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). 19. In the facts tendered before the Magistrate no reference was made to the mobile phone being on the bench and being a factor that had aroused suspicion. I am satisfied Constable Pisani's evidence is based upon the contents of his statement made ten days after the arrest. I am satisfied he did not use or refer to the ERISP when he made his statement. I am satisfied his memory when he made his statement was faulty and incorrect. I am satisfied the phones played no part in grounding the suspicion of the officers. 20. According to Coates the conversations between the police on the one hand and the accused and his friend on the other occurred before the search was embarked upon. 21. The Crown has tendered, without objection, Constable Pisani's statement. In paragraph 8 of the statement in addition to the dilated eyes and white paste, Pisani noted the accused's leg was shaking and he was clenching his jaw. These observations are listed as occurring during the conversation. Given that I have found the police identified themselves at commencement of the conversation the accused's awareness that he had possession of a small container secreted in his underwear, on the accused's own account that he was to hide or hold until its owner returned and that he "sort of guessed pills were in it" I am satisfied these two symptoms were observed by Pisani during the conversation. 22. At the point in time when Constable Pisani told Constable Coates that "we will go over and have a talk" to the men, he did not have enough "to stop" the men for any purpose let alone to search them. 23. While the nightclub's reputation may have been tainted by some association with drugs that would be insufficient to select customers at random for search. Nor was the fact that the two men made their way down a laneway less brilliantly lit than the front of the club. Nor was the fact that both men looked over shoulders as they walked down the laneway at 2am. In a metropolis such as Sydney where street crime is not unknown it may have been prudent to do so. That the two men were pointed out as being of interest for a particular reason by another police officer, could not supply reasonable grounds for suspicion. That both men sat and had a cigarette is not a fact that can be taken as encouragement to form suspicion. Nor do all of these facts taken together supply enough to entitle police to stop, search or detain. 24. There seems to be evidence arising from cross-examination that supports Pisani's remark that the police were going to talk to the two men. There is conversation about Good Vibrations and Chinese Laundry. The evidence puts all conversation as taking about three minutes before the search. The cross-examination seems to suggest, and I am prepared to accept, the conversation about bands and venues occurred before there was a demand made for search. I accept that this was a device used by police to engage, at some level, the men for the purpose of giving police an opportunity to test whether they should go further. It would make sense that the questions re drug use were closer to the search than the general ..(fault in recording equipment..); (read "questions being asked") as Pisani was making up his mind to search the men. 25. In the absence of questions, therefore, and evidence about the precise point of time Constable Pisani determined to order the search I can only express my finding this way. 26. The evidence has not established that the accused was "stopped" by police; that is, that he was required to stay in the company of police until the questions about using drugs were asked. Put another way, the defence has failed to establish that the two men were "stopped" for some police purpose at or during that first point of early contact by police. I am satisfied once the questions about drugs were asked, Constable Pisani's purpose was no longer to "talk to them" but rather to cause each to be searched at his direction and by his subordinate. I am satisfied at least from that point both men were "stopped" by police. 27. Once the drug question was asked, which may have been one and a half or so minutes into the conversation, he had noticed the dilated pupils, the white paste, the trembling leg and the clenched jaw. The more significant symptoms are the dilation of the eyes and presence of the paste in the corners of the mouth at 2.15am. While the significance of the dilation of the eyes has been put in issue, as capable of having an explanation inconsistent with drugs, in combination with other symptoms, the officer was entitled to take it into account. These symptoms could now be put into the context created by time, location and circumstance as giving to the symptoms I have isolated additional force. 28. The defence argue the absence of white paste at 4.19am invites an inference that it was also absent at 2.15am. Such an inference is far from compelling, particularly given the ease with which such paste could be removed consciously or otherwise by a pensive rub of the corner of the mouth with thumb and index finger. The defence seeks to negate the dilation of the eyes as being caused by amphetamine use by relying upon a urine screening done on 16 February; that is, the day following the arrest. Two matters arise. Firstly, there is no evidence of dissipation time for amphetamines in the urine. Many drugs disappear from the urine relatively quickly, for example, GBH. Some last longer, eg cannabis, but absent expert evidence I am unable to find that the accused was not under the influence of a drug. 29. Frankly, I am not able to find that he was either, but the onus was on the defence to prove that he was not. I should say such a proposition gains strength if one takes into account the custody notation that he did not appear to be under the influence of drug or alcohol in his favour. While his responses in the record of interview were relatively monosyllabic, there did not appear to be any deportment issues suggesting that he was other than sober and perhaps tired, but it is a mistake to think that the police officer had to find he was under the influence of drugs. It is sufficient if the officer, viewing the symptoms with others, has reasonable grounds for suspecting possession of a prohibited drug by the accused. 30. The question to be determined, then, is at the point in time when I am satisfied the accused had been stopped, was there sufficient grounds for suspecting the accused possessed prohibited drugs. The seminal judgment from the CCA on this matter is a judgment of Acting Justice Smart in Rondo. After reviewing a number of cases, his Honour said at para (53): "These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief, but more than a possibility. There must be something, which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by section 357E (the section at that time relating to the powers to stop search and detain). A reason to suspect that a fact exists is more than a reason to consider a look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material, or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or vehicle, or making the arrest at the time he did so. Having ascertained that information, the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question, regard must be had to the source of the information and its content seen in the light of the whole of the surrounding circumstances." 31. It should be noted that there is a difference between "suspicion" and "proof" and whilst the suspicion must be reasonable, there is a long way between reasonable suspicion and even proof on the balance of probabilities. 32. There is no requirement for the officer to have formulated in his mind any potential conduct other than the suspicion of possession of the illicit drugs. He does not have to determine whether any drugs that might be found were for own use, to be supplied, or to be kept for some other person. 33. Given the symptoms observed by Pisani, the location, time and context of the circumstances, I am satisfied such suspicion as he entertained qualified as more than a mere possibility, and would have created in the mind of a reasonable person a suspicion that the accused was in possession of a drug in contravention of the Drug Misuse and Trafficking Act 1985. I am satisfied the information before the police officer afforded reasonable grounds for the suspicion he formed. 34. Constable Coates, who conducted the search, put his belief like this -"I suspected that he was in possession of illegal drugs." Constable Coates was at the time a probationary constable. He was required to act in accordance with directions given by a superior police officer. In my view, it is the decision of Constable Pisani that is important, as he was the one who was responsible for the stopping, ordered the search and the detaining following that order for the purposes of the search. If I be wrong, it will still follow that I regard Probationary Constable Coates as being equally aware of the dilated pupils and white paste, and that his suspicion was founded on reasonable grounds. 35. I find the defence has failed to prove any impropriety or contravention of any Australian law by either officer. That being so, the defence are unable to call in aid s 138 of the Evidence Act 1995 or other related sections of the Evidence Act 1995. The application to exclude the evidence of the search, and drugs found upon the accused, is excluded. 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.