District Court New South Wales Medium Neutral Citation: R v Kovac [2021] NSWDC 85 Hearing dates: 18 March 2021 Date of orders: 23 March 2021 Decision date: 23 March 2021 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [72]: Evidence excluded Catchwords: CRIME — Firearms offences — Unauthorised use/possession of firearm - Procedural determination of admissibility of evidence relating to material obtained in contravention to an Australian Law. Legislation Cited: Firearms Act 1996 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) Criminal Procedure Act 1986 (NSW) Road Transport Act Cases Cited: R v Buddee [2016] NSWDC 422 R v Large [2019] 627 Cleland v The Queen (1982) 151 CLR 1 R v Phung & Huynh [2001] NSWSC 115 Azar v DPP [2014] NSWSC 132 Texts Cited: Nil Category: Procedural rulings Parties: Regina (Crown) Kovacs (Accused) Representation: Heffernan Solicitor for the DPP Boys Solicitor for the accused. File Number(s): 2018/00394753 Publication restriction: Unrestricted Judgment 1. The accused is charged by way of an indictment with one count of possessing more than three firearms namely seven firearms that were not registered and which were prohibited in breach of section 51D(2) Firearms Act 1996. 2. The applicant (the accused) seeks an order that the evidence of the prohibited firearms being the prohibited firearms themselves be excluded from the evidence in the trial. The basis of the application is said to be that the search carried out by the police uncovering the firearms was illegal. 3. I note this application was first heard before McLennan SC DCJ. His Honour found that the applicant had established an illegality or contravention of an Australian law for the purposes of section 138 of the Evidence Act ("EA"). In short his Honour found that a caution should have been given to the accused to the effect that he did not need to say or do anything prior to the police making the general inquiry as to whether the accused (and those with him) had any drugs or weapons and carrying out a search of the vehicle they were travelling in and which had been stopped purportedly for the purpose of a random breath test. His Honour went on to note that even when the general inquiry was answered, by admissions being made by the accused to having "gel blasters", a caution was not given. The basis found by his Honour that this warning was required was because in his Honour's view by this stage the accused was detained under s21 of the Law Enforcement (Powers & Responsibilities) Act 2002, ("LEPRA"), and was therefore under arrest, and s139 EA required the caution, and further that the necessary suspicion to trigger s21 existed at either the first or second of the points in time just referred to. His Honour then considered matters relevant to the exercise of his discretion under section 138 and determined that the evidence should be admitted. 4. After that decision was made and as the matter was proceeding to or had reached trial, for reasons not disclosed in this hearing, his Honour recused himself. 5. Following that the matter came before Judge North who made an order pursuant to section 130A of the Criminal Procedure Act that the earlier decision Judge McLennan SC is not binding and should be redetermined. This hearing is that redetermination. 6. I note at the first hearing there was oral evidence. The parties have provided me with an agreed redacted transcript of that hearing. The parties have not provided me with the reasons of Judge McLennan SC beyond 2 pages from which I extracted the reasons summarised above. In those circumstances it seems to me that the way I should approach the determination of this application is as if it is a mixture of a hearing de novo and a rehearing. That is, it is a hearing de novo in the sense that I will need to make a determination afresh based on the material before me and without needing to find any error on the part of the Judge McLennan SC, nor with reference to his judgement beyond the two pages I have been provided. On the other hand it is a rehearing in that I need to be guided by the Judge McLennan SC's views of the witnesses as they gave evidence. In that regard, with one proviso, there does not seem to be any dispute as to the actual facts in this matter. That proviso is that whilst there is no real dispute as to what was said and done by the police and others at the scene of these events, the parties differ markedly as to how that conduct is to be characterised. On the one hand, the applicant says the police were conducting a conversation in which questions of an investigative nature were asked, and are therefore impermissible unless properly authorised and the requirements of that authorisation are complied with. On the other hand, the Crown argues that the police were simply engaging in general conversation from which sprang certain information that police were able to act on, including the association of the accused with a Mr Daniel Glover, and possibly to a lesser extent, a Mr Tim Glover. 7. It follows that my approach to this hearing is to determine the matter on the papers free of any consideration of the earlier reasoning and with nothing turning on the presentation of the witnesses in the witness box. I do however consider it is open for there to be a fresh determination or characterisation of the police conduct based on those agreed facts. The facts 1. At approximately 1:39 AM on 23 December 2018 the accused was a backseat passenger in a black coloured Mitsubishi Lancer travelling along Leisure Drive in Banora Point New South Wales. At that time Senior Constable Derek Fraser and Leading Senior Constable Brown were performing highway patrol duties. In a statement dated 20 March 2019 of SC Fraser he states that at that time they stopped the black coloured Mitsubishi Lancer. The statement of SC Fraser does not state any reason for stopping the vehicle. It makes no observations of the manner of driving or anything about the vehicle itself that caused the vehicle to be stopped by police. Nor is it suggested that there was anything about the vehicle or its driving that caused the police to stop the vehicle. As LSC Brown makes plain in his statement, the stop was made to carry out a random breath test. 2. Once the vehicle was stopped SC Fraser says he approached the near side of the vehicle and saw there were four occupants. The accused was in the near side rear of the vehicle. SC Fraser had a torch. He was clearly shining the torch into the vehicle to see what was in the vehicle. SC Fraser maintained this was for safety. It was squarely put to SC Fraser that he was in fact doing a search; see T19.16, which he denied. After what might be termed general conversation (though perhaps arguably not so) in the nature of asking the front seat passenger where they were "off to" and what they had been doing, SC Fraser said "Its a long way to come this time of night to pick up a couple of people". SC Fraser then informed the occupants he had activated his video and asked the front seat passenger "Have you been in trouble with the cops before" and then asked the front seat passenger if he had some ID "so I know who you are". Then directed towards the back seat passengers, as is obvious from watching the video, SC Fraser asked "do you have some ID on you in the back there to (sic) do you boys so I know who you are. Are you guys from Tweed or are you from Coffs?". The accused said "We're from Coffs". The statement then records that the off side rear passenger handed his identification to SC Fraser. There is then further questions from SC Fraser as follows, which were answered most likely on my reading of the statement by the off side rear passenger, that is, not the accused: Q: Thanks mate, what have you been up here for A: We come up here yesterday with a mate Q: Oh yeah what was your mates name? A: Daniel Q: Daniel who? A: Glover 1. The accused then said he did not have any ID and SC Fraser said "No, you don't have a wallet, you'd have a wallet wouldn't you" and the accused said that he did not. SC Fraser then said "What's your name mate" and the accused patiently told him numerous times and spelt it for him. SC Fraser then asked the accused his date of birth, and the accused told him. SC Fraser then said to the occupants of the car "OK, sweet sit tight". 2. The accused and the others in the vehicle at all times answered the questions in a polite way. I formed the view that they were answering the questions because they were being asked by an authority figure, in circumstances of having just been randomly stopped by police and the driver of the car being breath tested. 3. Having ascertained that the identity of the passengers SC Fraser carried out checks via his mobile data system and returned to the vehicle to say: "Guys just so you know everything is being recorded here by audio and video, here and in the car okay. Alright so is there anything in the car that you shouldn't have any drugs or weapons or anything like that. You've all got form for that sort of shit" 1. I note that SC Fraser had also stated he was recording before asking for identification. 2. It is obvious that the knowledge of the "form" emerges from the mobile data checks carried out which were able to be carried out by reason of the request by the police officer for the passengers to identify themselves. 3. In the conversations and search that follows the items the subject of the charge on the indictment are located and identified. 4. It is conceded that at the time of the words spoken set out at [12] above no caution was given to the accused (or anybody) that he / they did not have to say or do anything, nor that anything he / they did say or do could be used in evidence. 5. It was after the words set out at [12] above were spoken that the accused made admissions that he had "Gel blasters". In the police facts sheet at tab 3 of the Crown bundle (exhibit A) these weapons are described as "dispelling gel projectiles with the assistance of batteries". They are described as non lethal, and that they shoot hydrated water gel balls; see T14. They could be said to look somewhat like real weapons, though I note photo 2 at tab 8 of exhibit A looks very much like a water pistol, they are illegal in NSW, and are sold as toys in Queensland. 6. The accused seeks the exclusion from evidence of the items located on the search. The accused says that the request for the identity of the passengers was not authorised. That submission is supported by section 14 of LEPRA which by its terms empowers a police officer to require any passenger in a vehicle to disclose his or her identity in circumstances where that police officer suspects on reasonable grounds that a vehicle is being was or may have been used in or in connection with an indictable offence. As noted above it is common ground that at the time of the asking of these questions there was no reasonable ground for suspicion, and there is nothing in the statement of SC Fraser to base such a suspicion. 7. SC Fraser adopted this statement in his evidence in chief and then added further evidence in chief. In that evidence he states the purpose of the stop was to subject the driver to a mobile random breath test. When asked what it was about the other vehicle meaning the Mitsubishi that caused him to decide to pull it up for a random breath test he said "for that time of the evening that's what we are actively doing. And it was the first car that we saw that came towards us and we had decided that would stop that for a breath test". This clearly establishes that there was nothing suspicious about the vehicle or its manner of driving. 8. Then SC Fraser was asked whether he administered a roadside breath test and said he did. The statement of LSC Brown says it was LSC Brown who administered that test. It may be that the plural of "you" was being used. The officer was then asked what power is there for him to require someone to give him a license and he answered that he believed it was section 175 of the Road Transport Act. That section relevantly to these facts authorises a police officer to require the driver to produce their drivers licence and state their name. It does not authorise that conduct with passengers. 9. Next there was some evidence as to why the name Daniel Glover caused interest which I have set out above. In fact there were two matters involving Daniel Glover one was speeding on the highway near Byron Bay at Sleepy Hollow and the other was when he was stopped again that same day in Tweed heads where he tested positive to an oral fluid test. SC Fraser could not recall if Daniel Glover had a criminal history but was aware that his brother Timothy Glover had been released from prison after serving a term for sexual assault and was uncertain whether either had a history in respect of drugs. LSC Brown's evidence was that Timothy Glover was arrested for possession of "Gel Blasters" the day before these events. Also after inputting the name of the accused into the data system they received intelligence that the accused and his mother were dealing drugs from their residence. There was also earlier drug intelligence reports from the mid 2000s i.e. 2005 "up until the recent ones". The accused also had a criminal history including a charge in relation to firearms offences. 10. Senior Constable Fraser was cross-examined. Emerging from that cross examination was the following: 22.1. There was nothing to alert the offices of any "problem" at the time they first pulled over the car. The accused sought to make something of the fact that one officer went to the driver's window and the other went to the passenger window. It is obvious that the passenger-side officer being SC Fraser was interested to see whatever he could in the vehicle. I accept that he may have had concerns for his safety but from my viewing of the video it appears to be more than that. 22.2. Crucial to the apparent justification by the police of their behaviour of requesting identification and asking the questions set out above, at T20 SC Fraser was asked whether he was aware that under the random breath test provisions he was only allowed to ask for ID if he had a reasonable belief that an indictable offence had been committed. The officer agreed with this. The proposition however is incorrect as is made clear by section 175 Road Transport Act which relates to the driver of the vehicle. If the question is taken as being a reference to section 14 of LEPRA it is also incorrect as that section requires a suspicion, not a belief, based on reasonable grounds. Putting that aside, the dividing line in the argument in this matter does become clearer as the officer was then asked what was his reasonable belief and said "I wasn't utilising a power, like I said, it was conversation to find out who I was dealing with". The reference to "like I said" I take to be a reference to the previous page of the transcript where SC Fraser described the conversation as "general talk, general talk" and agreed that it was "just general chit chat was it?" to a question rather sarcastically putting that proposition. 22.3. At T22 SC Fraser explained why he thought the accused was up to no good and said the basis was (1) having stopped Timothy Glover for a speeding offence and then detecting the offences which I take to be, based on LSC Brown's second statement, (2) Timothy Glover's possession of Gel Blasters and traffic offences. Then there was (3) stopping Daniel Glover nine minutes later for a speeding offence and the (4) further stopping that evening of Daniel Glover who returned a positive oral fluid to cannabis. 22.4. SC Fraser said this conclusion of the car occupants being "up to no good" was reached after he was aware of the identity of the accused; see T22.37. As the facts set out above show, the reference to Daniel Glover arises before the accused states his name. I would infer that SC Fraser immediately made a connection to the name Glover given the transcript at p40 of tab 6 of exhibit A. It is after the check is done on the accused's name, revealing his criminal history and the intelligence report that I conclude the officer had the reasonable grounds he relies on for the search. The accused's criminal history included firearms and drug offences in 2012 and 2014. The intelligence report suggested involvement in drugs by his mother and himself. 1. LSC Brown made a statement dated 27 April 2020. In that statement he does not state the reason for stopping the vehicle however he approaches the driver's window and says to the driver that he will give her a quick breath test. That would seem to be the purpose for the stop. There is reference in the statements of both officers that was to the effect of "it's a long way to come at this time of night" was spoken suggesting a possibility that the time of night may have aroused suspicion. 2. Beyond that however there is nothing in the statement of LSC Brown that founds a basis for any suspicion on reasonable grounds that the vehicle then was or previously had been used in or in connection with an indictable offence. Nor, given the evidence at [8] above, was it being argued for the Crown that there was any reasonable grounds for suspicion at this time. 3. At paragraph 9 of the statement of LSC Brown he says SC Fraser stated they intend searching the vehicle for prohibited weapons or prohibited drugs and said: So obviously with you guys having form for that sort of shit, this time of night, where you are, you're from Coffs Harbour. We suspect that the….So failure to comply may be an offence. Okay. Before we go ahead is there anything anyone wants to tell us of anything besides what you have already told me that we might find" 1. This occurs after asking for names and identification, and is before any caution as to not being required to say or do anything. Based on this the reasonable suspicion at this point in time justifying the search is based on: 26.1. "You guys having form for that sort of shit" (in cross examination it transpired this did not apply to all four of the occupants of the car); 26.2. The time of night these events occurred; 26.3. Where at least some of the occupants are from. 1. This conduct and these words would seem to be suggesting that the search is being carried out pursuant to section 36 of LEPRA. The reference to failing to comply possibly being an offence further suggests awareness of the requirements of s203. 2. SC Brown made a supplementary statement on 18 May 2020. He states that the previous evening on 22 December 2018 at 2:45 AM he and senior constable Fraser had dealings with Daniel and Timothy Glover, separately. The first dealing was with Timothy Glover in respect of a motor vehicle exceeding the speed limit and not displaying P plates and otherwise not complying with the conditions of his license. Timothy Glover was then arrested for possession of gel blasters. He had recently been released from prison and lived with his brother Daniel. 3. At 7:55 PM that night Daniel Glover was travelling in a vehicle which was stopped and he was tested and returned a positive result for cannabis. 4. It would appear that the police rely on a fourth point for reasonable suspicion namely that an associate of the accused had the night before returned a positive result for cannabis when tested. 5. In further evidence in chief at T29 LSC Brown confirms that as a result of "this information" he suspected they may have something in the vehicle they shouldn't have. It is unclear just what "this information" is but it is very clear it includes the information obtained after doing "certain checks". Those "certain checks" could only have been made with the identification of the accused. 6. The one person the police had a power to require identification of was the female driver who they did a check on and learned "not a great deal for her". The information gained I therefore infer arose from checks done on the accused and or the other two male passengers. It was said one of the males had a previous within six months for something in connection with drugs and as to the other LSC Brown could not recall whether he had been charged with offences or not. As to the accused there was the intelligence report referred to above. LSC Brown did not refer to the accused's criminal history (see T30) but he did refer to SC Fraser stating he came with Mr Glover from Coffs Harbour. Finally in chief LSC Brown agreed that it was inaccurate to say in respect of the males in the car "they all had form for that sort of shit". 7. LSC Brown was cross-examined. At T 31 he was asked "what had they done to raise suspicions Sgt?" and he replied "well there's four people travelling in the early hours of the morning through a residential area and the driver when she did produce her drivers license had a Port Macquarie address on her driver's license". 8. This question and answer followed the question and answer "so at the time before he said the word "Daniel Glover" there was really no reason for you to suspect anything was there?" and the officer said "well no it's incorrect" and then gave the answer just stated. It is of note that the police officer even at a time when he has the intelligence information and the criminal history relies on the matters just stated as being suspicious. It may be nothing turns on it but limited to those matters they would not in my view give a ground on a reasonable basis for suspicion. 9. At T34 LSC Brown says the decision to search the vehicle was made after learning the accused had travelled to the Tweed area with Mr Glover. At T 35 the basis of the decision to search the vehicle was said to be that there were four people in a vehicle in a residential area not from that area and then the information of the accused travelling with Mr Glover to Tweed who was residing with his brother who had been arrested with some gel blasters. The witness then agreed with the suggestion by the judge that there was already some information concerning the accused and was then asked what his focus of the search was and he said possibly could have been drugs in that vehicle (T35). 10. At T36 he said that it ceased to be a random breath test stop and became a crime stop once he had the information that the accused came to Tweed heads with Daniel Glover. Has there been any contravention or impropriety? 1. In the submissions that followed the evidence on 21 May 2020 the position of the accused was that police have no power to ask questions of any kind in relation to any subject matter unless they have a reasonable suspicion they have committed an offence. So broadly stated that proposition must be wrong. To be fair to the accused his argument was a bit more refined than that or can easily be construed to be so. Plainly a police officer can make conversation with a person. They may ask how they are, and engage in what might be termed a casual conversation, or as SC Fraser described it, "general conversations" or "chit chat". 2. There seems to be some lack of clarity on the part of SC Fraser and LSC Brown as to just when they are exercising a power under some legislation and when they are having a general conversation. The law as to what is permissible questioning has been the subject of a number of fairly recent decisions of this court, which the parties referred to in their submissions. The first point to note about the issue of questioning is that a person has a right to silence. That right is well protected, and is why there are provisions of the type set out in Part 9 of LEPRA, and also the provisions of s139 EA. 3. In R v Buddee [2016] NSWDC 422 Judge McClintock SC decided an application seeking the exclusion of certain evidence under section 138 EA. The circumstances were of a purported random breath test. At [88] and following his Honour set out some general principles. This case was later cited by Judge Norrish QC in R v Large [2019] 627 in an approving way. The general principles set out by Judge McClintock were the following: 39.1. Liberty is only to be curtailed by specific provisions of law. 39.2. Private individuals may do everything which is not specifically forbidden in contrast to police officers where any action they take must be justified by law. The first part of that statement is plainly not a principle that is black and white but it demonstrates the point for present purposes by emphasising in contrast to the police position that police must act with proper authority. 39.3. His honour referred to Cleland v The Queen (1982) 151 CLR 1 where it was said "it is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed". And further "the right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes". This passage is as relevant for present considerations as well as to the discretionary consideration under section 138. 39.4. Police have the power to arrest on reasonable suspicion (and relevant to our present case to search and to ask for identification). 39.5. Police do not have the power to arrest for questioning or facilitating an investigation. To so act requires authority found in statute. 39.6. A person should be regarded as having submitted to compulsion where without the application of threat or physical restraint the person reasonably believes the choice to do otherwise does not exist. 1. In Large, Judge Norrish QC expressed similar views. At [104] he accepted that the curtailment of liberty can only occur by specific provision of the law. His honour referred to the passages from Cleland stated above. 2. In reference to Buddee, Judge Norrish QC noted the conclusions that the relevant legislation "all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping vehicles interrogating of occupants or searching of vehicles for crime detection". He further noted that it was said "it may be added that the police cannot rely on a statutory RBT to engage in "proactive" policing or satisfy a curiosity or a hunch not amounting to a specific state of mind as required by LEPRA". Judge Norrish QC lastly noted in relation to Buddee that the "half illegal detention" of the driver and passenger "elicited the opportunity for admissions to be made which were not satisfactorily proven in any event". Whilst here there is no challenge to what was said by the accused the statement is very much on point as to the arguably unauthorised obtaining of identification as being what "elicited" the opportunity for the obtaining of information adverse to the interests of the accused. 3. In line with the above general principles it can be stated that police are not empowered to ask certain questions that the legislation expressly provides is empowered upon certain criteria being met. Take for example the request made here by SC Fraser of the occupants of the vehicle for identification. The power to require disclosure of the identity of a passenger is governed by section 14. That section requires that there be suspicion on reasonable grounds that a vehicle is being or was or may have been used in connection with an indictable offence. If that criteria is met then by section 202 of LEPRA there is a further requirement that the police officers inform the citizen of the reason for the exercise of the power. It is not in dispute that there was no such suspicion in this case at the time Identification was asked for. Nor was there any reference to section 202. To simply say that he wants identification so he knows who the occupants are is hardly a reason for exercising the power when there is no authority for him to find that information out. There has therefore been a clear breach of section 14 and also section 202. 4. The argument for the Crown here is to say that the information emerged in the course of general conversation. In the Crown's written submissions which were MFI 3 there is reference made to section 14. It is acknowledged that the necessary suspicion is not present. The argument being made however is that at the time of this occurring the conversation was just general talk. It is said that the question was not couched as a requirement or compulsion. It is argued that it is not suggested the occupants would be committing an offence if they did not comply. Reference was made to the evidence of SC Fraser that he "wasn't utilising a power, like I said, it was conversation to find out who I was dealing with". I note LSC Brown in cross examination at T60 referred to the conversation of SC Fraser with the occupants as being a "general conversation". 5. The point at which a casual conversation becomes one which may be termed at least to some extent an interrogation is what is at issue in this case. 6. At T64 SC Fraser gave the conversation the same description as "general conversation". Then when asked why he questioned the passengers SC Fraser said "because as I've previously said, the time of night, the vehicle contained a number of occupants and I was initially just having a conversation with what they were doing and why they were-what they were up to". That answer seems to me to link an existing curiosity bordering on suspicion, whether or not based on any reasonable ground, to the purpose for the questions being asked. Viewed that way the questions on the officers own evidence extend beyond being "general conversation" or as I have described it above "casual conversation" and have entered the domain of interrogation albeit gentle interrogation. 7. The next argument as put by the applicant was that there had been a contravention of an Australian law or an impropriety because the police had in truth conducted a stop and search and detain rather than a random breath test. 8. At T42 the argument for the accused was accepted to be that the initial stopping of the car was legal but the questioning thereafter should not have taken place because there was no power in the police to do that. The accused also relied on section 36 of LEPRA. Again that is a provision requiring a suspicion on reasonable grounds before a search is carried out. 9. It was suggested in argument by Judge McLennan SC that if there was a suspicion on reasonable grounds that there may be drugs or guns in the car after the conversation complained of and before the search was carried out, whether that was relevant to the exercise of discretion to exclude or not exclude the evidence. That question was not properly answered. The transcript suggests his Honour considered this went to the gravity or seriousness of the contravention so as to suggest that no harm has been done because when there was reasonable grounds for suspicion the search is then carried out. In my view the answer to that proposition is that the only reason there existed those reasonable grounds for suspicion was as a result of the contravention in the first place, specifically the obtaining of the name of the accused which permitted the checks to be done and the intelligence to be gathered, and the engaging in a conversation arguably going beyond the conversational. I also tend to the view that there is something in the argument for the accused that it was not even open to the police to check the details of the driver who appears not to have been known to police and provided photo identification about which there was no question; the purpose of section 175 is to enable the carrying out of a random breath test to ensure people driving are not affected by alcohol, and in my view it is not to allow some abridged form of investigation of any citizen who happens to be stopped for a random breath test and there is no evidence in this case of there being any basis to suspect the driver of anything. It is not necessary to decide this point for the present case. 10. Also in argument, at T77 with apparent reference to the decision of Large, when addressing the Crown, Judge McLennan SC identified the following: 49.1. That there is no power for questioning in LEPRA prior to arrest with which he agreed. 49.2. That there is no power to arrest or detain for the purposes of questioning, with which he also agreed. 49.3. But his Honour queried whether the police have no power to ask questions with a view to determining whether or not they should be arrested. In this regard the Crown's position was as set out above concerning "making conversation" with a lack of compulsion. The Crown submitted that it essentially came down to the issue of whether SC Fraser was requiring the passenger to disclose their identity; see T78.05, to which Judge McLennan SC said "there was no requirement made". To support that view the Crown then referred to the evidence of SC Fraser that it was "just a conversation". 49.4. Judge McLennan SC then said he was more concerned about the conversation to the effect of "what have you been up to" at a time the conversation is being recorded and identification has been requested. From the answers given emerges the name Daniel Glover which then leads to the above consequences. His Honour fairly said to the Crown that the accused argument is that such a conversation is beyond power when the stop is for a random breath test. The Crown resorted to the "general conversation" defence. 49.5. In testing the proposition as to whether or not the police are able to ask what was described as "focused questions" unless there is some power in LEPRA to do so a scenario was given by his Honour of police having been told there was an incident of domestic violence at a particular house at 2 AM and they arrive there with a person standing outside. His Honour queried whether there was any entitlement of the police to ask that person questions. The scenario is lacking in some facts but in a general sense plainly the police can ask questions. They have a basis to be concerned that somebody in that vicinity has committed domestic violence and there is a person standing outside the house from which the complaint comes. My view is that is enough to enliven section 14. It is also possibly enough to enliven section 99 enabling the arrest of the person and taking into custody depending on just what the circumstances are. Given the complaint is said to be of domestic violence there is plainly a reasonable basis to think that there has been an offence committed of either intimidation or assault. The appropriate course is to comply with the legislation; to ask for identification, to state that the reason for doing so is because of the allegation of domestic violence, and to say that the person does not need to do or say anything and if he does it may be used as evidence. Determination 1. It is common ground that no caution was given at a time, or times, that it ought to have been given, as identified by Judge McLennan SC. 2. The Crown identifies section 14 of LEPRA and acknowledges that at a time that identification was asked for there was no basis to ask for it. It is said by the Crown that this does not breach s14 because the request for identification was not accompanied by any compulsion. 3. The contested issue in the case is the characterisation of the conversation had between SC Fraser and the 3 male occupants of the vehicle. 4. I find that the conversation engaged in by SC Fraser set out at [9] above is investigative, from the point where SC Fraser asks where the occupants are "off too", and if that be wrong, then no later from the time SC Fraser asked "Have you been in trouble with the cops before", and that before engaging in such conversation he is required to caution the occupants. I reject the suggestion that this is just some casual conversation, or chit chat, from which emerged information that was freely offered by the occupants of the vehicle. I base this conclusion on the following: 53.1. That the occupants of the car are legally but forcibly stopped whilst travelling in a manner that is totally unremarkable. This is of course the very nature of a random breath test. 53.2. That this occurred at 1.39 am. 53.3. The occupants were approached by not one, but two officers. 53.4. SC Fraser approached the passenger side of the vehicle cautiously, a totally appropriate thing to do when stopping a car in the middle of the night. He was alert, he says for his safety. He rejected the suggestion that he was in effect searching the vehicle with his torch, and said he was wanting to see what the occupants were doing. I consider that to be two ways of saying the same thing; if he was concerned for his safety, he was on the look out for offending. 53.5. Put another way, the nature of the meeting of the police and the occupants is by its very nature authoritarian. There is nothing wrong with that and it informs the nature of their relationship, which I consider relevant when trying to determine the nature of the conversation that is then had in the framework of that relationship. Further in the circumstances of this occurring in the middle of the night and with a torch being shone through the window I consider it would be somewhat intimidating. What is occurring is accurately described as akin to an interrogation expecting an answer rather than a polite enquiry. 53.6. SC Fraser stated "its a long way to come at this time of night to pick up a couple of people". There is about that statement, made by an officer on guard for his safety and looking out for offending as described above, an inherent degree of disbelief or suspicion, given the circumstances in which it is said. 53.7. It is after this that SC Fraser asks the front seat passenger for some identification. He said this was "so I know who you are". There is inherent in that statement a clear sense of entitlement on the part of the officer. Concomitant with that, and emphasised by the surrounding circumstances is a strong suggestion of compulsion upon the occupants of the vehicle. I consider that the circumstances of the asking of the questions to be tantamount to circumstances of compulsion. 53.8. SC Fraser later demonstrated a knowledge of s203 of LEPRA, and he either knew of and disregarded the provisions of s14 of LEPRA, or was simply unaware of it. SC Fraser's evidence at T20 referred to at [22.2] above suggests, and I find, that he was aware that there were requirements to be met before asking a person for identification, at least in certain circumstances. 53.9. It runs counter to the provisions of LEPRA to permit somebody to ask for information such as identification in a "general conversation" when there is no power for that person to require identification unless there is the relevant suspicion. The general principles taken from Buddee and Large above emphasise the need for police to act as they are permitted, not as they may want. The potential for abuse of power, and the consequential diminution in the rights to liberty and privacy is readily apparent. It is with respect illogical to suggest that where a police officer cannot require identification, the officer can, in the self same circumstances, ask for it, in terms that include "so I know who you are". 1. As I understand the Crown position the failure to caution found by Judge McLennan SC is accepted. As I understand the pages of the transcript provided this view is based on an acceptance of in effect s21 being utilised. Yet Azar v DPP [2014] NSWSC 132 is authority that detention within the meaning of that section does not equate to arrest. That said, despite the views voiced by the officers as to what may have happened if the accused left after being told to "sit tight", it may well be arguable that without involving s21, this did constitute an arrest though it is not necessary for me to decide this. In my view the caution required upon arrest should have been given by the police at the time they were asking the investigative questions referred to above. It is true that the accused was not then under arrest, so that by their terms section 139 EA and Part 9 of LEPRA do not apply, however there is no power found in LEPRA or elsewhere for the police to ask questions of an investigative type that have the potential to circumvent the right to silence. The effect of Buddee at [88]-[97], is that the question is not what provision prohibits the asking of an investigative style of question, but what provision enables it. In particular I note [93] where it was said: "Police do have the power to arrest on reasonable suspicion. Police do not have the power to arrest for questioning or facilitating an investigation. At common law police had no authority to stop the vehicle and or subject the driver or passenger to questioning, to detain them or search them or their car. If it exists, that authority had to be found in statute. 1. The above reveals the following contraventions of an Australian law: 55.1. The asking of questions of an investigative nature which is not permitted by any statute; 55.2. Requiring identification in breach of the terms of section 14 of LEPRA; 55.3. Non-compliance with section 202 of LEPRA; 55.4. Non-compliance for section 203 of LEPRA; 1. The name of Daniel Glover, and the intelligence and criminal history of the accused, emerged as a consequence of the contraventions of Australian law identified above. If the contraventions are limited to the breach of s14, the information that led to was the criminal history and police intelligence concerning the accused, the major matters on which the police rely for justifying the subsequent search. I find that even if the investigative conversations referred to above are permissible, there remains a breach of s14 which has contributed to the obtaining of the evidence. 2. A curiosity here is that there may also be a concession by the Crown consistent with Judge McLennan SC's findings of a failure to give a caution. I have found that in line with Azar proceeding under s21 does not amount to arrest, so that arguably that caution need not be given. This perhaps highlights some basis to query the correctness of Azar, as I consider what Judge McLennan SC said on this issue to be sound. 3. The explanation of non compliance with s14 as being only a request made in conversation has been rejected. If use of chit chat / general conversation is to be used as a justification or excuse for the non compliance with the need for a reasonable ground for suspicion, or the need for a caution so as to protect the right to silence, then there is little purpose in having s14, or Part 9 of LEPRA. 4. Put another way, the suggestion that these questions are simply making conversation does not withstand scrutiny given that, in terms of obtaining a person's identification LEPRA itself contains legislative provisions relating to the power to do so, and the same can be said of investigative questioning. Section 138 1. I have found that the evidence obtained on the search was obtained in contravention of an Australian law. By section 138 (1) such evidence is not to 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. Section 138(3) sets out a number of non exhaustive matters that may be taken into account under subsection 1. I deal with each in turn. 3. (a) the probative value of the evidence. The evidence concerned here is the prohibited weapons themselves and is highly probative. It may well be that without this evidence the Crown will have no case. 4. (b) the importance of the evidence in the proceeding. The same comments apply here as with subsection (a). 5. (c ) The nature of the relevant offence. This offence has a maximum sentence of 20 years. It is clearly considered a most serious offence by the legislature. Yet it cannot be ignored in this case that the prohibited firearms in question can be legally purchased and possessed literally only 10 km from where the accused was found with the weapons. The nature of the weapons has been noted above namely that they are nonlethal and are considered elsewhere to be toys and fire not what is commonly considered to be bullets but rather hydrated pellets, that is encased water. No doubt the concern of the authorities for this type of weapon is that they can be used in a way that has the appearance of being real firearms firing deadly bullets and can be used to criminal effect in that way. I take that into account but also take into account the toy like characteristic of what is the centrepiece of this charge. 6. (d) the gravity of the impropriety or contravention. The striking feature about the contraventions identified above is their apparent routine nature. Having carried out the assessment of the facts in the matter it is difficult to resist the impression that what the police did on this occasion is something of a technique to obtain information that they would not otherwise be entitled to obtain. This consideration can only be carried out based on the facts before me in the conduct of these two officers and it is not open to come to some conclusion that there are some systemic issues arising here. Limited to the facts of this case there does seem to have either been a total ignorance of what was required in respect of the section 14 issue or a total disregard for it. I am equally concerned as to the adoption of an approach which has the effect of displacing long established rights with what is said to be "making conversation". I consider there is a real need to discourage this kind of approach. 7. (e) whether the impropriety or contravention was deliberate or reckless. In this regard I would repeat the comments just made. I suspect that if these allegations had actually been put directly they would be denied. It was put to SC Fraser that he was carrying out an investigation which was denied. Without expressly stating whether it was deliberate or reckless I repeat my concern about the apparent routine nature of the contravention. 8. (f) whether the contravention was contrary to a right recognised by the International Covenant on Civil and Political Rights. That covenant makes provision by article 17 to protect the privacy of a citizen. That has clearly been breached on this occasion by accessing the material based on the identification of the accused. 9. (g) whether any other proceeding is likely to be taken in relation to the impropriety or contravention. There is no evidence as to any proceedings or disciplinary steps or educative steps being taken towards the police officers concerned in this case. In the absence of that evidence the only conclusion I can come to is that if the evidence is not excluded there will be no sanction whatsoever for the contraventions. 10. (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. This consideration highlights a concern that is evident from the way the police have proceeded here. All the police had to say to avoid contravening the legislative provisions that I have found they have contravened is to simply say to the accused that he is under no compulsion whatsoever to provide his identification but they would like to make some investigation and that if he chooses to do so he could provide them with that information. Most likely a sensible accused would say no to that request which points up the very defect in the police approach and shows that it is a way whether intended or not that circumvents a person's right to silence. Similarly if they wanted to ask investigative questions of the type that I have found were asked they should say so and tell the accused that they want to ask questions which may lead to them possibly asking to search his car and may lead to criminal conduct being detected and ultimately his arrest. That is a very simple process which takes a matter of seconds and ensures compliance with the rights of the accused. Again obviously an accused person acting sensibly is most likely to say no to this request. Again that points out just what is being circumvented by the found contraventions. To the extent that this would lead to the evidence not being found that is not because of the protections found in the legislation for a person in the accused position, but more a reflection of the fact that at the time these simple questions could have been asked there was no basis for suspicion on reasonable grounds. In those circumstances in our society the citizen remains at liberty. 11. In R v Phung & Huynh [2001] NSWSC 115 Wood CJ at CL excluded an ERISP interview and in respect of the requirements of LEPRA, then relatively recent legislation, said: It is important that police officers appreciate that the regime now established is designed to secure ethical and fair investigations as well as the protection of individual rights, of some significance, which attach in particular to children. Those rights, obviously are of great importance when a child is facing a charge as serious as murder or armed robbery. The provisions need to be faithfully implemented and not merely given lip service or imperfectly observed. The consequences of any failure to give proper regard to them is to risk the exclusion of any ERISP or the product of an investigative procedure which is undertaken in circumstances where there has not been proper compliance with the law. 1. Whilst his Honour was plainly speaking of a child accused these words are very applicable to the present circumstances. Furthermore LEPRA has now been in force for some 20 years. In all the circumstances of this case the contraventions identified above should not go without sanction. I note here the passages cited from Cleland at [39.3] above. In the words of section 138 for the reasons just outlined the conclusion I come to is that the desirability of admitting the evidence is not outweighed by the undesirability of admitting the evidence. To do so would amount to nothing less than condoning the behaviour and promoting a likelihood that it will continue. ORDERS 1. Accordingly, the evidence obtained from the search of the Mitsubishi motor vehicle on 23 December 2018 is not to be admitted. ********** Amendments 26 March 2021 - Change of name and removal of the restriction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2021