New South Wales Court of Criminal Appeal CITATION : Regina v Leigh Jason McKeough [2003] NSWCCA 385 HEARING DATE(S) : 03/12/03 JUDGMENT DATE : 3 December 2003 JUDGMENT OF : Spigelman CJ at 48, 62; Dunford J at 1; Hidden J at 61 DECISION : Appeal allowed. Evidence of search of motor vehicle and of electronically recorded interview admissible in trial of respondent. Matter remitted to District Court for continuation of Respondent's trial. CATCHWORDS : Criminal Law - evidence - illegally obtained evidence - discretion to admit - exercise of Crimes Act 1900 s 357E LEGISLATION CITED : Criminal Appeal Act 1912 s 5F Drug Misuse and Trafficking Act 1986 s 25(1) Evidence Act 1995 s 138 Bunning v Cross (1978) 141 CLR 54 CASES CITED : House v The King (1936) 55 CLR 499 R v Rondo [2001] NSWCCA 540, 126 A Crim R 562 PARTIES : Regina v Leigh Jason McKeough FILE NUMBER(S) : CCA 60281/03 COUNSEL : G I O Rowling (Crown) B Pullinger (Appellant) SOLICITORS : SE O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0442 FILE NUMBER(S) : LOWER COURT Coorey DCJ JUDICIAL OFFICER : - 12 - IN THE COURT OF CRIMINAL APPEAL 60281/03 SPIGELMAN CJ DUNFORD J HIDDEN J WEDNESDAY 3 DECEMBER 2003 R v LEIGH JASON McKEOUGH Judgment 1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5F of the Criminal Appeal Act 1912 against orders made by his Honour Judge Coorey in the District Court at Sydney ruling inadmissible evidence of the finding of 27.44 grams of Methylamphetamine, two resealable plastic bags and a foil in a motor vehicle driven by the respondent, and the contents of an electronically recorded interview with the respondent following his subsequent arrest on the same day. His Honour held that the search of the respondent's vehicle which resulted in the finding of the drugs was illegal, being not authorised by s 357E of the Crimes Act 1900, and that consequently the finding of the drugs and the admissions made by the respondent in the interview was improperly or illegally obtained evidence within the terms of s 138 of the Evidence Act 1995. 2 The trial of the respondent commenced on 14 July 2003 before his Honour sitting without a jury on the charge that, on 19 December 2002 at Narrabeen, he did supply a prohibited drug, namely, Methylamphetamine, contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1986. 3 After the respondent had pleaded not guilty, his counsel submitted that the evidence of the search and recorded interview should be excluded and his Honour heard the relevant evidence, including evidence from the respondent, on the voir dire. 4 The evidence for the Crown was that at about 3.30pm on 19 December, Detectives Arthurs and Mulheron, who were then on foot, saw the respondent, the sole occupant, driving slowly along Pittwater Road, Narrabeen in a dirty late model Holden Commodore car bearing the number plate RSX-374. On returning to their police car Detective Arthurs made inquiries which showed that the car was unregistered and uninsured, the registration having expired on 30 November 2002. 5 On that information, Detective Arthurs decided to stop the car and at about 6pm later that day, when they were in an unmarked police vehicle, the detectives again saw the respondent driving the same vehicle on Pittwater Road. The police car siren was activated whereupon Detective Arthurs saw the respondent immediately reach down with his left hand and forward to the floor area, continuing to do so until the car stopped. Detective Mulheron also saw the respondent reach to his left and slightly forward, at which stage Detective Arthurs said to him, "that looked a bit odd". 6 After the car had been stopped the respondent produced to Detective Arthurs a driver's licence which had also expired and this was confirmed by inquiry. When asked by Detective Arthurs, "When we pulled you over you were bending to your left, what was that all about?" the respondent replied, "I don't know, I've got a lot of stuff in my car". Detective Arthurs asked, "Is there anything in your car which should not be there?" to which the respondent replied, "No". 7 Detective Arthurs then looked into the car and saw a large number of clothes, which appeared to be rubbish, drinks and things like that, on the front passenger seat and also on the rear seat and floor areas. He saw on the driver's side floor, halfway between the seat and the brake peddles, leading up to the central console area, what he said appeared to him as "a small crowbar 15 to 20 cm long and a pair of gloves". 8 When asked by Detective Arthurs "What are the gloves and tool for?" the respondent replied, "Scaffolding". Detective Arthurs then asked, "Where do you do that?" and the respondent replied, "I don't any more, I work for URM". Detective Arthurs understood this to be a reference to United Resource Management, the Warringah Council Waste Depot at Belrose, and this was confirmed by the respondent. Detective Arthurs said that, taking into account the respondent bending down as described, he thought the tool and gloves might be used as housebreaking implements and decided to search the car pursuant to s 357E of the Crimes Act. 9 He then said to the respondent, "I am going to search your car. Is there anything in here that you want to tell me about or anything in here that may hurt me such as syringes?" The respondent replied "No". He said in evidence he asked that because the car appeared to be dirty and he wanted to be sure that he would come to no harm himself. 10 Upon searching the car Detective Arthurs found under the driver's seat a plastic bag containing beige powder which he suspected to be Methylamphetamine and when he asked what it was, the respondent replied "I've never seen that before". 11 Detective Arthurs arrested and handcuffed the respondent and asked, "Is there anything else here that I should know about?" to which the respondent replied "No". The two detectives then further searched the car and Detective Arthurs found under the driver's seat another plastic bag of beige powder and a foil also containing beige powder, which he showed to the respondent and asked, "What are these?". The respondent replied "Speed". In a pocket of a pair of shorts on the back seat of the car, Detective Mulheron found 24 resealable plastic bags which were later explained as being for the respondent's son's medication and, in the boot of the car, a glass bong. 12 The beige powder was on analysis found to be Methylamphetamine weighing in total 27.44 grams. The trafficable quantity for this drug is 3 grams. 13 Later that day the respondent was interviewed by way of an electronically recorded interview, during the course of which he said that the powder in the two bags and foil was "Speed", which he understood to be a prohibited drug, that he had bought it the day before at Lane Cove and had paid $470 for it, of which he contributed $50, and the rest was from some friends with whom he intended to share the drugs. 14 There was evidence in the Crown case that the street value of the Methylamphetamine was not less than $950 to $1350 in its then condition or, if sold in one gram deals, up to $2430, but his Honour rejected this evidence as there was no basis for inferring that it was going to be cut, sold or supplied, otherwise than shared between the respondent and his friends. 15 No photographs of the tool or the gloves was produced, but it was not put to Detective Arthurs in cross-examination that when he decided to search the car he had decided to search for drugs and not in relation to house- breaking equipment or illegally obtained goods. Detective Arthurs evidence was generally corroborated by that of Detective Mulheron. 16 The respondent's evidence on the voir dire was that he had worked as a scaffolder for 12 years but the previous 2 years he had been employed by United Resource Management and had not worked full-time as a scaffolder during that time, but had only done occasional work of that nature. He said he bought the car during the week before 19 December and had put old tools in it because he was going to move house and was using the car as storage. 17 He said the tool seen by Detective Arthurs was a scaffolding hammer which he described and drew (Exhibit 1), that he had used it in an attempt to start the car when his battery needed changing and afterwards he had dropped it on the front floor of the car on the driver's side, but the gloves were heavy duty issue from United Resource Management. 18 He described his movements on 19 December, and said that after leaving a bottle shop where he had bought four cans of Bourbon and Coke, he put his wallet on the centre console of his car and when he saw the lights of the police car, he reached to the left to pick up his wallet. He did not remember being asked by Detective Arthurs why he had been leaning down. He did not deny it had happened and accepted that he had not said "I leaned over to pick up my wallet". 19 He said that when asked by Detective Arthurs about the gloves and tool he said the tool was for work. He accepted he it was a strong tool with a little bit of weight and was comparable to a shifting spanner. He agreed that Detective Arthurs had then searched under the driver's seat and found the bags and foil; he had placed them there the day before because he did not want them in the house with his children there, and he wasn't really using the car. 20 He accepted that he had not told Detective Arthurs that he leant forward to pick up his wallet nor that he had taken the tools for use with him on the battery terminals. The property record of the respondent did not show that he had a wallet in his possession at the time of his arrest (Exhibit J). 21 In delivering judgment his Honour, in accordance with the concession made by counsel for the respondent, made a specific finding that there was a proper basis for stopping the vehicle. He then referred to the evidence of the accused bending over to his left, the finding of the gloves and the tool described, and the evidence given by Detective Arthurs that he decided to search the vehicle when he saw the tool and gloves. 22 His Honour was concerned that before the search the respondent was not asked whether he had any stolen articles or told of the detectives' suspicions, and noted that there was no photograph of the tool or gloves, although there were photographs of the drugs. He concluded that there was no basis for the suspicion, required by s 357E and, accordingly, that the search of the car was unlawful. 23 He then referred briefly to s 138 of the Evidence Act and said that, taking into account all the considerations referred to therein, it was proper that he should exclude the evidence. 24 On being asked to give reasons in relation to the discretion under s 138, his Honour set out the provisions of subs (1) and said, "I am not satisfied that the desirability of admission outweighs the undesirability of admission". He then set out the provisions of subs (3) and found that the evidence had a probative value and clearly was important. 25 As to the gravity of the impropriety or contravention, he said it seemed that the officer was of the view that he had a legal right to search, but he was puzzled as to why the respondent was never asked for permission to search, which may have been given, and he was unable to decide whether the impropriety or contravention was deliberate or reckless and said that it was the right of every person not to have his vehicle searched unless there was sufficient reason. 26 His Honour continued as follows: "The other thing that does concern me about the case is this, that this application has no merits in a moral sense because the applicant is clearly guilty; he has admitted his guilt. The sole basis of this application is the legality of the search but, as I remind myself, this is a court of law and not a court of morals. If it was a court of morals my result would be different because it seems to me that the guilt of this person is so obvious , but I am unable to say that there was a sufficient basis for the search and therefore I reject the evidence ." (my emphasis) 27 Following this, in a separate judgment, his Honour excluded the evidence of the electronically recorded interview because that interview had taken place in consequence of the illegal search. 28 Section 357E of the Crimes Act provides that a member of the police force may stop, search, and detain any vehicle in which he or she reasonably suspects there is anything stolen or otherwise unlawfully obtained or anything used or intended to be used in the commission of an indictable offence. The onus of proving that the evidence was illegally obtained within the terms of s 138(1) of the Evidence Act rests on the party asserting the same, in this case the present respondent. 29 A reasonable suspicion involves less than a reasonable belief, but more than a possibility and some factual basis for it must be shown: R v Rondo [2001] NSWCCA 540, 126 A Crim R 562 at [53]. 30 Notwithstanding his Honour's concern about the failure of the police to inquire of the respondent whether he was carrying any stolen goods or housebreaking implements in the car, the lack of a photo of the tool and gloves, and the respondent's description of the tool as a "scaffolding hammer", I am satisfied that when Detective Arthurs saw the tool, which appeared to him to be like a small crowbar, and the gloves, that he had seen the respondent leaning to his left and forward when the police alarm was activated, and that the car contained a lot of clothes and other material, the police had reasonable grounds to suspect that the vehicle contained items which might be used for housebreaking or in the commission of another indictable offence. The respondent's movement forward to his left, consistent with placing something in the glove box. 31 I do not regard the absence of the photographs of the tool to be of significance because after the discovery of the drugs, it was hardly to be anticipated that the appearance of the so-called scaffolding hammer would become an issue at the trial. 32 The respondent agreed in his evidence that the tool and gloves were on the floor of the car, and drew a sketch of it. His Honour also placed reliance on the failure of Detective Arhurs to inquire whether the respondent had any stolen goods in his car and on his failure to ask for permission to search the car. I would not place the same significance on these omissions. If he had been intending to search for drugs, he could equally as well have asked for permission. 33 For these reasons I am satisfied that his Honour was in error in finding that the search of the vehicle was illegal and, therefore, there was no ground for excluding the evidence of the finding of the drugs, or the evidence of the electronically recorded interview. 34 However, on the hypothesis that the search of the vehicle was illegal, I am still satisfied that his Honour was in error in excluding the evidence. Section 138(1) of the Evidence Act provides that improper or illegally obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence has been obtained. 35 Subs 3 is as follows: Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 36 Once the illegality or impropriety has been established, the onus is on the party seeking to lead the evidence that the discretion and balancing exercise conferred on the Court by subs (1) should, by reference to the matters set out in subs (3), and any other relevant matters, be exercised by admitting the evidence. 37 Although his Honour referred to a number of the particular items referred to in s 138(3) he does not appear to have attempted any weighing up or balancing exercise so as to inform a proper exercise of his discretion. The matters in the sub-section are not exhaustive and in the passage quoted above from his judgment, he made an express finding that the objection to the evidence was totally without merit and the respondent was clearly guilty of the offence. 38 This consideration should have been given significance by his Honour in the exercise of his discretion but having referred to it, and having previously referred to the relevant matters specified in s 138(3), he concluded his judgment without further referring to these matters and simply stated: "I am unable to say there was sufficient basis for the search and therefore I reject the evidence". 39 On first reading this passage it seemed to indicate that his Honour had not taken either the lack of merit or any of the matters he had considered by reference to subs (3) into account, but having found the search was illegal he had rejected the evidence as a matter of course. 40 That, however, may be a misreading of his Honour's judgment, bearing in mind the pressure that Judges in the District Court are under to produce judgments and rulings at short notice. However, assuming that his Honour did take those matters into account and did weigh them up, he does not appear to have come back to the essential question which subs (1) required him to consider, namely, to determine whether the public interest in admitting the evidence outweighed the undesirability of admitting the evidence that had been obtained in the way in which this evidence was obtained. 41 As pointed out in Bunning v Cross (1978) 141 CLR 54 at 74, what must be resolved is: "the apparent conflict between the desirable goal of bringing to conviction...whose task it is to enforce the law". 42 His Honour does not appear to have adverted to the public interest in bringing offenders to conviction provided it is not done at too high a price. 43 His Honour's discretion, and the balancing exercise required, not having been properly exercised in accordance with the principles in House v The King (1936) 55 CLR 499, it becomes necessary for this Court to carry out this exercise. As well as his Honour's finding that the application was without merit in that the respondent was clearly and admittedly guilty, the other relevant considerations under subs (3) all strongly favoured the admission of the evidence, namely, its probative value, its importance in the proceedings, the nature of the offence, namely, the supply or dissemination of prohibited drugs, and his Honour's finding that the detective was of the view that he had the legal right to search, which indicated that the impropriety or contravention was not deliberate or reckless, particularly in light of the fact that the police had good reason to stop the car in the first place. 44 It was submitted on behalf of the respondent that this was only a minor offence, a victimless crime. I disagree. Every dissemination of prohibited drugs in our community is a serious offence, including the purchase of such drugs for distribution to and sharing amongst friends. It is an indictable offence and carries a maximum penalty of imprisonment for 15 years or a fine of $220,000 or both. Moreover, although it involved an invasion of the respondent's privacy in a search of his car, I would not regard such impropriety or contravention as very grave. 45 All the relevant considerations therefore pointed to the balancing exercise required by subs (1) being exercised in favour of the admission of the evidence, and there were no indicators to the contrary. 46 Accordingly, the evidence of the search should have been admitted, and once that evidence was admitted, there was no basis for excluding the evidence of the electronically recorded interview. 47 For these reasons I am satisfied that his Honour was in error in ruling as he did. The Crown appeal should be allowed and it should be ordered that the evidence of the search of the motor vehicle and of the electronically recorded interview are admissible in the trial of the respondent. The matter should be remitted to the District Court for the continuation of the respondent's trial. 48 SPIGELMAN CJ: The foundation of the jurisdiction that his Honour exercised under s 138 of the Evidence Act was a finding by his Honour that the search of the vehicle was not authorised pursuant to s 357E of the Crimes Act 1900. 49 Dunford J has come to the view that the search was justified on the basis of the facts that his Honour has set out in his reasons. I am not so satisfied. 50 The critical matter upon which the police acted was observing a crowbar type of instrument, referred to as a scaffolding hammer, together with some gloves used for working purposes, in the car. That was reinforced by the statement made to the effect that whilst the person had once worked in the scaffolding industry, he was not at that time working in the scaffolding industry. 51 I am not of the view that that created a basis for a reasonable suspicion that the vehicle contained instruments that may have been used in housebreaking. 52 In my view there was no basis for the search of the vehicle pursuant to s 357E and, accordingly, the evidence had been obtained as a consequence of impropriety or contravention, within the meaning of s 138(1). 53 As Dunford J has outlined, his Honour first adverted in general terms to the contents of s 138(1) and announced a conclusory opinion that, taking into account the considerations set out in that sub-section, it was "proper" that the evidence be excluded. Thereafter, his Honour was asked to state his reasons more fully, which his Honour proceeded to do. 54 The first thing that his Honour did was to direct attention to sub-s 1 of s 138 and then outline, again in a very conclusory way, the fact that he was not satisfied that the desirability of admission outweighed the undesirability of admission. His Honour did not state in any manner the reasons for this conclusion, which involved a balancing of the conflicting public interests which may, in short measure, be referred to as the desirability of giving effect to the public interest in ensuring that a criminal is punished for the crime, on the one hand, and the desirability, on the other hand, of proper and legal conduct particularly, relevantly for present purposes, on the part of those whose job it is to enforce the law. 55 In so far as his Honour gave reasons for reaching the balance that he did, they were outlined in the manner referred to by Dunford J. This included a recitation of the matters in s 138(3), with observations leading to a conclusory statement, namely, that there was "not a sufficient basis for the search" and, therefore, as his Honour put it, "I reject the evidence". 56 In coming to my conclusion, I have been reluctant to apply too fine an analysis to his Honour's reasons. District Court Judges operate under considerable pressure and one should not parse and analyse their judgments. 57 Nevertheless, for the reasons mentioned by Dunford J, I am on balance satisfied that in these particular circumstances his Honour, in the end, did not undertake a balancing exercise, although he asserted in a conclusory fashion that that was what he did. 58 The reasons he gave were not of a character indicating any form of balancing. In so far as something like balancing is to be encompassed in the terminology "sufficient basis", on my reading of the judgment it is, in my opinion, unlikely to reflect a balancing process. Rather, it reflects a process in which his Honour moved directly from the existence of the illegality to the conclusion of rejection. 59 I must say this is something on which my mind has fluctuated during the course of preparing for this trial and also in the course of the hearing. Nevertheless, I come to the conclusion, on balance, that the alternative way in which Dunford J outlined in his reasons, namely, on the assumption that there was illegality, is justified. I adopt his Honour's reasons in that regard. I also adopt the reasons of Dunford J for concluding that this Court ought to make the judgment under s 138 in a manner favourable to the admissibility of the evidence. 60 I accordingly agree with the orders proposed by Dunford J. 61 HIDDEN J: I also agree. I find it unnecessary to determine whether the search was legal. It is sufficient to say that I agree that his Honour does not appear to have performed the balancing act that s 138 of the Act requires. I agree with the orders proposed. 62 SPIGELMAN CJ: The orders are as indicated. ********** Last Modified: 12/23/2003 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.