Timaepatua v Hutchinson - [2023] NTSC 48

CITATION: Timaepatua v Hutchinson [2023] NTSC 48

PARTIES: TIMAEPATUA, Bon

v
HUTCHINSON, Sarah

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 16 of 2022 (22132000)

DELIVERED: 14 June 2023

HEARING DATE: 10 November 2022

JUDGMENT OF: Grant CJ

CATCHWORDS:
CRIME – Appeal and review – Appeal from Local Court to Supreme Court – By person convicted on grounds involving a question of mixed fact and law
Appellant found guilty of supplying cannabis in an indigenous community – Whether search which found the cannabis in his possession unlawful because reasonably practicable for searching police to obtain warrant to investigate forfeiture offence prior to exercising search powers under s 237 of the Liquor Act 2019 (NT) – Not reasonably practicable to obtain warrant – No grounds for ‘reasonable belief’ – Available time and other obligations precluded application in any event – Whether search unlawful because not lawfully announced to appellant – Even if common law requirement to announce search under legislation appellant adequately advised of reason for search – Whether search unlawful because not facts known to searching police sufficient to found ‘reasonable suspicion’ prior to exercising their search powers – Manifestly sufficient grounds for reasonable suspicion on objective assessment – Appeal dismissed.

Liquor Act 2019 (NT), s 237, s 239

Brazil v Chief Constable of Surrey [1983] 1 WLR 1155, Christie v Leachinsky [1947] AC 573, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, Coco v The Queen (1994) 179 CLR 427, Fernando v Commissioner of Police (NSW) (1995) 36 NSWLR 567, Fox v Percy (2003) 214 CLR 118, George v Rockett (1990) 170 CLR 104, Hussien v Chong Fook Kam [1970] AC 942, Lindley v Rutter [1981] QB 128, Maines v Roy [1990] 1 WAR 508, Mole v Prior (2016) 304 FLR 418, Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236, Perkins v Police [1988] 1 NZLR 257, Police v Beck (2001) 79 SASR 98, Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, R v Nguyen (2013) 117 SASR 432, R v Rondo (2001) 126 A Crim R 562, Slivak v Lurgi (2001) 177 ALR 585, State of New South Wales v Riley (2003) 57 NSWLR 496, Walsh v Loughnan [1991] 2 VR 351, Wright v State of Western Australia [2010] WASCA 199, Zoric v Police [2006] SASC 355, referred to.

REPRESENTATION:

Counsel:
Appellant: J Bourke with H Atkinson
Respondent: I Rowbottam

Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions

Judgment category classification:    B
Judgment ID Number:  GRA2308
Number of pages:  32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Timaepatua v Hutchinson [2023] NTSC 48

LCA 16 of 2022 (22132000)
BETWEEN:
BON TIMAEPATUA
Appellant

AND:
SARAH HUTCHINSON
Respondent

CORAM: GRANT CJ

REASONS FOR JUDGMENT

(Delivered 14 June 2023)

On 16 June 2022, the appellant was found guilty in the Local Court of supplying cannabis in an indigenous community contrary to s 5D(1) of the Misuse of Drugs Act 1990 (NT). He appeals against that conviction on the grounds that the search which found the cannabis in his possession was unlawful because: (a) it was reasonably practicable for searching police to obtain a warrant to investigate the forfeiture offence prior to exercising their search powers under s 237 of the Liquor Act 2019 (NT); (b) the search was not announced to the appellant; and/or (c) on an objective assessment, there were not facts known to searching police sufficient to found a ‘reasonable suspicion’ prior to exercising their search powers under s 237 of the Liquor Act.
The relevant statutory provisions
Section 237 of the Liquor Act provides:
Search on suspicion of forfeiture offence
An inspector or a police officer may, without a warrant, exercise the powers specified in section 239 if the inspector or officer suspects on reasonable grounds that:
(a) a forfeiture offence was committed, is being committed or is about to be committed; and
(b) it would not be reasonably practicable to obtain a warrant to investigate the forfeiture offence.
A ‘forfeiture offence’ is defined in s 4 of the Liquor Act to include the unauthorised sale of liquor; the unauthorised supply or service of liquor; bringing, possessing, consuming, selling, supplying or serving liquor in a restricted area or a special restricted area; and the purchase of unauthorised liquor.
Proceedings before the Local Court
It was, and remains, common ground that:
(a)Wurrumiyanga is a restricted area for the purposes of the Liquor Act;
(b)at approximately 12:30 pm on 21 October 2021, the appellant flew from Wurrumiyanga to Darwin on a commercial flight, and returned from Darwin to Wurrumiyanga on a commercial flight which arrived into the community at approximately 4:30 pm;
(c)a Remote Sergeant of police, a police Constable and an Aboriginal Community Police Officer attended Wurrumiyanga airport with the intention of searching the appellant for liquor when he disembarked from the return flight;
(d)after he had alighted from the aeroplane at Wurrumiyanga, the appellant was searched by police purportedly exercising their search powers under s 237 of the Liquor Act; and
(e)during the course of that search the appellant was found to be in possession of 170.8 grams cannabis for which he was subsequently charged and found guilty under the extended definition of ‘supply’ in the Misuse of Drugs Act.
The police Constable was the first witness to give evidence during the course of the hearing before the Local Court. He stated that earlier on the day in question he had been informed by the Sergeant that she had received information that a person on that afternoon’s flight from Darwin was bringing alcohol back into the community. The two police officers met the plane at the airport and conducted searches of the passengers and their luggage after the plane had arrived from Darwin. During the course of those searches they located and seized a one litre bottle of rum and six bags of cannabis.
Under cross-examination by defence counsel, the Constable confirmed that police had exercised the power of search without warrant on reasonable suspicion, rather than exercising the random search power. The Constable also confirmed that the information giving rise to that reasonable suspicion related specifically to the appellant. The Constable was then queried about whether any intention to search was announced or otherwise communicated to the appellant. The Constable stated that it was announced generally to all passengers as they alighted from the aircraft that police would be conducting a ‘liquor search’, and that the appellant was told directly by the Sergeant that he was going to be searched. The Constable agreed that nobody said directly to the appellant words to the effect, ‘You’re being searched today because we have information that you may be bringing liquor into Wurrumiyanga’. However, the Constable’s evidence, which is supported by the body worn video, was that the Sergeant had told another passenger in the presence of the appellant that a liquor search was being conducted. The Constable also agreed that although the specific information and the suspicion related to the appellant, all passengers on the plane were searched in relation to that suspicion.
The Sergeant then gave evidence. Her evidence was that on the day in question she commenced her shift at midday and at about 12:30 pm she received information that the appellant was leaving at that time to fly to Darwin, and that the appellant had also booked a return flight which arrived back in the community approximately four hours later. The informant also advised her that the appellant may be carrying illicit substances, which the police officer suspected to be liquor. The Sergeant was then required to complete a number of other jobs before going to the airport at about 4:30 pm with the Constable and the Aboriginal Community Police Officer. Her intention was to search the appellant if he was on the return flight.
The Sergeant recognised the appellant immediately as he alighted from the plane carrying a backpack. She directed the appellant towards the Constable to be searched, and she commenced searching other passengers, their luggage and the interior of the plane. During the course of those searches she heard the Constable call out to her. She looked over and saw him pulling taped packages out of the appellant’s socks. There were six in total. She suspected the packages contained cannabis and issued the appellant with a warning. She then conducted an interview with the appellant in which he made various admissions.
Under cross-examination by defence counsel, the Sergeant accepted that she was the senior officer on the day and that she was responsible for the Constable’s supervision. She also accepted that the Constable was responsible for his actions and decisions in the conduct of a search, and that he could not simply act under his Sergeant’s direction. The Sergeant then confirmed that she had received the information at 12:30 pm on the day in question. It was put to the Sergeant that the information was that the appellant had booked a flight on the lunchtime flight out of Wurrumiyanga and a return ticket on the afternoon flight. She agreed with that proposition, but that agreement did not operate as a concession that was the only information she had received. As already noted, the Sergeant had stated in her evidence in chief that the information also included that the appellant may be carrying illicit substances, which she suspected to be liquor.
Defence counsel came back to the nature of the information a little later in the cross-examination. The Sergeant confirmed her statement in the brief of evidence to the effect that she had been provided information from a community source known to police regarding the suspected importation of alcohol into Wurrumiyanga on the afternoon flight from Darwin. The Sergeant agreed that her statement did not make reference to the information that the appellant had booked to fly out of and back into the community on the same day. The Sergeant stated that although she had not included that detail in her statement, she disclosed that information directly to the appellant during the course of the interview at Wurrumiyanga airport on the day in question.
The Sergeant also said that she did not include full details of the information received in the police brief of evidence because it may have identified the informant and put that person at risk of reprisal. At the very close of the cross-examination it was suggested to the Sergeant by defence counsel that she had based her suspicions for the purpose of s 237 of the Liquor Act ‘solely on the information given to you from the community member’. The Sergeant replied, ‘No, not at all’. She was not invited by defence counsel to identify what other information she had relied upon.
The Sergeant also said during the course of her cross-examination that in accordance with her ordinary practice she had a full discussion with the Constable about the information she had received, the appellant’s antecedents, why they were conducting the search and how to conduct a search for the purpose of detecting contraband liquor. She conceded that she could not remember the exact words used during the course of that discussion.
Defence counsel then cross-examined the Sergeant in relation to whether it would have been reasonably practicable to obtain a warrant. The Sergeant said that although she had a suspicion on reasonable grounds that the appellant was bringing liquor into the community, at that time she could not be satisfied to the higher standard that there were reasonable grounds to believe that the appellant was bringing liquor into the community. In her understanding, it was necessary to have reasonable grounds to believe that something connected with an offence may be concealed on a person in order to make application for a search warrant. Apart from that issue, she said that she did not have time or opportunity to prepare an affidavit to put before a justice of the peace, although she understood it was possible to make application for a warrant by telephone (subject to satisfying the requirement of reasonable grounds for belief). Although the Sergeant accepted that it was unnecessary to have an affidavit for the purpose of an application for a telephone warrant, it was still necessary to have written out ‘word for word’ the basis for the reasonable belief alleged.
The Sergeant also said that Wurrumiyanga was a remote community with very few police officers which was suffering under the scourge of alcohol-related violence, including domestic violence, and that as a consequence she and the Constable had other pressing priorities on that day. The Sergeant agreed that she made no attempt between the receipt of the information and the attendance at the airport to obtain a warrant because for those reasons it was also not practicable to do so at the time.
It is apparent from the body worn video that while the police officers were waiting at the airport for the appellant to arrive the Sergeant spoke to the Aboriginal Community Police Officer who confirmed that the appellant was in ‘the fifth seat back’. The Sergeant instructed the Constable in relation to the manner of search and the things he should be looking for. The Sergeant then told the Constable that she would greet the appellant and that the Constable should then conduct the search.
During the course of cross-examination, the Sergeant accepted that after the passengers had alighted from the aeroplane she announced to the first passenger – a man named ‘Peter’ – that she would be undertaking a liquor search and that she would need to see what he had in his luggage and pockets. The appellant was located just behind Peter at that time. The Sergeant then addressed the appellant directly and advised him that the Constable was going to conduct a search of him. She agreed that she did not say specifically to the appellant that they would be searching him under the provisions of the Liquor Act, but noted that she had said at the outset that they were conducting liquor searches, and that she had repeated that announcement on a number of subsequent occasions.
In the course of re-examination, the Sergeant stated that in her experience it was unusual for a community member to pay $350 to go into Darwin for a matter of hours and return on the same day. That was a pattern of behaviour seen with people who brought alcohol and other illicit substances back into the community. The Sergeant also had information to the effect that the appellant and some of his close family members were involved in illegal activity of that type. The Sergeant said that when conducting a liquor search on disembarking passengers it was common practice to announce the intention to search loudly because that announcement would sometimes cause people to produce contraband alcohol bottles without the need for search. Searches of that nature were undertaken regularly, and residents of the community were familiar with the practice and its purpose.
The prosecution then closed its case and defence counsel made submissions contending that the search was unlawful on the three grounds now pursued in this appeal. The prosecutor then made submissions in response, including by reference to the basis for the reasonable suspicion; the nature of the announcements made to the passengers who had disembarked from the aeroplane; and the impracticability of obtaining a warrant ‘given the short turnaround and other pressing operational duties’ and the fact that the information did not give rise to reasonable grounds for belief. The Local Court judge then delivered the following ex tempore reasons:
HER HONOUR:   To exercise the power of search under 239 [and] 237 of the Liquor Act it’s obvious that the officer exercising the power search must have reasonable suspicion that an offence has occurred or is about to occur under the contravention of the Act. If that officer did not have that reasonable suspicion, the search ought not to have occurred.
Officer Boal is the most junior officer. His evidence was that he had reasonable suspicion because of what he was told going forward or by his senior officer, Officer Hutchinson. He did not go into detail as to what he was told, the actual information, but it was his evidence that it was his suspicion after having received that information from Officer Hutchinson, that Mr Timaepatua was going to be bringing liquor into the community, and that enlivened his powers under ss 237 and 239 although he did misspeak the section numbers, I don’t think we can criticise him for that.
At the time of the search, it wasn’t Officer Boal who indicated to Mr Timaepatua that he would be searched under the Liquor Act. The information was conveyed by Officer Hutchinson in a very loud voice, and it certainly wasn’t directed deliberately and directly to Mr Timaepatua. But I have no doubt Mr Timaepatua was aware of the officers were searching for liquor.
On that basis, I find on the balance of probabilities and beyond reasonable doubt the fact that in the search the Officer Boal had a reasonable suspicion that there would be some liquor on witness Timaepatua, on his luggage, his luggage or on his person. Therefore, I do not find that the search is illegal.
The consequences of that search being the parcels of marijuana, and that the admissions on the body-worn footage (inaudible) I need to hear about those as well.
Are you wishing to make submissions to me about the admissions on the body-worn footage?
MR BOURKE:   Sorry, your Honour, if I could understand that correctly.
HER HONOUR:   I’m saying that the search is legal.
MR BOURKE:   It was legal?
HER HONOUR:   It was a legal search. So I’m saying that the search that produced this evidence was a legal search, and that the evidence can out of that search be admitted. Do you wish to plead submissions to me in relation to the admissions made on the body-worn footage?
Defence counsel did not contend that the admissions made by the appellant were otherwise inadmissible, and the Local Court judge ruled that the appellant had been properly cautioned and made the admissions freely knowing the consequences of doing so. The Local Court found the offence proved, but that there were particular circumstances which did not require the imposition of the otherwise mandatory minimum 28 days’ actual imprisonment, and sentenced the appellant to two months’ imprisonment suspended forthwith.
Whether objective basis for ‘reasonable suspicion’
Against that background, it is convenient to deal first with the ground of appeal contending that on an objective assessment, there were not facts known to searching police sufficient to found a ‘reasonable suspicion’ prior to exercising their search powers under s 237 of the Liquor Act. That grant of power requires a suspicion on reasonable grounds,[1] which was described by Lord Devlin in Hussien v Chong Fook Kam in the following terms:[2]
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect, but I cannot prove’. Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.
Suspicion denotes a less positive state of mind than belief. Although the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, some factual basis for the suspicion must be shown.[3] As Kitto J observed in Queensland Bacon Pty Ltd v Rees:[4]
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s. (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.

While the formation of a suspicion may involve an element of surmise or conjecture on the part of the police officer concerned, there must exist some facts ‘which are sufficient to induce that state of mind in a reasonable person’.[5] However, the determination of whether there were reasonable grounds for suspicion does not involve the application of ordinary rules of proof and evidence. As the Supreme Court of Victoria observed in Walsh v Loughnan:[6]
The questions to be determined by the learned magistrate were not to be resolved by reference to the rules of evidence or by the application of a test related to the balance of probabilities. In the process of investigation it is by no means uncommon for information to be obtained which would not be admissible in a court of law, or for well-founded suspicions and beliefs to be developed on the basis of a variety of pieces and types of information, including evidence of consistency or inconsistency of conduct, which could not be advanced as proof of the facts outlined or suspected to exist.
The judicial assessment of what is required to found a reasonable suspicion involves a balancing exercise having regard to the limitations which the statute places on incursions into civil liberties and the public interest in effective law enforcement activity.[7] That assessment is properly conducted in accordance with s 142 of the Evidence (National Uniform Legislation) Act 2011 (NT), which provides that the civil standard applies to the proof of facts necessary for determining questions of the admissibility of evidence. That is because the lawfulness of the search was not an element of the offence, as it might be for the offence of unlawfully assaulting a police officer in the execution of the officer’s duty. Rather, the purpose of the assessment concerned the admissibility, under s 138(1) of the Evidence (National Uniform Legislation) Act, of the evidence resulting from the search.[8] It follows that facts for determining whether or not police acted ‘improperly or in contravention of an Australian law’ need only be determined on the balance of probabilities. The relevant fact under this ground of appeal is whether or not the police officer conducting the search had reasonable grounds to suspect that a forfeiture offence was being committed.
This is an appeal by way of rehearing. The function of the appellate court extends to deciding factual issues based on the transcript of the proceeding and exhibits admitted into evidence in the Local Court, subject to the right to determine whether any evidence was wrongly admitted and to exclude any evidence which was wrongly admitted. Where no further evidence is admitted on appeal, and where there has been no relevant change in the law, it is necessary for the appellant to establish error of either fact or law or both by the Local Court. That is because the appellate power is to be exercised for the correction of error.[9] The appellate court is not precluded from weighing conflicting evidence in drawing its own inferences and conclusions when reviewing the evidence and the trial judge’s reasons. However, in doing so the appellate court must bear in mind that it has not seen nor heard the witnesses as the court at first instance has had opportunity to do, and should make due allowance in that respect.[10]
The evidence in relation to the grounds for the reasonable suspicion has been summarised above. The Sergeant’s relevant evidence in that respect was that on the day in question she received information that the appellant was leaving at that time to fly to Darwin, and that he had also booked a return flight which arrived back in the community approximately four hours later. The informant also advised her that the appellant may be carrying illicit substances, which the police officer suspected to be liquor. That evidence included the Sergeant’s belief based on experience that it was very unusual for a community member to spend $350 to go into Darwin for a matter of hours and return on the same day.
The Sergeant confirmed in cross-examination that her information had been provided by a community source known to police, and that it was to the effect that alcohol would be imported into Wurrumiyanga on the afternoon flight from Darwin. The Sergeant also said that she did not include full details of the information received in the police brief of evidence because it may have identified the informant. The Sergeant’s evidence was also that prior to the conduct of the search she had a full discussion with the Constable about the information she had received, the appellant’s antecedents, why they were conducting the search and how to conduct a search.
It was suggested to the Sergeant by defence counsel that she had based her suspicions solely on the information provided by the community member. That suggestion was rejected by her. However, defence counsel did not press the Sergeant to identify what other information she had relied upon. To the extent that police bore an evidentiary onus on the challenge to the admissibility of the product of the search, the Sergeant’s evidence was sufficient to identify that there was information capable of reasonably giving rise to the relevant suspicion, and to shift the burden to the defence to persuade the court that the information police had was insufficient to induce the relevant suspicion in a reasonable person. That undertaking was not assisted by a forensic determination not to interrogate the Sergeant further about the nature and detail of the information.
The Constable’s evidence in this respect was that earlier on the day in question he had been informed by the Sergeant that she had received information that the appellant would be bringing alcohol back into the community on that afternoon’s flight from Darwin. The Constable agreed that the statement he had made for the purpose of the proceedings did not descend into detail about the nature of the information. However, the Constable was not then asked by defence counsel to provide specifics of the information which had been conveyed to him by the Sergeant. Again, the forensic determination not to do so does not sustain the contention that on the balance of probabilities there were not reasonable grounds for the formation of a reasonable suspicion.
The Local Court judge clearly accepted the evidence of the Sergeant and the Constable in that respect, and I see no reason in the transcript or the materials to gainsay that acceptance. The evidence established that police had information from a community source that the appellant was bringing alcohol back on the afternoon flight, and that the appellant and his close family members were involved in that activity. The Sergeant knew from her police experience that travel to Darwin and back on the same day was a pattern frequently seen with people bringing alcohol and other illicit substances back into the community, and that the appellant was undertaking such a journey on the day in question. Those matters included both information specific to the appellant and the commission of a forfeiture offence, and included an assessment of patterns of conduct in the community known to police. There is no doubt that the police officers themselves held a reasonable suspicion, and on an entirely objective appraisal that information was manifestly sufficient to give rise to a well-founded suspicion that the appellant was committing a forfeiture offence. That is so even acknowledging that the information in the possession of police at the time of the search was largely hearsay and could not be advanced as proof of the commission of the offence, or even as founding a reasonable belief that the appellant was committing a forfeiture offence.
It may be accepted that because the Constable was the officer who physically conducted the search of the appellant in the exercise of his power under the legislation, it was necessary for the Constable also to have reasonable grounds for suspicion in both the subjective and objective senses. The Constable’s evidence was that the Sergeant had told him there was information that the appellant was bringing alcohol back into the community on the plane. It may be inferred that the Constable understood the Sergeant to have considered the information sufficiently reliable to act on. The Sergeant’s evidence was that she gave the Constable a full briefing on the information, the appellant’s antecedents and the reason why they were conducting the search. That is a sufficient basis on which to conclude that the Constable also had reasonable grounds for the suspicion, particularly having regard to the command structure of the Police Force and the Constable’s place in the chain of command. It is not enough to displace that conclusion that the Constable’s evidence about those matters at trial was relatively spare in circumstances in which he was giving evidence approximately eight months after the events in question and he was not cross-examined as to the detail of his understanding.
For these reasons, this ground of appeal must fail.
Whether reasonably practicable to obtain a warrant
The next ground of appeal is that the search was unlawful because it was reasonably practicable for police to obtain a warrant to investigate the forfeiture offence prior to exercising their search powers under s 237 of the Liquor Act. The evidence in relation to this ground of appeal has also been summarised above. The Sergeant said that although she had a suspicion on reasonable grounds that the appellant was bringing liquor into the community, she could not be satisfied on the basis of the information that there were ‘reasonable grounds for believing’ that the appellant was bringing liquor into the community. In addition, even had she harboured a reasonable belief she did not have time or opportunity to prepare an affidavit alleging those matters to put before a justice of the peace, or to have written out ‘word for word’ the basis for that belief. The Sergeant also drew attention to the staffing numbers and work rate in Wurrumiyanga, with the consequence that she and the Constable had other pressing priorities on that day.
The assessment of ‘reasonable practicability’ requires no more than the making of a value judgement in light of the facts which present,[11] including an assessment of the means and resources available.[12] In this particular context, that assessment also falls to be made having regard to the relevant statutory provisions which govern the application for a warrant. The appellant accepts that s 117 of the Police Administration Act 1978 (NT) is the relevant provision in assessing whether it was reasonably practicable to obtain a warrant to investigate the forfeiture offence. That section relevantly provides:
(1) Where an information on oath is laid before a justice of the peace alleging that there are reasonable grounds for believing that anything connected with an offence may be concealed on the person of, in the clothing that is being worn by or in any property in the immediate control of, a person, the justice of the peace may issue a search warrant authorising a member of the Police Force named in the warrant to search the person of, the clothing that is being worn by or property in the immediate control of, the person and seize any such thing that he may find in the course of the search.
(2) …
(3) A justice of the peace shall not issue a warrant under subsection (1) or (2) in relation to an information unless:
(a) the information sets out or has attached to it a written statement of the grounds upon which the issue of the warrant is sought;
(b) the informant or some other person has given to the justice of the peace, either orally or by affidavit, such further information, if any, as the justice of the peace requires concerning the grounds on which the issue of the warrant is being sought; and
(c) the justice of the peace is satisfied that there are reasonable grounds for issuing the warrant.
The appellant also draws attention to s 118 of the Police Administration Act, which permits an application for a search warrant to be made and issued by telephone in the following terms:
(1) Where it is impracticable for a member of the Police Force to make application in person to a justice of the peace for a search warrant under this Act, the member may make application for a search warrant to a justice of the peace by telephone in accordance with this section.
(2) Before making application to a justice of the peace by telephone under subsection (1), a member shall prepare an information on oath of a kind referred to in section 117(1) or (2) and, where required by the justice of the peace, an affidavit setting out the grounds on which the issue of the warrant is sought, but may, if it is necessary to do so, make the application before the information and the affidavit, if required, have been made on oath.
(3) Where a justice of the peace is satisfied, upon application made under subsection (1), that there are reasonable grounds for issuing a warrant, the justice of the peace may issue such a search warrant as he could issue under section 117 if the application had been made to him in accordance with that section.
The first point to be made in relation to those provisions is that in order to make an application for a warrant the police officer must prepare an information on oath alleging that there are ‘reasonable grounds for believing’ that the subject has an article connected with an offence concealed on his or her person. As already described, belief is a different state of mind to suspicion. A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists is a working hypothesis for which there is some supporting material.[13]
In order to make application for a search warrant, the police officer must genuinely harbour the relevant state of mind in the subjective sense. The Sergeant’s evidence was that while she had a reasonable suspicion that the appellant would be bringing liquor back into the community based on the information that she had received, that suspicion did not rise to the level of belief. There is no reason to doubt the Sergeant’s evidence of her subjective belief. Even on an objective analysis, it cannot be concluded that the information and experience on which the Sergeant’s suspicion was based properly founded a reasonable satisfaction that the appellant was more likely than not to be bringing alcohol back into the community on that day.
While it is no doubt true to say that before a warrant may issue the justice of the peace must be satisfied that there are reasonable grounds for harbouring the relevant belief, that does not obviate the requirement that the applicant for the warrant must also consider there are reasonable grounds for the relevant belief. It would be an abuse of process for a police officer to make application for a search warrant alleging reasonable grounds for belief when the police officer did not consider reasonable grounds for belief to exist. It might also be inferred that such further investigation as would be necessary to procure information sufficient to found reasonable grounds for belief could not be conducted prior to the arrival of the flight back into the community that same afternoon. That conclusion draws attention to the fact that the requisite threshold governing the application for and issue of a search warrant under s 117 of the Police Administration Act is higher than the threshold authorising a search without warrant under s 237 of the Liquor Act. The plain words of the legislation do not permit of any other operation, and the question of practicability must necessarily include a consideration of whether the relevant police officer has the requisite belief.
Even were that not so, the Sergeant also gave a number of other compelling reasons why it would not have been practicable in the circumstances to make application for a search warrant. Given the well-recognised exigencies of policing in a remote community such as Wurrumiyanga, there was and is no reason to doubt the Sergeant’s evidence that she and the Constable had other pressing duties to attend to in the relatively short period of time between the receipt and processing of the information and the return flight back into the community. There is also no reason to doubt the Sergeant’s evidence that although there was facility to make application for a warrant by telephone, that would still involve a relatively time-intensive process. It may be noted in this respect that s 118 of the Police Administration Act still requires that before making application by telephone the police officer is to prepare an information of a kind referred to in s 117 and, where required by the justice of the peace, an affidavit setting out the grounds on which the issue of the warrant is sought. The only easing of the requirements beyond appearance by telephone rather than in person is that the information and the affidavit need not have been made on oath before the application is made.
For these reasons, this ground of appeal must also fail.
Whether search lawfully announced
The final ground of appeal is that the search was unlawful because it was not lawfully announced to the appellant prior to being conducted. There is no general power at common law enabling police to stop and search suspects or to seize their property. Under the common law, the search of a person could be justified to locate and seize items which might afford evidence of the commission of an offence for which that person had already been arrested, or which might be used by that person to cause harm to himself or herself or others, or which might be used by that person for the purpose of facilitating escape.[14] Various statutory provisions have been enacted to extend in significant ways the right of law enforcement officers to conduct searches of persons in circumstances not permitted by the common law. There can be no doubt that there is a need for unmistakable and unambiguous language to abrogate or curtail fundamental rights, freedoms and immunities,[15] and that such legislation is properly construed strictly and in favour of the person searched. However, that process of construction is conducted by reference to the language of the legislation enacted to supplement or displace the common law, and does not necessarily import the conditions governing the exercise of the power of stop and search under the common law.
The appellant accepts that in many other Australian jurisdictions there is a statutory requirement for police officers to announce their intention to search a person on reasonable suspicion that they have committed an offence prior to the exercise of the power. By way of example, s 202 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that a police officer who exercises a power of that nature must provide the person subject to the exercise of the power: (a) evidence that the police officer is a police officer; (b) the name of the police officer and his or her place of duty; and (c) the reason for the exercise of the power. The appellant also accepts that there is no such statutory requirement governing the exercise of the power under s 237 of the Liquor Act. The appellant’s contention in this ground of appeal is that notwithstanding the absence of a statutory requirement, there was a requirement at common law to provide an explanation to the subject as to why a personal search is to be carried out and the source of authority for the proposed search, and that requirement at common law is somehow imported into the statutory regime in the Northern Territory. In pressing that contention the appellant relies on Brazil v Chief Constable of Surrey[16] and Perkins v Police[17].

Brazil was concerned with the conditions governing the common law power of search following the arrest of the subject. In making that determination, the Court referred first to the earlier decision in Lindley v Rutter.[18] That matter involved the search of a person who had been placed under arrest in the exercise of the powers recognised by the common law in those circumstances. The conclusion in that case was that the conduct was unlawful because a search involving the removal of the prisoner’s underwear was not a reasonable and necessary measure in the circumstances of that case. The second case on which the Court relied was Christie v Leachinsky,[19] which is authority for the proposition that where a police officer arrests a person without warrant on reasonable suspicion of felony, it is incumbent on the arresting officer to inform the person of the grounds for the arrest. Even in those circumstances, the Court in Christie v Leachinsky was at pains to point out that the requirement did not mean that technical or precise language need be used. All that needed to be conveyed was the substance of the reason for the arrest.
The ultimate finding in Brazil was that it was necessary to inform the subject of the reasons for a search. That finding was made with respect to the common law power of search following arrest, and having regard to the fact that the circumstances would only make such a search reasonable and necessary to the extent it was necessary to preserve evidence, avoid harm or prevent escape. What must also be borne in mind in relation to that result is that it was an appeal against a conviction which had been recorded for assaulting police officers acting in the execution of their duty, and the lawfulness of the search was an element of the offence which the prosecution was required to prove beyond reasonable doubt.
Perkins is a decision of the New Zealand Court of Appeal dealing with a statutory power of search. The Court determined that the common law principles were not expressly excluded nor impliedly replaced under the statutory regime, and that they ‘should supplement the statutory requirements’. Accordingly, although the statutory provision did not require the police officer to give the reasons and authority for the search prior to doing so, that should in most cases be done in a general way. That principle has not been adopted and applied by any superior court in Australia in relation to the power of search. However, in State of New South Wales v Riley,[20] the New South Wales Court of Appeal considered a power under the mental health legislation authorising a member of the police force to apprehend a person who appears to be mentally disturbed and to take that person to a hospital. The Court made reference to Christie v Leachinsky, Brazil and Perkins, and concluded that because the legislation neither provided for nor excluded the common law requirement that a person be told of a reason for an arrest (or apprehension), that condition also applied to the exercise of the power of arrest under the mental health legislation.
Counsel for the appellant relies on the decision of the Northern Territory Court of Summary Jurisdiction in Littman v Watson[21] in support of the submission that the common law requirement also governed the legality of the search in this case. Quite apart from its character as a non-binding decision of an inferior court, some care needs to be taken in assessing the content and effect of that decision. The question for determination was whether the defendant was guilty of resisting and assaulting a police officer whilst in the execution of his duty. That required the Crown to prove beyond reasonable doubt that there were reasonable grounds for believing it was necessary to search the defendant following his arrest in order to preserve evidence, avoid harm or prevent escape, as required by s 144(1) of the Police Administration Act. As the presiding magistrate observed, that provision effectively replicated the common law power of search following arrest.
The presiding magistrate’s reference to the common law requirement to inform the subject of the reason for the search was because the arresting officer had not given any evidence during the course of the trial as to the reason for the search. In the absence of such evidence, and without the police officer providing a reason for the search at the time it was attempted, the court was not in a position to determine whether there was a reasonable belief in satisfaction of the preconditions to the exercise of the power under s 144 of the Police Administration Act. It was in that context and for that reason that the magistrate referred to Brazil and Perkins, and concluded that where a police officer intends to search a person ‘it would be advisable’ if he or she ‘informed the person to be searched of the reason the search is to be carried out in general terms’.
The provisions conferring police powers in the Northern Territory might be seen to suggest by implication that police powers are not subject to the requirement to provide reasons unless stipulated in the legislation. So, by way of example, s 127 of the Police Administration Act provides expressly that a member of the police force who arrests a person must inform the person at the time of the arrest of the offence for which he or she is arrested, but that it is unnecessary to do so in language of a precise or technical nature. Similarly, s 124 of the Police Administration Act provides that when a police officer arrests a person pursuant to warrant, he or she must produce the warrant to the person arrested as soon as reasonably practicable. Conversely, the power to conduct a search without a warrant under s 119 of the Police Administration Act is not attended by any express statutory requirement that the subject be told of the reasons for the search or the source of the authority to do so. The same may be said of the power conferred by s 237 of the Liquor Act. It may also be noted that those two provisions effect an extension or displacement of the common law, rather than a replication of the common law, in allowing for a search without warrant other than following the arrest of the subject.
However, it is unnecessary to decide that matter for present purposes, because even assuming that the conditions imposed on the conduct of a search by the English common law have application to the exercise of power under s 237 of the Liquor Act, the minimum content of those conditions were satisfied in the present case. As already noted, the requirement that a person be advised of the reason for the search and the source of the authority does not require that any particular formulation be adopted or that technical or precise language be used. Nor does it permit the subject of the prospective search to interrogate police concerning their reasons, or the nature and source of the information on which they are acting. On the basis of the witnesses’ evidence and the body worn video it was open to find that the search was adequately announced to the appellant. After the passengers had alighted from the aeroplane the Sergeant announced in the presence of the appellant that she would be undertaking a liquor search of passengers in the following terms:
Yeah. Good afternoon. How are you, Peter? Yep. We’re just here doing a liquor search today. We are just here doing a liquor search. So we just need to see property, pockets, that sort of thing. Hey Bon [the appellant], how are you going? Good. James is going to give you a quick search. Can you just go and see? Hey, can you see Jerome for me. Hello? How are you? You see doing a liquor search today. Have you got any liquor on you?
That announcement was adequate to apprise the appellant of the purpose of the search and that it was related to the liquor legislation. It was unnecessary to identify the particular provision of the Liquor Act conferring the power to search without warrant, and reference to the provision was not necessary to further inform the appellant’s understanding of the process.
For these reasons, this ground of appeal must also fail.
Disposition
Accordingly, the appeal is dismissed.

____________________________

[1] Reasonable grounds for belief are not required. Suspicion and belief are different states of mind: see George v Rockett (1990) 170 CLR 104 at 115.

[2] Hussien v Chong Fook Kam [1970] AC 942 at 948. The formulation was adopted and applied by the High Court in George v Rockett (1990) 170 CLR 104 at 115.

[3]Zoric v Police [2006] SASC 355.

[4] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303. That formulation was also cited by the High Court in George v Rockett (1990) 170 CLR 104 at 115-116.

[5] See George v Rockett (1990) 170 CLR 104 at 112. See also Police v Beck (2001) 79 SASR 98 at [36]-[38].

[6] Walsh v Loughnan [1991] 2 VR 351 at 357. See also R v Rondo (2001) 126 A Crim R 562 at [53].

[7] See, for example, R v Nguyen (2013) 117 SASR 432 at [21]; Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236 at [62]; and R v MacKenzie [2013] 3 SCR 250.

[8] See, for example, Mole v Prior (2016) 304 FLR 418 at [61]-[62].

[9] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14].

[10] Fox v Percy (2003) 214 CLR 118.

[11]Slivak v Lurgi (2001) 177 ALR 585 at 599.

[12]Wright v State of Western Australia [2010] WASCA 199 at [148].

[13]R v Nguyen (2013) 117 SASR 432 at [21]. See also Murray, Hale and Olsen (Pseudonyms) v The Queen [2017] VSCA 236 at [62].

[14]See, for example, Henderson v O’Connell [1937] VLR 171 at 176; Miller v Noblet [1927] SASR 385 at 390; Rowell v Larter (1986) 6 NSWLR 21 at 27; Ghani v Jones [1970] 1 QB 693 at 706; Lindley v Rutter [1981] QB 128.

[15]See, for example, Coco v The Queen (1994) 179 CLR 427 at 437-438; Fernando v Commissioner of Police (NSW) (1995) 36 NSWLR 567 at 583, 591-592.

[16]Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 at 1163.

[17]Perkins v Police [1988] 1 NZLR 257 at 262.

[18]Lindley v Rutter [1981] QB 128.

[19]Christie v Leachinsky [1947] AC 573.

[20]State of New South Wales v Riley (2003) 57 NSWLR 496 at 501-503; cf Maines v Roy [1990] 1 WAR 508 at 514-515.

[21]Littman v Watson [2006] NTMC 73.