The Queen v Sube

[2022] NTSC 28

CITATION:The Queen v Sube [2022] NTSC 28

PARTIES:THE QUEEN

v

SUBE, Justin

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory Jurisdiction

FILE NO:22027493

DELIVERED:  5 April 2022

HEARING DATE:  29 March 2022

JUDGMENT OF:  RILEY AJ

REPRESENTATION:

Counsel:

Crown:CJ Duckett

Accused:M Wall

Solicitors:

Crown:Office of the Director of Public Prosecutions

Accused:Northern Territory Legal Aid Commission

Judgment category classification:    C

Judgment ID Number:  Ril2202

Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

The Queen v Sube [2022] NTSC 28

No. 22027493

BETWEEN:

THE QUEEN

AND:

JUSTIN SUBE

CORAM:    RILEY AJ

REASONS FOR JUDGMENT

(Delivered 5 April 2022)

1. The accused is charged with having aided, abetted, or procured a person or persons unknown to intentionally supply a quantity of cannabis contrary to the provisions of the Misuse of Drugs Act 1990 (NT).[1]

2. The Crown case is that on or about 19 August 2020 a parcel was sent from South Australia directed to the accused at an address in Yuendumu. The parcel reached the Alice Springs Post Office on 26 August 2020. On that day a drug dog handler, Senior Constable Lauder (Lauder), and a drug detector dog were screening mail and freight at the Post Office. The dog provided a conditioned response to the parcel indicating the presence of cannabis. The parcel was taken by Lauder to the Post Master, Peter Lewis (Lewis). Constable First Class McClure (McClure) from the Drug Identification Unit was called and attended at the Post Office. Lewis and McClure were present when the parcel was opened and found to contain what turned out to be

   
   

   454 g of cannabis in three cryovac packages. McClure served a seizure notice, purportedly issued under s 120BA of the Police Administration Act 1978 (NT), upon Lewis and took the parcel back to the Alice Springs Police Station.[2] Thereafter the contents of the parcel were replaced with grass clippings and a “controlled delivery” arranged for delivery of the parcel to the addressee in Yuendumu. The “controlled delivery” was not effected, as rather than going through the usual mail delivery processes at the store in Yuendumu, the parcel was taken by a friend of the accused and handed directly to him. There is CCTV footage of the accused collecting the parcel. A search warrant was executed in relation to the accused and his accommodation and police found the packaging from the parcel at his accommodation.

   Voir dire issue

3. The accused submitted that evidence arising out of the opening of the parcel at the Post Office in Alice Springs was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or a contravention of an Australian law. It was submitted that the evidence of it, and all evidence in the matter which follows from it, should not be admitted pursuant to s 138(1) of the Evidence (National Uniform Legislation) Act 2011 (ENULA). In circumstances where one of those conditions is satisfied the evidence 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”.

4. It was submitted that the evidence was obtained unlawfully or as a consequence of unlawful conduct in breach of provisions of the Australian Postal Corporation Act 1989 (Cth) (the Postal Act).

5. The accused argued that subject to certain exceptions, it is unlawful to open an article of post while it is in the course of post,[3] and none of the exceptions applied in the present case. Dealing with articles of post and their contents for present purposes is controlled by ss 90G to 90LH of the Postal Act. In general terms those sections provide that, subject to a number of exceptions, it is unlawful for anybody to disclose information regarding an article of post or the provision of a postal service. One of those exceptions is through an “authorised discloser” who is someone authorised to disclose information in certain circumstances. However, such a person is not authorised to open or examine an article.[4]

6. Sections 90M to 90X of the Postal Act prescribe limits on opening and examining postal articles and effectively prohibit the opening or examining of an article subject to identified exceptions. Those exceptions are not relevant for present purposes. Section 90P of the Postal Act permits an “authorised examiner” to examine post, without opening it, including by use of x-ray, metal detector or odour detector but an authorised examiner is not permitted to unfasten or physically interfere with the cover of the article.

7. Section 90J(9) of the Postal Act permits disclosure of information in circumstances where there is a reasonable suspicion that an article may consist of or contain anything that is or may be evidence of an offence. In this matter, following the reaction of the drug detector dog, the officers concerned held a reasonable suspicion of this kind and as a consequence, Lauder was informed. The parcel was then opened and thereafter Lauder provided the seizure notice.

8. The Crown acknowledges that prior to the opening of the postal article, the appropriate next step was to obtain and execute a warrant in relation to the parcel under the relevant provisions of the Police Administration Act. Unfortunately that did not occur. In the absence of an appropriate warrant there was no statutory or other basis identified which would permit the opening of the parcel at the time and in the circumstances that then existed.

9. In all the circumstances the opening of the parcel by the police was without statutory support.  The evidence falls within the exclusionary provisions of s 138 of the ENULA. 

   Should the evidence be admitted?

10. In light of my conclusion it is then necessary for me to consider whether the evidence should be admitted on the basis that the desirability of admitting this evidence outweighs the undesirability of admitting it, having been obtained in the way in which it was obtained. Section 138(3) of ENULA identifies certain matters that the Court must take into account in considering whether or not to admit the evidence.  I turn to consider those matters.

11. The first is the probative value of the evidence and the second is the importance of the evidence in the proceeding. As the Crown submits, and the accused acknowledges, the evidence is of the highest probative value. Indeed, it is asserted without contradiction that in the absence of this evidence the prosecution will be unable to proceed. It is therefore of the greatest significance to the proceedings.

12. In relation to the nature of the relevant offence, a charge of aiding/abetting/procuring the intentional supply of a less than commercial quantity of cannabis, the maximum penalty for the offence is imprisonment for five years.[5] Although not in the most serious category of drug-related offending, this is a serious offence with the very real prospect of a term of actual imprisonment in the event of a conviction. There is a significant public interest in the apprehension, prosecution and conviction of people involved in the supply of cannabis into the Northern Territory and, as would appear to be the case here, into Aboriginal communities.

13. In relation to the gravity of the impropriety or contravention and also in relation to the issue of whether it was deliberate or reckless, I observe that what occurred seems to have been the result of mistake and/or ignorance rather than any deliberate conduct on the part of those concerned. Although a similar approach may have been adopted in a later case,[6] and there was some suggestion other officers were under the same misapprehension, I do not accept that the practice was entrenched or tolerated or encouraged by those in higher authority.

14. The accused submitted that the contravention was contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights, because of the opening of the parcel without a legal basis. If there was such a breach of relevant rights, which I doubt, it was of such a minor nature as to not be a significant factor in determining the admissibility of this evidence.

15. It is not clear whether any proceeding has been or will be taken in relation to the impropriety or contravention. I am informed by the Crown Prosecutor that steps have been taken to alter procedures but I have no direct evidence of the nature of such alterations. I do not regard this as a significant matter in determining the admissibility of this evidence although, should such conduct occur again, the situation may be quite different.

16. It is plain that it would not have been difficult for the officers to obtain the evidence without impropriety or contravention of an Australian law. All that was required was for the officer in charge to obtain an appropriate warrant. On the information available to me it seems there would be little doubt that a warrant would be readily granted. This conclusion supports my finding that the conduct was a result of mistake and/or ignorance.

17. In my opinion, the desirability of admitting the evidence greatly outweighs the undesirability of doing so and I rule that the evidence should be admitted.

    --------------------------

[1]    Misuse of Drugs Act 1990 (NT) s 5A(1)(b).

[2]    Whether such a notice was necessary or even appropriate is not an issue that needs to be addressed at this time. The Crown submitted that the article may also have been provided to police pursuant to the terms of clause 57.2 of the Australia Post Terms and Conditions as referred to in s 90Z of the Postal Act.

[3] Section 90N Australian Postal Corporation Act 1989 (Cth).

[4]Section 90LG Australian Postal Corporation Act 1989 (Cth).

[5]    Misuse of Drugs Act 1990 (NT) s 5A(1)(b).

[6]    R v De Beer (unreported 29 September 2021 per Hiley J).