Reported Decision: 199 A Crim R 591 New South Wales Court of Criminal Appeal CITATION: Carlton v R [2010] NSWCCA 81 HEARING DATE(S): 12/02/2010 JUDGMENT DATE: 7 May 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 25 DECISION: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW - Appeal - Evidence - whether evidence of admission recorded on ICV admissible - whether proviso should be applied Drug Misuse and Trafficking Act 1985 - s 25 LEGISLATION CITED: Law Enforcement (Powers and Responsibilities) Act 2002 - ss 108D(1), 108E(1) Criminal Procedure Act 1986 - s 281 CATEGORY: Principal judgment CASES CITED : Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 PARTIES: Matthew John Carlton v Regina FILE NUMBER(S): CCA 2008/1369 COUNSEL: F Veltro - Crown G Newton - Appellant SOLICITORS: S Kavanagh - Crown Antwan Lawyers - Appellant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/1369 LOWER COURT JUDICIAL OFFICER: Syme ADCJ LOWER COURT DATE OF DECISION: 17/06/2009 IN THE COURT OF CRIMINAL APPEAL 2008/1369 McCLELLAN CJ at CL HOWIE J HARRISON J FRIDAY 7 May 2010 Matthew John CARLTON v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 HOWIE J: The appellant was convicted of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act. The offence was based upon an allegation that the appellant was in possession of a quantity of methamphetamine being about 15 times the traffickable quantity prescribed for that drug. The appellant was sentenced to a term of imprisonment but there is no application for leave to appeal. It must be noted that on its face a sentence with a non-parole period of only 8 months appears inadequate to a very considerable degree. However, there was no Crown appeal. The result of the sentence imposed is that the appellant has completed his non-parole period and the sentence in its entirety expired on 25 March last. 3 There was little, or no, dispute about the facts in the prosecution case. The only issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellant was in possession of the drugs that were found in the glove box of a vehicle that he was driving when pulled over by police on 10 May 2007. The appellant gave evidence and denied knowledge of the presence of the drugs. The owner of the vehicle gave evidence denying that the drugs were his. The verdict of the jury means that they were satisfied beyond reasonable doubt that the account given by the appellant was untrue. 4 The ground of appeal raises the admissibility of the audio track of a video recording of the events following the police stopping the appellant for speeding on the Sturt Highway outside Wagga Wagga at about 10.40pm on 10 May 2007. The police by the use of a speed radar ascertained that the appellant was driving at 120kph in a 100kph speed zone. The appellant was made to stop the vehicle on the roadside. As Sgt McLachlan exited the police vehicle, he saw the appellant lean towards the left side of the vehicle that he was driving. 5 The police vehicle was fitted with in car video equipment (ICV). There were two cameras in the system: one camera faced the front of the vehicle and the other the rear. The officers had portable microphones fitted to their belts for recording an audio track to the video. The video recording continued for a period of about two hours while the appellant was stopped at the roadside. Some of that period was spent waiting for a police truck and video equipment to arrive. An edited copy of the video recording with the audio track was played to the jury. 6 The video records the following. The appellant can be seen to lean to the left side of the vehicle as police approached. The police officer advised the appellant that "everything is being recorded". He was told that, in light of the fact that he was sweating and seemed nervous, the police intended to search the vehicle. The appellant left the vehicle and was searched. A discussion occurred about the purpose of the appellant's trip. Sgt McLachlan searched the interior of the vehicle and returned to the appellant and asked, "What's in here Matthew?" The appellant was then cautioned. The appellant was shown a plastic container with plastic bags containing white powder. After the appellant indicated that he did not want to say anything, he was told that he was under arrest "for possession of a prohibited substance". 7 The appellant then entered the back seat of the police vehicle and was advised that the vehicle was fitted with video and audio recorders that would continue recording. The front camera was then turned towards where the appellant was sitting. The appellant left the vehicle at one stage to have a cigarette. There was then a conversation between the appellant and Sgt McLachlan that was recorded on the audio track. He asks, referring to the white powder, "Is it ice?" The appellant replies, "No, its not ice its speed that's all it is." He is asked, "How much is in there?" and the appellant replies, "Two ounces". 8 It is now asserted that the audio recording of the conversation between the appellant and the police officer was inadmissible as it was unlawfully obtained because of provisions in relation to the use of ICV. Although various objections were taken to these conversations at the trial, it was not argued that s 138 of the Evidence Act applied. Counsel who appeared for the appellant at the trial has made an affidavit in which he states that he was unaware of the provision that is relied upon in this Court to support the present objection to the admissibility of the evidence. There is nothing to indicate why the Crown prosecutor did not raise the issue under the Crown's duty of fairness. 9 The basis upon which it is now argued that the audio track of the tape was unlawfully obtained is certain provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 and in particular s 108E of that Act. The relevant provisions are as follows: 108B Police activities requiring use of ICV equipment For the purposes of this Part, the following police activities are " police activities that require the use of ICV equipment ": (a) pursuing or otherwise following a vehicle with the intention of stopping or detaining the vehicle, (b) activities in relation to a vehicle that has been stopped or detained, or in relation to the driver or any occupant of the vehicle while in or about the vehicle (whether or not the vehicle was stopped or detained after being pursued or otherwise followed under paragraph (a)). 108C Mandatory use of ICV equipment (1) If a police vehicle is equipped with ICV equipment, the driver of the vehicle must ensure that while the vehicle is being used in the course of police activities that require the use of ICV equipment: (a) the ICV equipment is operated for the purpose of recording a view from the police vehicle of those activities, and (b) a conversation between the police officer and the driver or any occupant of a vehicle stopped or detained in the course of those activities is recorded by means of the ICV equipment. (2) The authority conferred by this section to record a conversation (the " primary conversation ") extends to authorise the recording of another conversation the recording of which is incidental to the recording of the primary conversation or that is inadvertently or unexpectedly recorded in the course of recording the primary conversation. (3) Any failure to operate ICV equipment or to record a conversation as required by this section: (a) does not of itself limit or otherwise affect the admissibility of evidence of any matter concerning the police activities to which the failure related, and (b) does not of itself result in any such evidence being evidence improperly or unlawfully obtained, but this subsection does not otherwise affect the operation of any rules as to admissibility of evidence. 108D Person to be informed that conversation will be recorded (1) A police officer who records a conversation between the police officer and another person under this Part must inform the person (either immediately before recording of the conversation commences or as soon as practicable after recording has commenced) that the conversation will be recorded using police in-car video equipment. (2) This section does not apply to the recording of a conversation inadvertently or unexpectedly or incidentally to the recording of another conversation. (3) Recording of a conversation does not require the consent of the person and the authority conferred by this Part is not affected by any objection or refusal to consent by the person to the recording. 108E Recording not authorised after arrest (1) A conversation between a police officer and a person must not be recorded under this Part after the person has been arrested. (2) This section does not apply to the recording of a conversation inadvertently or unexpectedly or during the period between the person's arrest and the first reasonably practicable opportunity to discontinue recording of the conversation. (3) This section applies only to the recording of the sounds of a conversation. It does not apply to the recording of visual images of the conversation. 10 It is not in dispute that, contrary to the prohibition contained in s 108E(1), the arresting police continued to make an audio recording of the conversations that took place after the appellant had been arrested. However, because the point was not taken at the trial there was no investigation of why the police officers did not comply with the provision. Although counsel for the appellant conceded in this Court that the particular officers might have been unaware of the provision, that is mere speculation. It is clear that Sgt McLachlan was aware that there was an obligation to inform the appellant that the proceedings were being recorded and he did this twice: see 108D(1). 11 Of course simply because the audio recording of the conversations with the appellant was unlawfully made, it does not necessarily follow that a trial judge would reject the evidence. One of the issues to be considered under s 138 is whether the breach of the law by the police officers was intentional or reckless. Another relevant factor in determining whether to exercise the discretion to admit the evidence would be the policy behind the prohibition in 108E(1). 12 The second reading speech made by the Attorney General when introducing the bill said this about the use of ICV (Hansard Legislative Council 9 December 2004): The significant benefits of ICV are that it enhances officer safety and provides an accurate independent witness to events, protecting both police and members of the public against unfounded allegations of improper conduct and behaviour. 13 As to the particular provisions with which this appeal is concerned the Attorney said: Once an officer arrests a person, the audio component of the ICV system must be turned off at the first reasonably practicable opportunity. The inclusion of the wording "the first reasonably practicable opportunity" is intended to ensure police officers' safety. If an arrested person is violent towards police and has to be subdued then an officer must be able to contain that person before switching off the audio component of the ICV. Similarly, if the arrested person is part of a group and police are continuing to exercise investigative or other powers in relation to that group or vehicle it will, under this bill, be permissible for both components of the ICV to continue recording as long as the arrested person is removed from the area that has been captured by the ICV. It is important to understand that the use of the term "arrest" in this bill, for example at section 108E, means the officer telling the person that they are under arrest and not just by the fact of the person's vehicle being pulled over or detained…………. 14 There is nothing in the speech that explains the policy behind s 108E. I can only conjecture that it was thought that the police officer should not interrogate a suspect at the scene rather than take the person to a police station to be formally dealt with as a person under arrest. However, there would have been no prohibition upon the officer turning off the microphone that was part of the ICV but recording the conversation on a separate recording device. There is no prohibition on a police officer arresting a person and then asking questions provided that the person is given a caution as occurred here. In fact, if the officer had not electronically recorded the conversation that followed after arrest, the evidence would prima facie be inadmissible: see s 281 of the Criminal Procedure Act. If the recording by ICV of the conversation were admissible, it would have complied with s 281. 15 I do not appreciate why, if there is a general requirement on police to electronically record conversations with suspected persons and in particular after arrest, the recording of such a conversation cannot be made by use of the ICV. If the police officer acts inappropriately in questioning the person after arrest, for example by failing to give the suspect a caution or by continuing to question after the suspect indicates an unwillingness to be interrogated, it is better that this conduct be electronically recorded than not. Objections can be taken to the recorded conversation based upon the impropriety of the police questioning. 16 The result of the prohibition seems to me to be very curious indeed. A recording of the conversation made by a separate tape recorder would not only have been lawful but would have been required for the conversation to be admitted into evidence. Yet a recording of the same conversation by the ICV system is unlawful and liable to be rejected for that reason alone. 17 However that may be, Parliament has determined as part of the scheme for the use of ICV that audio recording must stop upon arrest. It may be appropriate for the court in a suitable case to enforce that policy by rejection of the evidence. Whether it would be appropriate to do so on the facts of this case, I am unable to determine in the absence of evidence as to why the recording was not turned off. Without an investigation of the reasons for the failure to comply with s 108E, I do not believe this Court is in a position to determine that, even had the objection been taken, a reasonable judge would have admitted the evidence applying s 138. If the decision was made not to turn off the audio recording as a deliberate flouting of the statutory provision, I can understand that a judge might reject the evidence to uphold the policy of Parliament even though it may be difficult to discern what it was. 18 Although no objection was taken to the evidence on the basis now placed before this Court, there was objection taken to it and it could not have been in the appellant's interest to have it admitted. The Crown had a responsibility to draw the Court's attention to the unlawfulness of the evidence when it was clearly in breach of a provision of the legislation that authorised the use of the ICV. 19 There was no error by the trial judge because no objection was taken to the evidence on the basis that it was unlawful. The question that arises, therefore, is whether the appellant has satisfied the Court that the admission of the evidence has led to a substantial miscarriage of justice. That question is answered by a consideration of the whole of the record of the evidence, including the fact that the jury convicted the appellant, in order to determine whether, "making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty": Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [41] (footnote omitted). 20 In my opinion, even absent the admissions, the prosecution case was very strong. The following were the circumstances that pointed to the appellant's guilt: the drugs were found in the glove box of the vehicle that the appellant was driving; the appellant was seen to reach to the left as the police approached the vehicle; the appellant was obviously nervous which led the police to search the vehicle; the owner of the vehicle gave evidence that he had no knowledge of the drugs in the vehicle; the appellant was a recreational user of the drug at the time; and the implausibility of any other person inadvertently leaving that amount of the drug in a vehicle that the person had borrowed from the owner. There was evidence that the drug was worth in excess of $26,000. 21 The police gave evidence that the mobile phone being used by the appellant was found in the glove box although the appellant denied that fact during his evidence. In any event, the appellant was using a mobile phone that did not belong to him which is consistent with his being a drug courier. 22 There was also the implausibility of the appellant's account of why he was driving to Wagga from Sydney. He gave evidence that he was driving to see a friend, for whom he was to be best man at the friend's wedding, to organise a buck's night that was to take place in September. It will be recalled that he was arrested in May. He was to stay only one day as he had to return to Sydney for another wedding despite the fact that the journey to and from Wagga took four hours each way. He had no change of clothes and undertook the journey even though he was tired from "a big night before". He had not told his friend that he was coming and had little money. He admitted being short of finances at the time during cross-examination. 23 There was no dispute as to the admissions and the appellant gave an exculpatory explanation for them on the basis that he recognised the drug and the amount in the package from his familiarity with the drug and the manner in which it was sold. That evidence has no impact upon my opinion that the appellant's account could not reasonably be true. In my opinion it was an overwhelming circumstantial case independent of the evidence to which objection is now taken. I am satisfied beyond reasonable doubt that the appellant was in possession of the drug and that he was taking it to Wagga for the purposes of supply. 24 I propose that the appeal be dismissed. 25 HARRISON J: I agree with Howie 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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