New South Wales Court of Criminal Appeal CITATION : Regina v Loc Huu Phan [2003] NSWCCA 205 HEARING DATE(S) : 10 December 2002 JUDGMENT DATE : 24 July 2003 JUDGMENT OF : Meagher ACJ at 1; Hulme J at 1; Hidden J at 1 DECISION : Appeal allowed. CATCHWORDS : CRIMINAL LAW - Appeal by DPP under s5F of the Criminal Appeal Act - rejection by trial judge of evidence arising from illegal search - whether evidence should have been admitted notwithstanding illegality LEGISLATION CITED : Criminal Appeal Act Evidence Act Bunning v Cross (1978) 141 CLR 54 House v The King (1936) 55 CLR 499 CASES CITED : R v Bozatsis & Spanakakis (1997) 97 ACrim 296 R v O'Neill [2001] NSWCCA 193 R v Rondo [2001] NSWCCA 540 PARTIES : Regina (appellant) Loc Huu Phan (respondent) FILE NUMBER(S) : CCA 60472/2002 COUNSEL : P Ingram (appellant - Crown) S Kluss (respondent) SOLICITORS : SE O'Connor (Crown) Mark Klees & Associates (respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3001 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60472/2002 MEAGHER ACJ HULME J HIDDEN J Thursday July 24 2003 REGINA v Loc Huu PHAN Judgment 1 THE COURT: This is an appeal by the Director of Public Prosecutions, pursuant to s5F of the Criminal Appeal Act, against a ruling of a District Court judge excluding certain evidence in a trial pending in that court. The respondent, Loc Huu Phan, is charged with the (deemed) supply of cocaine. 2 The respondent had been arrested on 23 July 2001 at the rear of a house at Canley Heights. His wife was the tenant of the premises but, although they were estranged, it seems that he also was living there. It is the Crown case that the police had received an anonymous tip-off that some illegal immigrants had escaped from the nearby Villawood Detention Centre and were living in a shed at the back of the premises. On the evening in question five uniformed police went to the property. No search warrant or arrest warrant had been obtained. 3 It is unnecessary to describe in any detail the movement of the officers upon their arrival. It is sufficient to say that some of them made their way to the backyard, where there was indeed a shed. Three of them remained at the back of the house while two went to the front door. The officers in the backyard saw the respondent emerge from the shed. From where they were they could see a number of items on the table in the shed, such as a spoon, a box of bi-carbonate of soda and a number of resealable plastic bags, which were the indicia of the supply of drugs. They also observed a plastic bag and a fifty dollar note protruding from the respondent's trousers' pocket. The respondent was searched and there was recovered from his pocket a quantity of what was later found to be cocaine. 4 In the meantime, the other two officers had knocked on the front door and it had been opened by the respondent's wife. They explained why they were there, and she gave them permission to enter and search the premises. It was after this that the incriminating items in the shed were seized. However, those items were first seen by the police and the respondent was searched before that permission had been granted. 5 The respondent was arrested. In an electronically recorded interview, he admitted possession of the cocaine but claimed that it was for his own use. Upon analysis, there was found to be 14.4g of cocaine of a purity of 75.5%. 6 After an examination of the evidence, and of relevant Commonwealth and State legislative provisions, the learned trial judge found that the police were on the premises unlawfully at the time the items in the shed were first seen and the respondent was searched. That finding is not challenged before us. However, his Honour went on to exclude, pursuant to s138 of the Evidence Act ,"all evidence flowing" from that search. It is this ruling which is the subject of the appeal. 7 What must first be determined is what his Honour meant by the expression "all evidence flowing" from the search. Before us, it was common ground that it embraced evidence of the search of the respondent's person and of the finding of the items in the shed. Counsel for the respondent contended, however, that it did not include the admissions in the ERISP. That being so, she argued, his Honour's evidentiary ruling was not fatal to the Crown case and could not be the subject of an appeal under s5F: cf R v Bozatsis & Spanakakis (1997) ACrim R 296, R v O'Neill [2001] NSWCCA 193. 8 This does not appear to be how the parties in the District Court, or his Honour, saw the matter. (Both the Crown and the respondent were represented in this Court by counsel who had not appeared in the District Court.) In his judgment his Honour said, "I am informed that without this evidence the Crown case will collapse." Moreover, his Honour adjourned the trial for a period to provide an opportunity for appeal, adding that he would grant a stay of proceedings if there were no appeal or if his rulings were upheld by this Court. In any event, given the obvious link between the unlawful search and the admissions which the respondent later made, it is clear that evidence of those admissions was obtained "in consequence of" a contravention of Australian law within the meaning of s138(1)(b) of the Evidence Act: cf R v Rondo [2001] NSWCCA 540, per Spigelman CJ at par 5. His Honour's ruling does embrace those admissions and, accordingly, this Court has jurisdiction to entertain the appeal. 9 The question for his Honour, posed by s138(1) of the Evidence Act, was whether "the desirability of admitting the evidence" outweighed "the undesirability of admitting evidence" that had been obtained in an unlawful manner. He referred to each of the matters required to be taken into account by s138(3). Not surprisingly, he found that the evidence was important and that its probative value was high. He assessed the offence charged as a serious one, likely to be visited with a significant custodial sentence in the event of conviction. He adverted to the prevalence of offences of that kind and the difficulty faced by the police in detecting them. 10 On the other hand, his Honour assessed the gravity of the unlawful conduct of the police as "of a high order". He said: The gravity centres upon what really amounts to an unlawful invasion of the property of Mrs Phan by five police officers and an intrusion into the enjoyment of the licence given by her to the accused to be upon the property of his ex-wife. 11 He added: It is vitally important in a democratic country such as ours, that the acts of the police be lawful acts. This imbues confidence, not only in the police but in our other democratic institutions which rely upon authority, and I am thinking particularly of our armed services. In a case such as this – not that the police were aware of course – there is a particular poignancy when those who are the subject of investigation, come from homelands where the institutions of the executive arm of government have a reputation for authoritarianism and arbitrary attitudes. Even without motive by the police to demonstrate authoritarian or arbitrary attitudes, they must be conscious that citizens can often attribute to them those attitudes, and the Court must be vigilant to make sure that there is nothing done by them which can suggest that the Court is prepared to turn a blind eye to unlawful or arbitrary acts by police. It is for those reasons that I regard the acts as a significant breach. 12 His Honour went on to observe, however, that the breach was "unconscious" and that the police "were acting in good faith and responding to what they saw as a need for prompt investigation…". 13 The Crown prosecutor before us acknowledged that his Honour's decision was discretionary but argued that, applying the familiar principles governing appellate review of a discretionary decision to be found in House v The King (1936) 55 CLR 499 at 504-5, this Court would find that the exercise of that discretion had miscarried. In particular, drawing upon the expressions used in that oft quoted passage, he argued that his Honour had been affected by "extraneous…matters" and that, in any event, the decision was "unreasonable or plainly unjust …" . 14 No one would deny the importance of the considerations of public policy to which his Honour referred in the second of the passages from his judgment quoted above. However, they do not appear to have had any real bearing upon the case at hand. Given his Honour's finding that the police acted in good faith in response to a report which they saw as requiring prompt attention, it is difficult to see how their unlawful entry onto the property deserved the censure which was visited upon it. Moreover, the respondent was searched only a very short time before his wife legitimised the presence of the police by allowing them to enter the premises. 15 It is apt to refer to some observations of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 78: …the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law… 16 Although that case preceded the Evidence Act and was dealing with the common law discretion to reject illegally obtained evidence, those remarks are apposite to the present case. Of course, it would have been preferable for the police to have sought a warrant before they went to the premises (although, as they had no more than an anonymous tip-off, they might not have obtained one). Nevertheless, whether or not their conduct might fairly be described as "merely accidental non-compliance" with the law, it falls well short of "calculated disregard" of it. The Crown bore the burden of persuading the court that the evidence should be admitted notwithstanding the illegality but, in all the circumstances, the proper exercise of discretion compelled its admission. 17 The appeal is allowed and his Honour's ruling is set aside. ********** Last Modified: 08/28/2003 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.