicle pursuant to s 120C Police Administration Act 1978.[2] Counsel for the accused also acknowledges that the accused consented to the search (with the qualification that the ‘consent’ may not have been valid consent at law). The core contention is that, but for the unlawful stopping of the accused’s vehicle, the accused would have had no interaction with the police and the evidence relied on by the Crown would not have been obtained. As a result, evidence of the search and all evidence consequently obtained should be excluded.[3]
I will refer to evidence of the search and evidence consequently obtained (including the accused’s admissions) as “the disputed evidence”.
The Crown concedes that police actions in stopping the accused’s vehicle were unlawful and/or improper.[4] That concession was appropriate, given that the statutory declaration of the police sergeant who set up the random breath testing station made clear that his sole purpose in doing so was to intercept “a known person of interest for drugs ... coming into town”.[5] As Grant CJ observed in The Queen v Gehan,[6] referring to the power in s 29AAB (1) Traffic Act 1987:
That power may be exercised without the need for reasonable suspicion on the part of police, but is limited to the purpose of requiring the driver to submit to a breath test and/or saliva test. The power is conferred for the purpose of road safety and the detection of offences against the Traffic Act, and in particular the offences of driving under the influence of alcohol or a prohibited drug. There is a clear delineation between powers conferred for that purpose and powers conferred for the criminal investigation of other types of offence. That delineation is apparent from the source and text of the provisions conferring the different powers, and the differing requirements which condition their exercise. The use of the power to conduct a random breath test for the ulterior purpose of general criminal investigation would be both improper and in contravention of the law which confers the power.
Although the Crown accepts that police purported to use the power conferred by s 29AAB (1) Traffic Act 1987 for the ulterior purpose of stopping the accused’s vehicle to facilitate crime detection, prosecuting counsel contends that the evidence should nonetheless be admitted.
Improperly or illegally obtained evidence
A party seeking to exclude evidence pursuant to s 138 Evidence (National Uniform Legislation) Act 2011 has the burden of showing that the conditions for its exclusion are satisfied, namely that the evidence was obtained improperly or in contravention of an Australian law. The party seeking admission of the evidence then has the burden of proof of facts relevant to matters weighing in favour of admission. That standard of proof is satisfaction on the balance of probabilities.[7] The party seeking admission of the evidence also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.[8]
The Crown, as mentioned in [9], accepts that the disputed evidence was unlawfully and/or improperly obtained, but contends (in reliance on s 138(1) Evidence (National Uniform Legislation) Act) 2011) that the desirability of admitting the disputed evidence outweighs the undesirability of admitting evidence which was obtained in the way in which it was obtained.
Before I turn to consider the matters which are required to be taken into account under s 138 (3) Evidence (National Uniform Legislation) Act 2011, I summarize the evidence of the two police officers called to give evidence on the voir dire. Both of the officers provided two witness statements (in the form of statutory declarations), and both gave evidence and were cross-examined.
Evidence on the voir dire
On Monday, 18 November 2019, Senior Constable Rowan Benson (“S/C Benson) was working a rostered day shift in the Tennant Creek and Barkly Investigation Unit. In the morning, he received information that the accused was travelling from South Australia with a large amount of cannabis in his vehicle and would be arriving in Tennant Creek that afternoon.
S/C Benson was acquainted with the accused as a result of previous interactions with him in Tennant Creek. Details of the previous interactions were provided in his second police statement dated 10 June 2020.[9] S/C Benson had known the accused since late 2013 or early 2014. As a result of his dealings with the accused, he was aware that the accused had prior convictions for cannabis possession. He was aware also that police had received information to the effect that the accused had been involved in the supply of cannabis and liquor. During the time of his posting to the Tennant Creek and Barkly Investigation Unit, S/C Benson had been tasked to review information in the police database in relation to the accused. As a result, he was aware that, in 2019, police had received information on six occasions to the effect that the accused was supplying cannabis in Tennant Creek and doing runs to Port Augusta to obtain the cannabis. The most recent information report was as a result of information received on 4 November 2019.[10]
On 17 November 2019, S/C Benson received information that the accused was returning to Tennant Creek. In the morning of 18 November, he was informed by the officer in charge of the Tennant Creek Police Station that she had been informed that the accused had just left Alice Springs and was returning to Tennant Creek with a large amount of cannabis.[11] S/C Benson then checked the police database and confirmed that the information previously received was “current”.
S/C Benson said he was then satisfied that there was sufficient current information available and that this “formed [his] reasonable suspicion that [the accused] was returning to Tennant Creek and that he was in the possession of cannabis”.[12] He then decided to locate the accused’s vehicle for the purpose of conducting a search pursuant to s 120C Police Administration Act 1978 (“the PAA”).
Because S/C Benson was rostered on alone, he appreciated that he may need assistance. He spoke in person with Sergeant Greg Lamb (“Sgt Lamb”), the Tennant Creek General Duties shift supervisor that day, and two other police officers, one of whom was the Tennant Creek ‘Intel Officer’ who, Benson said, was aware of the same information about the accused available to Benson. S/C Benson said that he informed Sgt Lamb and the others of his intention to stop the accused on (or just prior to) his return to Tennant Creek and to conduct a search of the accused’s vehicle pursuant to s 120C of the PAA. He told Sgt Lamb that he would call him if he located the vehicle.[13]
In cross-examination,[14] S/C Benson explained that he had briefed Sgt Lamb and the others in the muster room at about 11 am. When asked about the extent of the information he had passed on to Sgt Lamb and the others, he answered: “I gave them probably not as much details as I know, but I did give them the basis of the information”. He said that he believed he had given sufficient information to enable Sgt Lamb and the others to act pursuant to s 120C of the PAA. Indeed, his further evidence in cross examination was as follows:[15]
I’m a 100 percent that I told them the reason prior to that phone call in the muster room that I was intending to conduct a 120 C search …
At about 11.00 am, S/C Benson and another police officer left the station and began patrolling the Stuart Highway to await the arrival of the accused. Benson knew that the accused drove a gold Toyota Camry, and was able to confirm the registration number of the vehicle by an online check.[16]
S/C Benson eventually decided to park on the side of the road approximately 15-20 km south of Tennant Creek.
At approximately 1.00 pm, the accused’s vehicle travelled past S/C Benson’s parked police vehicle, heading north towards Tennant Creek.
S/C Benson then contacted Sgt Lamb. In his first statement, Benson said that he asked Sgt Lamb to stop the vehicle “just prior to it entering the Tennant Creek Township”.[17] In his second statement, Benson said that he called Sgt Lamb and told him that he was following the accused’s vehicle and to stop it as it entered Tennant Creek. There is no relevant difference between the two statements. S/C Benson did not recall whether or not he repeated that the vehicle was to be stopped for a search pursuant to s 120C of the PAA.[18]
S/C Benson then followed the accused’s vehicle at a distance. He did not stop the accused’s vehicle himself because he was approximately 20 km out of town, and on his own. He said that he wanted to have additional police members for support, if required.
As S/C Benson’s vehicle entered the 80 km per hour zone south of Tennant Creek, he saw that Sgt Lamb had set up a random breath testing station, stopping vehicles entering town in order to carry out random breath tests. The accused’s vehicle had been pulled into the breath testing station. S/C Benson was asked in cross-examination whether he was surprised by the fact that an RBT station had been set up. He answered: “I didn’t know they were doing an RBT station”,[19] which I understood to mean that he did not know, prior to arriving at the outskirts of Tennant Creek, that Sgt Lamb was intending to conduct an RBT station. He had not had any previous discussions with Sgt Lamb about the use of an RBT station to stop the accused’s vehicle. He did not know at the time why Sgt Lamb had set up an RBT.[20]
After S/C Benson pulled up behind the accused’s vehicle, he saw Sgt Lamb speaking to the accused on the side of the road.
S/C Benson went up to the accused and spoke with him before administering a roadside drug test. While speaking with the accused, S/C Benson detected a strong smell of cannabis coming from the vehicle. By that stage, Sgt Lamb and the two other police officers had begun searching the vehicle.[21] Benson then cautioned the accused and told him that police were conducting a search of his vehicle. He asked the accused if there were any illicit substances in the vehicle. The accused replied “no”.[22]
S/C Benson walked over to the vehicle to observe the search being carried out and saw Sgt Lamb finding the two water boxes which were opened to reveal the seven bags of cannabis referred to in [3] above. Shortly afterwards, S/C Benson arrested the accused for possession and supply of cannabis.[23]
I am satisfied that S/C Benson had in mind throughout that the accused’s vehicle would be stopped pursuant to the powers contained in s 120C Police Administration Act 1978. He did not anticipate that Sgt Lamb would set up and use an RBT to stop the accused’s vehicle, but nor did he appreciate that this would be an unlawful or improper course of action.
In his statutory declaration made 10 June 2020, S/C Benson made the following statement: [24]
On the 9th of June 2020, I was informed by the DPP that pulling a vehicle over under the Traffic Act when an investigation into a criminal offence is taking place is unlawful. This was the first time that this had been made aware to me. At no time was this approach used to gain further information in the attempt to obtain additional ground to undertake a search as my intention to search the vehicle was made prior to leaving the station to locate the vehicle.
I summarise the position of S/C Benson as follows. He had reasonable grounds to suspect that the accused was transporting cannabis in his vehicle. He would have been entitled to stop, detain and search the vehicle, without warrant, pursuant to s 120C Police Administration Act 1978. He had communicated to Sgt Lamb the substance if not the entirety of the information upon which he had relied to form his reasonable grounds of suspicion. Sgt Lamb had then taken it upon himself to utilise an RBT for the purpose of stopping, detaining and searching the accused’s vehicle. This was not what S/C Benson had intended, but he did not appreciate the unlawfulness or impropriety at the time he engaged with the accused and participated in the police actions undertaken against the accused and his vehicle.
I turn to consider the position of Sgt Lamb.
I am satisfied by the evidence of Sgt Lamb that he had received information from S/C Benson in the morning of 19 November 2019 that the accused may be transporting cannabis into Tennant Creek that day.[25] As a result of that information, he went out to the Stuart Highway and set up a random breath testing station. The decision to set up a random breath testing station was made by Sgt Lamb without reference to S/C Benson.
In his first statement, Sgt Lamb declared:[26]
At approximately 1:15 pm that afternoon, on receiving information that a known person of interest for drugs may be coming into town, I set up a Random Breath Testing station on the Stuart Highway approximately 1 km south of Tennant Creek opposite the cemetery on the inbound side of the road. … At approximately 1:15 pm, I pulled over a gold Toyota Camry … I spoke with the driver of the vehicle who I now know as Keith Ireland.
I breath tested Ireland and he returned a negative reading for alcohol.
I detected a strong odour of cannabis in the vehicle … Upon smelling the cannabis, I had reasonable grounds to suspect there was cannabis in the vehicle and I decided to use my power under s 120C to search the vehicle. However, I asked Ireland for permission to search his vehicle to which he consented.
The content of Sgt Lamb’s first statement suggests that, at the time he set up the RBT, he did not consider that he had reasonable grounds to suspect that the accused was transporting cannabis, sufficient to justify a stop and search of the accused’s vehicle under s 120C of the PAA; and that it was only after detecting the smell of cannabis coming from the vehicle that he then believed that he had reasonable grounds to suspect the presence of cannabis in the vehicle.
In his addendum statement,[27] Sgt Lamb declared:
On the day in question S/Constable Benson provided me with information that Keith Ireland, a known POI for the transport and selling of drugs was believed to be coming into Tennant Creek and may have drugs in his vehicle.
Acting on this information and previous information reports from the police data base, I formed the reasonable grounds to suspect that Ireland may have drugs in his vehicle.
I am aware that I could have used my powers under the Police Administration Act under Section 120C to stop and search a vehicle if I had reasonable grounds to suspect drugs may be in the vehicle however I chose to set up a random breath testing station utilising my powers under the Traffic Act.
Sgt Lamb’s evidence in cross examination was unsatisfactory in a number of respects. He was reluctant to concede that the sole purpose of the random breath testing station was to stop the accused’s vehicle. He also had difficulty explaining the implication in his first statement, referred to in [35] above, that it was only after detecting the smell of cannabis coming from the vehicle that he considered that he had reasonable grounds to suspect the presence of cannabis in the vehicle. The suggestion in the questioning of defence counsel was that, if Sgt Lamb had reasonable grounds immediately prior to stopping the vehicle, he would be expected to have made mention of such grounds in his first police statement, whereas he stated that his reasonable grounds arose “upon smelling the cannabis”.
I set out below relevant extracts from Sgt Lamb’s evidence:[28]
Why did you set up the RBT? ---Obviously we were doing a random breath test there, and to see if we could locate Mr Ireland should he come through into town.
So the purpose of the random breath test being established was to stop Mr Ireland? ---The original purpose was to see if we could locate him; and if we could locate him, then we would stop him and speak to him, yes.
So it wasn’t to stop people drink-driving? ---It was a random breath test. We were checking everyone was okay through …
Sorry, you dropped out. Could you repeat that? ---I said we set up a random breath test. We were checking everyone as they came through, but we were hoping that we would find Mr Ireland, yes.
You set it up about one kilometre south of the Tennant Creek township? ---Yes, that’s correct.
How further south would you have to go before you could find an establishment that would sell alcohol? ---South? It would probably be Wauchope or Wycliffe …
How far is that? ---100 kilometres.
And you’ve set it up on the inbound lane in Tennant Creek? ---Yes.
So you’ve set up an RBT 100 kilometres from the nearest point of sale for alcohol? ---Correct.
And that’s because the real purpose of the RBT was to stop Mr Ireland, wasn’t it? ---If we could locate Mr Ireland, as we had information he was coming into town, we set up an RBT to conduct an RBT, and if we could find Mr Ireland, that would be good.
And you had, in your opinion, sufficient grounds, as soon as you found Mr Ireland, to search the vehicle? ---No. I breath-tested Mr Ireland first to make sure he didn’t have alcohol in his system, and when I smelled cannabis coming from the car, that confirmed my suspicion.
Well, that wasn’t the question. You previously already had reasonable grounds to search Mr Ireland’s car. That was your evidence, wasn’t it? ---We had reasonable grounds to suspect, that’s correct.
And if you located Mr Ireland, you intended to search his car? ---Yes, we would have.
Regardless of whether you smelled cannabis or not? ---The cannabis certainly added weight to our reasons to search. …….
So it’s not a case of you smelling the cannabis and that giving you the reasonable grounds to search the car, is it? ---We had sufficient information. And after conducting my breath test I smelled the cannabis, so then I was convinced, or I knew that I had strong reasonable grounds to suspect. That gave me what I needed, 100%, to search that vehicle, without doubt.
After an objection was dealt with in the absence of the witness, the cross examination continued as follows:[29]
It’s not the case that it was the smelling of the cannabis that gave rise to the grounds to search the vehicle? ---No. I think the cannabis smell coming through confirmed my beliefs, and that’s when I said I would search it for a 120 C.
But you had already decided to search it, had you not? ---On the information that we had, we had probable cause to do that, but yes, as I said, just on smelling it, it just confirmed my suspicions, gave me grounds.
When did you decide to search the vehicle? ---When I smelled the cannabis. We had plans that we would –in all probability would have searched the vehicle, as you’ve said before, but when I smelled the cannabis, that just confirmed it, and that was enough for me to search his vehicle.
I’m not quite following, sorry. Wasn’t it the plan that when he was identified, you intended to search the vehicle? ---Look, on all probabilities, yes, we would have.
Well, you intended to stop the vehicle, didn’t you? ---Correct.
For the purpose of a search of the vehicle? ---Correct. Well, if we could have located him elsewhere we would have stopped and searched the vehicle, but he came through the RBT so that gave us our grounds to stop him, yeah.
But you set up a random breath testing station as a result of the information he was coming into town, didn’t you? ---Correct.
So as you said, the random breath testing station was a means to stop him? ---Locate him.
Well, not just locate him, stop him? ---We would stop him if we could have – if we could find him, if … if he definitely came through.
So the purpose of the random breath testing station was to locate him in order to stop him? ---Correct.
Because of the requirement in s 120C Police Administration Act 1987 that a police member must have reasonable grounds to suspect that a dangerous drug may be found in a vehicle before being entitled to stop, detain and search the vehicle, the police officer must not only suspect but have “reasonable grounds” for that suspicion.[30] Immediately prior to the accused being pulled over, I have no doubt that Sgt Lamb suspected that there were drugs in the accused’s vehicle. Moreover, the information in the possession of Sgt Lamb was, in my opinion, sufficient to ground a reasonable suspicion about the presence of drugs in the accused’s vehicle.
Notwithstanding my findings in the previous paragraph, I am left with the impression that Sgt Lamb was not himself confident that he had reasonable grounds for his suspicion at the relevant time. Although he said in evidence that he had “probable cause” to stop the vehicle using the power given by s 120C Police Administration Act 1987, it is unclear whether he was describing the position in retrospect or whether he was describing his state of mind immediately prior to stopping the accused’s vehicle. It may be that he set up the random breath testing station to obtain further and better evidence, to have stronger grounds on which to suspect the presence of drugs in the accused’s vehicle. However, that does not necessarily mean that he did not then have the requisite reasonable grounds for suspicion.
I am satisfied that Sgt Lamb was of the view that use of the random breath testing station was one of the tools which police could legitimately use in the investigation and detection of criminal offending. He appeared to genuinely believe that it was lawful to set up an RBT for the purpose of locating and stopping the accused.[31] Although the questions asked in cross-examination and answers given resulted in some confusion, I consider that the part extract below fairly represents Sgt Lamb’s view as to the lawfulness of the action taken by him against the accused:
Do you accept that you shouldn’t be using random breath testing powers for criminal investigation matters? ---I’d agree with that. But I’m quite happy that I set up an RBT as part of my duties which I often do [under the] Traffic Act and I am satisfied that Mr Ireland came through, he was breath tested as part of my legal duties there. Yes, we did have the intention to search him on the information that we had. But I am satisfied, given the smell of cannabis and everything coming from the vehicle, that I then enacted my powers under 120 C and I advised him of the search of his vehicle after concluding the random breath test.
Is it your view that as long as you’re breath testing your actions are lawful in stopping him for the RBT? ---Yes.
The reason I consider that Sgt Lamb was genuine in his view is that he went to some trouble to set up a ‘proper’ random breath testing station, testing members of the public generally to ensure, in accordance with his misunderstanding, that the random breath testing station was not a charade.
On the basis of my consideration of the evidence and my findings in [31] and [40], I have reached the conclusion that police could have lawfully exercised the power under s 120C Police Administration Act 1978 to stop, detain and search the accused’s vehicle without a warrant. Sgt Lamb’s resort to a random breath testing station to stop the accused’s vehicle was unnecessary.
I now consider the matters which the Court is to take into account pursuant to s 138 (3) Evidence (National Uniform Legislation) Act) 2011.
Consideration of s 138 (3) matters
The probative value of the disputed evidence is very high.[32] It comprises physical evidence and admissions. Not only was 1.44kg of cannabis found in the possession of the accused,[33] but (no doubt influenced by the seizure of the large amount of cannabis in a vehicle driven by him and in which he was the sole passenger) the accused then made full admissions.
For the same reason the probative value of the disputed evidence is very high, the evidence is of crucial importance in the Crown case. It is unlikely that the Crown would proceed if the disputed evidence were not admitted.
The offence alleged to have been committed by the accused carries a maximum penalty of 14 years’ imprisonment. Although the quantity of cannabis in question was almost three times the statutory commercial threshold quantity, it was still a comparatively modest quantity relative to the large commercial quantities charged in other interstate importation matters which come before this Court. Nonetheless, I bear in mind that cannabis causes great social dysfunction in the Territory’s most vulnerable communities, and is associated with violent crimes and property offending.
The gravity of the impropriety or contravention is considerably lessened by the fact that, as found by me in [44], the police could have lawfully exercised the power under s 120C Police Administration Act 1978 to stop, detain and search the accused’s vehicle without a warrant. To the extent that it is a relevant consideration, the practical effect on the accused would have been the same whether he was (unlawfully) stopped at the random breath testing station or (lawfully) stopped on the open road by a police vehicle with its lights and sirens activated. Moreover, the police did not act in a heavy-handed manner. After stopping the accused’s vehicle, police sought and obtained consent to search the vehicle, even though, having detected the aroma of cannabis coming from the vehicle, they considered that they were then justified in carrying out a search pursuant to s 120C Police Administration Act 1978.
The actions of police, albeit improper or unlawful, were the result of the Sgt Lamb’s lack of understanding as to the specific limits on police powers. He took a course of action he considered to be lawful policing. He was wrong. He did not appreciate that he was acting improperly or unlawfully. In my view, however, none of the police officers involved acted in deliberate disregard of the law, or recklessly. Subsequently, they made no attempt to conceal the true reason for the random breath testing station. Their statements, in which they disclosed the use of the random breath testing station by Sgt Lamb, were provided to prosecuting and defence counsel in accordance with the usual pre-trial procedures.
Counsel for the accused asserts that the police impropriety was contrary to the International Covenant on Civil and Political Rights (“ICCPR”). Crown counsel does not contest that assertion. However, neither party has sought to advance any further arguments in relation to that basis of impropriety.
Finally, I note that one of the matters which the court is to take into account is that stated in s 138 (3)(g) Evidence (National Uniform Legislation) Act 2011, namely “the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law”. It will often be the case that this consideration is either neutral or equivocal,[34] but in the present case, where police did not deliberately or recklessly disregard the law, the fact that the evidence could have been obtained lawfully by the use of police powers under a different statute is a factor which favours admitting the evidence. The option chosen by Sgt Lamb did not involve police ‘cutting corners’; the setting up of the random breath testing station and its operation – even for a short period of time – was more onerous and probably involved a lot more work on the part of police than a simple highway stop.
Conclusion
The Crown has satisfied me that the disputed evidence should be admitted, on the balancing exercise required by s 138 Evidence (National Uniform Legislation) Act.
I would admit the evidence because I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained.
These reasons are published to the parties in confidence, pending the trial of the accused. Depending on the outcome of the prosecution, the Court may authorize publication of this decision without further reference to the parties.
--------------------
[1]Defence submissions on the exclusion of evidence, par 2.
[2]Defence submissions, par 19.
[3]Defence submissions, pars 18 – 20.
[4]Crown outline of submissions, par 3.
[5]Statutory Declaration, Sgt Greg Lamb, made 19 November 2019, par 3.
[6]The Queen v Gehan [2019] NTSC 91 at [11]; see also the discussion at [35]. In R v Kola [2002] SASC 203; 134 A Crim R 310, at [37] – [40], the South Australian Court of Criminal Appeal (Doyle CJ, Perry and Lander JJ agreeing) held that the establishment of a breath testing station for a purpose extraneous to that for which the power is conferred would render the breath testing station unlawful or invalid, even if some testing were to be carried out. Nonetheless, at [43], Doyle CJ qualified his earlier observations as follows: “… I consider that a BTS is established lawfully if established for the purpose of conducting alcotests, even though it is established at a time or place or in a manner (or all of them) which will facilitate the detection of other offences. That is, the BTS is established lawfully even though not established for the sole purpose of conducting alcotests”.
[7]Evidence (National Uniform Legislation) Act 2011, s 142 (1).
[8]Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28], per French CJ. See also R v Sophear Em [2003] NSWCCA 374 at [66].
[9]Exhibit P-2.
[10]Exhibit P-2, pars 4-6.
[11]Exhibit P-2, par 8.
[12]Exhibit P-2, par 10.
[13]Exhibit P-2, par 12.
[14]T 7.5.
[15]T 8.4. The reference to the phone call was to the communication referred to in [23] below.
[16] Exhibit P-1, par 7.
[17]Exhibit P-1, par 10.
[18]Exhibit P-2, par 14.
[19]T 8.6.
[20]T 8.7; 9.6.
[21] Exhibit P-1, pars 13, 14; XXN at T 9.4.
[22]Exhibit P-1, par 15.
[23]Exhibit P-1, par 20.
[24]Exhibit P-2, par 19.
[25]T 13.9; 14.5.
[26]Exhibit P-3, pars 3, 5 and 6.
[27]Exhibit P-4.
[28]T 15.3 – 16.5.
[29]T 19.3 – 19.8.
[30]See the discussion in R v Nguyen (2013) 117 SASR 432 at [21] – [22].
[31]T 25.8.
[32]This was conceded by defence counsel in oral submissions at T 41.6.
[33] See the evidentiary provision as to reversal of onus in s 40 (1)(c) Misuse of Drugs Act. The reference to ‘place’ includes a vehicle.
[34]See Parker v Comptroller-General of Customs [2007] NSWCA 348 at [61], per Basten JA.
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