Robert Cramp v Commissioner of Police (No. 1) [2021] NSWDC 104

District Court New South Wales

Medium Neutral Citation: Robert Cramp v Commissioner of Police (No. 1) [2021] NSWDC 104 Hearing dates: 10 March 2021 Date of orders: 10 March 2021 Decision date: 10 March 2021 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [66] Catchwords: CRIMINAL PROCEDURE — Trial — Case management — Pre-Trial Judgement – objection taken by the accused to the admissibility of evidence found upon the search of a motor vehicle. The accused argues the evidence was obtained improperly or in contravention of an Australian law and that it should not be admitted. Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Law Enforcement (Powers and responsibilities) Act 2002 (NSW) (LEPRA) Interpretation Act 1987 (NSW) Cases Cited: Azar v DPP [2014] NSWSC 132 Donaldson v Broomby [1982] FCA 58 R v Phung & Huynh [2001] NSWSC 115 R v FD [2013] NSWSC 1692 Adams v Kennedy (2000) 49 NSWLR 78 Texts Cited: Nil Category: Procedural rulings Parties: Crown (Regina) Cramp (Accused) Representation: Regener Solicitor for the Commissioner of Police Jones Counsel for the Department of Public Prosecutions NSW Hogan Solicitor for the Accused File Number(s): 2019/00364574 Publication restriction: Unrestricted.

Judgment 1. The accused, Robert Cramp, is charged on indictment with one count of supplying a prohibited drug namely methylamphetamine contrary to section 25 (1) of the Drug Misuse and Trafficking Act. The amount of the drug concerned is 41.46 g so that in accordance with the schedule to the act it is greater than the indictable amount and less than a commercial quantity. A further count of possessing a prohibited drug is a backup offence and there is a related offence of dealing with the proceeds of crime. 2. These reasons determine an objection taken by the accused to the admissibility of evidence found upon the search of a motor vehicle. The accused argues the evidence was obtained improperly or in contravention of an Australian law and that it should not be admitted in accordance with section 138 of the evidence act. That is to say should the contravention of an Australian law be made out the accused says the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence. 3. The accused argues that a search of a motor vehicle that was carried out without a warrant was carried out in contravention of the provisions of the Law Enforcement (Powers and Responsibilities) Act (NSW) 2002 ("LEPRA"). This argument has two bases. The first is that the relevant provisions of LEPRA permitting a search without a warrant are not applicable once the person connected to the search is arrested. The second is that if those provisions do apply following an arrest, the police officer who carried out the search did not have the necessary suspicion on reasonable grounds that any of the circumstances specified by the provisions existed. 4. The Crown argues that the search was carried out as permitted by either or both of sections 21 and 36 of LEPRA. The Crown initially submitted that the relevant section to consider is s21, but also made submissions concerning s36; in my view nothing turns on which of these sections is being considered. They both require a suspicion on reasonable grounds, and both extend to apply to searches of vehicles. The circumstances the sections refer to are not exactly the same, but the differences do not change the result of the question being considered. 5. The Crown further submits that if that is not so then the court should exercise its discretion to nevertheless admit the evidence on the basis that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way it was obtained. 6. The first argument of the accused asserting a contravention of an Australian law is essentially one of statutory interpretation. Sections 21 and 36 of LEPRA permit a police officer without a warrant to search a person and anything under the control of the person (section 21) and to search a vehicle (section 36) in certain circumstances. Arguably both the sections apply to the search of motor vehicles due to the definitions. 7. The question raised and which I am told has not been the subject of authority in the now almost 20 years of LEPRA's operation, is whether these sections can only operate prior to a person's arrest. 8. It will be necessary to deal with the facts in some greater detail below but for present purposes in considering the statutory interpretation point the following will suffice. The offender was pulled over due to the nature of his driving bringing him to the attention of police on 5 November 2019. After having stopped he then contrary to the directions and efforts of the police sped off and could not be apprehended on that occasion. A warrant was issued for his arrest and a Court attendance notice was filed. On 19 November 2019, he was identified by police in the Grafton hotel. Additional police were called and he was arrested in the Grafton hotel on 19 November 2019. Subsequent to his arrest an officer was handed some car keys said to be those of the accused. The officer located the vehicle to which the keys belonged and searched the vehicle and located a case with methamphetamine in plastic bags within it. It is that methamphetamine in those plastic bags which are the basis of the charges against the accused under section 25 (1). 9. The accused's argument is that Sections 21 and 36 of LEPRA only authorise a search where there has not been an arrest. It must follow that the argument is that after arrest in order to conduct a search a warrant should have been applied for pursuant to section 47. I note that on the facts of this case section 27 has no application as it talks of the power to carry out a search on a person upon arrest. In this case what was searched was a motor vehicle and not the person. 10. It appears that the closest this question has come to being judicially considered was in the case of Azar v DPP [2014] NSWSC 132. The first point to note about Azar is that it is readily distinguishable on its facts from the present because in that case the person searched was not under arrest. Indeed the case establishes that the powers to detain under section 21 and section 36 do not amount to arrest. Broadly stated the facts of Azar were that police had noticed a man in a car using his mobile phone, the car was seen to pull to a kerb, the police saw a man get in the passenger seat where he stayed for a short time and then walked away quickly. The police suspected a drug transaction. Their suspicions were heightened by the fact that the car was revealed by enquiries to be a hire car and that the area was where drug transactions were known to take place. A breath test was performed and on the basis of the suspicion of drugs being possessed a search was carried out and drugs were indeed found. The point of the appeal was to argue that the suspicion of drugs being possessed was not held on reasonable grounds. 11. The relevance of this case to the current issue is that a sensible reading from paragraph 47 dealing with ground 2 of the appeal suggests that had there been a finding that the appellant was under arrest then section 21 would not have a role to play. 12. At paragraph 49 this was further explained as being an argument that being under arrest and no caution having been given then the subsequent conduct by police was unlawful. Just what caution was being referred to here is not clear and did not need to be determined because the finding was that Mr Azar was not under arrest. The need for a caution emerges perhaps under the provisions of part 9 in section 122 and not under part 8, or perhaps it is a reference to a regulation. The submission does bring to mind however the need under section 202 that when exercising a power of search a police officer must provide the person subject to the exercise of the power the reason for the exercise of the power. In the present case there is no evidence of the police at any stage telling the arrested person the reason they were exercising a power to search his vehicle without a warrant. 13. Returning to Azar, the argument for the appellant in that case was that once the police had stopped the car he was driving he was under arrest because he was not free to go. The DPP conceded that the appellant was not free to go. At paragraph 52 it was said that the difficulty with the argument that not being free to go meant that the appellant was under arrest was that it ignored the powers of detention found in sections 21 and 36 which are separate and distinct from the power to arrest a person. Her honour considered that had Parliament intended these powers of detention to amount to an arrest it would have made that clear by using the word "arrest". 14. The position we are dealing with here is the reverse. That is here there is a clear arrest by the execution of the warrant upon the accused when in the hotel. My view is that Azar certainly supports the argument for the accused but this clear factual distinction means the question has not been decided. 15. By section 35 of the Interpretation Act headings to chapters, parts, divisions or subdivisions are taken to be part of the Act. I note the heading to part 4, division 5, which includes section 36, is "vehicle stop, entry, search and roadblock powers". In the present case there was no search warrant. There was at tab two of the Crown bundle a warrant to arrest Robert Cramp. The heading to division 5 emphasises the "vehicle stop" aspect of that provision, and of course section 21 uses the expression "stop, search and detain" in the same way as section 36. The heading to part 5 is "Search and seizure powers with warrant or other authority". The headings, as do the provisions themselves, reflect that, unsurprisingly, they address different situations. For reasons that hopefully become clear below these headings support the accused argument more than the Crown's. It is relevant to note the amount of information required to obtain a warrant under section 47 by section 61. That such requirements exist show the significance with which the legislature treats the power of search and in my view supports an interpretation that the search without warrant provisions only operate in circumstances having a characteristic that if the search is not conducted then, the investigation of the reasonable suspicion will likely be hindered. 16. None of the provisions under consideration state in express terms that a search without a warrant cannot occur after the arrest of the person connected with the search. Here, there has been an arrest of a person for whom a warrant had issued but there has also been at that same time a search of a motor vehicle for which there was no warrant. In my view whilst it remains an issue as to whether a power to search the vehicle without a warrant existed under the relevant and various sections of the act I do not think the fact that an arrest has occurred in and of itself means there cannot be a search without a warrant subject of course to the other conditions being met. 17. The opening words of section 36 (1) are "a police officer may without a warrant stop search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exist…". The argument for the accused is that expressed this way suggests that the power is to be exercised at the beginning of the investigative process, that is when the possibility of some offending first emerges, for example as occurred in this case on 5 November by the manner of driving of the accused. The accused further argued that in order to carry out a search pursuant to section 21 or 36 there needs to occur a stop a search and a detention of the vehicle. This submission may have been a little more flexible but it certainly extended to arguing that the section required the police to cause the vehicle to stop or at the very least to prevent it from leaving. My view is that the expression "stop, search and detain" is what might be called an omnibus expression. For example, consider if police came upon a parked car in which two people were sitting and who were of the appearance of being affected by drugs and each with a bag of a white crystallised substance on their lap. Clearly the police would be able to search that vehicle. Carrying out the search of the vehicle necessarily involves detaining it for at least the time of the search. In our present case the police came upon the vehicle and on the Crown argument based on information allegedly available to them at that time formed the view that the vehicle contained "anything used or intended to be used in or in connection with the commission of a relevant offence" (section 36 (1) (c)). 18. Accepting for the purpose of argument that the police had a suspicion on reasonable grounds to that effect what then is the purpose of section 47? In order to apply for a search warrant under that section the police officer must believe on reasonable grounds that there is or within 72 hours will be in or on the premises (which includes a vehicle) a thing connected with a searchable offence in relation to the warrant. A searchable offence includes an indictable offence as here. 19. The difference in the threshold question of section 36 and section 47 is that section 36 requires that the police officer "suspects" on reasonable grounds one of a number of circumstances, whereas section 47 requires the police officer "believes on reasonable grounds" "a thing connected with a searchable offence" is on the premises or will be within 72 hours. My view is that if the requirements of section 47 are satisfied then it must be almost a certainty that the requirements of section 36 or 21 will be satisfied because to have a belief means you have a suspicion and beyond. 20. Put another way the structure of the act is that the more progressed an investigation becomes the need for a warrant heightens. In this regard it pays to remember some fundamental principles not the least of which is the liberty of the individual and freedom from tyranny. In Donaldson v Broomby [1982] FCA 58 in the judgment of Deane J of the Federal Court as he then was, it was noted in powerful terms the significance of arrest, including "the customary companions of arrest are ignominy and fear" and "a police practice of arbitrary arrest is a hallmark of tyranny" 21. To the same effect is the well-established approach to construing the powers of search. Justice Adamson in Azar considered it entirely orthodox that there is a great necessity to construe strictly the powers conferred upon the police in respect of searching persons not under arrest. That power namely the power at large to search persons not in custody is one which calls for the clearest authority. 22. In my view the same guarded and cautious approach should be adopted in interpreting laws allowing the search of a person's property without a warrant. 23. In our present case one argument for the Crown was that section 21 and section 36 did apply here because whilst the accused was under arrest he was, so the argument went, at the same time being detained in respect of a suspected drug offence. 24. It certainly cannot be said that the provisions canvassed above make it plain that a person may not be searched or their vehicle may not be searched without a warrant after his arrest. That said, there is section 27 expressly providing for a power to carry out a search on arrest which suggests that it is providing some power beyond that which is provided by section 21. This adds to an argument that section 21 is a section that operates prior to the arrest of a person. The provisions of section 21 and 36 are very similar with the difference being one applies to persons being searched and the other to premises being searched which by definition includes vehicles. 25. The above discussion shows that on one view there is an absence from sections 21 and 36 of the need for there to have been no arrest at the time of the search without a warrant. It shows on a different view that the broad interpretation of section 21 and 36 argued for by the Crown renders other sections such as section 47 and section 27 otiose. 26. In keeping with the references above to Deane J and Adamson J, is the statement of the Attorney General when introducing this legislation that it is aimed to make the law easily accessible to all members of the community. In part of that speech the Attorney General Mr Debus spoke to part five of the Act though not in a way that gives much assistance to the present issue. Later in dealing with crime scene warrants which are dealt with in part seven he stated "the exception to the requirement for a warrant before the exercise of certain powers is vital. For example, police may need to immediately take a photograph if a crime scene is being flooded or gain access to a room that is on fire and which police suspect contains evidence of an offence. In these circumstances waiting for a crime scene warrant to be issued would not be practicable as the evidence would be destroyed". While these remarks were directed at provisions other than those now being considered, they reflect an expectation that a requirement for a warrant would ordinarily be expected and exceptions exist to preserve evidence that may not survive till the issuing of a warrant. Applying this here the position is that by the time a person is arrested police must have reasonable grounds to believe an offence has been committed. Put another way the powers of section 21 and section 36 to some extent could be seen to assist in determining whether to arrest the person. On this view the need for the searching of person or place without a warrant logically precedes arrest so that an arrest having been achieved it would be unlikely for there then to be further powers of search without a warrant. 27. The following conclusions can be stated from the above discussion: 1. The authorisation of a search of a person or property is contrary to the freedom of the individual and provisions creating such an authorisation must be clear. 2. Neither section 21 nor section 36 expressly prohibit a search without a warrant where the person connected to the search is under arrest. 3. Azar is readily distinguishable from the present case but supports a view that sections 21 and 36 operate prior to arrest of the person connected to the search. 4. Other sections of LEPRA specifically deal with the power of search upon arrest, eg section 27, suggesting sections 21 and 36 are not addressing the power to search at that time. 5. If the threshold for conducting a search under section 47 has been met, it will necessarily be that the threshold for a search under sections 21 and 36 has been met. The reference to a future possibility in 72 hours in section 47 does not affect this view. 6. The words "stop, search and detain", appearing in both sections 21 and 36, and not section 47, show that the sections relate to the initial phase of a police investigation of possible offending. 7. The requirements to obtain a warrant set out in section 61 reflect the seriousness with which the legislature regards the conducting of a search. It supports the view that a search without a warrant is to be limited to circumstances where if a search is not carried out, the reasonable suspicion of the police officer will not be able to be explored. 8. The second reading speech does not address these provisions specifically but does support the above analysis. 1. On the above basis, the argument for the Crown that a person may be under arrest and at the same time may be detained under sections 21 or 36 is possible. That argument however amounts to saying no more than that the search powers under section 21 and 36 may be exercised when the person connected to the search is under arrest. I accept that to be so, namely, that on the basis of the above considerations the mere fact of the connected person being under arrest does not deny the sections of any application. 2. The view I have come to however is that when the other provisions of the Act are considered, and when an approach to the legislation is adopted in keeping with the principles seeking to guard against the erosion of fundamental rights, sections 21 and 36 properly interpreted allow for a search to occur in the initial stages of an investigation and where if the search is not carried out the suspicion of the police officer will not be able to be tested. 3. I consider this the correct conclusion of the above argument, which on one view is unsatisfactory. It is unsatisfactory because one of the aims of LEPRA, as shown by the second reading speech, was to make the rights of the citizens and the powers of the authorities clear; the conclusion I have reached means that whether the provisions allow for a search will need to be determined on a case by case basis, and will involve circumstances in which minds may differ. The interpretation argued for by the accused is the far more desirable one because it gives certainty to the situation. It also has no clear detriment to any police investigation; if a person is under arrest, it is difficult to see how in the vast majority of cases some evidence suspected of being in a vehicle or home may somehow vanish. The prospect of accomplices disposing of evidence is a possibility but the process of obtaining a search warrant is not lengthy, and this should be seen as the cost of preserving the rights of the individual. 4. Applying this interpretation to the present facts results in the search occurring in contravention of sections 21 and 36. The circumstances that existed at the time of the search were not such that those sections authorised the search. This is because the vehicle was under the control of the police; the police knew where the car was, the police had the keys to the car, those keys had been taken from Mr Cramp, and Mr Cramp was under arrest. There was no realistic prospect of whatever may have been suspected of being in the vehicle being lost to the police investigation if a warrant was sought before the search occurred. 5. This means there has been a contravention and it remains to consider the further limb of section 138. I consider this below, but before doing so, given the difficulty in interpreting the sections, I consider it prudent to further consider whether, assuming the sections do apply to the situation being considered, did SC Venn have the requisite suspicion on reasonable grounds?