R v Fortescue, Michael [2010] NSWDC 272

New South Wales District Court

CITATION: R v Fortescue, Michael [2010] NSWDC 272

JUDGMENT DATE: 15 March 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Application on behalf of defence to exclude evidence of search warrant and evidence of drugs found upon the accused is rejected.

CATCHWORDS: Criminal Law - Trial - Application to exclude evidence - search of the person - drugs found in possession - ecstacy - right to stop, search and detain - distinction between casual chat and formal stopping - meaning of reasonable suspicion - circumstances and context in which suspicion formed - no illegality in ordering search.

Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: s.138 Evidence Act 1995 s.21 Law Enforcement (Powers and Responsibilities) Act 2002

CASES CITED: R v Rondo [2001] NSWCCA 540

PARTIES: Regina Michael Fortescue

FILE NUMBER(S): 2009/00137775

COUNSEL: Defence: M Bateman

SOLICITORS: Crown: Mr N Borosh

JUDGMENT 1. On 27 January 2010 Michael Fortescue was arraigned upon an indictment alleging he supplied ecstasy on 15 February 2009. To this charge he has pleaded not guilty. 2. The Crown case is in the early hours of the morning two police officers who were conducting observations of the Nightclub in Bridge Street, Sydney, had cause to search the accused's person. Concealed in his underwear they found a small orange-coloured Eclipse brand mint container containing fifty-three ecstasy tablets. 3. The defence claim police had no right to stop, search or detain the accused and behaved unlawfully in doing these things. The defence argued that the evidence obtained as a result of the search and detention was therefore unlawfully obtained and should not be admitted because the desirability of admitting the evidence is outweighed by the undesirability of admitting it [see s.138 Evidence Act 1995]. 4. The court's task is to determine whether, in the circumstances of their encounter, the police reasonably suspected the accused of having anything on his person that was unlawfully obtained or used or intended to be used in the commission of an indictable offence, at the point in time where they stopped, searched and detained the accused. If police had no reasonable grounds for stopping, searching and detaining the accused, then the second matter to be determined is whether the s 138 discretion should be exercised to admit the evidence (s 138 Evidence Act 1995). 5. The two police involved in the search and detention gave evidence. The accused, as was his right, did not give evidence, although evidence was before the court of a post-arrest urine test. The statement of facts submitted by police to the Local Court magistrate was also tendered. I will return to these items later. Who Bears the Burden 6. At all times in a criminal trial the accused is under no obligation to give or call evidence in his case. That does not mean that all other rules of evidence are suspended. The onus is on an accused to prove the police behaved in contravention of an Australian law. Should that proposition be established on the balance of probabilities, the onus then falls upon the Crown to establish the desirability of admitting any tainted evidence outweighs the undesirability of excluding it. 7. The law in question is said to be the Law Enforcement (Powers and Responsibilities) Act 2002, LEPRA s 21(1)(a) which appears in Pt 4 of the LEPRA - Search and Seizure Powers Without Warrant. Section 21(1)(d) gives to the police a power without warrant to stop, search and detain a person if the police officer suspects on reasonable grounds that the person has in his possession a prohibited drug, in contravention of the Drug Misuse and Trafficking Act 1985. Absent that power, a police officer would be acting in contravention of the Common Law to stop, search and detail a person. A police officer purporting to exercise that power, given by LEPRA, to stop, search and detain, would be acting in contravention of the law if he or she did not have reasonable grounds for suspecting his or her target had been in possession of prohibited drugs. 8. Thus the burden of proving a breach of common law or a misuse of LEPRA rests with the accused in this trial. A crucial issue in the trial is the point at which the police officers purported to exercise the power to "stop" the accused and whether at that time they had reasonable grounds to do so. The stopping of a person for purposes of a search is the first step police take in order to conduct a search in circumstances such as this case. 9. A chat, simply for social purposes or during which observations are being made or even as a trick to further investigation does not constitute a stopping "if the accused is free to quit the conversation/observation/investigation and depart at any time". 10. In R v Rondo [2001] NSWCCA 540 a vehicle was stopped for no greater reason than police became aware the person driving the vehicle was not the registered owner of the vehicle. Thousands upon thousands of Sydneysiders are lawfully driving vehicles in circumstances where they are not the registered owner. Workers driving company cars, persons in relationships driving their partner's cars, taxi drivers sharing shifts with registered owners are three groups that readily spring to mind. The Court of Criminal Appeal held in Rondo such a stopping was unlawful because there were no reasonable grounds in the answer given by the driver (that he was not the owner) and that answer alone to suspect any wrong doing. 11. In the case before me, two police officers had been alerted to the presence of the accused and his companion in a laneway more dimly lit than surrounding areas. The two men were in the vicinity and police believed had been in attendance at the Tank Nightclub which had a reputation among police as a well known establishment for drug users. At some point the police stopped the accused and his companion and whilst they were so stopped searched them. The point in time at which the accused and his companion were stopped, that is the point at which they were required to comply with the demand they remain and were no longer free to leave for the moment, although not yet arrested. 12. That point in time is important. Many of us have experienced being stopped and detained by police. A good example is a roadside breath test. The onus was on the defence to prove that at that particular point in time police had no reasonable grounds to suspect possession of drugs on either person. Neither counsels' questions or submissions focused on that point in time. It remains for me to determine on the evidence. 13. It was the Crown case in the early hours of 15 February 2009 that two plain clothes police, Constable Luke Pisani and then Probationary Constable Nathan Coates were on duty in the Tank Stream Way and Bridge Lane, Sydney area. The Tank Nightclub is located nearby. 14. They saw the accused and his male companion walking down Bridge Street lane into Tank Stream Way. Each describes the accused as looking over his shoulder at least three times as they walk. Both sat down on a bench. At this point in time the distance between police and the two men was about ten metres. Each man lit a cigarette. 15. Pisani's evidence is that he said to Coates "We will go over and talk to them." They went across, showed their police ID and said, "Good day boys, how's it going?" Pisani showed his police badge and introduced himself and Probationary Constable Coates. Ms Bateman put in issue the showing of the police badge by Constable Pisani. In cross-examination it was agreed that there was or may have been in this time conversation about Good Vibrations (a band) and Chinese Laundry (a nightclub) by way of social chit chat. In a record of interview which was conducted at 4.19am (Q & A 19 to 22). I am satisfied both police showed their badge upon approaching, notwithstanding the evidence of Constable Coates to the contrary. 16. Pisani agrees at some stage he introduced himself and asked, "Have you taken drugs this evening?" And "Do you think where you are sitting is suspicious?" 17. During the course of the conversation police made observation of the accused having dilated pupils and white paste material in the corner of his mouth. Both symptoms were significant to the officer, because each was consistent with drug use. Ms Bateman, for the defence, put in issue the presence of a white paste material in the corner of the mouth. She relied upon visual images of the accused during a record of interview conducted at Surry Hills Police Station at 4.19am and thereafter as establishing an absence of white paste in the corner of the mouth at that time. I am satisfied at 4.19am the accused presented at the interview room without white paste on the corners of his mouth. 18. Police claim in evidence the accused had two mobile phones next to him on the bench. The presence of these mobile phones on the bench also has been put in issue by the defence. That claim first appears to have been made by Constable Pisani on 24 February 2009, ten days after the arrest, in a statement. Normally that prior consistent statement would be favourable material going to his credibility. However, in the ERISP (electronically recorded interview of suspected person) Detective Pisani put this question: "...I'll just make reference back to the search. Do you agree when you first emptied your pockets you were, two Nokia mobile phones were located on you ? A. Yep. (Questions 118, 119 voir dire Exhibit 6).