The State of Western Australia v Nguyen - [2019] WADC 42

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NGUYEN [2019] WADC 42
CORAM:   GILLAN DCJ
HEARD:   8 MARCH 2019
DELIVERED          :   27 MARCH 2019
FILE NO/S:   IND 843 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
TRUONG SANG NGUYEN

Catchwords:

Evidence - Search of a vehicle without search warrant - Grounds to stop and search vehicle - 'Reasonable suspicion' - Whether evidence of drugs seized in search ought to be excluded - Bunning v Cross discretionary considerations - Application for permanent or temporary stay

Legislation:

Misuse of Drugs Act 1981 (WA), s 23

Result:

Application to exclude evidence of search of vehicle dismissed
Application for permanent or temporary stay of the proceeding dismissed

Representation:

Counsel:

The State of Western Australia	:	Mr J Keogh
Accused	:	Mr A Elliott

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Forbes Kirby

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

Bunning v Cross (1978) 141 CLR 54; (1978) 19 ALR 641
George v Rockett (1990) 170 CLR 104
Hinch v Attorney General (Victoria) (1987) 164 CLR 15
Mukevski v The State of Western Australia [2010] WASCA 1328
R v Rondo (2001) NSW CCA 540; (2001) 126 A Crim R 562
Re Corruption and Crime Commission; ex parte West Australian Newspapers [2007] WASC 201
Salmat Document Management Solutions Pty Ltd & Ors v The Queen [No 2] [2006] WASC 65
The State of Western Australia v Lam [2014] WADC 62
The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383
The State of Western Australia v Texeira [2017] WADC 31
TVM v The State of Western Australia [2007] WASC 299

GILLAN DCJ:

Background

This is an application by the accused, Mr Nguyen, for:
1.An order excluding evidence of the search of the applicant's vehicle on the 9 July 2017 on the ground that the search was unlawful and so the evidence is inadmissible; and
2.An order pursuant to s 90 of the Criminal Procedure Act 2004 that the prosecution of the charges be stayed permanently, or in the alternative that there be a stay of proceedings pursuant to the inherent jurisdiction of the court until such time as the court direct.
On the 19 July 2017 at about 12.45am two police officers were driving a marked police vehicle south along the Brand Highway, about 20 km north of Dongara at a place known as Bonniefield.
The police officers, Sergeant Doyle and First Class Constable Robinson, were conducting a routine patrol.
They observed a white Toyota Camry registration number 1DAJ869 travelling north along the Brand Highway. By reason of the hour of night, the place in which the car was observed and the direction of travel together with a search of the police computer accessible from the patrol vehicle Sergeant Doyle determined that he would pull the car over. He immediately did a U-turn and put on his lights and siren and pulled the car over. The Camry was being driven by a Mr Loc Le and the accused, Mr Nguyen, was in the front passenger seat.
Sergeant Doyle asked the names of both men and asked them where they were going. They replied they were going to Carnarvon for the purpose of rose farming.
Sergeant Doyle then indicated that he intended to search the car under the Misuse of Drugs Act 1981 (MDA) and asked for permission to do so. Permission was given by both men.
On a search of the car some 9 kg of cannabis was found in the boot of the car. The cannabis was packaged into bags of approximately 450 g each and further wrapped into plastic bags.
Mr Le made admissions with respect to his ownership of the cannabis the details of which I will come to later in these reasons. He was later charged and pleaded guilty to possession of the drugs with intent to sell or supply them to another.
The accused has also been charged with possession of the drugs with intent to sell or supply them to another. He objects to the admissibility of the evidence of the drugs found in the vehicle during the search on the basis both that the police had unlawfully stopped the vehicle and then searched it without lawful cause. Mr Nguyen submits that because there was no lawful cause to stop the vehicle and no lawful basis to search the vehicle, evidence of the cannabis seized during the search of the vehicle seized unlawfully should not be admitted.
Mr Nguyen submitted that the only lawful basis on which the police officers had the right to search the vehicle was pursuant to either:
(a)Sections 38 or 39 of the Criminal Investigation Act 2006; or
(b)Section 23 of the MDA.
At the hearing the State expressly disavowed any reliance on the right to search pursuant to s 38 or s 39 of the Criminal Investigation Act 2006 and relied only on the right to search pursuant to s 23 of MDA.
Accordingly I will not address any right of search under the Criminal Investigation Act 2006 in the reasons.
A search warrant authorising a search of the accused's vehicle was not obtained.
The State asserts that the search was lawful but says, if it was not, I should not exercise a common law discretion that I have on the basis set out in Bunning v Cross (1978) 141 CLR 54; (1978) 19 ALR 641 to refuse the admission of the evidence.
The accused's application for a stay, either permanent or a temporary stay, is based on the circumstances that Mr Le after being charged, pleaded guilty and was sentenced to a term of imprisonment. He was later deported. Mr Le, Mr Nguyen says, is a necessary witness and is now unavailable. I will address this further below.

Misuse of Drugs Act 1981 (WA)

It is convenient to set out here the relevant provisions of the legislation.
Section 23, s 24 and s 26 provide:
23.Powers of police officers when things suspected of being used in commission of offences
(1)Subject to this section, if there are reasonable grounds to suspect that anything whatsoever —
(a)with respect to which an offence has been, or is suspected to have been, or may be committed; or
(b)which has been, or is suspected to have been, or may be used for the purpose of committing an offence; or
(c)which may provide evidence in respect of an offence,
is in the possession of a person, a police officer may, using such force as is reasonably necessary and with such assistance as he considers necessary, stop and detain the person and search him together with any baggage, package, vehicle or other thing of any kind whatsoever found in his possession, and for that purpose may stop and detain any vehicle.
(2)A person shall not be searched under subsection (1) except by —
(a)a person of the same sex as the firstmentioned person; or
(b)a medical practitioner.
(3)A police officer who wishes to search a person under subsection (1) may, if it is not then and there practicable to comply with subsection (2) in relation to the person -
(a)detain the person until; or
(b)detain the person and convey him to a place where,
it is practicable for subsection (2) to be complied with in relation to the person.
(4)A person shall not be detained, or detained and conveyed, under subsection (3) for longer than is reasonably necessary under the circumstances for the purpose of complying with subsection (2) in relation to the person.
24.Granting of search warrants in connection with prevention or detection of offences
(1)A justice of the peace who is satisfied by information on oath that there are reasonable grounds to suspect that anything referred to in section 23(1)(a), (b) or (c) may be in or on any vehicle, or in or on any premises or other place, may grant to a police officer a search warrant authorising a police officer at any time or times within 30 days from the date of that search warrant to enter any vehicle, or any premises or other place, named in that search warrant and, subject to this section, to search that vehicle or those premises or that other place and any person and any baggage, package or other thing of any kind whatsoever found therein or thereon, using such force as is reasonably necessary and with such assistance as the police officer considers necessary.
(2)A person shall not be searched under a search warrant except by —
(a)a person of the same sex as the firstmentioned person; or
(b)a medical practitioner.
(3)A police officer who wishes to search a person under a search warrant may, if it is not then and there practicable to comply with subsection (2) in relation to the person —
(a)detain the person until; or
(b)detain the person and convey him to a place where,
it is practicable for that subsection to be complied with in relation to the person.
(4)A person shall not be detained, or detained and conveyed, under subsection (3) for longer than is reasonably necessary under the circumstances for the purpose of complying with subsection (2) in relation to the person.
26.Powers of police officers and others when things suspected of being used in commission of offences found, received or acquired
(1)If there are reasonable grounds to suspect that anything found or received during the exercise of the powers conferred by section 22 or 23 or by a search warrant or under any other circumstances is a thing referred to in section 23(1)(a), (b) or (c) a police officer or approved person, as the case requires —
(a)in the case of —
(i)a thing that is a prohibited drug, prohibited plant or dangerous substance; or
(ii)a thing that is contaminated by a dangerous substance,
may seize and detain the thing until it is dealt with under section 27; or
(b)in the case of any other thing, may seize it.
(2A)If under subsection (1)(b) a thing may be seized, the Criminal Investigation Act 2006 Part 13, with any necessary changes, applies to and in relation to the exercise of the power to seize the thing.
(2B)If under subsection (1)(b) a thing is seized, the Criminal Investigation Act 2006 Part 13 and the Criminal and Found Property Disposal Act 2006, with any necessary changes, apply to and in relation to it.
(2)A police officer who —
(a)while he or she is an undercover officer acting in the course of an undercover operation, acquires a prohibited drug or prohibited plant; or
(b)acquires a prohibited drug or prohibited plant as a result of its delivery to him by an undercover officer who is not a police officer,
shall detain the prohibited drug or prohibited plant until it is dealt with under section 27.
The word 'offence' referred to in s 23 is not defined. I adopt the views expressed by Herron DCJ in The State of Western Australia v Texeira [2017] WADC 31 at [5] that the meaning of the word offence must be read in the context in which the word is used in the MDA and therefore must refer to an offence under the MDA.
The expression 'reasonable grounds to suspect' in s 23 and s 26 is not defined.
Nevertheless there is case law which I will refer to below which gives a good indication about those words might mean.

The evidence

At a hearing to determine the admissibility of the evidence before me on the 8 March 2017, Sergeant Sean Joseph Doyle gave evidence.
His evidence was that on 19 July 2017 Sergeant Doyle was the officer in charge of the Mingenew Police Station. Mingenew is situated about 50 km inland from Dongara and so is approximately 380km north of Perth.
As at July 2017 he had only one other officer in the station. That officer was First Class Constable Robinson.
On 19 July 2017 he was together with First Class Constable Robinson conducting patrol on what Sergeant Doyle considered to be both a dangerous stretch of road and a stretch of road which was a major arterial route for the moving of drugs with the drugs, usually moving north from Perth.
Sergeant Doyle was very candid. He said 'at that time of night we don't get a lot of traffic so generally most cars are looked at as suspicious'.[1]
[1] ts 39.
Indeed I was left with no doubt that Sergeant Doyle was patrolling with First Class Constable Robinson at that time of night with the particular view of finding people moving drugs.
When the Toyota Camry passed them, they followed their usual practice. First Class Constable Robinson input into the TARDIS computer in the patrol car the first number and letters of the registration plate and Sergeant Doyle then provided the last three numbers on the registration plate so that First Class Robinson could run that plate on the computer.
In this case, First Class Robinson read off the TARDIS computer to Sergeant Doyle giving him the information that the registered owner of the Camry, Mr Nguyen, had an alert against his name. The alert was to the effect that he was a person of interest to Gang Crime Squad. Sergeant Doyle described this alert as a 'red alert' or a high alert.[2]
[2] ts 40.
Sergeant Doyle's evidence, which I accept to be true, was that the combination of the alert against the owner of the car and that it was travelling at that time of night indicated to him he should definitely pull the vehicle over. He formed that view from the nature of the alert, 'very high', that it probably meant either a drug dealer or a member of an outlaw motorcycle gang was in the car.
It was only after the computer search had been done and the information relating to the alert had been conveyed to Sergeant Doyle that he turned the car around and put on the siren and lights.[3] He immediately speed up to 140 km an hour, quickly caught up with the car and it pulled over.
[3] ts 41.
The alert also contained additional material, that the applicant had been convicted of serious charges. I pause here to note that those charges did not relate to drug related activity.
Sergeant Doyle's evidence was that he thought it was necessary to pull the car over quickly to make sure that whoever he was dealing with was not able to conceal evidence or do anything else. He confirmed that the car did not speed away and it pulled over without incident.
Sergeant Doyle's evidence was that in his experience Gang Crime Squad was concerned with gangs and the members of gangs, members of gangs were regularly engaged in drug crime and gang members convey drugs or drug related items in their vehicles. He had formed the preliminary view that he wanted to search the car for drugs, but he was going to conduct more enquiries first, I infer, before a final decision.[4]
[4] ts 42.
After the vehicle was pulled over Sergeant Doyle approached the vehicle and saw two men sitting there. The driver, Loc Le opened the window and Sergeant Doyle spoke with him. He could see the passenger, the accused in the passenger seat.
Sergeant Doyle asked them what they were doing at that time of night, where they were going and they both spoke to Sergeant Doyle in a friendly fashion. They provided their names. They said they were going to Carnarvon to go rose farming.
Sergeant Doyle thought the answer was suspicious because he had been to Carnarvon before and he did not know Carnarvon to have rose farms.[5]
[5] ts 42.
Sergeant Doyle was also suspicious because of the time of night, 12.50 am in the morning, when they still had another 520 km to go and had already driven a three and a half to four hours from Perth. Sergeant Doyle considered it to be a peculiar time to be there at Bonniefield and also prime time for drug movement.
After making those enquiries, Sergeant Doyle went and looked at the entries that First Class Constable Robinson had told him about including the alert from Gang Crime relating to Mr Nguyen. Once he had done that he indicated to Mr Nguyen and the driver, Mr Le that he suspected they might have drugs in the car and was intending to search the vehicle and asked for their consent to search the vehicle.[6]
[6] ts 43.
The alert, Exhibit 2, says in the text of the alert
Person of interest – Nguyen is of interest to Gang Crime Squad team 1 (operation Kakapo 1). Please forward all information and submit field report IDM report.***Do not disclose***
Sergeant Doyle confirmed that the words 'do not disclose' with three stars on either side meant that he was not to disclose the fact of the alert to Mr Nguyen.
Sergeant Doyle gave further evidence that he was the officer in charge of the Mingenew Police Station between July 2015 and August 2018 and of that time he had spent two years patrolling the road. His evidence was during that time he, working with two constables, probably seized close to $1 million of drugs, guns, knives, batons and arrested over 170 people.[7] Sergeant Doyle went on to say that most of those searches and seizures happened at about that time at night and that is why he conducted routine patrols at nighttime.[8]
[7] ts 50.
[8] ts 50.
Under cross-examination Sergeant Boyle confirmed he had no special brief to patrol the highway for drugs, it was a matter for his decision as the officer in charge at Mingenew.[9]
[9] ts 53.
He said further that it was between 10 or 11 at night and two in the morning when the cars of most interest to him would go past. At other times there were mainly trucks.
He was not able to say how many vehicles he had pulled over on the night in question because he did not have his running sheet with him and the number of car he saw on any given night was dependent on the night.
He confirmed that he would sometimes pull people over for speeding, for a licence check or for a random breath test but that he would not be surprised to find that he had pulled over between two and five people on the night in question to check for drugs.[10] Sergeant Doyle was unable to say how many people he pulled over on suspicion of drugs and could not recall if any other person that night had been found with drugs on them. He confirmed that it was even possible he pulled five or even 10 cars looking for drugs and found nothing.[11]
[10] ts 55.
[11] ts 57?
He confirmed that there was nothing in the manner of driving of this vehicle or the actions of the driver that caught his attention but that it was primarily the time of night and the direction in which the car was going when taken together with the alert which had caused him to choose to pull over this car.
In Sergeant Doyle's view the description in the alert of 'person of interest' conveyed to him the same thing as if the person had been a suspect.[12] He also confirmed that he did not know what operation Kakapo 1 was related to, that he did not know with certainty that it related to drugs but that he had a good idea what Gang Crime would be interested in and he made the assumption it was drugs and that this car may have drugs in it. It was, he said, his job to make such assumptions.[13] He was candid that he suspected every car that came past at that time of night in that place as possibly engaging in drug couriering.[14] He also confirmed that in the two and a half years he had preferred over 500 to 600 charges[15] but, again, not everyone he pulled over at night had drugs with them.
[12] ts 60.
[13] ts 64.
[14] ts 70.
[15] ts 70.
He also confirmed that there was nothing in Mr Nguyen's arrest record that suggested that he had committed drug offences and that the serious conviction Mr Nguyen had committed were for violence was some 14 years beforehand.[16] Nevertheless, Sergeant Doyle described that he had a high suspicion that Mr Nguyen was involved with bikies or gangs because of the alert and that suspicion was strengthened by the time of night, the place, the circumstance of the alert the criminal history and to some extent Mr Nguyen's demeanor which he described as over confident and too friendly.[17]
[16] ts 71.
[17] ts 75.
Finally Sergeant Doyle indicated that while he would have told Mr Le and Mr Nguyen that he was going to look in the car anyway, he still sought their consent.[18]
[18] ts 76.

Reasonably suspects – reasonable suspicion

Because s 23 of the MDA does not define the expression 'reasonable grounds to suspect' it is helpful to have regard to how similar expressions have been considered in other cases.
In George v Rockett (1990) 170 CLR 104, 112 the High Court held:
When a statute prescribes it there must be 'reasonable grounds' for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person…That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise in any statutory powers…
Further the court went on to explain at (115) - (116:
Suspicion, as Lord Devlin said in Hussien v Chong Fook Cam (63), 'in its ordinary meaning as a state of conjecture or surmise where proof is lacking: "I suspect that I cannot prove". The facts which can reasonably be ground as suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (64), a question was raised as to whether a payee had reason to suspect that the payor, a debtor, 'was unable to pay [its] debts as they became due' as that phrase was used in s 95(4) of the Bankrupty Act 1924 (Commonwealth).
Kitto J said at (65):
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, amount to a 'slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look in the possibility of its existence. The notion which 'reason to suspect' expresses in subsection (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurs or exists: the assenting belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
The Court of Criminal Appeal in New South Wales also considered this question in R v Rondo (2001) NSW CCA 540; (2001) 126 A Crim R 562 where Smart JA summarised the propositions that emerged from the cases as to the meaning of the expression 'reasonably suspects' as follows.
These propositions emerge:
(a)A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
(b)Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.
(c)What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
Those two expositions of the law have been adopted by Herron DCJ in Texeira; and Bowden DCJ in The State of Western Australia v Lam [2014] WADC 62 [19] – [24]. I also adopt them.

Was the search unlawful?

Was the search of the vehicle unlawful? I accept the evidence of Sergeant Doyle that when he made the decision to pull over the vehicle he did so on the basis of the fact that the vehicle was in that place, was travelling north at that time but also on the basis of the alert.
While it is true that the alert does not make any express reference to drugs, I also accept the evidence of Sergeant Doyle that he understood that Gang Crime Squad were often interested in gangs for their distribution of drugs into the community.
I note, that having accepted Sergeant Doyle's evidence that he was aware of the alert when he decided to pull over the car, that it is unnecessary for me to decide if there would have been sufficient reason to pull the vehicle over simply on the basis of time, place and duration of travel.
I also accept Sergeant Doyle's evidence that his suspicions were further alerted by the suggestion that each of the men was going to Carnarvon for the purposes rose farming. I pause here to note that counsel for the applicant, Mr Elliott, took the point that the State should have led some evidence about whether or not rose farming was undertaken at Carnarvon.
I do not think that is the case. The High Court in George v Rockett specifically said:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurs or exists: the assent of belief is given on more slender evidence than proof.
Smart JA made the same point in Rando. See [54] at par (b) above.
In my view it was sufficient for Sergeant Doyle to believe, because he had been to Carnarvon, that rose farming was not undertaken in Carnarvon and it was unnecessary for the State to prove that to be the case.
The accused's counsel conceded that Sergeant Doyle honestly held the belief he said he held but attacked the belief on the basis that all those things taken together were insufficient to amount to 'reasonable grounds to suspect'.
I do not accept that to be the case. Clearly some elements of the suspicion were very subjective, for instance Sergeant Doyle's assessment of the two men as being overly friendly, but I have come to the conclusion that Sergeant Doyle's particular experience in picking up vehicles on that road at that time of night undertaking the movement of drugs coupled with his awareness of the alert was sufficient to give him reasonable grounds to first of all stop the vehicle and then secondly, after his enquiry of where they were going, to search the vehicle without a warrant.
Sergeant Doyle honestly believed that he was lawfully entitled to search the vehicle under the MDA. In my view there were reasonable grounds for him to suspect than an offence had been or may have been committed under the MDA or that the vehicle was being used for the purpose of committing an offence, sufficient to empower him to conduct a search of the vehicle in accordance with s 23 and s 26 of the MDA.
Counsel for Mr Nguyen also submitted that there was first of all no lawful reason to stop the vehicle and that thereafter the actions of the police including the search of the vehicle were unlawful.
I reject that submission. Even if the vehicle had been unlawfully stopped, a subsequent search of the vehicle would still be lawful providing the search has been conducted in accordance with any statutory powers under the MDA: R v Rondo [57]; The State of Western Australia v Lam [48].

Bunning v Cross discretion

Had I determined that the search was conducted unlawfully, the issue would have arisen as to whether the evidence should be excluded in the exercise of the discretion of the court: Bunning v Cross; Mukevski v The State of Western Australia [2010] WASCA 1328 at [21] – [22].
It was common ground between the parties there are five considerations which serve as a guide to the way in which the relevant discretion falls to be exercised. They are:
1.Whether the unlawfulness was other than as a result of a mistaken belief on the part of the police officer or officers that they were entitled to do what they did.
2.Whether the nature of the unlawfulness in the case effects the cogency of the evidence.
3.The ease with which the law might have been complied with.
4.The nature of the offence which the offender has been charged.
5.Whether the law breach reflects a deliberate intent on the part of the legislature narrowly to restrict the police in the exercise of their powers.
Dealing with the first factor, it was expressly conceded by counsel for Mr Nguyen that Sergeant Doyle was honest in his belief and it was clear to me from Sergeant Doyle's evidence that he understood the belief that he had to have in order to exercise the right to search.
Turning now to the question of cogency of the evidence, there is no suggestion that the cannabis was not found in the boot of the car. Both Mr Le and Mr Nguyen were present at all times when the search was conducted. The probative value of the seized drugs stands alone, unaffected by the way in which those drugs came into the possession of the police officers conducting the search.
In relation to the third factor, there was simply no evidence as to the ease by way a formal search warrant might have been able to have been obtained. Equally there is no evidence to suggest that the failure to obtain any formal search warrant in this instance represented a deliberate cutting of corners by the police. It seems to me obtaining of a search warrant to search the car at 12.50 am from a justice of the peace pursuant to s 24 of the MDA, entailing as it would have the restraint of Mr Le and Mr Nguyen from going about their business, was both impractical, difficult and would run the risk of there being a continued detention of Mr Le and Mr Nguyen for longer than necessary. See s 25(4) MDA.
Even if one looked at a narrower question, that is whether further information could have been obtained before the decision to search progressed by telephoning the officer who had put up the alert, the calling of the officer responsible for the listing of the alert again in the middle of the night was also not so readily undertaken.
Further, it was recognised by Herron DCJ in Texeira that one of the purposes of s 23 is to minimise any inconvenience to the public and the members of the public who are subject to police investigation or action particularly in circumstances such as these: see [85].
In relation to the fourth factor, there is no doubt that possession of the drugs which were found by the police and which form the basis of the charges on the indictment gives rise to serious offences. From the packaging of the drugs, which was described as being in sealed bags of 450 g and then wrapped in plastic I can readily infer that the person or persons in possession were actively involved in the distribution of the cannabis.
Turning to the final factor, I do however accept that the provisions of the MDA which empower police officers to conduct searches without a formal search warrant must be read and understood in the context of provisions which generally require a strict compliance with the statutory conditions governing the power to undertake those searches without a search warrant.
Nevertheless, the failure to make further enquiries or to obtain a search warrant and to conduct the search without a warrant would not have, in my view, constituted such a significant departure from the scheme of the legislation to warrant the exclusion of the evidence. This is because this is not a case where the police officer in question wilfully or deliberately disregarded or disobeyed the law. Accordingly, I would not have exercised my discretion to exclude the evidence of the drugs found during the search.
So while it was unnecessary for me to have regard to the Bunning v Cross factors I have done so and I find that I would not have exercised my discretion to exclude the evidence.
The State is therefore permitted to adduce the evidence of the cannabis found and seized by the police during the search of Mr Nguyen's vehicle at trial.

Application for permanent stay

The granting of the application for a stay is made on the basis that Mr Le has likely, but not certainly, become an unavailable witness in the trial of this matter.
The accused Mr Nguyen relies on the fact, and it seems to be common ground, that on the search of the car on the night in question and after arrest Mr Le stated the cannabis was all his and he had bought it for $2000, for the purposes of on-selling it. Further, at the time of the search and seize Mr Nguyen has denied any knowledge of the items in the boot.
Mr Le was charged with possession with intent to sell or supply of the cannabis. At his sentencing hearing Mr Le asserted that:
1.Mr Le had been asked to transfer (courier) the cannabis to Carnarvon.
2.Mr Le was offered a personal financial gain for doing so.
3.When he received that offer Mr Le's immigration status made it unlikely that he was able to maintain a stable income and the fruit picking work he had been engaging in was seasonal.
4.At the time of the offence it was winter and work was limited due to the season.
5.Mr Le had very little income and the offer of $5,000 to transport something at no cost to himself would have assisted him in his day to day expenses and was too good an offer to pass up.
6.Mr Le did not pursue the avenue of earning income through drug couriering but when the opportunity presented itself was too good to turn down.
7.Mr Le was a mule used to transport cannabis for personal financial gain.
8.His decision to transport the drugs was based on the opportunity arising and was not a pre-meditated plan.
Mr Le was convicted and was sentenced to a term of imprisonment.
When he was offered parole he was deported from Australia, most likely to Vietnam.
It was put by Mr Nguyen[19] that the police have never taken a statement from Mr Le or conducted an interview with him addressing the critical question of what if any role the applicant had any dealings with the cannabis.
[19] In his written submissions.
One difficulty with the application for a permanent stay is that the police did try to interview Mr Le about Mr Nguyen's involvement in the transporting of the cannabis.
He was the subject of an electronic record of interview undertaken by Constable Greg and Detective Sergeant O'Neil at the Geraldton Police Station on the 19 July 2017 at 9.55 am.
During that interview Mr Le was asked by Constable Greg:
Okay perhaps one of the oversights, briefly, in laying out the allegation to you, Mr Le, was that you were with a gentlemen by the name of Truong Sang Nguyen.
To which Mr Le ultimately replied 'no comment'. He also said he did not know if Mr Nguyen owned by the white Toyota Camry. Soon after those questions the interview came to an end.
Mr Nguyen says, Mr Le is a necessary witness.
Mr Nguyen says the only evidence said to implicate him appears to be that he owned the vehicle in which he was travelling, which was being driven by Mr Le and in which the cannabis was found. There is no evidence of any fingerprints or DNA of Mr Nguyen on the plastic bags containing the cannabis, no evidence of any telephone intercepts or text messages linking Mr Nguyen to the cannabis, no evidence of any person connecting Mr Nguyen to the cannabis and, in addition, Mr Le accepted that the cannabis was all his.
A second limb to the application is that a deliberate decision must have been made not to seek a criminal justice stay certificate (or visa) or for the prosecution to direct that a statement be obtained by the police.
The underlying contention is that the failure to secure Mr Le as a witness for the prosecution is equivalent to or of the same character as the loss or destruction of physical evidence.
The principles said to applied to permanent stays are outlined in Hinch v Attorney General (Victoria) (1987) 164 CLR 15 at [58] Deane J:
The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.
Section 90 of the Criminal Procedure Act provides that:
A superior court to which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.
As was said by McKechnie J in TVM v The State of Western Australia [2007] WASC 299 the phrase 'the interests of justice' is not capable of easy articulation or explanation because it is conclusory by nature. It will vary from case to case. Factors for consideration include the avoidance of injustice, the public interest and the due administration of justice but each case will turn on its own facts.
The have been a number of other cases where the phrase 'the interests of justice' have been considered including the judgment of Templeman J in Re Corruption and Crime Commission; ex parteWest Australian Newspapers [2007] WASC 201 and by Justice McKechnie himself in Salmat Document Management Solutions Pty Ltd & Ors v The Queen [No 2] [2006] WASC 65.
That expression, in the interests of justice, is not defined but it is reasonable to assume that it requires a fair trial according to law. Accordingly it will extend to prevent the abuse of a process and will extend to avoid injustice generally.
As is pointed out by Commissioner Sleight (as he then was) in The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 any consideration of what constitutes in the interests of justice must necessarily take into account a broad range of considerations and the relevant factors are not capable of exhaustive definition. Accordingly the weight to be given to any individual factor will vary from case to case depending upon the nature of the case.
In my view there is nothing in the matters raised by Mr Nguyen that will give rise to him not having a fair trial.
It is evident that the police did attempt to interview Mr Le and that Mr Le declined to comment.
Further it is also evident that the State was never asked to nor was it suggested to the State that it should apply for such a criminal justice stay certificate or visa.
Indeed, on the 17 August 2018 Mr Nguyen's then counsel, Mr McGrath, appeared for Mr Nguyen before Sleight CJDC. At that time Mr McGrath said that he thought that the trial might take a little longer than the State had proposed:
The main reason for that is one of the defence witnesses may be overseas in Vietnam at the time of the trial, if it is – and therefore I'll need to properly arrange a video-link, and that person may require an interpreter as well.
It is common ground that that witness was Mr Le.
It was common ground that Mr Le did not leave Australia until the 12 October 2018. Until that time the prosecution were of the understanding that Mr Le would be called by Mr Nguyen.
Finally the State points out and I accept it to be the case, that the State evidence is not obliged to call a witness where it has no apprehension that the witness will give credible evidence.
The State relies on the fact that Mr Le gave two different accounts of his involvement in the drugs first, saying he had bought the drugs and intended to resell them and, then, that he had been paid to courier the drugs. The State could not be satisfied he was a witness of truth. Neither of those accounts exclude the possibility of joint possession with or aiding of Mr Le by the accused.

Further, regardless of whether Mr Le was available to give evidence that might support the defence case, Mr Nguyen is not precluded from mounting a case that he was never aware of the presence of the drugs.
Finally, Mr Nguyen led no evidence of any enquiry he had made as to Mr Le's whereabouts even though Mr McGrath had suggested Mr Le would be called for the defence.
In all of the circumstances the basis for a permanent or temporary stay, that it would be just to do so, are not made out.
I dismiss Mr Nguyen's application to exclude evidence or for a stay of the prosecution either permanent or temporary.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
Associate to her Honour Judge Gillan
27 MARCH 2019