Winikerei v The The Queen

[2022] NSWDC 250

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Winikerei v R [2022] NSWDC 250

Hearing dates:

28-29 March 2022

Date of orders:

29 March 2022

Decision date:

29 March 2022

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

I grant the relief sought in each of the notices of motion filed on 21 January 2022.

Catchwords:

CRIME – APPEAL – NOTICE OF MOTION -WITHDRAWAL OF PLEAS OF GUILTY – Applicant entered pleas of guilty for various offences – Applicant not apprised of the legality of police searches.

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Road Rules 2014 (NSW)

Cases Cited:

Meissner v R (1995) 184 CLR 132; [1995] HCA 41

R v Buddee [2016] NSWDC 422

R v Lars (aka Larsson) (1994) 73 A Crim R 91

R v Thalari (2009) 75 NSWLR 307

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Regina – Crown
Applicant – Raiwhara Winikerei

Representation:

Crown - Hughes, M.
Applicant - Santisi, F.

File Number(s):

2018/00239867; 2019/00241077

Publication restriction:

Nil.

Judgment

Background

1. HIS HONOUR: By notice of motion filed on 31 January 2022, the Applicant, Mr Raiwhara Winikerei, seeks the leave of the Court to withdraw pleas of guilty entered earlier to two sets of charges. The first set of charges arise from an event that occurred early in the morning of 4 August 2018. On 19 May 2020, the Applicant pleaded guilty in open court, albeit by audio-visual link, before Hanley DCJ, sitting at Parramatta, to an indictment containing two counts. The transcript of proceedings before his Honour at Parramatta can be found on p 21 of Exhibit P2, a bundle of documents tendered by the Crown. Immediately after the Applicant was arraigned and entered pleas of guilty, Mr Kelly, who was appearing for the Crown via audio-visual link, told his Honour that the second count to which the Applicant had pleaded guilty was to be taken into account on a Form 1, and therefore there was only one substantive charge to which he had pleaded guilty, and the other original charge was to be placed on a Form 1.

2. The second set of charges relate to an event which happened very shortly after midnight on 3 August 2019. There were 12 charges initially, known as sequences 1 to 12. Those charges were the subject of the Applicant’s being committed for trial in this Court. The sequence number for the charges committed to this Court, are 1, 3, 4 and 11. There were back-up or related charges on a s 166 certificate for sequences numbered 5, 7, 8, 9, 10 and 12.

3. Eventually, the Applicant pleaded guilty to a number of charges in open Court before Yehia SC DCJ on 26 February 2021. As I have already indicated, the Applicant seeks leave to withdraw each of those pleas of guilty, such that both sets of proceedings will proceed to trial.

The application

4. The matter that leads to the present applications was raised by the Applicant in an email received by his former solicitors on 27 May 2021 at 4.03am. The Applicant had been sent a draft copy of a statement of agreed facts in respect of the 2018 matters by his former solicitors. He returned that with a commentary on it that raised a question about how the police came into possession of certain drugs that were found in a car which had been used by the Applicant. Paragraph 2 of the draft statement of agreed facts commences thus:

"The offender's car was searched and the following items were seized and forensically examined:

a. Black bum bag containing two resealable bags of 5.28 grams and 0.66 grams (a total of 5.94 grams) of crystal methylamphetamine [count 2 - Form 1] and a mobile phone;"

5. Under that the Applicant recorded this:

"These were not found when they initially searched the car. These were found from what I am told at roughly 4pm in the afternoon when they asked my wife for the car keys as she had parked in the loading zone and they were moving the car for her. Despite her protesting and saying that she needed to go and that she didn't want to stay there anymore. The car had been in the possession of the NSW police and then met wife before searching it again without notification or authorisation. They also went into my wife's hand bag in the car and took out a phone without any notification also. The search was un warranted and unnecessary and they did not follow protocol from the first search which should be enough to have this search and all charges squashed. They did not record the first search. Where they are stating items were found is inconsistent from statement to statement. And also inconsistent with the truth because I know where I left my things and it is not where they are saying they found these things. My prints are not on anything."

6. A lot of what is there stated is controversial, but clearly the Applicant was raising with his former solicitors a question as to the searching carried out by the police and as to whether it was lawful. The principal of the plaintiff's former firm, Mr Elie Srour, the principal of the Criminal Law Group, had been acting for the Applicant up until 31 May 2021 when it was clear to him that he could no longer act for the Applicant.

7. Mr Srour has prepared an affidavit which, on the second page, states it was sworn on 22 March 2022, although the cover sheet says it was 24 March 2022. Nothing turns on that. There was also an affidavit from an employed solicitor of Mr Srour, Mr Hikmat Al Malliki, who assisted Mr Srour at various times when Mr Srour was acting for the Applicant. Mr Srour and his employee took various signed instructions from the Applicant and they are, in a number of respects, very detailed. For example, the advice given to accept a prosecution offer concerning the 2018 charges extends over three closely typed pages in a relatively small font. The instructions which he gave confirm that the Applicant can read English, and is able to understand the advice and give instructions.

8. The instructions in essence set out the advice which he was given in great detail. However, one issue that was not the subject of any advice was whether the searches conducted by the police following the event in 2018 were lawfully made.

9. If they were not properly made, it would be open to the Applicant to allege that the evidence was obtained unlawfully, that is, in contravention of the law of this State, and a Court would have to rule on that issue and then determine whether in the exercise of the Court’s discretion the Court would nevertheless permit the evidence to be adduced before the tribunal of fact, that is, before a jury if a jury be empanelled to try the cases brought against the Applicant.

Events of 4 August 2018

10. On 4 August 2018, at 6:22:02 am, the ambulance emergency line was called by a lady identifying herself as Amber. She appears to have been working at an establishment known as Men’s Paradise at 231 George Street, Liverpool. That establishment might be described as a brothel. Amber described that there was a man in the brothel who was thought to be semi-conscious or unconscious. Initially, Amber told the 000 operator that she thought that the man in question had consumed Gamma-hydroxybutyrate (“GHB”). A little later, she said this:

“He’s breathing, he’s ha, he’s passed out. He’s had drugs.”

11. She described the man in question as being perhaps in his late 30’s and that he was in the front reception room of the brothel. She told the operator that to reach the reception area, one had to come upstairs, if one entered from the front or one entered from the back.

12. She told the operator that she thought the man had been drinking “GBH”, by which I assume she meant Gamma-hydroxybutyrate otherwise abridged as “GHB”. I will refer to it as GHB so as not to be confused with another acronym known to the criminal law of “GBH”, that being Grievous Bodily Harm.

13. Most of the conversation was concerned with trying to persuade Amber and whoever may have been with her at the brothel to try to place the man in question in the recovery position, which Amber appeared to be reluctant to do because she thought there could be some reaction in which either she could be hurt or the man himself could be hurt.

14. She went on to describe the man as an “Islander”. At some stage, a male voice can be heard which indicated that the man in question had been in the reception area of the brothel for about 15 minutes, having “booked the girl” who clearly was not yet then available. There is really no dispute that the man identified by Amber is the Applicant. One of the statements before me is from Senior Constable Aaron Sheldrick who was an acting sergeant at the time. On 4 August 2018, he was rostered to commence work at 6 am as the mobile supervisor for the Liverpool City Police Area Command.

15. At approximately 6.45am on that day, as a result of the 000 emergency call, he attended the brothel at 231 George Street, Liverpool, during which he understood a person to have “overdosed in the lounge room area of the establishment”. When Acting Sergeant Sheldrick arrived, the Applicant was already being attended to by two ambulance officers. They were Ms Kathleen O’Hea and Ms Anne Neilsen, both qualified paramedics. Ms O’Hea’s statement is Exhibit P8. It contains this matter:

“7… I can’t remember how we got upstairs but when we were upstairs, I saw a female prostitute dressed in red sitting on the lounge. I saw a male, mid 30’s, tall, solid build, Islander appearance slumped on the lounge. He was wearing jeans and a black shirt. The female prostitute was pushing her hands against him and holding him up. This male appeared diaphoretic (sweaty) all over the body, he had minimal response to pain and his eyes were closed. He wasn’t saying anything, he didn’t smell of alcohol.

8. The female said something like ‘he’s been drinking this, and has become suddenly unresponsive’. She pointed towards a glass containing a yellow-y liquid, and there was a blue can next to it. These items were located on a coffee table in front of the lounge. She also said she thought he had taken [GHB]. She appeared very worried.

9. There was another two males, one an Asian man who I assumed owned or ran the brothel, and there was another patron who said that his brother was inside and he had just come out.

10. Anne and I approached him and tried to check his response by the trap squeeze and he was flexing to the pain. We proceeded to check his oxygen levels and then decided to oxygenate him straight away. At the same time, we were checking his pupils which were pinpoint which usually indicates an opiate overdose or some type of overdose. We administered 800mcg of Naloxone however there was no result, this reverses symptoms caused by Opioids and Analagesics particularly respiratory depression, sedation and hypotension. He wasn’t hypotensive or in respiratory depression but he was sedated.

11. We called another car to assist us and the other male patron who was standing by was becoming more and more aggressive. He was aggressive towards us but more so towards the female prostitute. So we called for police assistance.

12. The other crew were taking some time, they were coming from Macquarie Fields so we administered a second dose of 400mcg of Naloxone and we got a cannula into him and we checked his vital observations and checked his heart rate. His pupils were still pinpoint. By this stage, police and ambulance started to arrive. He was carried on a carry sheet downstairs and into our car, ambulance 1833.

13. Once we were in the car, we tried to use ECG dots and they didn’t stick. We tried to use the other crews too but didn’t stick either as he was too sweaty. We even tried to dry him off but he was so sweaty. His heart rate was still dropping. His heart rate went from 70 bpm to 40 bpm in about half an hour.

14. At 6.58 am, I drove to Liverpool hospital while Anne stayed with the patient, we went R1. We informed by radio the hospital that we were arriving with a critical patient and we would be arriving through resuscitation unit. We arrived at Liverpool Hospital at 7.00 am. We handed it straight over to the nurses.

15. In my opinion, I would say that the male was suffering from an overdose. Anne and I queried [GHB] as a possible drug that he took, we thought this because he was drinking the liquid, and the worker told us that he was drinking the liquid when he became unresponsive. He wasn’t really presenting completely like he had only [GHB], as he was so unresponsive.”

16. It is noteworthy that the ambulance reached Liverpool Hospital at 7 am. One of the police who attended at the brothel shortly after the emergency call was Senior Constable Natalie Grimson. She was working with Constable Sam Adwan. Senior Constable Grimson assisted the four ambulance officers taking the Applicant down the stairway and into the ambulance. She then entered the vehicle that she was sharing with Constable Adwan and they followed the ambulance to the Liverpool Hospital. According to Senior Constable Grimson’s statement, hospital staff advised her that the Applicant was in a “critical condition”. Her statement then continues thus:

“12. I seized [the Applicant’s] property including clothing, debit cards, reward cards, medicare card, car keys/various other keys, and a wallet containing in $215.00 in cash which was located in a plastic, pink hospital bag.

13. A short time later I returned to Liverpool Police Station with Constable ADWAN and created COPS event number E68751976.

14. Constable ADWAN booked the above property seized into EFIMS with my assistance under miscellaneous property; bar code numbers [redacted] and [redacted].”

17. One would think from what is contained in Senior Constable Grimson’s statement that the Applicant’s personal effects, which were in the pink, plastic hospital bag, were taken to the Liverpool Police Station, probably, relatively soon after the Applicant reached the hospital in the ambulance. One might think, therefore, that the personal effects of the Applicant were taken into police custody at roughly 7.30 am. Why they were taken into police custody is unknown.

18. According to his statement, Acting Sergeant Sheldrick was told by the evidence officers that the Applicant was in a critical condition and that he had a serious medical reaction to a drug. That caused Acting Sergeant Sheldrick to establish a crime scene at the brothel. The manager of the establishment signed a crime scene consent form. According to Acting Sergeant Sheldrick, it was at that stage that the ambulance officers took the Applicant from the brothel towards the ambulance, leading to his admission to the Liverpool Hospital.

19. I turn to Exhibit P9, the statement of Senior Constable Harry Fekos. He was on George Street, Liverpool, when he saw the Applicant being taken away by the ambulance officers. He went upstairs and Inspector Parkin, the duty officer at Liverpool Police, went upstairs also. It appears that the determination of the making of the crime scene was concurred with by Inspector Parkin.

20. Senior Constable Fekos was given the job of knocking on the doors in the brothel and advising patrons to get dressed and to come out into the foyer. Senior Constable Fekos’ statement continues thus:

“Once all the girls and gentlemen were taken out to the foyer and sat down Inspector PARKIN advised them of our intention and plan and answered any questions they had. We were tasked with searching the workers and the patrons for drugs as there was suspicions surrounding the circumstances of that the [Applicant] may have been given an illegal substance which reacted badly and led him in such a critical condition.”

21. Senior Constable Fekos’ statement continues to state that he obtained statements from two persons present there, a man and a woman, who were in the brothel clearly at the time that the Applicant collapsed. After the arrival of the crime scene officers, there was a de-briefing by Inspector Parkin. At about that time, Acting Sergeant Sheldrick returned with a key in his hand.

22. Returning to Acting Sergeant Sheldrick’s statement, this occurred:

“5… After a conversation with Inspector PARKIN I left the [brothel] and attended the Hospital. Upon arriving at the Hospital, I obtained the [Applicant’s] contact details including his wife’s mobile number. I called her and informed her of the situation.

6. During this conversation she outlined that her husband… should be in possession of a hire car, that being a white four-wheel drive. Due to the concerns for the welfare of the [Applicant] and current situation I obtained a set of Kia car keys. Under section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 Police formed reasonable grounds to search the vehicle as I suspected they may have illicit substances in it that directly caused the effects of the overdose to the [Applicant].

7. I returned to George Street establishment. I spoke to Senior Constable FEKOS and as a result we attended the rear lane way, George Lane, where we located a white Kia four-wheel drive, bearing NSW registration [redacted]. The keys that I had in my possession opened this vehicle. Upon searching the vehicle, I saw Senior Constable FEKOS retrieve a black bum bag from the footwell of the driver’s seat. Within this bum bag was resealable bags containing 6.53 grams of methylamphetamine “Ice”. I looked in the passenger side of the vehicle and in the door compartment I located a glass bottle containing a clear liquid, which I thought was water and did not seize at that point. Also located within the vehicle was numerous drug paraphernalia including a large amount of small resealable bags and scales. I saw Senior Constable FEKOS locate in the middle console 8.83 grams of Cannabis in a plastic bag.

8. Under the radio was a small console and located in that area was a small container which contained 134 grams of Gamma Butyrolactone ‘GBL.’ These items were seized and Senior Constable FEKOS took possession of these items and were returned to Liverpool Police Station. The vehicle was processed by the crime scene officers who were in attendance for the original crime scene. The vehicle was then secured and I took possession of the keys. By this time the [Applicant’s] wife attended Liverpool Hospital. I attended and had a conversation with her. By this stage, the [Applicant] was awake.”

23. The statement goes on to record a conversation between Acting Sergeant Sheldrick and the Applicant in which the Applicant told the police officer that he had “[j]ust a bit of G”. And according to the statement before asking that question, Acting Sergeant Sheldrick had formally cautioned the Applicant.

24. In order to eliminate any confusion, in the criminal law Gamma Butyrolactone or “GBL” is a different drug to GHB. Count 1 of the indictment against the Applicant charges an offence involving the supply of 1756.20 grams of GBL. Evidently, the initial incorrect reference to GHB originates with “Amber”.

25. The actions deposed to by Acting Sergeant Sheldrick should also be seen in light of the contents of the statement of Senior Constable Fekos. He deposes to the search outlined by Acting Sergeant Sheldrick. His statement then continues:

“13. I later returned to Liverpool Police Station with the items. I also had in my possession the [Applicant’s] bum bag and personal items and mobile phone. The mobile phone was locked and had a message on the front ‘If located please call 04********’ I don’t remember the number but it appeared that there was no reception and could not be unlocked. I called the number but there was no answer.

14. I saw Acting Sergeant SHELDRICK in the Supervisor’s office and we had a short conversation. We decided to return the personal belongings back to the [Applicant’s] wife. I followed him to the interview room and we had a short conversation. I handed her the bag and went through the bag to show her the content. I held the mobile phone and enquired about the message on the screen which she told me that she was responsible for locking the phone and that the number was her own. The [Applicant’s] wife…told me that she has an application that allows her to lock her partners mobile phone in event that it is lost or stolen and also proceeded to show me that he could unlock it as well.”

26. The statement goes on to say what Senior Constable Fekos could see when the phone was opened. He also deposed to the Applicant’s wife providing him with the passwords or passcode for the mobile phone. From what he saw, he suspected that the phone was being used for drug trafficking and he then informed the Applicant’s wife that he was going to seize the mobile phone and consult detectives regarding its contents and about certain other matters.

27. The statement of Senior Constable Fekos then deposes to his being informed by Acting Sergeant Sheldrick that the Applicant’s wife had driven the vehicle back to the police station and parked it across the road on George Street, Liverpool. Senior Constable Fekos then asked the Applicant’s wife for the keys to the car.

28. She asked him why and he informed her that he intended to search the vehicle as he believed that there were more drugs in the vehicle. According to Senior Constable Fekos the Applicant’s wife handed to him the car keys and he then went to where the car was, unlocked it, and found the bottle that had earlier been identified by Acting Sergeant Sheldrick as a bottle of water, and Senior Constable Fekos then formed the view that it could contain GHB or GBL. The bottle was seized.

Consideration of the legality of the vehicle search

29. It appears to me to be rather odd that the reason given by Acting Sergeant Sheldrick to search the white Kia four-wheel drive was “concerns for the welfare for the [Applicant]” as he deposes in par [6] of his statement. The Applicant was in the best possible care at the time in Liverpool Hospital, being treated for what was suspected to be an overdose. One can assume it was an overdose but there is no actual medical evidence to confirm that. The records of the Liverpool Hospital have not been obtained on subpoena, I suspect by either the Applicant, his former lawyers, his current lawyers or the ODPP.

30. It is clear that the keys to the Kia were likely to have been obtained from the keys seized by Constable Natalie Grimson and taken back to the Liverpool Police Station. It appears that it is likely that Acting Sergeant Sheldrick took the car keys from the Applicant’s personal effects that were at the police station and used those keys to gain access to the white Kia in George Lane and conducted the first search of that vehicle. How searching that vehicle could have improved the welfare of the Applicant is an interesting, arguable point.

31. It is clear that the neither the Applicant nor his wife consented to that search and it appears to me that it is at least arguable that the keys to the Kia were taken by the police without any lawful excuse. In the circumstances, the finding of the drugs in the white Kia hire car that had been bailed by an insurance company to the Applicant’s wife may have been done illegally. Clearly, there are a number of points that need to be investigated, pursued or challenged.

Withdrawal of the guilty pleas

32. The problem is that no such investigation or challenge is possible unless the Applicant’s guilty pleas in respect to the 2018 matter are set aside. I am wholly cognisant that the pleas of guilty entered in open Court can only be set aside after considerable circumspection by the Court.

33. The Court is entitled to act on a plea of guilty when it is entered in open Court by a person who is of full age, and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea and no further proof of guilt is required. Meissner v R (1995) 184 CLR 132; [1995] HCA 41, where it was pointed out that the Court has the discretion to reject the plea in cases which are so serious as to require a conviction by a jury before punishment should be inflicted. However, the Court has a discretion to allow an Applicant to withdraw a plea of guilty. One of the leading cases on that is R v Lars (aka Larsson) (1994) 73 A Crim R 91. In R v Thalari (2009) 75 NSWLR 307 at [32]-[33] the following was said by Johnson J, with whom Young JA and Latham J agreed:

“32. This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v The Queen [2009] NSWCCA 22 at [33] and following.

33. The onus lies upon the appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536 [16]–[23]. The appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 55 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48].”

34. On the evidence before me, I am persuaded that the Applicant has not been provided with any advice as to the admissibility of the evidence that is sought to be adduced against him as far as the 2018 proceedings are concerned. The matter clearly had not been explored in the advice, clearly not been explored by his earlier lawyers, and there are grounds for suspicion that, at least, the first search of the vehicle was unlawful. Minds, of course, may differ as to whether, if the evidence was illegally obtained, it should nevertheless be admitted.

35. However, that is a matter for a judge tasked with presiding at the trial to rule upon, before the evidence is sought to be adduced before a jury. I am only concerned about whether the Applicant should be granted the leave which he seeks to withdraw his pleas of guilty.

36. In my view, there are matters that are properly to be considered and in the circumstances, the Applicant has not been given full advice as to the admissibility of the evidence against him and there are grounds for believing that a challenge to that evidence might succeed.

The 2019 proceedings

37. I turn then to the evidence concerning the 2019 proceedings and offences. In relation to this matter, I have statements from Constable Dylan Goodwin dated 8 August 2019, Constable Dylan Curtis dated 18 August 2019, and Sergeant Robert Hogan dated 24 August 2019. All those officers were attached to the St George Local Area Command. Leaving aside the usual opening statement, the statement of Sergeant Hogan commences thus:

“2. On Friday the 2^nd of August 2019, I was rostered to work from 2pm till 2am as part of Operation MAMMOTH. Operation MAMMOTH is a high visibility policing operation run out of St George Police Area Command. During this operation I was in charge of the Operational Support Group (OSG) section. This section is made up of Constable Brent HAYLINGS, Constable CURTIS, Constable ARNOLD and Constable GOODWIN. Our team was given two vehicles to utilise during this shift, one unmarked and one fully marked.

3. Around 12am [midnight] on Saturday the 3^rd of August 2019, I was in the fully marked Police sedan with Constable Haylings and Constable Curtis. Constable Goodwin and Constable Arnold were using the unmarked Police vehicle.”

All of the officers, both in the unmarked police vehicle and the marked police vehicle, were in full uniform.

38. Constable Goodwin’s statement contains this matter:

“4. About 12.00am [midnight] on Saturday the 3^rd of August 2019 I was driving [an] unmarked vehicle through Kingsgrove alongside Constable ARNOLD looking for a silver vehicle that had just been involved in a pursuit, last sighted heading towards Kingsgrove from Beverly Hills. I observed a [silver] car in the carpark that runs parallel to Shaw Street, Kingsgrove. Upon closer examination of the vehicle, it was not the vehicle that had been involved in the pursuit.

5. Whilst checking on the vehicle I observed a male I describe as a Pacific Islander appearance, unshaven, approximately 180cm tall, medium build with black hair with a braided rat tail and a tribal sleeve tattoo on his right arm wearing a black shirt with a round red and white logo on the front, entering a white Toyota Corolla with a 'No Birds' logo on each side and NSW registration [redacted]. The vehicle was parked next to the silver vehicle across the road from 93 Shaw Street, Kingsgrove.

6. The male drove out of the area he was parked, turning right onto Shaw Street, Kingsgrove. I saw the male fail to indicate whilst making the turn. As a result I initiated my warning lights and stopped the vehicle. Constable Arnold and I approached the driver. I observed a female in the passenger seat and a small child asleep in the rear of the vehicle. Constable Arnold had a short conversation with the driver who did not have his driver’s licence with him. As a result the male provided his details verbally [sic, scil. orally] to me. The male provided the details of Rawhara WINIKEREI born on the 3^rd of May 1980. I conducted checks on WINIKEREI using a police MobiPol. These checks revealed that WINIKEREI had a suspended NSW drivers licence with the photo of the licence matching his description. I checked through the WINIKEREI’s recent interactions in attempts to see whether he had been notified of his suspension. Checks through his charges revealed that WINIKEREI was currently on Bail for supplying prohibited drugs.

I Said - 'What are you doing in the area tonight?'

He Said - “'I’ve gone out for my son’s birthday. We are staying in a hotel nearby.'

I Said - 'What’s the name of the hotel?'

He Said - 'I don’t know, it’s on a key somewhere.'

I Said - 'Where is the hotel located?'

He Said - 'Woolloomooloo.'

I Said - 'So why have you come to Kingsgrove if you are staying in the city?'

He Said - 'We went there.'

WINIKEREI pointed towards Kingsgrove Hotel.

I Said - 'Why is it that you’re driving a hire car at the moment?'

He Said - 'My car is smashed.'"

39. In the following paragraph, the Constable refers to his obtaining the details of the Applicant’s wife and his seven-year-old son, who was fast asleep on the backseat of the car. According to Constable Goodwin, that was inconsistent with the Applicant’s just having stated that he left the hotel. However, children are notorious for falling asleep in the most inconvenient of places late at night, and it could have been that the child fell asleep whilst in the hotel and was carried to the car by his father, or, indeed, by his mother.

40. The next paragraph of the Constable’s statement refers to the arrival of the three other police officers in the marked police car. The Constable then records this conversation with the Applicant:

“I Said - 'Look, due to the time, you being stopped out the front of a known location for drug use and supply, your recent history and you driving a hire car, I don’t believe the story you have provided is true and I believe you may be in possession of prohibited drugs. My name is Constable GOODWIN from St. George Police, I intend to search you and your vehicle for prohibited drugs. Do you understand?’

He Said - 'Yeah'

I Said - 'Is it okay with you if I search through the car?'

He Said - 'Yeah, go for it.'"

41. A search of the car was then conducted, in which the police found cash, drug paraphernalia, and containers which they thought contained drugs, which are the subject of the 2019 charges. The only offence which the offender committed that was known to the police was turning from a car park onto a road without giving any indication that he was making a turn. Doing the best I can, that appears to be a breach of the Road Rules2014 rule 48(3), which attracts a fine. Although he had been in a car park, it would appear he turned right onto the carriageway. He went from a road-related area on to a road.

42. The police, as they are entitled to when they stop a motorist for a traffic matter, are entitled to demand the production of his driver’s licence. The Applicant could not do so. The police, in my view, were entitled to search records to ascertain whether he was licensed or not. They found that he did have a driver’s licence but at the time, but that it had been suspended.

43. They could have asked the Applicant whether he knew that his licence was suspended, and if he said that he did not know that his licence was suspended they could have then searched the records to ascertain whether the police had recorded, in their records, that he had been advised by them that his licence was suspended, or checked the records kept by the RMS as to when they informed him that his licence was suspended. He could then have been charged, if he knew that he was driving whilst suspended, with driving a vehicle while his licence was suspended, an unfortunately relatively common occurrence. That did not occur.

44. It would appear that Constable Goodwin made a decision to consult with Sergeant Hogan, Constable Curtis, and Constable Haylings. Whether it was necessary to search further the records that were available to the police is unclear.

45. However, the fact that a person has a criminal history does not per se raise a reasonable suspicion that they have reoffended or, for example, might be carrying illicit drugs. The fact that a man was on bail for supplying prohibited drugs means that he had been charged with supplying prohibited drugs, had not pleaded guilty to such a charge, and was awaiting trial. That was exactly the case at the time. The police must be aware of the presumption of innocence.

46. The mere fact that there was a record that he was on bail for supplying prohibited drugs was not equivalent to a record of any conviction for supplying prohibited drugs. Mr Santisi, who appears for the Applicant, has referred me to the decision of McClintock DCJ of R v Buddee [2016] NSWDC 422 where his Honour distinguished between the powers of the police arising from the traffic legislation, and the powers of the police arising under the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”), where he distinguished the ability of the police to administer a random breath test which was different to the power that they had under LEPRA and that the engagement of a statutory power to administer a random breath test did not permit the police to act “proactively” and use their powers under LEPRA.

47. He has also referred me to an unreported decision of Charteris DCJ of 12 August 2011 where his Honour pointed out that a bad criminal record was not grounds for a reasonable suspicion to stop and search somebody. Indeed, if a bad criminal record was such a reason to stop and search somebody, any person with a criminal history could be stopped and searched at any time by any member of the constabulary.

48. Again, it is abundantly clear from the very detailed instructions taken by the Applicant’s former solicitors that they gave him very sound advice on a large number of matters arising not only from the 2018 charges but also from the 2019 charges. However, no attention was ever paid to the issue of whether the search of his vehicle was one that the police were entitled to carry out when they had merely pulled him over because of a relatively trivial traffic offence.

49. Furthermore, although it is clear that the Applicant did give his consent to the vehicle being searched, and there is in evidence a document that he prepared and gave to his former solicitors which admits that he did make that admission, it is clear from the statement of Constable Goodwin that he, point blank, told the Applicant that he intended to search both him and the vehicle for prohibited drugs. One might think that he gave his consent because he thought it was futile to object.

50. There are a number of things that also need to be pointed out. Constable Goodwin told the Applicant, according to his statement, that he had been “stopped”, meaning probably parked out the front of a “known location for drug use and supply”. That appears to be a reference to “93 Shaw Street, Kingsgrove.” I do not know what is at 93 Shaw Street, Kingsgrove. I have a cousin who lives in Shaw Street, Bexley North, and I know that Shaw Street runs between Bexley North and Kingsgrove. The only other place I know in Shaw Street, Kingsgrove, is the Catholic Church and its accompanying school where I attended my late uncle and aunt’s funerals. However, no doubt, that is a question that could be asked of Constable Goodwin and perhaps other police who might be called upon to give evidence as to the circumstances that led him to be near that place.

51. Now, whether it was necessary to check the records as thoroughly as the police did is also a moot question. Mr Santisi tells me, from his extensive experience, that they are on different programs of different systems. That I do not know, but in some cases it is necessary for judges to take averments of experienced counsel without any demur.

Consideration

52. I can see arguments available to the Applicant as to the circumstances in which his car was searched, leading to the charges that he now faces in respect of the event of 3 August 2019.

53. In the circumstances, and bearing in mind the circumspection which I must exercise, I nevertheless believe that I ought grant the Applicant leave to withdraw the pleas of guilty entered to the 2019 charges on 26 February 2021.

Other evidence considered

54. I have read the affidavit of Mr Elie Srour of 22 March 2022 and that of Mr Hikmat Al Malliki of 22 March 2022, as well as the affidavit sworn by the Applicant on 20 January 2022. I have no hesitation in accepting whatever the truth and veracity of the affidavits sworn by the two solicitors. They reject a number of averments made by the Applicant, and I accept them in that regard.

55. However, it is clear that no advice was given to the Applicant as to the circumstances of the obtaining of the evidence against the plaintiff in both 2018 and 2019, and there are grounds to believe that the Applicant may be able to successfully argue that the evidence was illegally obtained.

56. In Mr Santisi’s submissions in reply to the Crown’s submissions (MFI3), in answer to his original submissions, there are a number of propositions made to which I should have averted. Paragraph [5] is that Mr Winikerei likely has no memory of the number of interactions with his former lawyers and counsel, consistent with his historical drug abuse and memory impairment.

57. I should point out that there is no evidence of any memory impairment before the Court. Merely because a person has been a drug user in the past does not mean that the person still has an impairment of memory. I will point out that there are very senior public servants in the New South Wales public service who have histories of drug abuse, yet are high-powered, well paid, well performing senior executives with the public service.

58. In par [6], the first four numbered subparagraphs are marked between (a) and (d). They state that the Applicant received no advice from his former lawyers as to what the implication of a guilty plea might be on his immigration status and his ability to remain in Australia with his wife and children. It is clear that the Applicant himself did not tell his former lawyers that he was only in Australia on a visa, and that his conviction for a criminal offence might result in his visa being revoked, and his being returned to his native New Zealand, separating him from his wife and children.

59. Just because a person is of islander appearance does not mean that he is not an Australian citizen. There are many people of Tongan, Fijian, Samoan, and New Zealand heritage who are born in Australia, and although they show marks of their heritage in their bodily habitus, are Australian citizens who cannot be deported. It is clear that the law of New South Wales does not permit one to take into account on sentence the impact of the possibility of deportation if the person is not a citizen in Australia, on some form of visa, or has even been granted permanent residency status.

54. Mr Santisi referred to the knowledge that lawyers have of that issue, but the knowledge is not widespread in the general community and among those who are born overseas. It should be of crucial significance to them. In my view, the fact that he may not have been given any advice as to the impact of conviction on his immigration status is irrelevant to the issues that I have been called upon to decide. The only relevance is that one can understand that the Applicant would not wish to forgo any reasonable opportunity of keeping the evidence out upon which a conviction could be based, and therefore, if he can successfully object to the evidence being adduced against him, he may be acquitted. In those circumstances, his immigration status will not be affected. It goes only to the significance of the issue for him, not to whether the relief sought ought be granted.

55. However, as I said, there is clearly a lack of advice given to him, and a lack of investigation as to the admissibility of the evidence against him, and he should have that opportunity, so that his conviction, if it results, will result after he had the full benefit of the presumption of innocence of the crimes alleged against him. For those reasons, I grant the relief sought in each of the notices of motion filed on 21 January 2022.

Amendments

16 September 2022 - Amended quotation format.

Decision last updated: 16 September 2022