Reported Decision : 151 A Crim R 564 New South Wales Court of Criminal Appeal CITATION: Regina v Minh Quoc Le [2005] NSWCCA 40 HEARING DATE(S): 14 February 2005 JUDGMENT DATE: 18 February 2005 JUDGMENT OF: Bryson JA at 1; Barr J at 2; Hoeben J at 21 DECISION: Appeal dismissed. CATCHWORDS: Criminal law - power of arrest - whether arrest lawful - whether evidence unlawfully obtained. Criminal law - power of detention and search - whether search lawful - whether evidence unlawfully obtained. LEGISLATION CITED: Crimes Act 1900 ss352, 357E CASES CITED: R v Rondo (2001) 126 A Crim R 562 PARTIES: Regina, Minh Quoc Le FILE NUMBER(S): CCA 2004/2535 R Pontello COUNSEL: G I O Rowling McGrath Dicembre & Co SOLICITORS: S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0276 LOWER COURT JUDICIAL OFFICER: O'Reilly QC DCJ - 7 - IN THE COURT OF CRIMINAL APPEAL 2004/2535 BRYSON JA BARR J HOEBEN J 18 FEBRUARY 2005 REGINA v MINH QUOC LE Judgment 1 BRYSON JA: I agree with Barr J. 2 BARR J: This is an appeal against conviction. The appellant was tried by a jury in the District Court and found guilty of using an offensive weapon to prevent police investigation, contrary to s33B(1)(a) Crimes Act 1900. 3 There is a single ground of appeal, namely that the trial judge erred in admitting evidence as to the appellant's possession of a gun. 4 At 9:55pm on Monday 1 July 2002 two police officers, Constable Gewargis and Senior Constable Rahme, were patrolling Smithfield in a police vehicle. They came to a street next to Rosford Reserve. That was an area which Constable Gewargis knew was used for criminal activity, particularly for dealing in drugs. The officers came upon two Mercedes motor vehicles. One was parked by the kerb and the other, no more than twenty metres from it, was parked at right angles to it in a drive at the entrance to the reserve. The first vehicle was gold and the second blue. Each car contained a driver and three other occupants. Constable Gewargis spoke to the driver of the gold car. The driver told him that the occupants of the cars were together. As they spoke, the blue car sped away. The officers followed it and stopped it. Constable Gewargis spoke to the driver, Mr Thadanabath. Mr Thadanabath told him that he did not know the occupants of the gold car. Senior Constable Rahme inquired about the registration of the gold car and the status of Mr Thadanabath's driving licence. Apparently those records were in order, but the officers also received over the police radio a warning that Mr Thadanabath might carry a pistol and that he was recorded as having engaged in gang and drug activity and in possessing firearms. Constable Gewargis directed the driver and the other occupants to get out of the car and stand on the footpath. They did so. Constable Rahme asked them for identification. The appellant handed him his driving licence. Constable Gewargis told Mr Thadanabath that he intended to search the car. He asked whether there was anything in it that should not be there, guns or drugs and Mr Thadanabath said that there were not. So did the appellant. The officers began searching. Constable Gewargis found a crowbar on the floor behind the driver's seat. Mr Thadanabath said that he had been doing some work with it. The officer went to the other rear door and began searching the floor and seat. He found a fifty-dollar note. All the occupants denied knowing whose it was. Constable Gewargis stood in front of the appellant and asked him if he had anything on him that he ought not to have. The appellant took a few steps back and said "nay". The officer directed him to turn around and, when asked why, said that he was going to search him. He tried putting his left hand onto the appellant's back pockets but the appellant kept twisting away, preventing him from doing so. The officer thought that he was trying to hide something. He asked whether he had something on him and the appellant said "no". The officer ran his hand down the appellant's back and felt something hard underneath the jacket. He took hold of his right shoulder and turned him round. He lifted the back of the jacket and saw a black pistol taped to the appellant's back. He called out to Senior Constable Rahme. The appellant took hold of the pistol in his right hand, turned and pointed it at Constable Gewargis' stomach. The officer took hold of his right wrist with both hands and tried to wrest the pistol from his grasp. The struggle went on for some time and the appellant was subdued when the officers sprayed him with capsicum spray and struck him with a baton. 5 Evidence of these matters was taken before the jury, but defence counsel applied for it to be withdrawn. The submission was that the evidence was unlawfully obtained and that the trial judge ought not, in the exercise of his discretion, ought to allow it to remain before the jury. The trial judge, O'Reilly QC DCJ, gave a short judgment stating that he found no breach on the part of the police and that in any event the evidence would be admitted within the exercise of the discretion under s138 Evidence Act. On the following day his Honour gave more extensive reasons. 6 The first question that arises on appeal is whether there was evidence upon which his Honour could properly find that the evidence was lawfully obtained. 7 Constable Gewargis agreed in evidence that when he required the appellant and the other occupants of the car to alight and stand on the footpath he was arresting them. Counsel submitted at trial and on appeal that the officer had no proper cause to make that arrest. 8 Section 352 Crimes Act sets out circumstances in which a constable may apprehend a person without warrant. Relevantly, the section provides as follows - 352 Person in act of committing or having committed an offence (1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, (b) any person who has committed a serious indictable offence for which the person has not been tried, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. (2) Any constable may without warrant apprehend, (a) any person whom the constable, with reasonable cause, suspects of having committed any such offence, (b) any person lying, or loitering, in any highway, yard, or other place during the night, whom the constable, with reasonable cause, suspects of being about to commit any serious indictable offence, and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law. 9 A serious indictable offence is an indictable offence that is punishable by imprisonment for life or for a term of five years or more. 10 The same Act confers a power to detain and search suspects. Section 357E is as follows- 357E Police may stop and search persons and vehicles A member of the police force may stop, search and detain: (a) any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence, or (b) any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence. 11 The meaning of the term "reasonably suspects" which, I think, is not materially different from the expression "with reasonable cause suspects" as used in s352, was considered in R v Rondo (2001) 126 A Crim R 562. The Court of Criminal Appeal made the following statement - (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 s357E. A reason to suspect that a fact exists is more than a reason to consider or 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 the 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. 12 Constable Gewargis undoubtedly suspected that the occupants of the cars were engaged in some criminal activity. This evidence was adduced. The officer was being asked about the time when he first spoke to Mr Thadanabath. Q And it is fair to say at that particular point in time the only thing then under investigation was, well effectively whether Thadanabath held a valid driver's licence? A Well I became suspicious with the answers that he was giving me because when I spoke to the driver of the gold coloured Mercedes he told me that they were together. When I spoke to Thadanabath he told me that he didn't know the occupants of the gold coloured Mercedes. I then thought to myself: well, why would one tell me that they're together and the other telling me that they're not together? He's left the scene as soon as we turned up. I felt that perhaps well he's either hiding something or he's trying to get out of the area because of something. 13 In his second judgment his Honour referred to a submission by defence counsel that the intelligence the police had about Mr Thadanabath's criminal tendencies was not received until after the arrest and could not therefore have informed Constable Gewargis' suspicions at that time. The submission depended upon a comparison between the recorded time of the police radio broadcast and the time of arrest as recorded by the arresting officer. His Honour appears to have accepted that submission. 14 One may therefore infer that his Honour proceeded to judgment upon the understanding that Constable Gewargis knew the following when he arrested the appellant - 1. There were two expensive cars, each containing four young occupants, parked close together at 9:55pm, well after dark, on the edge of a reserve; 2. Dealers in illegal drugs often did their business there; 3. The driver of the blue car, in which the appellant was a passenger, behaved suspiciously by driving it off at high speed while the officer was speaking to the driver of the other car; and 4. The two drivers gave the officer inconsistent answers: the first told him that the occupants of the two cars were together but the driver of the appellant's car told him that he did not know who was in the first car. 15 His Honour concluded that Constable Gewargis had and was entitled to have the reasonable suspicion required for the exercise of the search and detention rights under s357E. His Honour referred to R v Rondo. 16 It seems to me that his Honour was entitled, applying what this Court said in R v Rondo to the facts that I have summarised, to find that Constable Gewargis reasonably suspected the appellant of having or conveying any thing unlawfully obtained or used or intended to be used in the commission of an indictable offence. Dealing in any prohibited drug would have been an indictable offence. 17 His Honour did not deal with the submission about the unlawfulness of the arrest, as it depended upon the power in s352, as opposed to the unlawfulness of the detention and search, dependant on the power arising from s357. It was submitted on appeal that his Honour was bound to find in all the circumstances that the arrest of the appellant was unlawful and that that unlawfulness tainted the search that followed. 18 I do not accept that submission. First, the evidence of what Constable Gewargis knew was in my view sufficient to ground a suspicion with reasonable cause either that the appellant had committed an offence of the kind contemplated by s352 or that he was loitering in a highway during the night about to commit a serious indictable offence. The dealing in any prohibited drug would have been a serious indictable offence. 19 Secondly, the power to detain under s357E arose independently of any power of arrest under s352. Even if the arrest was unlawful, that unlawfulness could not have affected the lawfulness of the detention and the search which followed. This is not a case in which an arrest led to the discovery of information or to the prompting of further inquiry which led to the revelation of unlawful activity. The discovery of the pistol strapped to the back of the appellant resulted directly from his detention and search, both of which his Honour correctly concluded were lawful. 20 I would dismiss the appeal. 21 HOEBEN J: I agree with Barr J. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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