The State of Western Australia v MacKenzie - [2013] WADC 179

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MACKENZIE [2013] WADC 179

CORAM: STAUDE DCJ

HEARD: 4 OCTOBER & 7-8 NOVEMBER 2013

DELIVERED : 15 NOVEMBER 2013

FILE NO/S: IND 421 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SHEILA JANE MACKENZIE

Catchwords:

Criminal law - Possession of prohibited drug with intent to sell or supply it to another - Application to exclude evidence of record of interview on grounds of unlawful detention - Application to exclude evidence of search on grounds of no reasonable suspicion - Preliminary issue - Onus of proof of contravention of/compliance with Criminal Investigation Act 2006 - Whether police officer had reasonable suspicion so as to justify a search pursuant to s 68(1) of the Criminal Investigation Act 2006 - Whether accused was lawfully detained pursuant to s 140 of the Criminal Investigation Act 2006 - Whether authorisation of detention of accused for a further period pursuant to s 140(4) was lawful

Evidence - Criminal law - Application to exclude evidence of an audiovisual record of interview on grounds of unlawful detention - Application to exclude evidence of search on grounds of no reasonable suspicion - Preliminary issue - Onus of proof of contravention of/compliance with Criminal Investigation Act

2006 - Whether police officer had reasonable suspicion justifying a search pursuant to s 68(1) of the Criminal Investigation Act 2006 - Whether accused was lawfully detained pursuant to s 140 of the Criminal Investigation Act 2006 - Whether authorisation of detention of accused for a further period pursuant to s 140(4) was lawful

Legislation:

Criminal Investigation Act 2006

Result:

Application to exclude evidence of and resulting from the search dismissed
Application to exclude audiovisual record of interview dismissed

Representation:

Counsel:

State of Western Australia : Ms K Goddard-Borger
Accused: Mr B Meshgin

Solicitors:

State of Western Australia : State Director of Public Prosecutions
Accused: Legal Aid Commission of Western Australia

Case(s) referred to in judgment(s):

Hounslow v Woodward [2007] WASC 27
Maines v Roy (1991) WAR 508
McDermott v The King (1948) 76 CLR 501
McPherson v The Queen (1981) 147 CLR 512
Quinlivan v Lumpkin [2008] WASC 120
R v Lee (1950) 82 CLR 133
Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1

STAUDE DCJ:

Introduction

The accused is charged with one count of possession of methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981.
By application dated 28 August 2013, the accused seeks an order that an audiovisual recording of her interview by the police on 27 June 2012 be inadmissible at the trial on the basis that such evidence was obtained while she was detained in contravention of s 140 of the Criminal Investigation Act 2006 (CIA).
By a further application dated 14 October 2013, the accused seeks an order that evidence of the initial search of her person by the police on that date, and evidence obtained as a result of that search, be inadmissible at the trial on the basis that such evidence was obtained in contravention of s 68(1) of the CIA.
The first application came on for hearing pursuant to s 98 of the Criminal Procedure Act 2004 on 4 October 2013. On that occasion the court heard submissions from counsel as to the onus of proof. The hearing was then adjourned to 7 November 2013 when it proceeded, in respect of both applications, by way of a voir dire. The State called the relevant police officers. No evidence was adduced by the defence. Further submissions were heard on 8 November 2013. The court reserved its decision. The trial of the indictment is listed to commence on 18 November 2013.

Facts not in issue

In the early hours of 27 June 2012 the accused was a passenger in a motor vehicle when it was stopped by police. The vehicle had two other occupants. Police conducted a search of the vehicle and its occupants. The accused was found to have in her bra a number of small quantities of methylamphetamine totalling some 0.6 grams in weight. The search was visually recorded. She was arrested on suspicion of possession of a prohibited drug.
Another occupant, Peter William Slabbers, was found to be in possession of a large quantity of cash and some bank cards in the name of another. He was arrested on suspicion of possession of stolen or unlawfully obtained property. He was then found to have in his trousers a large quantity of methylamphetamine. He was further arrested on suspicion of possession of a prohibited drug with intent to sell of supply. Slabbers was charged with the offences and pleaded guilty. He has been dealt with.
The driver, Liza Dawn Harmon, having been searched, was not suspected of an offence and allowed to leave.
The accused, having been arrested as a suspect pursuant to s 139(2) of the CIA, was conveyed to Rockingham Police Station where a further search revealed a package in a pocket of her jacket containing 13.7 grams of methylamphetamine. This quantity is the subject of the charge on the indictment.
While so detained the accused was interviewed by the police. She admitted possession of the quantities of methylamphetamine found in her bra, but denied having any knowledge of the quantity found in her jacket pocket.

Issues

The issue raised by each application is whether the CIA was contravened, such that the evidence of the search, and resulting from it, and the audiovisual record of interview are inadmissible by virtue of s 154(2).
In relation to the search, the accused contends that the police had no right to search her at the roadside as the officer who conducted the search, Senior Constable Downey, had no proper basis for a reasonable suspicion that she had possession of, or under her control, anything relevant to an offence. Her arrest as a suspect was, therefore, a contravention of s 68(1) of the CIA. She contends, accordingly, that the police had no right to detain her, further search her, or interview her.
The prosecution contends that the accused was searched, on the first occasion, pursuant to s 68(1) of the CIA on the basis of a reasonable suspicion formed by Senior Constable Downey that the occupants of the vehicle may be in possession of drugs. Senior Constable Downey had information that the driver of the vehicle had a record of drug‑related offences. This information and his observations of the behaviour of the occupants of the car, in all the circumstances, including the time of night, grounded a reasonable suspicion that one or more of the occupants was in possession of a prohibited drug.
In relation to the record of interview, the accused contends that her initial arrest is vitiated by the unlawful search. She also challenges the lawfulness of the authorisation to extend the initial period of detention.
The prosecution contends that the accused was arrested shortly after 3.20 am when Slabbers was first arrested, and that during the six hour period of detention permitted by s 140(3), a further period of up to six hours detention was authorised by a senior officer, Detective Sergeant Newington. This occurred at approximately 9.00 am in accordance with s 140(4). In accordance with s 140(5), a written record of the authorisation was made at 12.07 pm. The written authorisation stipulated the original arrest time as 3.45 am and was annotated as having been verbally approved at 9.00 am. The interview took place between 1.16 pm and 2.06 pm.
The accused contends that at the time of the interview the period of initial detention authorised by s 140(2), assuming her arrest was lawful, had expired. The purported authorisation of a further period of detention was unlawful because it was not given within six hours of her initial arrest, as required by s 140(4) and because Detective Sergeant Newington did not take into consideration the factors set out in s 141 in determining whether a further period of detention was justified, and did not state in the authorisation his reasons as required by s 140(5)(a)(iv).
There is no issue raised with respect to the voluntariness of the interview. Nor is it submitted that the audiovisual record of interview be excluded as a matter of discretion on the grounds of unfairness or for reasons of public policy.

Criminal Investigation Act 2006

Section 154 renders inadmissible, except in certain circumstances, any evidence derived from a thing relevant to an offence which has been obtained in the purported exercise of a power conferred by the Act where a requirement of the Act in relation to the exercise of the power is contravened.
The constituent elements of s 154(2) were identified by McLure P in Wright v Western Australia [2010] WASCA 199; (2010) 43 WAR 1 as follows [16]:
1.If, in the purported exercise of a power conferred by the Act,
2.a thing relevant to an offence is obtained,
3.and a requirement of the Act in relation to the exercise of the power (including a requirement that arises before or after the exercise of the power) is contravened,
4.any evidence derived from the thing or from the exercise of the power is not admissible,
5.unless the person does not object to the admission of the evidence, or the court decides otherwise under s 155.
Relevantly, by virtue of s 5 of the CIA, a thing is a thing relevant to an offence if it is reasonably suspected that the thing is or may afford evidence relevant to proving the commission of an offence or who committed an offence.
Section 4 defines 'reasonably suspects' as follows:
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non‑existent), when judged objectively, are reasonable.
Section 7 sets out the Act's relationship with the common law in the following terms:
(1)Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2)If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3)If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
The power to search (s 68) and the power to detain suspects for the purpose of interview (s 139) are powers conferred by the CIA.
Section 68(1) provides:
(1)If an officer reasonably suspects that a person has in his or her possession or under his or her control any thing relevant to an offence, the officer —
(a)may do a basic search or a strip search of the person; and
(b)may, subject to section 146, seize any thing relevant to an offence that the officer finds, whether or not it is a thing that the officer suspected was in the possession or under the control of the person; and
(c)whether or not the officer seizes the thing, may do a forensic examination on it.
Section 139 provides:
(1)In this section —
arrested suspect means a person who is under arrest having been arrested under section 128, or under another written law, on suspicion of having committed an offence but who has not been arrested under an arrest warrant.
(2)A police officer or a public officer may detain an arrested suspect after the suspect is arrested for the purposes of —
(a)doing a search under section 133 or 135; and
(b)investigating any offence suspected of having been committed by the suspect; and
(c)interviewing the suspect in relation to any offence that the suspect is suspected to have committed; and
(d)deciding whether or not to charge the suspect with an offence.
(3)An arrested suspect who is detained under subsection (2) must be detained in the company of an officer and not in a lockup or other place of confinement, unless the circumstances make it impracticable to do so.
(4)The detention of an arrested suspect must be in accordance with section 140.
(5)The detention of an arrested suspect in contravention of section 140 is not unlawful if it occurs due to circumstances that are not reasonably foreseeable.
Section 140 provides:
(1)In this section —
arrested suspect has the meaning given to that term by section 139;
senior officer means —
(a)in the case of an arrested suspect who has been arrested by a police officer — a police officer who is, or is acting as, a sergeant or an officer of a rank more senior than a sergeant;
(b)in the case of an arrested suspect who has been arrested by a public officer — another public officer prescribed as a senior officer in relation to that officer,
who is not involved in the investigation of any offence that the suspect is suspected of having committed.
(2)For the purposes of this section, the detention of an arrested suspect is justified if the detention —
(a)is for a purpose referred to in section 139(2); and
(b)is for a period that is reasonable having regard to the factors in section 141.
(3)Subject to subsection (2), the detention of an arrested suspect —
(a)must not exceed 6 hours from the arrest of the suspect unless a further period has been authorised under subsection (4)(b); and
(b)must not exceed any further period authorised under subsection (4)(b) unless one or more further periods have been authorised under subsection (6)(b).
(4)At any time during the 6 hours immediately following a suspect’s arrest on suspicion of having committed an offence —
(a)an officer involved in investigating the offence may apply to a senior officer for an authorisation under paragraph (b); and
(b)on such an application, the senior officer may authorise the detention of the suspect for a further period of not more than 6 hours if the officer is satisfied that detention of the suspect for the further period is justified.
(5)If under subsection (4)(b) a senior officer authorises the detention of an arrested suspect for a further period —
(a)the senior officer must make a written record of the authorisation and —
(i)the name or a description of the arrested suspect to whom it relates; and
(ii)the further period authorised; and
(iii)the date and time of the authorisation; and
(iv)the reasons for the authorisation;
and
(b)if practicable the senior officer must give the applicant a copy of the written record; and
(c)the further period commences at the end of the 6 hours immediately following the suspect’s arrest; and
(d)no senior officer can give another authorisation under subsection (4)(b).
(6)At any time during a further period authorised under subsection (4)(b) or this subsection —
(a)an officer involved in investigating the offence concerned, with the prior written approval of a senior officer, may apply to a magistrate for an authorisation under paragraph (b); and
(b)on such an application, a magistrate may authorise the detention of the suspect for a further period of not more than 8 hours if the magistrate is satisfied that detention of the suspect for the further period is justified.
(7)If under subsection (6)(b) a magistrate authorises the detention of an arrested suspect for a further period —
(a)the magistrate must make a written record of the authorisation and —
(i)the name or a description of the arrested suspect to whom it relates; and
(ii)the further period authorised; and
(iii)the date and time of the authorisation;
and
(b)if practicable the magistrate must give the applicant a copy of the written record; and
(c)the further period commences —
(i)at the end of the further period authorised under subsection (4)(b); or
(ii)if a further period has previously been authorised under subsection (6)(b), at the end of that further period.
(8)An application may be made, and an authorisation may be given, under subsection (6) on more than one occasion.
(9)An application may be made, and an authorisation may be given, under this section by remote communication.
Section 141 provides:

The factors to be taken into account under section 140 are —
(a)the number and complexity of the offences to be investigated;
(b)the time needed by officers with knowledge of or responsibility for the investigation to travel to attend to the matters in section 139(2);
(c)the time needed to interview potential witnesses, whether before, during or after any interview with the suspect;
(d)the time needed to interview any other people who are suspected of being involved in an offence suspected of having been committed by the suspect;
(e)the time needed to transport the suspect from the place where he or she was arrested to a place where appropriate facilities are available to conduct an interview or any other investigation;
(f)the time needed by an officer to assess relevant material or to take any other steps to prepare to interview the suspect;
(g)the time needed to afford the suspect his or her rights in sections 137 and 138;
(h)the time needed to allow the suspect to receive medical treatment, to rest or to receive refreshment;
(i)the time needed to obtain the use of facilities to make an audiovisual recording of an interview with the suspect;
(j)any delay in making such a recording caused by technical matters beyond the control of the person interviewing the suspect;
(k)any period when it is not reasonable to interview or conduct other investigations with the suspect because the suspect is intoxicated, ill or incapacitated;
(l)the time needed to visit any place connected with the offence;
(m)the time needed to complete any of the matters, or any matter reasonably connected with the matters, in section 139(2);
(n)the time needed to complete any identifying procedure under the Criminal Investigation (Identifying People) Act 2002 Part 6;
(o)the time needed to complete any search of the suspect under Part 8;
(p)the time needed to complete any forensic procedure on the suspect under Part 9;
(q)the time needed to complete any test that may be conducted on the suspect under a written law;
(r)the time needed to arrange and conduct an identification parade;
(s)the time needed to comply with this Act or any other written law.

Section 154 provides:
(1)In this section —
authorisation includes a warrant and an order.
(2)If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act —
(a)a thing relevant to an offence is seized or obtained; and
(b)a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened,
any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless —
(c)the person does not object to the admission of the evidence; or
(d)the court decides otherwise under section 155; or
(e)if the power exercised was exercised in relation to a protected person (as that term is defined in section 73), the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether the person was a protected person.

Section 155 provides:
(1)This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3)In making a decision under subsection (2) the court must take into account —
(a)any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)the seriousness of the offence in respect of which the evidence is relevant;
(c)the seriousness of any contravention of this Act in obtaining the evidence;
(d)whether any contravention of this Act in obtaining the evidence —
(i)was intentional or reckless; or
(ii)arose from an honest and reasonable mistake of fact;
(e)the probative value of the evidence;
(f)any other matter the court thinks fit.
(4)The probative value of the evidence does not by itself justify its admission
In Wright, Blaxell J observed at [118] – [119]:
The Criminal Investigation Act 2006 (WA) is now the primary source of police powers in this State. It has amalgamated the statutory powers previously in the Police Act 1892 (WA) and the Criminal Code, codified some common law police powers, and also introduced additional police powers.
One of the most important new powers is the power to detain arrested suspects for investigative and other purposes. The Act also counterbalances the increase in police powers by imposing significant restraints on their exercise, and conferring certain rights on suspects which minimises the potential for abuse.
For the purposes of the CIA an audiovisual record of interview is a thing relevant to an offence. A record of interview obtained from an arrested suspect who had been detained in the exercise of the power conferred by s 139(2)(c) of the Act to detain a person for the purposes of interview will be improperly obtained and inadmissible pursuant to s 154 if there was a failure to comply with the requirements of the Act in respect of the exercise of that power: Wright [15] ‑ [23], [165] ‑ [174].
Nevertheless, the evidence would be admissible if the court decided that the desirability of admitting the evidence outweighed the undesirability of doing so, having regard to the matters set out in s 155(3).

Reasonable suspicion – principles

In Maines v Roy (1991) WAR 508 Nicholson J, dealing with a question of the reasonableness of suspicion of stolen or unlawfully obtained goods which grounded a search pursuant to s 49 of the Police Act 1892, summarised the applicable principles as follows (514):
1.There must be an actual or concrete suspicion actually entertained by the relevant police officer.
2.The suspicion must be held at the time the power to stop, search and seize is exercised.
3.The reasonableness of the suspicion must be established by examination of the facts upon which it was formed.
4.It is not essential that the relevant officer should actually swear that he held such a suspicion.
5.The existence and reasonableness of the suspicion may be inferred from a combination of the proved facts and the way in which a complainant acted.
6.It is appropriate for the above purposes for the officer to state the nature of the information received in either examination or cross‑examination.
7.Evidence of possession of information simpliciter will not materially assist the prosecution to discharge the onus of proof unless more is known about is credibility.
(citations omitted)
These principles were applied by Johnson J in Hounslow v Woodward [2007] WASC 27 [50] and McKechnie J in Quinlivan v Lumpkin [2008] WASC 120 [47] in construing s 4 of the Criminal Investigation (Identifying People) Act 2002 which is identical to s 4 of the CIA.

Onus of proof

The State submits that it is for the accused to prove on the balance of probabilities the contraventions of the CIA on which she bases her objections to the admissibility of evidence. The State cites no direct authority for this proposition, but argues that as s 154(2) requires proof of a contravention of the Act in order to render evidence inadmissible, the burden must be on the accused to prove the contravention.
The defence contends that an accused person is not in a position to adduce evidence to prove a contravention of the CIA and submits that an objection to admissibility by reference to s 154 should be dealt with in the same way as an objection to evidence of an admission where the prosecution has to prove on the balance of probabilities that the admission was made voluntarily.
In McPherson v The Queen (1981) 147 CLR 512, 519, Gibbs CJ and Wilson J held, on the authority of McDermott v The King (1948) 76 CLR 501 and R v Lee (1950) 82 CLR 133:
Since it is a condition of the admissibility of a confession that it was voluntarily made, evidence of the confession cannot be admitted until it has been shown that it was voluntary. The burden of establishing that the condition of admissibility has been satisfied lies on the party seeking to introduce the confession into evidence, i.e., on the Crown. However, if there is nothing to suggest that the confession was involuntary, the presumption is that it was voluntary and the onus is discharged. It has been held in Australia that the Crown need not prove fulfilment of the condition beyond a reasonable doubt. Once the confession has been shown to be admissible, an accused person who asserts that the confession was improperly or unfairly obtained bears the burden of proving facts that would justify an exercise of the discretion in his favour.
The question whether a statement is admissible is one to be decided by the judge and not by the jury. It is well settled that when an objection is taken to the admissibility of a confessional statement on the ground that it was not voluntarily made, the proper course is for the judge to hear evidence on the voir dire in the absence of the jury as to the circumstances in which the confession was made. (citations omitted)
It is pertinent to note that s 154 renders evidence inadmissible if it is obtained in contravention of the CIA. Section 155 empowers a court to admit such evidence in the exercise of its discretion. It is for the State to move the court to exercise its discretion.
Although s 154 is expressed in negative terms, referring to inadmissibility, and contravention, its effect is that compliance with the requirements of the CIA is a condition of admissibility of evidence obtained through the exercise of the powers conferred by the Act. It follows that where objection is taken to the admissibility of evidence so obtained it is for the State to show that the requirements of the Act were complied with. The standard of proof is on the balance of probabilities as it is in the case of voluntariness.
While there is no clear authority in this respect, it seems to me that to enliven the issue of admissibility for the purposes of s 154 the accused would have to ground the objection. That is to say, the accused would have to point to evidence that raised an issue as to whether a relevant requirement of the Act had been contravened. It would then be for the court, on the basis of all evidence adduced during the voir dire, to determine on the balance of probabilities whether such a contravention had occurred. In effect, the prosecution would bear the persuasive onus of proving compliance with the CIA as a condition of admissibility. Where there is no suggestion of a contravention, the presumption is that there was no contravention and the onus is discharged: McPherson (519).

Evidence - search

The relevant evidence is that of Senior Constable Andrew Downey and Constable Bridget Parker.
On 27 June 2012 Senior Constable Downey was driving a marked police vehicle in company with Constable Parker to attend to a noise complaint when he observed the vehicle in which the accused was a passenger travelling in the opposite direction on Port Kennedy Drive, Port Kennedy. Based on the way in which the driver glanced at him, before quickly looking away, he decided to stop the vehicle, and did so, on Endeavour Drive at about 2.20 am.
A TADIS (police computer system) search of the vehicle registration had raised an alert to the effect that the registered owner of the vehicle had been involved in drug dealing. When he spoke to the driver of the vehicle (Ms Harmon) he ascertained she was the registered owner. He made observations of her. She was very talkative. He observed the front seat passenger, the accused, and spoke to her. She spoke very quickly and appeared nervous. He formed a suspicion that the two females were in possession of drugs. After obtaining the accused's name he received information by way of police intelligence that she too had an association with drugs.
He then noticed a rear seat passenger, Mr Slabbers, whom he observed to be not saying anything and not moving. He spoke to him. He formed a suspicion in relation to Slabbers because of his demeanour. He was not talking. He did not communicate with the females. A TADIS search revealed that he too had a history of involvement in drug dealing. Downey decided to search Slabbers.
By this time the two females were out of the car and had been briefly searched in that their handbags had been checked. Senior Constable Downey then asked Slabbers to get out of the car and to turn out his pockets. A sum of cash, $3,000, which Slabbers said was the proceeds of a sale of a car, and a bank card, which Slabbers admitted was in the name of a deceased person, were located. After some questioning Slabbers was cautioned. He was later arrested on suspicion of possession of stolen or unlawfully obtained property.
Upon inspection of the interior of the vehicle by torchlight, Senior Constable Downey located a bag in the rear of the car which Slabbers admitted was his and which, when opened by Constable Parker, was found to contain a large quantity of cash, in the order of $50,000.
At that point another unit was requested to attend. Senior Constable David Sodden and Constable Brian McNaught attended. According to Senior Constable Downey these officers were present when Slabbers was arrested at 3.20 am. He was placed in a security pod on the rear of the second police vehicle.
The two females were then searched by Constable Parker who found some small clipseal bags containing a crystalline substance in the accused's bra. The accused was then arrested by Senior Constable Downey on suspicion of possession of a prohibited drug. This was at about 3.35 am. Nothing was located on a search of Ms Harmon.
Subsequently, Senior Constable Downey observed Senior Constable Soden to search Slabber's pants. Soden found a black woollen sock containing a plastic bag containing a large quantity of methylamphetamine. Senior Constable Downey arrested Slabbers on suspicion of possession of prohibited drug with intent to sell or supply. The time of arrest was 3.43 am. The arrest was audio‑visually recorded. The parties agree that the video depicts Downey looking at his watch and stating the time of arrest.
Senior Constable Downey has been a police officer for 18 years and has served in Western Australia for five years. In cross‑examination he said that he decided to search the two female occupants of the vehicle before he noticed the male passenger. Asked to give his reasons for deciding to search the female occupants, he said the time of the morning, the intelligence received via TADIS on the driver and the accused, and their demeanour. He said that the accused spoke in a very distinctive way. It caused him to suspect that she had taken drugs. He said he discussed his decision to search the vehicle with Constable Parker.
Senior Constable Downey was cross-examined in relation to his witness statements. He said that he did not go into any detail with respect to the formation of his suspicion. In his first statement, which is, relevantly, in similar terms to his second, he merely stated that he had been informed that the driver of the vehicle had a record of drug offending. He maintained that it was not merely this fact that grounded his suspicion. Rather it was based on all the circumstances that existed at the time. He said that he had a lot of experience of dealing with people and forming suspicion is based on their answers to questions, their mannerisms and their demeanour. He said he did not put in his statements the grounds of his suspicions, merely that the decision was made to stop the vehicle and to search the occupants.
Constable Parker gave evidence that the vehicle driven by Harmon was stopped at about 2.20 am. When Senior Constable Downey said he was going to stop the vehicle she searched TADIS and found the registered owner had a record of drug offending. Constable Parker spoke to the occupants of the vehicle. She obtained their names. She did a TADIS check on the accused and found that she had a drug links also. She also obtained information in relation to Slabbers which she gave to Senior Constable Downey.
Senior Constable Downey told her he intended to search the vehicle. Each of the female occupants was asked to show their handbags. Slabbers was then searched by being asked to empty his pockets. Cash was found, as well as cards which appeared not to belong to him. Subsequently, the bag of cash was found. Parker opened the bag on the boot of the car.
Constable Parker thought it was at about 2.45 am that the second unit was called. Assistance was needed to search the vehicle occupants. She recalled that Slabbers was arrested after Soden and McNaught arrived. It was about 3.20 am. She then searched the accused and found quantities of methylamphetamine in her bra.
Constable Parker made notes, not contemporaneously, within a short time of the events at the roadside, which she later transposed to a running sheet, which record that Senior Constable Downey cautioned Slabbers at 0301 hours and that Slabbers was arrested under suspicion of stealing and unlawful possession at 0320 hours. She recorded the time of the search of the accused as 0335 hours. The search revealed four small clipseal bags in the accused's bra. The accused was cautioned and arrested on suspicion of possession of a prohibited drug.

Findings - search

The decision to search the occupants of the vehicle was made by Senior Constable Downey. He gave evidence of his reasons for doing so. He was extensively cross‑examined. In some aspects of his evidence, particularly with respect to matters pertaining to his decision to search, about which he had not made a detailed statement, he appeared to have difficulty remembering precisely what happened. There was no submission made by the defence that his evidence was untruthful or fabricated, but it was submitted that it is deficient and suggests a degree of reconstruction with respect to the grounds of suspicion such that the court should not be satisfied to the required standard that he had in fact an actual suspicion that was, when judged objectively, reasonable, so as to justify the search of the accused.
Although I find that his memory of the events of the night has diminished with the passage of time, such that he had difficulty in remembering with precision the order in which things occurred, I am satisfied that he gave his evidence truthfully and that his testimony in relation to the reasons for his suspicion in relation to the accused is reliable. In the circumstances that presented to Senior Constable Downey, an experienced police officer, there existed ample grounds to base a reasonable suspicion.
I am satisfied on his evidence that for the purposes of s 68(1) of the CIA he had reasonable cause to suspect, based on the police intelligence he had received and his observations of the accused and Ms Harmon at the material time, that they, or one of them, had in their possession or under their control a thing relevant to an offence, namely, a prohibited drug.
Moreover, by the time of the search of the accused which in fact revealed the quantities of methylamphetamine secreted in her bra for which she was initially arrested, Slabbers had been found to be in possession of a very large amount of cash for which he gave no explanation and which objectively added to the circumstances which grounded a reasonable suspicion with respect to the accused and Harmon.
It might usefully be observed that the application to exclude the evidence of the initial search is premised on an arguable lack of evidence in the prosecution brief of the reasons for the search. On the voir dire, further evidence has been adduced than was initially disclosed. Had Senior Constable Downey deposed fully in his statement to the circumstances which gave rise to his suspicion perhaps no issue would have arisen. This observation leads me to suggest that where evidence is obtained in the exercise of powers conferred by the CIA, arresting or investigating officers should in their statements depose to all facts which are relevant to establish their compliance with the requirements of the Act with respect to such powers.

Evidence – arrest and detention

On the evidence of Senior Constable Downey and Constable Parker the accused was arrested on suspicion of possession of a prohibited drug sometime between 3.20 am when Slabbers was arrested on suspicion of possession of stolen or unlawfully obtained property and 3.43 am when he was further arrested on suspicion of possession of a prohibited drug with intent to sell or supply it to another. I accept Senior Constable Downey's evidence of the time of the two arrests of Slabbers.
Evidence was also received from Sergeant Sheree Merry who was one of the supervisors at Rockingham Police Station on 27 June 2012. She was contacted by telephone by Senior Constable Downey at 3.10 am. At that time Senior Constable Downey and Constable Parker had been joined by Senior Constable Soden and Constable McNaught. Sergeant Merry considered that detectives should attend at the scene of the vehicle stop. She herself attended the scene at about 4.30 am, by which time both Slabbers and the accused had been arrested. Sergeant Merry was involved in the further search of the accused at Rockingham Police Station. This search was made some time after 5.24 am when she arrived back at the station. According to Sergeant Merry, the accused was further arrested on suspicion of possession of a prohibited drug with intent to sell or supply at 6.30 am. At about 7.00 am she spoke with a Detective Sergeant Fuller and informed him of what had occurred. Subsequently, she spoke to Detective Sergeant Troy Newington of the Peel District Crime Unit in order to hand over the matter for further investigation by detectives.
Senior Constable David Soden gave evidence that he was stationed at Rockingham Police Station and was on duty with Constable Brian McNaught when he was directed to attend at Port Kennedy Drive. They arrived at about 2.40 am and observed Senior Constable Downey and Constable Parker and three other persons: Slabbers, Harmon and the accused. He carried out a basic search of Slabbers and placed him in custody in the security pod attached to his vehicle. This was at around 3.20 am. He then filmed the search of the accused, observing the discovery of four clipseal bags. He then made an observation of Slabbers which caused him to carry out a further search which revealed a sock in his trousers containing a significant quantity of what he thought was methylamphetamine. He said that he observed Senior Constable Downey to arrest Slabbers on suspicion of possession of a prohibited drug with intent to sell or supply. Downey stated the time as 3.43 am. This was video-recorded. Senior Constable Soden had refreshed his memory by watching the video, but professed to having a memory of the time based on what he put in his statement. He was challenged as to the basis of his evidence of the time of the second arrest of Slabbers. I accept his evidence as to the time. It is consistent with other evidence that I accept and the video record.

Constable Brian McNaught also gave evidence. He attended with Senior Constable Soden. He was present when Slabbers and the accused were searched and he recalls the time of Slabbers' arrest on suspicion of possession that Downey looked at his watch and said that he was arrested at 3.43 am. According to Constable McNaught, the search of Mackenzie which led to her arrest occurred between the two arrests of Mr Slabbers.
Detective Constable Jason Hartley (then a police constable) was on duty at the Peel District Crime Unit on 27 June 2012 in company with Detective Constable Stone. He commenced work that day at about 7.00 am. Soon after he commenced work he and Detective Constable Stone were instructed by the acting officer in charge, Detective Sergeant Newington, to investigate the offences of which Slabbers and the accused were suspected. He spoke to Downey and Parker at about 7.30 am. At about 8.55 am he had a telephone conversation with Detective Sergeant Newington. By that time he had spoken with most of the officers who had attended the scene and obtained running sheets and notes that had been made. He had not yet done the evidentiary video recording in relation to the drugs and other items found on the suspects. This would involve opening, weighing and re-packaging exhibits. He and Detective Stone still had to do interviews of the two suspects and to consider and decide whether to seek a senior officer order in respect of a search warrant.
When he spoke with Detective Sergeant Newington, he requested and was given authorisation to extend the accused's detention on the basis that there were further actions to be taken in the investigation at that time. Subsequently, Constable Hartley directed Constable Dixon of the Rockingham Police to prepare the written form of the authorisation to be signed by Detective Sergeant Newington in accordance with s 140(4). He had no further involvement in the completion of that document. He interviewed the accused just after 1.00 pm.
In cross-examination Detective Constable Hartley said that he and Detective Stone were working together; he dealing with the accused and Detective Stone with Slabbers. Detective Stone was more experienced and the drugs found on Slabbers were in a larger quantity than those found on the accused. He accepted that when he was briefed on the matter initially he was informed that the accused had been found with drugs on her person, had been arrested at the scene and when further searched at Rockingham Police Station found to have a larger quantity of drugs in her jacket. Some of the investigative actions that needed to be done were discussed at the briefing. This included making an evidentiary video record of the exhibits.
It was suggested in cross-examination that the investigation was very simple having regard to the circumstances in which the drugs were found and that no investigative actions were required which warranted an extension of the accused's detention. Hartley said he was informed at the briefing that the accused had been arrested at 3.45 am. He was tasked with the investigation shortly after 7.00 am. He did not speak to the arresting officers until 7.30 am when he arrived at the Rockingham Police Station. He believed that he had until 9.45 am before he required an extension of the period of detention. He said he did not do an evidentiary video record immediately because he wanted to speak with the police officers who had been at the scene and, presumably, who had been involved in the search in which the subject quantity of methylamphetamine was discovered. He said that there were photographs and videos to be downloaded by the arresting officers and notes to be examined. The arresting officers had yet to prepare their witness statements. The tenor of his evidence was that he and Detective Constable Stone went about their duties purposefully and without undue delay, mindful of the limited time for which the suspects could be detained.
Constable Hartley said that he explained to Detective Sergeant Newington the reasons for the requested extension of detention on the basis that there were still things to be done in the investigation but he made no record of his telephone conversation. In the period of one and a half hours from when he arrived at the Rockingham Police Station until when he spoke to Detective Sergeant Newington he had spoken to the officers who were involved in the arrest and had prepared for the evidentiary video recordings which involved organising video equipment, scales and other utensils and setting up a room for the purpose. He had yet to prepare for the interview of the accused and he was awaiting downloaded images from Constable Parker. Constable Hartley said that he had yet to consider whether to request an order to obtain a search warrant. He denied basing his evidence of his telephone call with Detective Sergeant Newington on the pro forma authorisation (exhibit 1).
Detective Sergeant Troy Newington gave evidence that he was the acting detective senior sergeant in charge of the Peel District Crime Unit on 27 June 2012. He was informed by a telephone conversation from Sergeant Merry at 7.10 am of the incident which resulted in the arrest of the accused and Slabbers. He then spoke to Hartley and Stone and briefed them with information which he obtained from Sergeant Merry. He directed them to conduct the investigation. Some time later, at about 9.00 am, he received a telephone call from Hartley who updated him on the status of the investigation and requested an extension of the detention period for each of the arrested persons. According to Detective Sergeant Newington, Constable Hartley told him that he needed to interview the suspects and to weigh the drugs in question. He understood also that Hartley was considering a search of premises occupied by the two suspects and would have to consider what charges would be preferred.
Detective Sergeant Newington said that he referred to his précis of the Criminal Investigation Act for guidance and he familiarised himself with s 139, s 140 and s 141. Based on the information provided by Hartley, he deemed the application to be appropriate and justified and he provided verbal approval accordingly. Later he received a pro forma which he completed and signed, endorsing on it 'Verbally approved 0900 hours 27/6/12'.
Detective Sergeant Newington said that the form was received electronically. The section headed 'Reasons for the Authorisation Section 140(5)(a)(iv)' was completed to show that the further detention of the suspect was necessary for the purposes set out in s 139(2), namely:
(a)doing a search under s 133 or s 135;
(b)investigating any offence suspected of having been committed by the suspect;
(c)interviewing the suspect in relation to any offence that the suspect is suspected to have committed;
(d)deciding whether or not to charge the suspect with an offence,
and the words 'approved in accordance with factors in section 141 of the Criminal Investigation Act 2006'.
The form is headed 'Senior Officer Authorisation'. It indicates an arrest time of 3.45 am and it requests an extension starting at 9.45 am and ending at 3.45 pm, being the maximum period of six hours permitted by s 140(4). The form is completed to show that authorisation was given at 12:07:31 pm, but endorsed to show verbal approval at 9.00 am.
Detective Sergeant Newington's evidence was that he considered those factors in light of Constable Hartley's request and concluded that it was appropriate in the circumstances to authorise the further detention of the accused for the purposes set out in the document.
It was Detective Sergeant Newington's evidence that he did not make a note of his conversation with Hartley. The only record he had of the time of the verbal authorisation was his note on exhibit 1 made three hours later. He was confident that the time was correct because he would have had a regular meeting to attend at 9.00 am. He admitted having little direct memory of the events, which is understandable. He had refreshed his memory by looking at exhibit 1 and his notes.
He accepted that the authorisation as signed by him did not make any specific reference to the factors set out in s 141 which were considered to justify the extension and did not express any reasons for the authorisation apart from the purposes for which it was given.
When questioned about the authorisation of a further six hours detention, Detective Sergeant Newington said that he was of the understanding that it was a reasonable time and that the Act prescribed a further period of six hours. He did not appreciate that he had a discretion to authorise a shorter period of time.

Findings - detention

I make the following findings on the balance of probabilities.
The accused was arrested on suspicion of possession of a prohibited drug between approximately 3.20 am and 3.43 am, most probably at around 3.30 ‑ 3.35 am. She was detained pursuant to s 139 of the CIA. I am satisfied that the accused was properly detained pursuant to s 139(2) for the purposes set out in that subsection.
The offence of which she was suspected involved a small quantity of methylamphetamine in the order of 0.6 grams, well below the prescribed amount by which a person is deemed to have an intention to sell or supply. When the accused was further searched at the Rockingham Police Station between 5.30 and 6.30 am she was found to have in her jacket pocket a quantity of 13.7 grams of methylamphetamine and was, accordingly, further arrested on suspicion of possession with intent to sell or supply.
By reason of the amounts of methylamphetamine found on Slabbers and the accused, the Rockingham police saw fit to pass on the investigation to the Peel detectives who were briefed just after 7.00 am. Detective Constable Stone and Constable Hartley were tasked by Detective Sergeant Newington with the investigation. Constable Hartley was principally concerned with the investigation with respect to the accused. He spoke to the arresting officers shortly after 7.30 am. At that stage there were a number of investigative actions to be done or to be considered. These involved the arresting officers downloading video and other photographic material and preparing statements, the making of an evidential video record of the items seized, giving consideration as to whether a search warrant was indicated, interviewing the accused and considering what charge or charges should be preferred.
I am satisfied that shortly prior to 9.00 am, mindful of the expiration of the period of six hours for which the accused could be detained pursuant to s 140(3), Constable Hartley sought and obtained an authorisation for an extension of the period of detention from Detective Sergeant Newington.
Detective Sergeant Newington was at the time a senior officer for the purposes of s 140(1). I am satisfied that he was not involved in the investigation. Although Detective Sergeant Newington had been briefed to some extent by Sergeant Merry when the matter was referred from Rockingham police to the Peel detectives, he then tasked Constable Hartley and Detective Constable Stone with the investigation of the suspected offences and was not otherwise involved.
The court is not informed by any authority with respect to the meaning of the words 'not involved in the investigation'. Clearly, in its ordinary use the word 'involved' conveys a number of meanings and may be variously defined. In the context of s 140 it seems to me that it would be sensible to construe the word 'involved' as 'directly concerned', such that mere knowledge of the investigation or of the matter under investigation would not be sufficient to make a senior officer involved. An officer in charge is bound to know something of the investigations which are assigned to officers under his or her command.
I am satisfied that Detective Newington acted in accordance with s 140(4)(b) in authorising the detention of the accused for a further period of not more than six hours having satisfied himself that the further detention was justified and that he had reasons for doing so.
In this case it is clear that although the accused had been in detention since about 3.30 am, she was not arrested in respect of the charged offence until 6.30 am, and the investigation was not handed over to detectives until after 7.00 am. Constable Hartley arrived at Rockingham Police Station at 7.30 am. There was more to be done by way of investigation of the suspected offence than could be achieved in the time that remained before the initial period of detention expired at 9.30 am (albeit that he thought the period expired at 9.45 am). More time was required to carry out the investigative actions set out in s 139(2). In this regard, and dispose of a particular point raised by defence counsel, I construe the words 'for the purposes of doing a search' in s 139(2) to include giving consideration to doing a search.
As to the requirements of s 140(5), I am satisfied that Detective Sergeant Newington complied with the requirement to make a written record of the authorisation, the name of the suspect to whom it related, the further period authorised and the date and time of the authorisation. I am not satisfied, however, that he made a written record of the reasons for the authorisation.
Exhibit 1, which I annexe to these reasons, is in a form which is no doubt intended to document the decision to authorise a further period of detention in a manner that satisfies the requirements of s 140(5). The form contains a section described as 'Reasons for the Authorisation Section 140(5)(a)(iv)'.
In that section is set out a list of purposes of the detention, namely, the actions set out in s 139(2). Next to each one is a box that can be ticked for relevance. Below the list of purposes there is printed 'Explain in detail having regard to the factors in section 141'. Below these words is the statement 'Approved in accordance with factors in section 141 of the Criminal Investigation Act 2006'.
Section 140(2) provides that the detention of an arrested suspect is justified if the detention is for a purpose referred to in s 139(2) and is for a period that is reasonable having regard to the factors in s 141. Where authority is sought to extend the maximum period of six hours detention following arrest, the question of whether the further detention is justified requires not only consideration of the purpose of the further detention, but also the reasonableness of the period of further detention sought. The factors in s 141 are many, numbering 19 in all. It is an inadequate reason for authorisation, in my opinion, to simply state, as Detective Sergeant Newington did, 'approved in accordance with factors in section 141 of the Criminal Investigation Act 2006'.
The detention of a suspect for the purposes of s 139(2) is an exercise of a power conferred by the CIA which requires that the detention be in accordance with s 140. Section 140 imports the factors set out in s 141. To comply with the requirement in s 140(5) to make a written record of the reasons for the authorisation requires some degree of specificity as to why more time is required, and how much.
By failing to make a written record of the reasons for the authorisation, as opposed to the purposes of the detention, I find that a requirement of the CIA for the exercise of the power to authorise the period of further detention pursuant to s 140(4) was contravened and that, accordingly, by virtue of s 154(2) the audiovisual record of interview which is a thing relevant to an offence which was obtained by the exercise of the power is inadmissible unless the court decides otherwise pursuant to s 155.
It should also be noted that the failure of both Constable Hartley and Detective Sergeant Newington to make a record of the telephone conversation in which the period of further detention was sought and granted reflects poor practice on their part which each in retrospect admits. Good police practice requires that statutory processes of this kind be documented.

Section 155 determination

Pursuant to s 155, the court may admit the evidence if the desirability of doing so outweighs its undesirability. With respect to the factors set out in s 155(3) I note that the accused objects to the evidence of the audiovisual record of interview being admitted.
The accused is charged with a serious offence punishable by a maximum of 25 years imprisonment. The quantity of methylamphetamine alleged to have been in her possession is almost seven times the prescribed amount by which an intention to sell or supply is presumed.
On the other hand, I find the contravention of the Act to have been relatively minor. I accept that Detective Sergeant Newington turned his mind to the factors set out in s 141 before authorising the further detention. I accept that, objectively, the circumstances that obtained at the time of Constable Hartley's request justified a further period of detention because more needed to be done to investigate the suspected offence than could reasonably have been done in the relatively short time that had transpired from when the accused was arrested on suspicion of the charge on which she has been indicted, a much more serious charge than the one for which she was originally arrested.
It was, I accept, appropriate for the Rockingham police to hand over the investigation to detectives having regard to the seriousness of the suspected offence.
It was, I find, incumbent on Detective Sergeant Newington to specifically address those factors that pertained to the investigation at hand and, to set out by reference to those factors which were relevant, the reasons for the extension of time.
I do not find that s 140(5) should be construed so as to require an entirely independent senior officer to, as it were, make a formal adjudication. As I have found, Detective Sergeant Newington was not disqualified as a senior officer by virtue of his knowledge of the investigation. And he was not, I find, required to descend into detailed reasons justifying his authorisation. He was, however, as a matter of law, required to make a written record of his reasons and this required, at the very least, that he identify the s 141 factors that were relevant to the exercise of his discretion.
The contravention was clearly not intentional or reckless. It was contributed to by the use of a pro forma document which did not clearly indicate the need to give reasons other the purposes of detention (s 139(2)) and the s 141 factors read as a whole. (The contents of the pro forma, which is police document, not a form prescribed by law, should be reviewed with a view to providing better guidance to users.)
Although the evidence does not amount to a confession, it does contain admissions which strengthen the prosecution case. The admissions in relation to the quantities of methylamphetamine found in her bra and other statements made which tend to show a familiarity with illegal drug use may be relied upon to contradict innocent association. So the audiovisual record of interview is of significant probative value. In my view, having perused the transcript of the audiovisual record of interview, I consider that its probative value favours of its admission.
Taking all of these factors into account, I consider that the evidence of the audiovisual record of interview should be admitted pursuant to s 155(2).

Conclusion

Accordingly, the defence applications are dismissed.

Annexure