The Queen v Wilson-Anderson
[2020] NTSC 39
•19 June 2020
CITATION:The Queen v Wilson-Anderson [2020] NTSC 39
PARTIES:THE QUEEN
v
WILSON-ANDERSON, Michael
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21922473
DELIVERED: 19 June 2020
HEARING DATE: 9 June 2020
JUDGMENT OF: Kelly J
CATCHWORDS:
EVIDENCE – Police Administration Act s 120C – Whether search authorised – Whether reasonable grounds to suspect the accused had a dangerous drug in his possession – Search authorised
EVIDENCE – Evidence (National Uniform Legislation) Act s 138 – Whether evidence obtained on search of vehicles improperly obtained – Evidence not improperly obtained
EVIDENCE - Evidence (National Uniform Legislation) Act s 55 – Whether evidence of gambling losses by accused could rationally affect the assessment of the probability of whether the accused engaged in the supply of drugs for profit – Evidence relevant and admissible
EVIDENCE - Evidence (National Uniform Legislation) Act ss 137 and 136 – Whether evidence of accused’s gambling losses should be excluded because its probative value is outweighed by the danger of unfair prejudice – Evidence not excluded
Police Administration Act 1978 (NT) s 120C
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 135, 136, 137, 138
The Queen v Gehan [2019] NTSC 91, applied
George v Rockett (1990) 170 CLR 7; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hussien v Chong Fook Kam [1970] AC 942; Parker v Comptroller-General of Customs (2009) 83 ALJR 494; Prior v Mole (2017) 261 CLR 265; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; R v MacKenzie [2013] 3 SCR 250; Ridgeway v The Queen (1995) 184 CLR 19; Robinson v Woolworths Ltd (2005) 158 A Crim R 546, The Queen v AW [2018] NTSC 29 ; The Queen v Casimiro and The Queen v Pinto [2020] NTSC 18; The Queen v Gehan [2019] NTSC 91; The Queen v Layt [2018] NTSC 36, referred
REPRESENTATION:
Counsel:
Crown:J Ibbotson
Accused:J Adams
Solicitors:
Crown:Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Kel2007
Number of pages: 30
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Wilson-Anderson [2020] NTSC 39
21922473
BETWEEN:
THE QUEEN
AND:
MICHAEL WILSON-ANDERSON
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 19 June 2020)
The accused Michael Wilson-Anderson is charged with one count of supplying a commercial quantity of cannabis in the period from 1 January 2016 to 21 December 2017.
The accused was apprehended on the Stuart Highway travelling in a red Mitsubishi Lancer (SA Registration WXT627) (“the red Lancer”) from Adelaide to Darwin followed by a grey Toyota Prado (NT Registration CC00CH) (“the grey Prado”). Both cars were stopped by police and searched purportedly pursuant to s 120C of the Police Administration Act. Approximately nine kilograms of cannabis was found in the grey Prado and both drivers were arrested and charged.
Defence counsel objects to evidence obtained as a result of the search of the two vehicles on the ground that at the time of stopping the vehicles police did not have reasonable grounds to suspect that a dangerous drug would be found in either car; and that the searches were therefore not authorised by s 120C of the Police Administration Act and the evidence was unlawfully obtained.
Defence counsel also objects to the Crown adducing evidence from an alleged co-offender, Jason Taylor, and from the Mindil Beach Casino records, that the accused gambled large amounts of money at the Casino in the period before his arrest.
The Crown Case
In November 2017 police were investigating the commercial supply of cannabis in the greater Darwin region. One of the persons of interest in that investigation was Jason Taylor, who shared a residence with the accused.
During the investigation police identified the accused as a person of interest in the trafficking of cannabis to the Northern Territory from South Australia and the onward supply of cannabis in Darwin. They received information from Jason Taylor and another co-offender that confirmed this.
In summary, it is the Crown case that the accused travelled to Adelaide, South Australia and purchased a large quantity of cannabis with the intention of bringing it back to Darwin for the purpose of supplying/selling it to others. Alvin Dundara was engaged by the accused to drive him to Adelaide in his brother’s grey Prado and once the accused had purchased the cannabis he was then to transport it back to Darwin in that vehicle. While they were in Adelaide (on 18 December 2017), the accused bought a second hand red Lancer which, he drove ahead of the grey Prado on the return trip from Adelaide, to detect and warn Mr Dundara of any police presence.
On 16 December 2017 the accused and the co-offender, Mr Dundara, left Darwin travelling to Alice Springs in the grey Prado.
That evening the accused and Mr Dundara checked into the Stuart Park Caravan Park in Alice Springs. A cabin was booked in the name of “Michael Wilson-Anderson” utilising the Commonwealth Bank MasterCard in the name of “M. Wilson-Anderson”.
In the early hours of Sunday 17 December 2017 the accused and Mr Dundara left Alice Springs travelling in the grey Prado towards Adelaide, stopping that night at the Highway 1 Caravan & Tourist Park, Port Wakefield Road, Bolivar, a northern suburb of Adelaide.
While in Adelaide the accused sourced a large quantity of cannabis (9 kg) which he placed in two cardboard boxes, and with the knowledge and consent of Mr Dundara, put them in the grey Prado. The accused and Mr Dundara then drove in convoy back north along the Stuart Highway, leaving Adelaide on 19 December 2017.
As the accused was travelling north in the red Lancer and approaching Mataranka he was identified by detectives, who were in an unmarked police vehicle. Mr Dundara was observed also travelling north in the grey Prado about 150 to 200 metres behind the accused.
The two vehicles stopped at a parking area on the Stuart Highway south of Mataranka. Police observed that the vehicles were parked close together and the accused and Mr Dundara were outside the vehicles standing together. They then drove north again with the red Lancer still in front.
Both vehicles were stopped by police simultaneously at about 2:00 p.m. on 20 December 2017; the grey Prado on the Stuart Highway near Mataranka and the red Lancer at a service station in Mataranka.
Mr Dundara was cautioned and asked by police if anything was in the vehicle that should not be and he replied, “Marijuana.” He was asked how much and he replied, “A heap.” He was then arrested. On a preliminary search of the grey Prado, police found two large cardboard boxes containing multiple cryovac bags of cannabis under a mattress in the back of the car.
The accused, in the red Lancer, stopped at a service station in Mataranka. Police advised him that a s 120C Police Administration Act search of his vehicle was to be conducted. Police took the accused and the red Lancer to where the grey Prado had been stopped.
The police searched the grey Prado and found and seized (inter alia):
· two cardboard boxes containing cannabis in cryovac bags;
· a receipt from Stuart Highway Caravan Park, Alice Springs, in the name of Michael Wilson, dated 16 December 2017 at 7:07 p.m. for accommodation for two adults in a cabin, arriving 16 December 2017 and departing 17 December 2017 paid for using a debit card with the last four digits of the accused’s Commonwealth Bank of Australia MasterCard;
· a receipt from Highway 1 Caravan & Tourist Park, Port Wakefield Road, Bolivar in the name of Alvin Dundara, dated 18 December 2017 at 10:15 a.m. for accommodation for two adults in a unit for one night arriving 18 December 2017 and departing 19 December 2017.
The police searched the red Lancer and located and seized (inter alia):
· the accused’s wallet containing $4,200 made up of $100 notes and the accused’s Commonwealth Bank of Australia debit card; and
· South Australian Registration Certificate for the red Lancer with partially completed transfer of registration form dated 18 December 2017 and signed.
The total weight of the cannabis seized was 9,017.3 grams (9.01 kg) (18 times the threshold commercial quantity) with an estimated street value of approximately $144,000.
Both the accused and the co-offender, Mr Dundara, were taken to the Katherine Police Station. After seeking legal advice the accused refused to participate in a recorded interview.
Mr Dundara participated in a recorded interview in which he said that the cannabis had been obtained by the accused in Adelaide and was in two cardboard boxes which the accused had then placed, with his consent, in the back of the grey Prado to be transported back to Darwin; that the accused had also purchased a second hand red Lancer; and that they had travelled in convoy from Adelaide until the time they were stopped by the police.
The section 120C issue
The operation of s 138 of the Evidence (National Uniform Legislation) Act (“UEA”)
UEA s 138(1) provides:
Exclusion 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;
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.
The UEA contains no definition of “impropriety”. In Robinson v Woolworths Ltd Basten JA said:[1]
[T]he identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.
This is consistent with the common law position that in order to warrant the exclusion of evidence on the basis that it was improperly obtained, the impugned conduct 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”.[2] Moreover, that conduct must be “clearly inconsistent” with those minimum standards.[3]
The burden is on the party seeking exclusion of the evidence to establish that the evidence was improperly obtained.[4]
Defence counsel contends that the evidence obtained as a result of the search of the two cars (chiefly evidence of the nine kilograms of cannabis found in the grey Prado) was improperly obtained in contravention of s 120C of the Police Administration Act.
Section 120C provides, relevantly:
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;
The following principles apply to the exercise of the power to search without a warrant under s 120C.[5]
(a)For the power under that section to be enlivened, the police officer must, subjectively, have a suspicion that there are drugs in the vehicle and there must, objectively, be reasonable grounds for that suspicion.
(b)Section 120C of the Police Administration Act does not require reasonable grounds for belief but rather reasonable grounds for a suspicion.[6] “Suspicion” and “belief” are different states of mind.[7] Suspicion denotes a less positive state of mind than belief.[8]
(c)“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect, but I cannot prove’.”[9]
(d)Hence, the facts which may provide reasonable grounds for a suspicion
may be insufficient to provide reasonable grounds for a belief.[10]
(e)Nevertheless, there must be some factual basis for the suspicion.[11]
(f)“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’...”[12]
(g)A balance must be maintained. The line between a hunch and a reasonable suspicion must be maintained, but police must be allowed to carry out their duties without undue scepticism or their every move being subject to minute scrutiny.[13]
The Crown contends that the police officers who conducted the search did suspect that cannabis was to be found in either or both cars and that they had reasonable grounds for that suspicion.
The knowledge the police had at the time is of various kinds:
(a)information from police informants (on file);
(b)information obtained as a result of stopping and searching a car driven by an associate of the accused (Jason Taylor) and seizing approximately $314,000 in cryovac wrapping on 22 November 2017;
(c)information obtained as a result of executing a search warrant at the unit where the accused lived with his girlfriend and Jason Taylor (also on 22 November 2017);
(d)information obtained during a recorded interview with Jason Taylor (on 23 December 2017);
(e)information obtained from a surveillance device placed in Jason Taylor’s car on 23 November 2017; and
(f)direct observations and further investigations by police during the “operation”.
Reliance was also placed on the knowledge of the main source of illicit drugs being brought into the Territory and of the typical modus operandi of drug traffickers gained by the officer in charge of the investigation through his experience as a police officer.
Detective Constable First Class Mitchell Stephens (“Detective Stephens”) was the officer in charge of the investigation into the activities of the accused. He also initiated the search of the grey Prado and gave instructions for the red Lancer to be stopped and searched. His evidence was that at the time he initiated the searches, he suspected that there was a substantial amount of cannabis in one or both cars. He gave evidence about the knowledge and beliefs he had which gave rise to that suspicion.
(a)Information from police informants (intelligence reports)
The first category of information Detective Stephens had, came from police intelligence reports. These are records of information (which may or may not be true) given to police at various times by members of the public. Such reports are supplemented by verifiable information obtained from motor vehicle registry searches, telephone searches, criminal history searches and the like.
The first intelligence report he relied on indicated that in 2012 both the accused and Jason Taylor had been “recorded for cannabis and methamphetamine possession”. That same report recorded that on 10 August 2017, someone had reported that the accused and Jason Taylor “have blown over $40,000 AUD at the Sky City Casino in the last month. They come in cashed up together and will also pass each other cash as required.” That report also stated that both of the two men had been “recorded for drug supply and criminal associations in the Darwin region”. (I take this to be a reference to earlier information provided to police by a member or members of the public which may or may not be true.)
The second intelligence report relied on is a report by a member of the public dated 21 November 2017: “Michael ANDERSON-WILSON – moving pounds/living 112 Priest Cct.” Detective Stephens said he understood the reference to “pounds” to be a reference to pounds of cannabis, and the reference to “moving” to be a reference to supply. There was also a reference to another report in relation to the accused: “recorded in recent (sic) for large amounts of cash, cannabis & meth supply with Jason Taylor.”
The supplementary information on that report from the various searches revealed that Jason Taylor and the accused were living at 3/112 Priest Circuit, Gray; that (on the information he provided to the MVR) the accused was using a phone registered to Ann Murphy who was also living at 3/112 Priest Circuit Gray; and that each of the accused, Ms Murphy and Jason Taylor had provided the address: 36 McInnis Circuit, Driver at some time (the accused and Jason Taylor to the MVR and Ms Murphy to her telephone service provider). Detective Stephens later found out from Jason Taylor (in an interview with police on 23 November 2017) that this was the address of the accused’s mother.
That same intelligence report (dated 21 November 2017) reported, in relation to Ann Murphy: “ice user and transporting drugs from Adelaide to Darwin her family are recorded for drug activity”.
Detective Stephens gave evidence that, based on these reports, he had formed the suspicion that Jason Taylor, the accused and Ms Murphy were all living at the same address (3/112 Priest Circuit), that they were involved together in the supply of drugs and that the accused and Jason Taylor were also involved in socialising (including gambling) together and were “cashed up”.
(b)Information obtained as a result of stopping and searching a car driven by an associate of the accused (Jason Taylor)
Detective Stephens heard that Jason Taylor was going to drive south and suspected that he would be carrying drugs. He arranged for Jason Taylor’s car (a red Holden Commodore) to be stopped at Katherine and searched.
On 22 November 2017 Jason Taylor and an associate JJ were stopped by police near Katherine, travelling south from Darwin on the Stuart Highway. Police searched the vehicle and located over $314,000 in cash in cryovac packages in the car. (No objection has been taken to the lawfulness of this search.)
(c)Information obtained as a result of executing a search warrant at the unit where the accused lived with his girlfriend and Jason Taylor
Both Jason Taylor and JJ were arrested and that night police executed a search warrant at 3/112 Priest Circuit. They did not find any drugs in the search but they did find two cryovac machines and around $8,620 in cash. The cash and one of the cryovac machines were found in one of the bedrooms. They also found documents in the name of the accused. (Jason Taylor was in custody at the time of the search and the accused and Ms Murphy were not at home.)
(d)Information obtained during a recorded interview with Jason Taylor
On 23 November 2017 Jason Taylor took part in a recorded interview with police. In that interview, Jason Taylor admitted that the $314,000 cash was from the sale of drugs, that he had been making a living supplying cannabis and that he had been gambling at the Casino with money he received from the sale of drugs.
In that interview Jason Taylor made a number of references to his “mate Michael”. He said he lived at 3/112 Priest Circuit[14] and that Michael’s mum lived at McInnis Circuit, Driver;[15] he referred to him as “Michael Wilson” and said he lived at the Priest Circuit address with his girlfriend Ann Murphy;[16] he said that Michael was down in Adelaide at the moment;[17] he drew a map of the house identifying Michael’s bedroom as the one in which the cash and one cryovac machine were found;[18] and said that Michael “pretty much” knew what he was up to[19] (ie supplying cannabis). When asked, “Does Michael do this as well?” Jason Taylor said, “I don’t want to answer that”.[20]
(e)Information obtained from a surveillance device in Jason Taylor’s car
Police released Jason Taylor and JJ on bail and gave them back the red Holden Commodore. In the meantime, they had obtained a surveillance warrant and placed a surveillance device in the car to record the conversation between Jason Taylor and JJ.
During that conversation Jason Taylor and JJ referred a number of times to “Michael” in terms that Detective Stephens said led him to believe that the accused was being referred to and that he was “a primary suspect” in relation to the supply of dangerous drugs from South Australia into the Northern Territory.
An analysis of references to “Michael” on the surveillance audio is as follows:[21]
T1:Jason Taylor: … “that fuckin’ Michael ey, maybe ‘cause they raided the unit. That cunt had fuckin’ pounds, money.”
….
“before they told me … so your room is? They made me draw which room, I was like my ones at the back there and they said, “Is anything in the house?” I said, “Na, nothings there,” and they said, “Oh? What’s this? – It came out of this bedroom.” I was like, “It’s not my bedroom.” I didn’t even know it was there.
T3:Jason Taylor: “… see I didn’t even know Michael had that shit in his room. I thought it was all finished.”
“…And then they said they pull out … you know them vacuum suction bags … and then they pulled out “the photo” … and I was like, “Ah yeah, where’d that come from?” … and they’re [sic] like, “That was in this room.” … That’s not my room …I reckon they’re gonna – they reckon they got Michael and Ann.
T5:Jason Taylor: … and then he had like a duffle bag kinda big fuckin’ bag and he’s like, “Oh, whose bags this?” I said, “I dunno.” Oh, as we opened it, it just reeked like marijuana.
…I was like, “That’s Michael’s,” I’m thinking in my head. I was like, “Not my bag.”
…Everything was not mine. I said, “Everything you have of mine, you got in the car, so whatever’s at home has got nothing to do with me.”
T6:Jason Taylor: Oh fuckin’ fuck fuck fuck … I just wanna know what old mate down South gonna fuckin’ say now.
JJ:Fuckin’ be lucky if they haven’t grabbed him, man, if they’ve got Michael ‘cause Michael’s down there. They got Jason Taylor. They would’ve got you off Jason Taylor’s phone, Michael off Jason Taylor’s phone.[22]
T10:Jason Taylor: … What if Michael’s back in Darwin? Just tryna think because I don’t understand why those pounds were still there.
… Everything was supposed to be gone, so he musta come back. They musta got him - unless they got him on the road or something … or he caught a plane back … that’s what I was thinkin’ fuck hey, make… another quick … go at this last trip now gonna go away for a little while.
T11:Jason Taylor: Ah, wouldn’t mind knowing … what happens with Michael now … He’s gonna fuckin’ shit himself.
T14:Jason Taylor: … think old mate … already, let’s go, let’s go down and bring it up. … bit more smart about it this time.
… I wasn’t smart about it with Michael down … fuckin’ I just want to know how much was in them … they didn’t say how much was in there but I just seen the bag with the little top, this bag is fuckin’ … have to open it up.
JJ:Where at the unit?
Jason Taylor: Yeah.
JJ:Oh fuck.
Jason Taylor: I was thinkin’, nah, you’re not going to putting that on me … … Michael … I hope he don’t say, nah it’s both of ours.
T17:Jason Taylor: True, true, fuckin’ Michael had a shit load of cash on him too. It musta been all his money … plastic bag …
T18:Jason Taylor: Fuck. And now I gotta talk to Michael and see … what he had. Fuck it. Fuck this problem shit. We’ll talk about this later.
T28-29:
JJ:… they must stay here in one car, have everything in another car no one knows about … ah shit an’ just be sitting there laughing.
Jason Taylor: … Ah fuck … Michael be shitting himself right now.
… Yeah see cause I – when he started asking, “Oh, so which bedroom is yours?” I started thinking, “Yeah, Michael’s fuckin’ … I had to draw it …”
T33: Jason Taylor: Michael stops crying
JJ:Michael …
Jason Taylor: Yeah, see he’s in a syndicate raid he’s gonna have a warrant …
… make warrant for his arrest.
… photos … in Michael’s room, I was like, “I don’t know what that is it’s not my room.”
T42:Jason Taylor: … all this shit from Michael. That information’s gonna turn him … He changed his phone … the whole phone ey …
T45:JJ: Reckon … Michael be the sort (?) to squeal or what?
Jason Taylor: Yeah, I have a … feeling.
…
Just tryna think whose who was there watching Perth? I don’t know it’d be one of them, because when everybody talks to me they always say … everything Michael. … My name’s not really out there.
…
JJ:Michael was only saying the other day that he wants to like venture out and get more customers.
(f)Observations and investigations during the “operation”
On 16 December 2017 Detective Stephens was told that the accused had left Darwin and travelled south. He gave evidence that he believed that the accused was probably going to do “a drug run”. Accordingly, he got authorisation to deploy police officers and work overtime to carry out surveillance on the accused and his vehicle.
Another police officer, Detective Senior Constable First Class John Spencer (“Detective Spencer”) gave evidence that he made telephone enquiries of various accommodation places in Alice Springs and ascertained that on 16 December 2017 the accused and another man had checked into a cabin at the Alice Springs Tourist Park on a single booking and that they were driving in a grey Toyota Prado NT registration no CC00CH (ie the grey Prado).
Detective Spencer did searches on Facebook and believed that he had identified the owner of the grey Prado (and probable other person in the car) as Alvin Dundara.
On 18 December 2017 Detective Stephens received information that the accused had checked into Highway 1 Caravan & Tourist Park in Adelaide on 17 December. He was also informed on 19 December that the accused had left Adelaide driving north.
Detective Stephens gave evidence that he knew from his experience in the police force that the major source of illicit drugs coming into the Northern Territory is Adelaide and that this travel pattern (ie driving to Adelaide and coming back the following day) is often undertaken by people doing a drug run. Based on that information (and the earlier intelligence reports; the information from the search of 3/112 Priest Circuit; and the information he had received from the interview with Jason Taylor and the taped conversation between Jason Taylor and JJ in the car) he believed the accused was bringing drugs from South Australia into the Northern Territory.
Detective Stephens and Detective Spencer travelled south to observe the accused on the road.
On 20 December 2017 at 1:30 p.m., 70 km south of Larrimah, they observed the accused driving north in a red Lancer with South Australian registration closely followed by the grey Prado. Detective Stephens recognised the accused as the driver of the red Lancer.
Detectives Stephens and Spencer waited until the two cars were out of sight, then did a U-turn and followed them.
Detective Stephens gave evidence that the cars were never too far apart (about 100 to 200 metres) and when overtaking did so at the same time. He and Detective Spencer later saw the two cars parked together and the occupants apparently conversing at a rest stop south of Mataranka. Based on these observations Detective Stephens believed that the two cars were travelling together in convoy.
When the vehicles were nearing Mataranka the gap between the cars increased.
Stopping and searching the two cars
Detectives Stephens and Spencer stopped the grey Prado and telephoned Detective Sergeant Kennon requesting him to stop the red Lancer.
When they stopped the grey Prado, the driver, Alvin Dundara, admitted that there was “a heap of marijuana” in the car. The detectives could see two boxes containing what appeared to be pound packages of cannabis. When the car was searched later, approximately nine kilograms of cannabis was found.
Detective Sergeant Kennon and Constable Whiting followed the red Lancer into a service station and stopped behind it. Detective Sergeant Kennon informed the accused, who was driving the car, that he had grounds to suspect cannabis was being transported in the car and that they were going to search the car pursuant to s 120C of the Police Administration Act. No drugs were found in the red Lancer, but police found and seized a number of receipts, including a receipt in the accused’s name for the accommodation in Alice Springs.
Both men were arrested and charged.
Defence submissions
Defence counsel submitted that the grounds for Detective Stephens’ suspicion that there were drugs in either car were very thin. First, he pointed to the fact that police had no reason to suspect that Mr Dundara (the driver of the grey Prado) was connected with drugs at any time before he was stopped and searched – a fact that was admitted by Detective Stephens in cross-examination.
Second, he contended that the connection between the two cars was extremely tenuous and insufficient to ground a suspicion that there were drugs in either car.
(a)The only information police had was that the two men had stayed at the Alice Springs Tourist Park on a single booking and that they were driving in a grey Toyota Prado NT registration no CC00CH.
(b)The only evidence to connect the grey Prado with criminal activity is that it drove to Adelaide and straight back.
(c)The only evidence of a connection between the two cars was that the drivers talked to each other at a rest stop. There is no proof that the cars were travelling in convoy. There could have been any number of reasons why the two cars were travelling one behind the other on the Stuart Highway including coincidence.
(d)Any connection between them would have been consistent with a range of lawful activities – as could the fact that they stayed only 24 hours in Adelaide. (For example, they might have been in Adelaide to attend a funeral or to go to a concert.)
Defence counsel put these propositions to Detective Stephens in cross-examination, and Detective Stephens denied that they were the only grounds he had for suspecting that there were drugs in one or both cars.
(a)He had the initial intelligence reports which linked the accused and Jason Taylor and suggested that they were involved together in the supply of drugs.
(b)He had the fact that Jason Taylor was stopped on 22 November with $314,000 which he admitted was from the supply of drugs.
(c)He had the fact that when the unit in which the accused and Jason Taylor lived was searched on 22 November, police found two cryovac machines and over $8,000 in cash.
(d)He had further information from the interview with Jason Taylor in which Jason Taylor identified the accused’s bedroom as the one in which one cryovac machine and the $8,000 odd in cash were found.
(e)He had the recorded conversation from the listening device in Jason Taylor’s car in which Jason Taylor was saying, essentially, that the accused was equally involved in bringing in cannabis from Adelaide and selling it.
(f)He reasoned that losing over $314,000 was likely to induce the accused and Jason Taylor to do another drug run fairly soon in order to replenish their supply of cash. That is why, when he heard on 16 December that the accused was heading south, he arranged for surveillance to track him with a view to stopping him and searching for drugs on his return from Adelaide.
(g)Added to that he had the observations and information received between 16 December when the operation began and 20 December when the cars were stopped and searched: the identification of the grey Prado; the joint booking of accommodation; the fast turnaround in Adelaide; and the fact that they were apparently travelling in convoy on the return trip and had stopped to talk to each other at a rest stop.
When cross-examined about what was asserted to be a tenuous link between the two cars, Detective Stephens said that to his knowledge, it was not uncommon for a person higher up the chain in a drug operation to have someone lower down carry the drugs for them and also that it was not uncommon for the drug runners to employ two vehicles, the task of the one in front being to look out for police activity and warn the car behind carrying the drugs.
When cross-examined about what was asserted to be a tenuous link between the two men and the fact that he had no prior information to link Mr Dundara and the accused, Detective Stephens frankly admitted that any car that was associated with the accused would have been stopped and searched; and when cross-examined about the fact that he suspected there may have been drugs in one of the cars he said he would go further than that: he believed that the accused and Mr Dundara were acting together to bring a large quantity of cannabis from Adelaide into the Territory and that there were drugs in one or other of the cars or both of them.
I accept the evidence of Detective Stephens that he suspected there were drugs in one or both of the cars. I also accept that the information he had from the various sources described above provided objectively reasonable grounds for that suspicion. To the extent that his suspicion was partly informed by his knowledge of the most common source of drugs coming into the Territory (Adelaide) and of the modus operandi of those who bring those drugs into the Territory, it was legitimate for him to have recourse to that knowledge.
The significance of police experience was discussed by Nettle J in Prior v Mole:[23]
… But knowledge born of experience is not irrational − it is empirical − and, depending on the experience of a police officer, may properly comprise a significant part of the officer’s crime detection and prevention armoury. For example, a police officer might use knowledge based on previous experience to identify particular circumstances and behaviour that support a belief on reasonable grounds that observed individuals have engaged in a drug transaction. A further example was posed by counsel for the appellant in oral argument: it might be open to a police officer to believe on reasonable grounds that a visibly intoxicated person walking towards a car holding what appear to be keys to a car might be about to commit an offence of driving under the influence of alcohol. Accordingly, where a police officer encounters 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 that there is a significant probability of that identified class of offending taking place. As was observed by the United States Supreme Court in Terry v Ohio, although little weight can be given to an officer’s “inchoate and un-particularized suspicion or ‘hunch’”, due weight must be given to the specific reasonable inferences which a police officer is entitled to draw from the facts in light of his or her experience.
In any event, even without the insights gained by Detective Stephens from his experience as a police officer, the information he had was more than sufficient to provide objectively reasonable grounds for a suspicion that there were drugs in the two cars (the grey Prado and the red Lancer) which were stopped and searched by police on 20 December 2017.
The evidence obtained as a result of those searches will be admitted.
The evidence that the accused was gambling large sums of money before his arrest
The alleged co-offender, Jason Taylor will be giving evidence for the Crown. He will presumably be detailing what he says were the activities of the two of them in bringing in cannabis from Adelaide and supplying it in the Territory. In amongst that evidence, the Crown proposes to adduce evidence from Jason Taylor that he and the accused used to gamble at the Mindil Beach Casino with large sums of money that were the proceeds of the supply of drugs. The Crown also proposes to adduce evidence from the records of the Mindil Beach Casino to the effect that in the two years before his arrest on this charge, the accused won approximately $4,000 and lost approximately $45,000 in transactions at the Casino using his card.
The defence objects to this evidence. The first ground of objection is relevance. Defence counsel relies on UEA s 55 and contends that evidence that the accused gambled large sums of money could not, either directly or indirectly, rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding – that is to say whether the accused supplied a commercial quantity of cannabis to another person/people between 1 January 2016 and 21 December 2017.
The prosecutor said that there were two purposes for adducing the evidence of the Casino records. The first was to corroborate Jason Taylor’s evidence about their joint gambling habits, and the second was to show that the accused was in possession of much more money than one would expect a person in the position of the accused to have from honest employment.[24] (Defence counsel had initially objected only to the evidence from Mindil Beach Casino, but enlarged his objection to encompass the evidence of Jason Taylor about their joint gambling habits.)
Defence counsel submitted that there was no inherent connection between having more money than one would expect and drug dealing. A person can have more money than one might expect for any number of reasons both legitimate and illegitimate: one might have inherited the money or have a generous wealthy relative; or one might be involved in criminal activities other than supplying drugs.
While that is correct, that submission confuses relevance with conclusive proof. Proof that a person has more money than one might expect that person to have acquired through legitimate means is not conclusive proof that he acquired the extra money through supplying drugs. However, it seems to me that proof that the person has more money than one would expect could, in conjunction with other relevant evidence, be circumstantial evidence that might rationally affect the assessment of the probability of whether the person had engaged in the supply of drugs for profit.
The Crown contended that the evidence could rationally affect the assessment of that probability in the circumstances of this case. The Crown case against the accused is that he and Jason Taylor were part of a syndicate bringing in large quantities of cannabis from Adelaide and distributing it in the Darwin area; that they lived together, worked co-operatively together to conduct their drug dealing business, and played together spending and gambling large amounts of money they earned from the supply of drugs; and the Mindil Beach Casino evidence (and the evidence of Jason Taylor) go to support that case. I agree.
Defence counsel argued, in the alternative, that if the evidence is found to be relevant, it should nevertheless be excluded under UEA s 137 or 136.
UEA s 137 provides that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Section 135 gives the court a discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
The first step in the application of either of these sections is to identify what is said to be the potential unfair prejudice to the accused. (It was not suggested by defence counsel that the evidence was misleading or confusing or could result in undue waste of time.)
The dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[25] The notion of prejudice in this general context “… means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.”[26] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.
Defence counsel identified what he contended were two areas of potential prejudice. First, defence counsel contended that, in the popular mind, having “too much money” is associated with drug dealing so that evidence that the accused has “too much money” might provoke an automatic association in the mind of the jury: the accused had too much money – he must therefore be a drug dealer. I do not think there is such an automatic association in the public imagination. I do not think, for example, that the possession of “too much money” is associated in the minds of most people with drug dealing any more than it is with, say, fraud or confidence tricksters. Of course it may cause the jury to think the accused is a drug dealer in connection with other evidence that suggests he has supplied drugs, but that is simply another way of describing its probative value. Further, the jury will be warned that they may take this evidence into account as part of the circumstantial case against the accused, but that they should not reason that just because he had a large amount of money to gamble with, he must therefore be a drug dealer. I do not think that any potential prejudice as a result of this type of reasoning outweighs the probative value of the evidence.
The second potential prejudice identified by defence counsel is that admitting the evidence effectively reverses the onus of proof on the issue, essentially compelling the accused to go into evidence to explain where the money came from. I do not agree that that is the case any more than any other piece of circumstantial evidence has that effect. The accused always has the option of sitting mute and requiring the Crown to prove its case and the jury will be warned that they cannot draw any adverse inference against the accused if he chooses that path. They will also be warned that before drawing an inference of guilt from circumstantial evidence they must be satisfied that it is the only rational inference open on the evidence.
If there is any potential prejudice of this nature in adducing this evidence (as distinct from its legitimate tendency to inculpate the accused in the commission of the charged offence), I do not think it outweighs the probative value of the evidence.
The evidence of the accused’s gambling losses will be admitted.
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[1] Robinson v Woolworths Ltd (2005) 158 A Crim R 546 at [23]
[2] Ridgeway v The Queen (1995) 184 CLR 19 at 36 per Mason CJ, Deane and Dawson JJ
[3] See also The Queen v Gehan [2019] NTSC 91 (“Gehan”) at [9]
[4] Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28] referred to in The Queen v Layt [2018] NTSC 36 at [73]
[5]The Queen v Casimiro and The Queen v Pinto [2020] NTSC 18 at [29] applying Gehan [2019] NTSC 91 per Grant CJ
[6] Gehan at [37]
[7] George v Rockett (1990) 170 CLR 7 at 115
[8] Gehan at [38]
[9] Hussien v Chong Fook Kam [1970] AC 942 at 948, adopted and applied by the High Court in George v Rockett (1990) 170 CLR 104 at 115
[10] Ibid
[11] Ibid
[12] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 per Kitto J at 303, cited with approval by the High Court in George v Rockett (1990) 170 CLR 104 at 115-116
[13] R v MacKenzie [2013] 3 SCR 250 (Supreme Court of Canada), quoted in Gehan at [41]
[14] ‘Transcript of interview with Jason Taylor’, 23 November 2017, p 6 and p 17
[15]Ibid p 6
[16] Ibid p 17
[17] Ibid p 18
[18] Ibid p 19
[19] Ibid p 18
[20]Ibid p 19
[21]‘Transcript of Listening Device recording’, 23 November 2017, p 1
[22] I presume this is reference to a different “Jason Taylor”.
[23](2017) 261 CLR 265 at [71]
[24] There is some evidence from Jason Taylor in the police interview dated 26 September 2018 that the accused was working as a truck driver.
[25]The Queen v AW [2018] NTSC 29 at [30]
[26] HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ
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