Tran v Stapleton
[2021] ACTSC 1
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Tran v Stapleton |
Citation: | [2021] ACTSC 1 |
Hearing Dates: | 25 May 2020 and 29 July 2020 |
DecisionDate: | 22 January 2021 |
Before: | Loukas-Karlsson J |
Decision: | The appeal is upheld on all grounds. The finding of guilt is overturned. The charge is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against finding of guilt – drive while prescribed drug in oral fluid – finding dependent on decision to dismiss application to exclude evidence – factual finding challenged – appeal allowed – finding of guilt overturned EVIDENCE – ADMISSIBILITY – roadside drug screening – section 138 of Evidence Act 2011 (ACT) – whether section 13A(3) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) was complied with – whether officer formed requisite state of mind – where credibility of officers questioned – whether discretion should be exercised – application to exclude evidence successful |
Legislation Cited: | Crimes Act 1914 (Cth) s 23V Evidence Act 2011 (ACT) s 138 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 13A, 20 |
Cases Cited: | Azar v DPP [2014] NSWSC 132; 239 A Crim R 75 Baker v Thorpe (1985) 62 ACTR 1 Walto v Gilmour [2015] ACTSC 411 |
Parties: | Thuy Thi Thu Tran (Appellant) Bradley Stapleton (Respondent) |
Representation: | Counsel T Taylor (Appellant) K McCann (Respondent) |
| Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 18 of 2020 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 7 February 2020 Case Title: R v Thuy Thi Thu Tran Court File Number: CC 19/7217 |
LOUKAS-KARLSSON J:
Introduction
On 23 and 24 January 2020, the appellant appeared before Magistrate Morrison, the learned Magistrate, in relation to four charges. Following a contested hearing, his Honour dismissed two charges of trafficking (heroin and methylamphetamine) and one charge of possession of drug of dependence (cocaine).
On 7 February 2020, his Honour found the appellant guilty of driving with a prescribed drug in her oral fluid on 22 April 2019, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The appellant has not been sentenced for this offence.
The appellant appeals from the finding of guilt in relation to this offence.
Jurisdiction
The Court’s jurisdiction to hear this matter is derived from Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), in particular section 208(1)(b), in relation to the jurisdiction to hear an appeal against conviction for a summary offence.
No conviction has been recorded against the appellant in relation to this offence. Nevertheless, the Full Court of the ACT Supreme Court in Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 at [107] held that a finding by the Magistrates Court that an offence has been proved, that is, a finding of guilt, is a “conviction” within the meaning of s 208(1)(b) of the Magistrates Court Act.
The appeal is by way of re-hearing: Baker v Thorpe (1985) 62 ACTR 1; Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149; Walto v Gilmour [2015] ACTSC 411; Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox); and Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24. The principles in relation to this type of appeal are summarised by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24] as follows:
…
i.The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
ii.The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
iii.The appellate court must conduct a real and independent review of the evidence at the trial and the Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
iv.The appellate court must, however, make due allowance for the advantage that the Magistrate has in having seen and heard the witnesses.
v.The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
vi.In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
vii.The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
(Emphasis added).
Background to the Offence & Hearing in the Magistrates Court
At around 2pm on 22 April 2019, the appellant was driving a black coloured Toyota sedan in the ACT when she was pulled over by two plain clothes policeman driving behind her in an unmarked police vehicle. The police conducted a search of the Toyota and the appellant’s person. The appellant was required to remain at that location while police requested the attendance of an officer with a drug testing kit. The appellant subsequently tested positive for prohibited substances in her oral fluid.
Following the search and drug test, the appellant was charged with two counts of trafficking, one count of possessing a drug of dependence, and one count of driving with a prescribed drug in her oral fluid.
The appellant entered pleas of not guilty to each of the charges and a contested hearing proceeded before the Magistrate on 23 January 2020, 24 January 2020 and 7 February 2020. The hearing before the Magistrate was largely conducted on the voir dire, with the appellant making a “global” objection to the evidence in the prosecution case on the basis of illegally or improperly obtained evidence pursuant to s 138 of the Evidence Act 2011 (ACT) (the Evidence Act).
Following the hearing of evidence on the voir dire, the Magistrate ruled that an admission and subsequent evidence obtained during a search of the car and the appellant’s person were inadmissible under s 138 of the Evidence Act. Subsequently, three charges against the appellant were dismissed. The Magistrate found that the impropriety relating to the search and interview did not extend to the evidence obtained as a result of the roadside drug test.
The matter was then adjourned for a short period for the appellant to provide instructions on the remaining driving charge. On the next occasion in court, to avoid further delay, the global objection to the evidence being tendered in the hearing proper was maintained by the appellant on the same basis that those objections were argued on the voir dire (T 7/2/2020 227.20).
It was accepted by the Magistrate and by both parties at hearing that the relevant test in relation to detaining the appellant for the purposes of the roadside test is that “the police officer has reasonable cause to suspect that the person has a drug in the person’s body”: s 13A(3) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Road Transport Act). It was conceded by counsel for the appellant that, if the Magistrate was of the view that Detective Senior Constable Stapleton had the requisite state of mind for the purpose of s 13A(3), there would be no basis to exclude evidence of the subsequent drug screening.
At the hearing, the appellant submitted (Written Submissions at [9]):
It cannot seriously be suggested that Detective Senior Constable Stapleton or his off-sider would have had reasonable cause to suspect that [the appellant] had a drug in her body so as to compel her detention at the side of the road in the way she was detained.
The Magistrate found that the officers in question did have reasonable cause to suspect that the appellant had drugs in her system at the relevant time. This was based on “the evidence about some swerving of the vehicle and the fact that the vehicle had been seen outside a premise known to be associated with drug use” (T 24/1/2020 219.30).
The Magistrate therefore found the charge proved on 7 February 2020. The Magistrate did not proceed to conviction or sentence, as the appellant indicated an intention to appeal the decision.
Grounds of Appeal
The appellant appealed from the finding of guilt on the following grounds by way of Amended Notice of Appeal dated 19 July 2020:
(a)The Magistrate erred in finding as a matter of fact that the appellant’s manner of driving was sufficient for Detective Senior Constable Stapleton to have a reasonable cause to suspect the appellant had, at the relevant time, a drug in her body, pursuant to s 13A of the Road Transport Act.
(b)The Magistrate erred in finding Detective Senior Constable Stapleton had reasonable cause to suspect that the appellant had, at the relevant time, a drug in her body, pursuant to s 13A.
(c)The Magistrate erred in finding that Detective Stapleton had the power to lawfully require the appellant to remain on the roadside on 22 April 2019 for an extended period of time pursuant to s 13A for a drug screening test to be carried out.
(d)The Magistrate ought to have concluded that the evidence obtained under s 13A was unlawfully or inappropriately obtained pursuant to s 138 of the Evidence Act.
(e)The evidence against the appellant obtained in consequence of s 13A was unlawfully or inappropriately obtained and ought not to have been admitted against her.
The appellant accepted that grounds (a) to (c) are cumulative and, if those grounds are not made out, grounds (d) and (e) fail.
In the course of the appeal, it became apparent that the grounds of appeal raise three key issues:
(a)The factual challenge in relation to the evidence of the manner of driving.
(b)The legal challenge: did the officers have reasonable cause to suspect at the time the ‘traffic stop’ was conducted?
(c)The application of s 138: if the officers did not have reasonable cause for suspicion, should this impropriety lead to an exclusion of the evidence obtained during the roadside drug screening?
The Factual Issue: Manner of Driving
Relevant Legal Principles
The principles relating to a challenge to a factual finding on appeal are well-settled and summarised in Ryan v Vizovitis [2017] ACTCA 3 at [132]-[136]. Further, the approach to findings of fact based on oral evidence was usefully summarised in Faris v Coulon [2017] ACTSC 114 at [9]:
The principles governing the circumstances in which an appellate court may set aside factual findings made by a primary judge are well settled and were recently repeated by the Court of Appeal in Ryan v Vizovitis [2017] ACTCA 3 at [132]. There is a fundamental distinction between cases involving admitted facts or facts found by the trial judge on the one hand, and cases where the primary judge’s factual findings depended on the view taken of conflicting oral testimony. In the second class of case, the appellate court must take into account the advantages enjoyed by the primary judge in resolving the conflicting oral evidence. Nevertheless, findings as to credit are not immune from challenge. It is open to an appellate court to find the primary judge failed to consider the real strength of the body of evidence presented by the losing party or found the evidence of a witness or witnesses to be unreliable on a basis that was too fragile or slight.
(Emphasis added).
In Greenwood v Barlee [2018] ACTSC 46 (Greenwood) at [61]-[62], Mossop J stated:
Whilst accepting that a resolution of conflict based on credibility does not immunise the conclusion from challenge, the magistrate’s decision to reject the appellant’s evidence is not contrary to any “incontrovertible facts or uncontested testimony” or “glaringly improbable or contrary to compelling inferences”: see Fox v Percy at [28]-[29].
(Emphasis added).
Appellant’s Submissions
The appellant submitted that the Magistrate’s acceptance of the officers’ account of the appellant’s manner of driving, and his subsequent factual finding, was in error for two reasons; firstly, due to the adverse conduct of the officers, both on the day in question and generally; and, secondly, due to the material inconsistencies between the officers’ evidence.
In relation to adverse conduct, the appellant, during the hearing of the appeal on 25 May 2020, relied upon six points that, in the appellant’s submission, would affect the Court’s ability to accept the evidence of the police officers in relation to the appellant’s driving:
(a)“Senior Constable Stapleton, not infrequently in his day-to-day work as a police officer, when obtaining consent to search from people, will tell those people about generic powers that have no application to the circumstances directly relevant to the search in question” (T 8.35).
(b)“Senior Constable Stapleton accepted that by telling the appellant about generic powers that the police might have in other circumstances, but not in her circumstances on this day, tainted the validity of her consent” (T 9.4).
(c)“Senior Constable Stapleton failed to caution Ms Tran before questioning her” (T 9.16).
(d)“Senior Constable Stapleton failed to properly record any alleged admission by the appellant in accordance with s 23V of the Crimes Act” (T 9.17).
(e)“Senior Constable Stapleton and First Constable Cunningham refused to appreciate the rights of the appellant and her treatment during their interview of her” (T 10.26).
(f)“First Constable Cunningham gave evidence that his training as a police officer had been to specifically ignore any indications from people taking part in a record of interview should they choose to exercise their right to silence or request the termination of an interview and to go on questioning regardless” (T 11.47-12.1).
In relation to the accounts of the manner of driving by the police officers, the appellant submitted that the following matters demonstrate material inconsistencies between the two accounts:
(a)Detective Senior Constable Stapleton gave evidence the car was in the right lane when the alleged manner of driving was observed. Senior Constable Cunningham stated the vehicle was in lane one, that is, the left lane.
(b)Detective Senior Constable Stapleton stated the car was veering and crossing lanes towards the median strip. Senior Constable Cunningham stated that the car did not remain “strictly within its lane”.
(c)Detective Senior Constable Stapleton gave a varying account in his statement as compared to his oral testimony. Senior Constable Cunningham made no mention of the manner of driving in his statement, describing it as a “traffic stop”.
(d)Detective Senior Constable Stapleton did not recall discussing the manner of driving with Senior Constable Cunningham. Senior Constable Cunningham recalled that he discussed the matter with Detective Senior Constable Stapleton.
(e)Despite the laborious way in which the appellant was interviewed in having various details put to her about what she did and did not do, her alleged manner of driving was never put to her. Instead it was only put to her that the police officers “conducted a traffic stop”. This question was put to the appellant by Detective Senior Constable Stapleton.
Respondent’s Submissions
The respondent summarised the position on the factual issue as follows:
(a)They key question on this appeal is whether it was open to the Magistrate to make the finding on the appellant’s manner of driving;
(b)The police officers’ conduct during the search, which was subsequent to the appellant’s car being pulled over, has no real bearing on this key question; and
(c)the Magistrate was entitled to accept the police officers’ evidence in relation to the appellant’s manner of driving given that there were no material inconsistencies in the police officers’ accounts.
Adverse Conduct
In relation to the appellant’s submission that the factual finding was incorrect due to the overall improper conduct of the police officers in the course of the investigation, the respondent submitted the following:
It was entirely permissible for the magistrate to accept the evidence of the police officers with respect to their observations of the appellant’s driving manner, despite the magistrate’s adverse findings which were made in relation to improper conduct occurring after the police officers had pulled the appellant’s vehicle over. The magistrate had an opportunity to observe and to assess the police officers in person as they give their evidence including during extensive and rigorous cross-examination. The magistrate was critical of the police officers in relation to their actions surrounding the search of the vehicle. Significantly, whilst the magistrate took a grim view of Detective Senior Constable Stapleton’s actions during the search, the magistrate did not take such a negative view as to his truthfulness when giving evidence. Indeed, the magistrate found that “Detective Senior Constable Stapleton was not a wholly satisfactory witness although he did candidly concede that he had failed to do some things which he ought to have done” (T 216.10-12). There was nothing which caused the magistrate to doubt the integrity and the veracity of the police officers in relation to a very discrete aspect of their evidence, namely, their observations about the appellant’s manner of driving.
(Emphasis in original).
The respondent submitted that a fact finder is entitled to accept a witness’ evidence in part and is entitled to reject a witness’s evidence in part. In making this determination, a fact finder is entitled to take into account what they observed of a witness’ demeanour and the manner in which the evidence was given. It was submitted that the Court ought to give “significant weight to the very real advantage enjoyed by the Magistrate in seeing and hearing this evidence first-hand”.
The respondent further submitted that the fact that the police officers had engaged in the adverse conduct does not automatically lead to the rejection of the evidence of their observations. It was submitted that there is “no logical correlation” between the police officers’ prior observations as to the appellant’s driving manner and the officers’ subsequent conduct.
Finally, the respondent submitted that the officers’ honesty and probity in respect of their evidence about the manner of driving, was never called into question at the hearing before the Magistrate.
Inconsistent Evidence in Relation to Manner of Driving
In respect of the appellant’s submissions in relation to alleged inconsistencies between the officers’ accounts of the manner of driving, the respondent submitted that the evidence of both officers was largely consistent and that any discrepancies were semantical or immaterial.
The respondent submitted that Detective Senior Constable Stapleton’s use of varying phrases to describe the manner of driving – such as “swerving from side to side”, “crossed lanes”, and “veered across lanes” – were not inconsistent with one another and fit into a general descriptor or moving into another lane and moving back.
In relation to the fact that Senior Constable Cunningham’s statement did not include any reference to the manner of driving, the respondent submitted that there was nothing implausible about the officer giving evidence of the manner of driving in his oral testimony when specifically questioned on it. It was further submitted that the officer’s evidence was not challenged in this regard, and that it was not put to him that he had omitted to include it in his statement because it was a fabrication.
The respondent submitted that the differences between the accounts of the officers alleged by the appellant, including in relation to a conversation prior to the “traffic stop”, were immaterial and not fatal to a finding as to the manner of the appellant’s driving. The respondent additionally noted that the accounts of the officers were corroborated by a third officer, Leading Senior Constable Kelly Clarke, who attended the scene in order to conduct the screening test. She included in her statement the following:
I had a brief conversation with Senior Constable Brad Stapleton. He advised me that they observed the Black Toyota Aurion travel on Kingsford Smith Drive and requested that I conduct an alcohol and drug screening test on the driver due to her driving manner.
In respect of the police interview, the respondent submitted that the absence of the police officers asking the appellant about the manner of driving is not a glaring omission in the context of the police officers investigating potential drug trafficking and drug possession charges. The respondent further noted that it was not put to the officers that they had failed to ask the appellant about the manner of driving due to it never having been observed.
Finally, the respondent submitted that the appellant did not deny that she had been “swerving” or had been driving in any way irregularly. In the respondent’s submission, the appellant’s evidence, at its highest, was that she had no recollection or swerving but had a general belief that she had not been driving in that fashion.
In summary, the respondent submitted:
It is the respondent’s submission that there was nothing “dangerous” about the magistrate’s factual finding in relation to the appellant’s driving manner as the evidence … of the police officers was largely consistent, any discrepancies were semantical or immaterial, and the appellant’s evidence did not amount to a denial as to her driving manner but to an equivocal recollection at its highest.
Appellant’s Submissions in Reply
The appellant was also provided an opportunity to respond to the respondent’s further submissions.
The appellant submitted that, contrary to the respondent’s submission, the honesty, reliability and credibility of the police officers was called into question during both the first instance hearing and on appeal. The appellant further noted that the appellant bears no onus of proving the existence of a motive to lie or the fabrication of allegations against her: Doe v The Queen [2008] NSWCCA 203; 187 A Crim R 328 at [59]-[60].
The appellant accepted that the Magistrate was entitled to accept the officers’ evidence in part, however, it was correctly submitted that this does not prevent this Court from coming to a different view: Peverill at [24].
Reviewing the officers’ evidence, the appellant maintained the submission that the acceptance of their evidence was not reasonable and was erroneous. The appellant submitted that both officers “refused to appreciate the rights of the appellant” and did not ensure “her fair treatment during their interview of her”.
The appellant submitted that, not only were the accounts of the manner of driving inconsistent, the officers had “revealed themselves to be officers prepared to act improperly in pursuit of their investigation of the appellant that day and others generally”.
Finally, the appellant submitted that the appellant denied driving in a manner which might attract the attention of the police: see [56].
Conclusion
I have carefully considered the evidence and the submissions. Additionally, I have taken into account the advantage enjoyed by the Magistrate in hearing the evidence firsthand. In my view, the decision by the Magistrate to reject the appellant’s evidence is contrary to compelling inferences: see Fox and Greenwood. There are material inconsistencies between the relevant evidence of the two police officers. In particular, I accept the submissions in relation to the evidence set out above at [23]. These submissions accord with my view of the evidence.
While a fact finder is entitled to accept a witness’s evidence in part and is entitled to reject a witness’ evidence in part, that does not perforce settle the issue. It is not a complete nor appropriate answer to an analysis of the evidence in this case. While the respondent correctly submitted that the fact that the police officers had engaged in adverse conduct does not automatically lead to the rejection of the evidence of their observations, it is nevertheless relevant to an assessment of their evidence. It is appropriate for the police officers’ evidence in relation to the manner of driving to be assessed in the context of both the material inconsistencies and in the context of other adverse conduct, on the day in question and otherwise.
I do not accept the prosecution’s submission that the officers’ evidence about the manner of driving was not called into question before the Magistrate. Importantly, the following exchange occurred during the cross-examination of Detective Senior Constable Stapleton by counsel for the defendant, Mr Pappas (T 79.13-15):
Mr Pappas: Well, I want to suggest to you that your evidence about her manner of driving is completely wrong. What do you say to that?
Stapleton: Well, I don’t – I don’t agree with that, obviously.
I accept that the credibility of the police officers was called into question. I note in this context the submission of defence counsel at first instance, Mr Pappas, that the police officers “displayed the credibility of a vegetarian shark”: Appellant’s Further Written Submissions at [9]. See R v Liristis [2004] NSWCCA 287; 146 A Crim R 547 at [79]. See also MWJ v The Queen [2005] HCA 74; 222 ALR 436. Further, in my view, there was a denial by the appellant of the relevant driving: see [56].
Finally, I do not accept, having considered all the evidence, in light of the authorities discussed above at [19]-[20], that the car driven by the appellant was driven in the manner given in evidence by the police officers.
The Legal Issue: Reasonable Cause
Relevant Legislation & Legal Principles
Section 13A of the Road Transport Act states:
13A Power to require drug screening test if vehicle not involved in accident––driver and driver trainer
(1)A police officer may require a person to undergo 1 or more drug screening tests in accordance with the directions of the officer if—
a) the person is––
i.the driver of a motor vehicle on a road or road related area; or
ii.the driver trainer in a motor vehicle on a road or road related area; or
b) the police officer has reasonable cause to suspect that, shortly before the requirement is made, the person was––
i.the driver of a motor vehicle on a road or road related area; or
ii.the driver trainer in a motor vehicle on a road or road related area.
(2)The person must remain at the place where the drug screening test is being carried out until the test is completed in accordance with the police officer’s directions.
(3)In addition, if a drug screening device is not immediately available and the police officer has reasonable cause to suspect that the person has a drug in the person’s body, the police officer may direct the person to remain at the place where the drug screening test is to be carried out for the time (not exceeding 30 minutes) reasonably necessary for a drug screening device to be made available and the test to be completed.
…
(Emphasis added).
Section 13A(3) permits a police officer to effectively detain a person if a drug screening device is not immediately available and the officer has “reasonable cause to suspect that the person has a drug in the person’s body”. This is the power purported to have been used by the officers on 22 April 2019 in relation to the appellant.
The full bench of the High Court in George v Rockett (1990) 170 CLR 104 stated at 112:
When a statute prescribes that 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.
In Hyder v Commonwealth of Australia [2012] NSWCA 336 at [15], McColl JA (Hoeben JA agreeing) outlined the following propositions in relation to reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind. These statements of principle are similarly relevant in the present case, in relation so s 13A:
(1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112);
(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;
(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);
(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;
(5) "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 occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116);
(6) "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": George v Rockett (at 116);
(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;
(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;
(9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319;
(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may' "; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31] - [33]); Williams v The Queen (at 299) per Mason and Brennan JJ.
(Emphasis added).
In Azar v DPP [2014] NSWSC 132; 239 A Crim R 75 at [27], Adamson J considered the difference between a suspicion and a belief, stating:
… suspicion is more than a possibility and less than a belief. Reasonable grounds for suspicion can include information that the officer concerned has been told by another officer. It can include material of a hearsay nature.
(Emphasis added).
What is important is the information in the mind of the police officer at the time of stopping the vehicle. Having ascertained the information, the question is whether that information afforded a reasonable ground or cause for the suspicion which the police officer formed. In answering the question, regard must be had to the source of the information and its content which is seen in light of the whole of the surrounding circumstances: R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 at [53].
Appellant’s Submissions
The appellant submitted that Detective Senior Constable Stapleton did not have “reasonable cause to suspect” that the appellant had, at the relevant time, a drug in her system. Therefore, it was submitted that the direction for her to remain for 30 minutes was a form of unlawful detention and, as a consequence, the oral fluid analysis was taken illegally and should be excluded pursuant to s 138 of the Evidence Act.
In support of its submission in relation to reasonable cause, the appellant noted the following inconsistencies in the officers’ evidence in relation to the decision to conduct a “traffic stop” on the appellant’s car:
(a)Detective Senior Constable Stapleton stated that Senior Constable Cunningham informed him that the car had been parked at an address in Flynn that was known by police to be associated with drug activity.
(b)Under cross examination, Senior Constable Cunningham said there had been no reference to any Flynn address and generally expressed no knowledge of any connection between the car and the Flynn address.
(c)Detective Senior Constable Stapleton gave evidence that the car was weaving within its lane; when cross-examined, he stated that she was in the right hand land and “she veered off on the outer side, so where the white line is, she's moved out of that across that line towards the median strip” (T 23/1/2020 54.28-30).
(d)Senior Constable Cunningham stated under cross-examination that he and Detective Senior Constable Stapleton had followed the vehicle for about five minutes as it travelled along Kingsford Smith Drive in the left-hand lane of traffic; the car then moved into the right-hand lane and the decision was made to conduct a “traffic stop”.
The appellant further submitted that the appellant denied weaving within her lane or otherwise driving in a manner which might attract the attention of police.
I note here that the appellant’s statements in evidence were: “I don’t remember swerving”; “I thought that day I was driving normal”; and “I don't think I was swerving. I thought I was driving normal. Fine” (T 24/2/2020 129).
The appellant conceded that this Court would find that the car driven by the appellant was at some stage seen outside a premise known to be associated with drug use. It was submitted, however, that the Court would have some difficulty accepting that the car driven by the appellant was swerving. The appellant additionally maintained that, even if those circumstances were accepted, those facts alone do not support an objective finding that Detective Senior Constable Stapleton had a reasonable cause to suspect that the appellant had, at the relevant time, a drug in her system.
Respondent’s Submissions
The respondent submitted that the Magistrate was correct to find that Detective Senior Constable Stapleton had formed the requisite state of mind to exercise the power in s 13A.
The respondent submitted that the combination of circumstances – observing the car leaving a known drug-associated property and the manner of driving – were considerations that “rationally could bear upon the issue of whether a person may be driving with a drug in their system”: Written Submissions at [23].
Conclusion
As stated at [46], I do not accept that the car driven by the appellant was driven in the manner given in evidence by the police officers. In my view, Detective Senior Constable Stapleton did not have reasonable cause to suspect that the appellant had a drug in her body: s 13A(3).
The appellant conceded that this Court would find that the car driven by the appellant was at some stage seen outside premises known to be associated with drug use: Written Submissions at [22]. This, in and of itself, is not sufficient for reasonable cause to suspect as set out in the authorities above at [49] to [52]. A car being parked outside a house, on the evidence in this case, does not amount to, nor is it equivalent to, “reasonable cause to suspect that the person has a drug in the person’s body”: s 13A(3).
The section 138 issue: Admissibility of Evidence
Appellant’s Submissions
The appellant submitted that, balancing all of the factors in s 138, this Court should exclude the evidence of the roadside drug screening test and oral fluid analysis.
The appellant accepted that the evidence is highly probative; however, it was submitted that the offence is “far from a serious offence”, carrying a maximum penalty of three months of imprisonment. It was further submitted that the impropriety is significant, as it involved unlawful detention.
In relation to the impropriety of the officers’ actions, the appellant noted the effect of ss 13 and 18 of the Human Rights Act 2004 (ACT) (Human Rights Act). Section 18 provides that no person “may be arbitrarily arrested or detained”.
Respondent’s Submissions
The respondent submitted the following in relation to the test in s 138:
(a)The probative value and importance of the evidence: The evidence of the fluid analysis is highly probative as, in its absence, the prosecution case would fail (s 138(3) (a) and (b)).
(b)The nature of the offence: The offence is a summary offence; however, it is still a serious offence that carries a term of imprisonment (s 138(3)(c) and s 20(1)(b)(i) of the Road Transport Act).
(c)The gravity of the impropriety or contravention: It was accepted that requiring a person to remain for the purposes of undergoing testing without lawful authority is significant; however, the belief was honestly held and the contravention was not deliberate or reckless (s 138(3)(d) and (e)).
(d)Whether the impropriety or contravention was contrary to the International Covenant on Civil and Political Rights (ICCPR): The contravention raises possible breach of ss 13 and 18 of the Human Rights Act. It was accepted that there is always a public interest in protecting human rights (s 138(3)(f)).
(e)The difficulty in obtaining the evidence: Without requiring the appellant to remain and undergo a screening test, the evidence of the subsequent oral fluid analysis would not have been able to be obtained (s 138(3)(h)).
The respondent submitted in conclusion that, weighing all of the factors, it would be open for this Court to exercise the discretion in s 138 and to admit the evidence.
Consideration
Section 138 of the Evidence Act provides as follows:
138Exclusion of improperly or illegally obtained evidence
1. Evidence that was obtained—
a. improperly or in contravention of an Australian law; or
b. in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
2. Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—
a. did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
b. made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
3. Without limiting the matters that the court may take into account under subsection (1), it must take into account—
a. the probative value of the evidence; and
b. the importance of the evidence in the proceeding; and
c. the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
d. the gravity of the impropriety or contravention; and
e. whether the impropriety or contravention was deliberate or reckless; and
f. whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
g. whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
h. the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
The terms of s 138 are mandatory (the evidence “must not be admitted”), the s 138 balancing test (whether the desirability of admitting the evidence outweighs the undesirability of admitting it) is evaluative: see R v Johnson [2018] ACTSC 242; 336 FLR 320 at [75]. See also Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 at [5]-[6].
In R v Sarlija (No 1) [2015] ACTSC 290, Murrell CJ highlighted that the genesis of s 138 is Bunning v Cross (1978) 141 CLR 54 (Bunning). In Bunning at 74, Stephen and Aickin JJ stated that the exercise of discretion by the court was a matter of considering two competing requirements of public policy:
… the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.
The discretion protects against the evidence being obtained “at too high a price”: R v Ireland (1970) 126 CLR 321 (Ireland). In RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404, White J referred at [40] to “the legislature’s view that the obtaining of evidence by unlawful means should be discouraged, and the integrity of the judicial system not be diminished by apparent condonation of unlawful conduct”.
The onus of proof under s 138 changes the common law position. The party tendering the evidence, in this case the prosecution/respondent, must persuade the court that the evidence should be admitted, but only once the opposing party, in this case the appellant, has persuaded the court that the evidence is tainted by illegality or impropriety: see Parker v Comptroller-General of Customs [2009] HCA 7; 252 ALR 619 at [27]-[28]. As discussed above, I am persuaded that there is impropriety or illegality. The respondent must therefore persuade me that the evidence should be admitted. The shifting of the burden of proof requires judges to scrutinise the relevant misconduct carefully and to consider the competing policy considerations.
I turn to consider the matters under s 138(3). The factors identified in s 138(3) are not exclusive. There do not appear, however, to be other matters which require consideration apart from those which I have addressed below.
The probative value – s 138(3)(a)
In my view, the evidence of the roadside drug screening test and subsequent oral fluid analysis is highly probative.
The importance of the evidence in the proceeding – s 138(3)(b)
It is accepted that the prosecution case fails without the evidence.
The nature of the relevant offence – s 138(3)(c)
The offence is a summary offence. True it is not an offence of the highest level of gravity in the criminal law. Nevertheless, it is a serious offence. There is a clear public interest in controlling offences of this sort.
A majority of the NSW Court of Criminal Appeal has held that “the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in the case of crimes of greater gravity”: R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 at [7]. This approach was followed in R v MM [2004] NSWCCA 364 at [54].
The gravity of the impropriety or contravention – s 138(3)(d)
The impropriety is of substantial significance in my view, taking into account the relevant conduct of the police, as discussed above at [60]-[61].
Whether the impropriety was deliberate or reckless – s 138(3)(e)
In my view, on the totality of the evidence, the impropriety was, at the very least, reckless.
A finding that the impropriety or contravention was deliberate or reckless will often, but certainly not always, swing the balance in favour of exclusion. As Basten JA stated in Parker v Comptroller-General of Customs [2007] NSWCA 348; 243 ALR 574 at [65]:
What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard of an individual’s civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.
“Reckless” in this context involves at least advertence to the possibility of a breach of the law and a conscious decision to proceed anyway: R v Helmhout [2001] NSWCCA 372; 125 A Crim R 257 (Helmhout) at [33].
Whether the impropriety or contravention was contrary to the ICCPR – s 138(3)(f)
Article 9 of the ICCPR includes the following:
Article 9. 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
This contravention raises potential breaches of the Human Rights Act.
Section 13 of the Human Rights Act states:
13Freedom of movement
Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose his or her residence in the ACT.
Section 18 of the Human Rights Act states:
18Right to liberty and security of person
1. Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
2. No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
It was correctly accepted by the prosecution that there is a public interest in protecting human rights.
Whether any proceeding is likely to be taken in relation to the impropriety – s 138(3)(g)
I note in relation to this section that the Magistrate ordered that the transcript of the hearing be provided to the ACT Chief Police Officer “not for the purposes of furthering any particular criticism of a particular officer, but rather because … there is perhaps some systemic deficiency in the training of police officers in the Territory” (T 24/01/2020 220.1-10).
The difficulty in obtaining the evidence – s 138(3)(h)
It is accepted that the evidence would have been otherwise difficult to obtain.
Conclusion
In my view, taking all the relevant matters into account, the evidence of the roadside screening test and further oral fluid analysis should not be admitted.
The desirability of admitting the evidence is outweighed by the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: s 138(1); see also Ireland; Bunning; and Helmhout at [33].
Section 218
Section 218 of the Magistrates Court Act empowers this Court to give the judgment, or make the order, that, in all the circumstances, it considers appropriate.
Orders
The appeal is upheld on all grounds.
The finding of guilt is overturned.
Noting that, in the absence of the roadside drug screening test results and oral fluid analysis, the prosecution has no evidence to offer on the charge, the charge (CC 19/7217) is dismissed.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 29 January 2021 |
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