Local Court New South Wales Medium Neutral Citation: Police v Murray [2011] NSWLC 1 Hearing dates: 22 February 2011 Decision date: 24 February 2011 Before: Tsavdaridis Magistrate Decision: 1. Leave is granted to conduct a voir dire hearing. 2. The improperly obtained evidence is inadmissible. Catchwords: Traffic law - Sobriety assessment - Drive while under the influence of drugs - Observations of police officer - Arrest Legislation Cited: Road Transport (Safety and Traffic Management) Act 1999 (NSW) Evidence Act 1995 (NSW) Cases Cited: Baulman v The Queen (2007) 6 DCLR (NSW) 1 R v Hawkins (NSWCCA, 17 December 1992, unreported) Fleming v R [2009] NSWCCA 233 Robinson v Woolworths Ltd (2005) 64 NSWLR 612 R v Coombe (NSWCCA 24 April 1997) Texts Cited: NSW Police Handbook - Breath Tests and Analyses (February 2005 edition) Category: Procedural and other rulings Parties: NSW Police Force (Prosecuting Authority) Scott Alan Murray (Accused) File Number(s): H 42132903 2010/307714 Reasons for Decision 1The Accused comes before the Court charged with driving under the influence of drugs, contrary to s.12(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). A formal plea of not guilty was entered on 20 October 2010 and the matter was set down for hearing on 22 February 2011. 2Prior to the commencement of the hearing, Counsel for the Accused sought leave to have a voir dire hearing in order to determine the admissibility of certain evidence. It is generally accepted that an accused is not entitled to a voir dire hearing as a matter of right and a trial judge (or, in the case of summary matters in the Local Court, a magistrate) should be satisfied that there is an issue requiring such a proceeding and the relevant bases upon which the hearing is to be held should be identified by counsel requesting the voir dire: R v Hawkins (NSWCCA, 17 December 1992, unreport e d). 3S ections 189(1) of the Evidence Act 1995 (NSW) provides as follows: - "189 The voir dire (1) If the determination of a question whether: (a) evidence should be admitted (whether in the exercise of a discretion or not), or (b) evidence can be used against a person, or (c) a witness is competent or compellable, depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question." 4Before turning to the matters on which I was addressed by the parties, it is beneficial to set out the circumstances leading to the Accused's arrest and subsequent charge. 5Factually, it is alleged that at or about 3.40 a.m. on Tuesday 23 March 2010, the Accused's vehicle was stopped by police and while the police officer was speaking with the Accused, he observed the Accused to be very agitated, nervous, very talkative, anxious and continually moving his jaw in a chewing motion. It is alleged that his eyes were glazed and, when removed from his vehicle, was unsteady on his feet to the point where he was requested to sit on the ground back from the side of the roadway. He was submitted to a breath test which produced a negative result and the police then conducted a search of the Accused's vehicle which revealed numerous drug like substances and paraphernalia. He was arrested for driving while suspended and conveyed to Blacktown Hospital for a blood and urine test on the ground that the police suspected that the he may have been under the influence of a drug while driving. Having provided blood and urine samples and, presumably, after clinical analysis of the samples which revealed traces of illicit drugs in the Accused's blood, the Accused was charged with the aforementioned offence. 6The statement of the primary officer, Constable Darryl Conroy, dated 28 October 2010 was tendered without objection and he gave short, additional oral evidence, in respect of which he was not cross-examined. Similarly, the statements of Constables David Brodie and Ryan Baird were also tendered without objection and without them being cross-examined. Counsel for the Accused objected to the tender of the exhibits forming part of Constable Conroy's statement, namely, the analyst's certificate and the pharmacologist's expert certificate. 7The gravamen of the Accused's objection and the initial, but not the only, basis for the application for a voir dire, was that the blood and urine samples obtained from the Accused were unlawfully obtained and, consequently, the results contained in the certificates of the analyst and pharmacologist ought not be admitted into evidence. I should add that for the purposes of s.189(1) of the Evidence Act 1995 (NSW), the "preliminary question" as to whether or not the evidence should be admitted or whether or not the evidence should be used against the Accused, is dependent upon the Court finding that a "particular fact" exists; that fact, in this case, being the requirement to carry out a sobriety assessment under s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). 8Section 12 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) provides as follows: - "12 Use or attempted use of a vehicle under the influence of alcohol or any other drug (1) A person must not, while under the influence of alcohol or any other drug: (a) drive a vehicle, or (b) occupy the driving seat of a vehicle and attempt to put the vehicle in motion, or (c) being the holder of a driver licence (other than a provisional licence or a learner licence), occupy the seat in or on a motor vehicle next to a holder of a learner licence who is driving the motor vehicle." 9Section 25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) provides: - "25 Police officer may require sobriety assessment (1) A police officer may require a person to submit to an assessment of his or her sobriety in accordance with the directions of the officer if: (a) the person has undergone a breath test in accordance with Division 3, and (b) the result of the test does not permit the person to be required to submit to a breath analysis. (2) A person cannot be required to submit to a sobriety assessment unless: (a) a police officer has a reasonable belief that, by the way in which the person: (i) is or was driving a motor vehicle on a road or road related area, or (ii) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the vehicle in motion, the person may be under the influence of a drug, and (b) the assessment is carried out by a police officer at or near the place where the person underwent the breath test." 10Section 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) provides: - "26 Arrest following failure to submit to (or pass) sobriety assessment If the person refuses to submit to a sobriety assessment under this Division or, after the assessment has been made, a police officer has a reasonable belief that the person is under the influence of a drug, the police officer may: (a) arrest that person without warrant, and (b) take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a place prescribed by the regulations and there detain the person (or cause the person to be detained) for the purposes of this Division." 11Section 27 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) sets out the procedure for taking samples from a person after their arrest. 12Counsel for the Accused submitted that there were numerous reasons as to why the Court should not admit into evidence the certificates of the analyst and pharmacologist, including: - (a)whilst there were observations made by the officer, such observations are not sufficient in their own right; (b)observations are a pre-condition to conduct an assessment within the scope of s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW); (c)what is actually required is an "assessment" for the purposes of ss.25 and 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW); (d)in order for the Accused to be arrested and conveyed to the hospital for blood and urine samples to be taken from him, one of two pre-conditions must be satisfied under s.26; first, the Accused must have refused to submit to a sobriety assessment (which was not the case here), or, secondly, the police officer must have formed a reasonable belief that the Accused was under the influence of a drug, but only after an assessment had been made, and not merely after observations had been made; (e)in the absence of a statutory definition of the word "assessment", the Court need not necessarily decide what the assessment procedure should entail; (f)the Breath Tests and Analyses section of the NSW Police Handbook (February 2005 edition), tendered by Counsel for the Accused, provides that if an officer suspects that a driver may be under the influence of a drug, he or she may have them submit to an assessment of sobriety, this being indicative of a two step process, involving, first, a suspicion (involving, presumably, observations being made), then submission to an assessment of sobriety; (g)the critical failure of the police officer was in not requesting the Accused to submit to an assessment for sobriety; (h)the fact that the road transport legislation is based on technicalities is no excuse and, indeed, one of the trade-offs for the community accepting certificates derived from analytical equipment used in the detection of road transport offences is the adherence to strict compliance by the police of their obligations under road transport legislation; (i)notwithstanding that the officer did not appear to have acted in deliberate disregard of the requirement to have the Accused submit to a sobriety assessment, the community must have complete confidence that police will adhere to all legislative requirements; (j)the evidence obtained by the police was obtained unlawfully, contrary to ss.25 and 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW); (k)further, and/or in the alternative to the evidence being excluded under ss.25 and 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW), the Court should exercise its discretion to exclude the evidence under s.138 of the Evidence Act 1995 (NSW) on the grounds that the evidence was improperly obtained, or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law. That being the case, it was submitted that desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. 13Section 138(1) and (3) of the Evidence Act 1995 (NSW) provide as follows: - "138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) ... (3) 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." 14Having regard to s.138(3)(d) of the Evidence Act 1995 (NSW), it was further submitted by Counsel for the Accused that the power of arrest, which necessarily involves the deprivation of liberty, is one of the most significant coercive powers held by police and that one's liberty must be scrupulously protected. 15Whilst there is no reported decision from any superior court of record in relation to ss.25 and 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW), Counsel for the Accused directed me to the District Court of NSW decision of Baulman v The Queen 6 DCLR (NSW) (per Goldring DCJ) in which his Honour dealt with very similar issues to those with which this Court faces, particularly on the issue of the sobriety assessment process. I am, of course, not bound by that decision, but it may be used as a guide in assisting this Court in resolving the issues in dispute. That decision involved an a ppeal against a conviction imposed in the lower court. The appellant was convicted of driving whilst under influence of cannabis. He was arrested for possession of cannabis after being pulled over by police while driving his vehicle. The police in that case formed an opinion that the appellant was under the influence of drugs from observations of strong odour of cannabis emanating from the appellant's vehicle, his behaviour and cigarette butts on the floor of his vehicle. Police took the appellant to the hospital in order to run tests to determine his toxicology. The appellant claimed that the toxicology results relied on in the primary proceedings were unlawfully obtained and that the police were required to perform a sobriety assessment under s.26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) before taking the person suspected under influence of drugs for toxicology tests. In his reasoning, his Honour Goldring DCJ stated at [14] as follows: - "In this case there is no evidence before me that any formal assessment of the appellant's sobriety was made. In my opinion the Act requires a conscious process of assessment. Simply making observations which may lead to the formation of a reasonable belief as to the state of a person's ability as a pre-condition for requiring a person to submit to a sobriety assessment is not, in my view, itself a sobriety assessment." 16His Honour continued at [16] as follows: - "In my view this is a case where no such formal procedure was undertaken. I do not presume to suggest what an appropriate procedure would be, but whatever it might have been, it was not followed in this case. It follows that the proper procedures were not followed. Therefore the blood and urine samples which were analysed were obtained improperly or illegally and s.138 of the Evidence Act 1995 (NSW) therefore comes into operation." 17After considering the indicia in s.138(3) of the Evidence Act 1995 (NSW), his Honour found it necessary to exclude the evidence, thereby finding that there was no basis for the lower court to have proceeded to a conviction, allowing the appeal and quashing the conviction. 18Whilst the case before his Honour involved an additional failure, namely, the failure of the police to place the accused under arrest, it is demonstrative of one salient feature, that is, the anterior requirement that there be an assessment of some kind as a threshold test before then moving to the subsequent steps of reasonable belief, arrest and conveyance of the accused to the hospital for blood and urine analyses. This is, in my view, supported by the legislative construction of s.26 which prefaces the words "reasonable belief", "arrest" and "taking the person to a prescribed place" to the purpose of taking samples with the words "after the assessment has been made" and s.25(2), which makes sub-section (b) (dealing with the assessment) conjunctive to sub-section (a) (dealing with the reasonable belief), the statutory intention revealing, in my view, separate and distinct steps in a chain of requirements. 19The Prosecutor submitted that: - (a)the police concede that no demand was made on the Accused under the first limb and, therefore, the arrest may have been unlawful for the purpose of ss.25 and 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW); (b)there is, notwithstanding the above, significant probative value in the evidence sought to be adduced, namely, the results of the blood and urine samples taken from the Accused, and despite the contravention, the evidence should be admitted; (c)without the evidence, the prosecution case would fail; (d)Baulman's case should be distinguished as the Accused in the present case was stopped in a breakdown lane on the M7 motorway; it was a dark area; the Accused was unsteady on his feet; and for his own safety he was asked to sit on the ground back from the side of the roadway; (e)it would be impossible and/or impractical to conduct a sobriety assessment in that area; (f)it was objectively unsafe to conduct a sobriety assessment in that area having regard to the Accused's condition; (g)there is no power for the police to take him elsewhere for a sobriety assessment; (h)forcing the Accused to submit to a sobriety assessment under those conditions would have represented an impropriety of a graver standard; (i)having regard to the aforementioned matters, the impropriety, in not complying strictly with the Act, could be excused. 20There is no doubt that driving under the influence of alcohol or illicit drugs impairs one's ability to make the crucial decisions required to maintain a proper control over a vehicle, affecting reaction times and leading to devastating consequences including damage to property and injury and death to innocent road users, pedestrians, passengers and even offending drivers themselves. Police and other officers are charged with the task of monitoring drivers and for pursuing those who commit violations of the road rules in an attempt to reduce the incidence of injury or death. In doing so, however, there is a requirement and an expectation that the procedures set out in the road transport legislation will be adhered to in order to firmly ground a conclusion that an offence has been committed. 21It must follow that once the concession is made that the arrest was unlawful, on the basis that the procedure set out in ss.25 and 26 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) was not adhered to, all that followed subsequent in time must also have been impermissible. I reject the prosecution's submission that the sobriety assessment could not have been conducted elsewhere in that s.25(2)(b) provides for an assessment to be carried out at or near the place where the person underwent the breath test. 22Similarly, I reject the prosecution's submission that the police had no power to take the Accused elsewhere on the basis that the power of arrest provided for in s.26 arises only after the sobriety assessment has taken place. The Accused, by virtue of Constable Conroy's statement of evidence was placed under arrest for being a suspended driver. There is nothing that precluded the police from arresting him for being a suspended driver and then taking him elsewhere (pursuant to the power afforded by s.25(2)(b)) to conduct a sobriety assessment. The evidence revealed that there were not only multiple officers but also multiple police vehicles within which to transport the Accused to a more suitable place for an assessment if they were not, for safety reasons, completely satisfied with conducting a roadside assessment on the M7 motorway. 23There was, in my view, an exiguousness of evidence from the officer as to whether he turned his mind to a sobriety assessment. 24Whilst the legislation is silent on what an assessment actually entails, there is, in this case, just as there was in Baulman's case , no evidence before the Court that any formal or informal assessment of the Accused's sobriety was carried out. That is a mandatory statutory requirement, and not one which is left to the police's discretion. It cannot be said, in my view, that the officer's observations on their own were tantamount to a sobriety assessment. 25Before the discretion to exclude arises under s.138 of the Evidence Act 1995 (NSW), I must first find facts that engage the section. The decision as to whether the police acted improperly is a question of fact and the decision to admit or exclude the evidence is an exercise of discretion: Fleming v R [2009] NSWCCA 233. In Robinson v Woolworths Ltd (2005) 64 NSWLR 612, Court of Criminal Appeal held that: - "First, it is necessary to identify what, in a particular context, may be viewed as `the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement'. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be `quite inconsistent with' or `clearly inconsistent with' those standards. Thirdly, the concepts of `harassment' and `manipulation' suggest some level of encouragement, persuasion or importunity in relation to the commission of an offence: thus, in describing the first category of cases (at 39) the joint judgment in Ridgeway referred to offences being procured or induced" 26The authorities make it clear that where there is no unlawfulness on the part of the police officer, mere doubts about the desirability or appropriateness of the conduct is not sufficient to engage the section. That being the case, the corollary must be that where there is unlawfulness on the part of the police officer, in the sense that the procedure set out in s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) was not adhered to, the undesirability or inappropriateness of the conduct must be sufficient to engage the section. on the material before me, I make a finding of fact that the police failed to follow the procedure in s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). By virtue of this finding, the section has, in my opinion, been engaged. 27I have considered the matters set out in s.138(3) of the Evidence Act 1995 (NSW). In light of the concession made by the prosecutor that without the evidence, the prosecution would fail, there can be no doubt that the probative value of the improperly obtained evidence is of some importance: s.138(3)(a) and (b). The nature of the relevant offence and the subject matter of the proceedings is, in the hierarchy of seriousness of cases coming before this Court, routine and commonplace, that is, traffic matters are regularly dealt with by the Local Court on a daily basis: s.138(3)(a) and (b). That is not to suggest that the offence with which the Accused has been charged should be treated de minimus but, rather, is to appropriately categorise the objective seriousness of the genre of cases in which this offence falls. The gravity of the impropriety or contravention, (having regard to s.138(3)(d)) is such that a number of consequences transpired as a result of the Accused's detention following the impropriety; first, his detention; second, his conveyance to hospital; and third, the mandatory obligation to provide samples of blood and urine, in the case of the anterior requirement, the extraction of blood from his person via intravenous means, under penalty of fines and/or imprisonment under s.29(2) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). I find that the contravention, when assessed against the backdrop of the aforementioned matters, is sufficiently grave so as to warrant exclusion of the evidence. As to whether the impropriety was reckless or deliberate or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , there does not appear to be any evidence to suggest that the officer's actions were anything other than an oversight, with a number of subsequent effects: (s.138(3)(e)). It is unlikely that there will be, any other proceedings, action taken in relation to the impropriety: (s.138(3)(f)). Further, there would have been no difficulty whatsoever in obtaining the evidence without impropriety had the procedure outlined in s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) been followed: (s.138(3)(f)). 28I find that the evidence should be excluded, as a matter of discretion, pursuant to s.138(1) of the Evidence Act 1995 (NSW) h aving regard to the " minimum standards ... [one] should expect and require of those entrusted with powers of law enforcement" , as referred to in Robinson v Woolworths Ltd (2005) 64 NSWLR 612 and the inconsistency between those standards and the subsequent effects of what transpired by not adhering to the procedure required by s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW), involving a deprivation of liberty and submission to medical procedures which would not, but for the contravention of s.25, been carried out on the Accused's person. 29In determining this admissibility of the evidence, and with the onus being on the Accused (see R v Coombe (NSWCCA 24 April 1997) to prove the matters that would raise the exercise of the discretion, I have applied the civil standard of proof, on the balance of probabilities, as required by s.142 of the Evidence Act 1995 (NSW). 30Having decided that a "particular fact" exists (s.189(1) of the Evidence Act 1995 (NSW)), that is the requirement to carry out a sobriety assessment under s.25 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW), and having then decided the "preliminary question" that the evidence should not be admitted or used against the Accused (s.189(1) of the Evidence Act 1995 (NSW)), I make the following formal orders: - 1. Leave is granted to conduct a voir dire hearing. 2. The exhibits forming part of Constable Conroy's statement, namely, the analyst's certificate and the pharmacologist's expert certificate are inadmissible. Magistrate Theo Tsavdaridis Chambers ********** 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. Decision last updated: 17 March 2011