District Court New South Wales Medium Neutral Citation: R v Yana ORM [2011] NSWDC 26 Hearing dates: 17 and 21 February 2011 Decision date: 22 February 2011 Jurisdiction: Criminal Before: Lakatos SC DCJ Decision: Evidence admitted Catchwords: EVIDENCE - illegal search - consent - discretion to exclude improperly obtained evidence. POLICE PRACTICE - recording admissions - desirable practise regarding conduct of ERISP. Legislation Cited: Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Cases Cited: DPP v Leonard (2001) 53 NSWLR 227 R v Azar (1991) 56 A Crim R 414 Meates v Attorney General (Customs Department) [1981] 2 NZLR 335 Coleman v Zanker (1991) 58 SASR 7 R v Chapman (2001) 79 SASR 342 Bunning v Cross (1978) 114 CLR 54 DPP v Nicholls [2001] NSWSC 523 Category: Procedural and other rulings Parties: Regina Orm Representation: E Wilson SC (Crown) D Edwardson QC (Accused) File Number(s): 2009/330935 Judgment 1HIS HONOUR: The accused, Yana Orm, has been indicted on two counts of deemed supply of a prohibited drug, the first relating to 314.6 grams of pseudoephedrine of which the trafficable quantity is 15 grams - the purity of that drug as indicated in the voir dire material is 9.5% - and a second count of deemed supply of a prohibited drug, namely methylamphetamine, in the quantity of 133.8 grams, the trafficable quantity being 3 grams, and the purity of that drug being 81.5%. 2The date of the alleged offences was 23 December 2009. The offences constitute, if established, a breach of ss 25 and 29 of the Drug Misuse and Trafficking Act and involve a maximum penalty of fifteen years imprisonment and/or 2,000 penalty units. 3I have taken a summary of the facts from the Crown's written submissions and in my view they, for present purposes, accurately summarise the essential elements of the allegations by the Crown. They are as follows: 4At about 8.25pm on 23 December, a police officer was conducting a random breath test near a service station at Gundagai on the Hume Highway. He observed a Nissan motor vehicle with South Australian registration plates in the vicinity. The vehicle turned back into the service station and appeared to leave the service station by a different exit. 5The officer, Senior Constable Magnoni, was conducting breath testing. He got into the caged vehicle and in the event followed the vehicle and stopped it. He did so on the basis that it appeared to him that the driver of the vehicle seemed to be trying to avoid the breath test. 6The accused was driving the vehicle and a Mr May was his passenger. I note that Mr May was originally indicted but the Crown has withdrawn proceedings against him. 7The breath test proved negative. A licence check revealed the accused's South Australian licence had been cancelled and certain other details relating to the Nissan motor vehicle. 8The officer spoke to the accused about where he had been whilst he was conducting the licence check and was told that they had been on holidays at Liverpool where they had visited cousins. The accused told the officer about going to court to get a point back on his licence and the officer spent some time checking out this statement. 9After some time the accused got out of the vehicle and started to smoke. The police officer formed the view that he was nervous. 10He showed the accused the screen - some form of computer screen which the vehicle contained - indicating details about the cancellation of the accused's licence. 11The officer formed the view that Mr Orm, the accused, may have been in possession of drugs and he said as follows: "When I search your vehicle, I won't find anything illegal in there will I, like drugs?" The accused answered, "No," according to the officer. The officer then said, "So can I search your vehicle?" The accused answered, "Yeah." 12These are facts taken from the police officer's statement and are facts which he confirmed in evidence he gave in the Local Court at Gundagai. I will review the evidence in short order. 13In any event, a search ensued and certain drugs were found in a chip bag in the vehicle as was money. There was also a quantity of cash located in the console of the vehicle. 14The offender was arrested and subsequently subjected to a police interview by the police officer who arrested him at the scene, Senior Constable Magnoni, and a further officer, Constable Prior. He made certain admissions in that record of interview and I will review those shortly. 15In the event, the substances which were found were analysed, and as I say, were the quantities of pseudoephedrine and methylamphetamine which I have referred to earlier on. 16I note that there were committal proceedings conducted on behalf of the accused at the Gundagai Local Court on 2 August 2009. Senior Constable Magnoni relevantly gave evidence and was cross-examined but I note Mr Edwardson QC who appears on the accused's behalf was not involved in the proceedings at that time. 17The Crown, for the purposes of this voir dire, tendered a number of documents which I read. I have mixed up the exhibit numbers but I believe these are the sequential ones and I will be corrected if I am wrong. Exhibit A was a statement compiled by Senior Constable Magnoni on 13 January 2010; exhibit B was the statement of Officer Morgan of 14 January 2010; exhibit C, the statement of Constable Prior of 29 December 2010; exhibit D was the analyst's certificate of 1 February 2010; exhibit E was a recorded interview with the accused on 24 December 2009; and exhibit F was the transcript of proceedings before her Honour in the Gundagai Local Court on 2 August 2009. 18There were a number of agreed matters between the parties on this voir dire. The parties agree that the onus of proof that the search was illegal or improper lies upon the accused as it is he who seeks the exclusion of the evidence. It is also an agreed position, as it must be, that the standard of proof is on the balance of probability - I refer to s 142 of the Evidence Act - and it is also the position that if the accused succeeds in establishing illegality or impropriety, the onus is upon the Crown to satisfy the requirements of s 138 in order for the material to be admissible. 19The Crown concedes, in my view properly, and the parties agree that the officer did not have reasonable grounds to suspect that there were drugs in the motor vehicle driven by the accused. That is not to say it is a concession that the officer did not have an honest belief in what he said. It is simply a concession that his honest belief did not in law amount to reasonable grounds. In my opinion, that is a correct concession, perhaps one made in hindsight but I will refer to that later. 20It appears that the officer made his decision based upon five factors. They are, in broad compass, that the accused avoided eye contact with him; secondly, that the accused stayed at Liverpool at the Formule 1 Hotel; thirdly, that the accused did not stay at the home of his cousins for whom he could not nominate an address; fourthly, that the accused attempted to avoid the random breath test, although the officer conceded that that could have been by reason of the position concerning his cancelled licence; and lastly, that the accused got out of the car and smoked a cigarette. 21The most significant pieces of evidence are the statement of Senior Constable Magnoni, the ERISP interview engaged in by the accused on 24 December 2009, and that officer's evidence - that is, Senior Constable Magnoni's evidence - in the Local Court. 22In the statement of 13 January at para 4, the officer noted that it was the actions of the accused vehicle "which caused me to believe that the vehicle was attempting to avoid the random breath testing site". 23The officer noted at para 5 that the breath test was negative. He also observed that the accused was able to supply the address of his cousins in Liverpool, and furthermore that the accused "did not look at me directly and was facing forward". That observation, it appears, was a significant matter in the officer's mind. 24At para 7, the officer noted the accused exited his vehicle and started to smoke a cigarette, the officer saying, "I believe this to be a sign that the accused was becoming increasingly nervous". 25At para 9, the officer records that in the course of discussing the accused's licence cancellation, the offender made the statement, "When I search your vehicle I won't find anything illegal in there will I, like drugs?" he received a negative response and then he asked, "So can I search your vehicle?" to which the accused replied, "Yeah." That is, of course, a crucial piece of evidence in this voir dire. 26At para 10, the officer stated that whilst interacting with the accused, he "formed the belief that there may have been prohibited drugs in the vehicle". He subsequently commenced to search the vehicle, I infer on the basis that he firstly honestly believed what he had stated, and secondly, that he believed that he had justification for the search. 27The next piece of evidence is the recorded interview of the accused of 24 December 2009. At questions 23 to 28 I note that the officers involved in that exercise were Constable Prior and Constable Magnoni. The latter of course was the officer who arrested the accused at the scene of the garage and also found the drugs. 28At questions 23 to 28, the accused told police officers as to how he said he came into possession of the drugs. For relevant purposes I do not need to review that material. 29At questions 29 to 31, the accused was asked by Constable Prior to describe how he came into police custody. In particular I note that the questions were open-ended questions, asked by an officer who had not been directly involved in the arrest or search of the offender at the scene where he was detained. 30In my opinion there is no evidence given by or on behalf of the accused in these proceedings, and in those circumstances, any statements he made voluntarily and contemporaneously to the police, best reflect his thinking when he was spoken to by Senior Constable Magnoni. 31At the stage the questions were asked, there had been no version of the police facts put to him. He was simply asked to provide his version of events as to how the arrest came about. His account of these questions, in my view, exposes his immediate and honest reaction as to how he was dealt with by Senior Constable Magnoni. 32The essential characteristics of the event that he recalled were that he was pulled over by the officer when he went the wrong way; that the officer asked for his licence; that he stated it was cancelled but that he appealed; that the officer called the accused to come and talk to him and asked some questions about his licence; and finally, that the officer asked if he could check the vehicle. 33No issue was raised by or on behalf of the accused that the record of interview was an inaccurate record of the accused's answers or there was otherwise impropriety by the police officers in relation to it. 34In the course of the argument, I expressed various misgivings about the way the interview was conducted. However, I pause to note that at the earlier stages of it, the shortcomings which I later identify were not evident. 35As the authorities to which I have been referred indicate, the critical question in relation to whether the accused consented to the search is not the intention of the officer who conducts the search, it is whether the will of the accused has been overborne, that is, that he was caused to consent to the search by a direction or command or by any representation or trick or improper behaviour. 36There is no doubt that inferences can be drawn from objective statements and facts. If the accused had not given these answers, the inference which his counsel, Mr Edwardson of Queen's Counsel seeks that I draw, would be significantly stronger. There is no doubt a certain looseness of language which the officer adopts. It is true that he uses the words "when I search", which phrase is susceptible to ambiguity. It may indicate that the officer proposes to search no matter what. On the other hand, it may convey the notion that the officer is considering a search but has not finally made up his mind. 37I pause to note that whatever was in the officer's mind was certainly clarified by the officer's evidence at committal, and that indicated that the former construction in his mind, namely, he proposed to search in any event. 38In particular, when a police officer carrying with him the authority of his office tells an accused person in circumstances where he has detained him that he, in effect, proposes to search the vehicle involved and inquires as to the presence of drugs, the conclusion that the consent was obtained by a direction or command would be difficult to avoid. 39The statement of the accused, however, appears to disclose that he interpreted the officer's statement as a request rather than a direction. Absent evidence from him on the voir dire, that is the best evidence of his thinking. It is, in my view, not evidence that his will was overborne or that his consent was extracted by improper means. 40Moving then to the further matters in the interview, at questions 33 to 41, Senior Constable Magnoni questioned the accused about the manner in which the former came to search the vehicle. I note that in particular this is achieved by putting a series of lengthy propositions to the accused and asking him to agree with those propositions. 41At questions 40 and 41, the officer put to the accused, inaccurately, the immediate events leading up to the search. The sequence of the questions do not accord with his statement in that he put to the accused that he commenced by asking if he could search the vehicle and gaining his agreement to that course. This is inconsistent with his statement in which the officer commences by asking if he would find drugs "when he searches". 42The questions are also incorrect because they fail to include the proposition implicit in the officer's statement, namely when and not if he was to search. The questions are further inaccurate because they fail to mention the suggestion by the officer that there may be drugs in the car. 43In my opinion, the questions were inaccurate and put without due care as to the precision required. This bespeaks an officer who is not sufficiently careful about the need to accurately put adverse allegations to suspects. This may be the product of a lack of a training or a lack of capacity. 44Counsel for the accused argued that something more sinister might have occurred. The officer was not cross-examined in the proceedings in this Court and I note that this suggestion was not put to him in committal proceedings. 45Procedural fairness dictates that where an allegation of impropriety is to be advanced by counsel, it should be put to the witness affected to allow him or her to respond to the allegation. Because this was not done and also because I have not had the advantage of hearing the evidence from him, I would not consider making such finding. That is not to say that there are significant deficiencies evident in the way he conducted himself. 46I pause to note that in making that comment, I cast no aspersions on Mr Edwardson QC He was, I think it should be fairly recorded, brought into this case after the committal proceedings and I understand that different minds may take a different view as to how one conducts such proceedings. 47Moving then to questions 196 to 202, Senior Constable Magnoni put to the accused a number of leading questions as to how the pseudoephedrine was found, in particular, and I note, question 202 was not only a leading question, it would have had little, if any, evidentiary value at trial. It might also suggest that improper pressure was being exerted upon the accused. That is certainly an argument which is open in the way the questions were put. 48Questions 292 to 294 involve Constable Prior asking questions relating to Constable Magnoni's search and the latter having his own views about it. 49Questions 324 to 328 involve Constable Prior putting leading questions to the accused about the proper name of the drugs involved. 50At questions 376 and following, the accused was spoken to by an independent officer. It appears that he made no complaints against the interviewing officers. 51I accept that this is a matter of some significance. In my opinion, however, it would not be unrealistic to think that the accused did not consider himself to be in a position of strength, given the fact that he had admitted to possession of drugs, albeit in more innocent circumstances of recent finding. It would not be surprising in these circumstances that an accused would be reticent to complain. 52Nevertheless, in my opinion, the way in which each of the officers conducted the interview and carried out that task is, in some respects, cause for concern, and I make a comment about it at the end of these reasons. 53I have also considered in some detail the transcript of Senior Constable Magnoni's evidence on 2 August 2009. At transcript pp 7 and 8, he is referred to the significance of the mention of Liverpool and the inability of the accused to say where his cousins lived and the fact that he was residing at the Formule 1 Hotel. 54In particular I note that the officer stated his personal belief that staying with relatives is "the way I generally operate and yeah, I believe things operate", and the fact that the accused was "unable to look" at the officer "that maybe there was some untruthfulness in what he was telling me". 55I pause to note that it is one thing for a police officer to use his commonsense and experience to seek out and investigate leads in relation to an offence. In my view, it is quite another for an officer to make value judgments about the actions of a suspect and to translate those value judgments to the level of a reasonable suspicion of offending. This is especially so when the officer appears to make little effort to consider any innocent explanation for such actions. This approach may indicate a closed rather than an open and inquiring mind and may suggest that the officer's intention was to gain evidence inculpating the accused. 56At transcript p 9 the officer gave evidence of forming an adverse view of the accused in relation to the statements made about his South Australian driver's licence, and in particular he said this: "Being a police officer and dealing with motorists on a daily basis, I didn't take him on his word as it was not gelling with what the police radio was telling me." 57The answer appears, in my view, to imply that the officer's starting position is that there is generally cause to disbelieve motorists with whom he deals on a daily basis. It is a little disconcerting to hear that an officer, in effect, pre-judges the veracity of motorists as a group rather than approaching each individual motorist with an open mind. 58At transcript p 11 he made reference to his interpretation of the fact that the accused commencing smoking at the relevant point of time and stated that a suspect who "smokes a cigarette, which in my experience shows nerves" and "generally with people when I'm speaking with them, once they've been caught telling a lie or they've done something wrong, the cigarettes come into play which is generally a dead giveaway that nerves are starting to kick in". 59At the same page he agreed that the version of the conversation with the accused in his statement was correct. 60Relevantly at transcript p 12, his mindset was as follows. He understood the accused to be consenting to the search. He indicated he had made up his mind that he would search the vehicle. He formed the view to search the vehicle based upon a combination of factors he had described. The view that he had formed was "I formed the opinion that the accused may have had drugs or illegal items in the vehicle, yes". 61The evidence up to this point indicates that the focus of the officer's suspicion was illegal drugs. This is the first reference to "illegal items". The officer gives no basis for entertaining the latter suspicion. 62At transcript p 17, the officer stated that this was the only incident on his mind when he came on leave and hence justified his lack of making a record of it at that particular point in time. 63At transcript pp 19 and 20, the officer was questioned about his suspicions concerning the accused attempting to avoid him and his doubts about the truthfulness of the accused's account that he might have got lost. 64At transcript p 22, the officer stated that he suspected the inability of the accused to nominate his cousins' address was suspicious in that he was making a story up on the run. 65Relevantly at transcript p 24, Senior Constable Magnoni confirmed that at the time he spoke of the search, he had made up his mind to conduct the search. He was not able to pinpoint the time when he made his mind up "but it was during the conversation, it was an accumulation of events and factors and actions that brought this about". 66At transcript pp 26 and 27, the officer confirmed his impression of the accused smoking as being indicative of the latter telling lies, and at transcript p 28, he agreed that the effect of what he was putting to the accused was that he was in fact going to search the vehicle. 67The counsel who have appeared are in agreement as to the relevant principles which apply. There are three cases which are substantially referred to and I limit my reference to those three. 68The first and perhaps the most salient as setting out the principles is the decision of James J in DPP v Leonard (2001) 53 NSWLR 227 . That was a case where the officer asked for consent to search the vehicle and supplied a reason to suspect the need for a search to be conducted. (See p 230). That is, of course, quite a different situation to the present because firstly, the only thing that was put to the accused was a request and there was a reason proffered for the need for a search. 69The giving of proper consent, his Honour recorded at pp 233 and 237, can do away with the need to form a reasonable suspicion. 70At p 234, his Honour reviewed the common law factors regarding the consideration of the discretion to exclude evidence, and at pp 239 and 40, his Honour recounted the general principles espoused by the High Court in Bunning v Cross (1978) 141 CLR 54 . 71It is, I think, useful to recall those because, as Mr Edwardson QC argued his case, rightly so, there were significant issues of principle involved in this case for the liberty of this subject and the manner in which police and other persons in authority exercise their power. 72In particular, James J makes reference to the judgment of the then Chief Justice, Barwick CJ, in which there is reference made firstly to the test of - if I can put it this way - informed consent or otherwise, and also the fine line between a willingness which is a product of coercive conduct and that which is un-coerced. 73His Honour made reference at p 241 to R v Azar (1991) 56 A.Crim R 414 in which he extracts a quote from Gleeson CJ as he then was, which, in my view, is pertinent in the present case. Gleeson CJ stated in Azar that: "It is also important to note that what is involved was an inquiry as to the accused's will rather than as to the accused's state of knowledge." In particular I emphasise that because as I have indicated earlier, the accused's statements in the record of interview are, in my view, indicative of his will and is the only reliable indication apart from inferences I have been asked to draw from the police statements. 74James J refers to the New Zealand authority of Meates v Attorney Genera (Customs Department) [1981] 2 NZLR 335 in which he adopts the comments of the judge there involved which is that consent may include acquiescence but it must be genuine consent and not a mere acquiescence to what a person believes to be another's lawful rights. 75Finally, his Honour makes reference to a decision of Adams J at pp 248 and 249 of the report in Leonard - DPP v Nicholls [2001] NSWSC 523 in which his Honour Adams J, sets out the test for reckless behaviour as opposed to wilful behaviour when it comes to an impropriety by a police officer. 76Mr Edwardson QC also referred to two South Australian authorities Coleman v Zanker (1991) 58 SASR 7, a decision of Olsen J, and R v Chapman (2001) 79 SASR 342 , a decision of Williams J. 77In Coleman v Zanker , Olsen J refers to the comments of the then Chief Justice of South Australia who, "roundly criticised the aggregation by police officers to themselves of such high-handed purported authority". 78His Honour continued: "If police officers deliberately exceeded their authority by embarking on unlawful and unauthorised conduct which impinges upon the normal rights of a citizen, then they cannot be heard to complain if the courts, in conformity with the approach in Bunning v Cross, exclude evidence obtained in the course of such activity." That is at p 15 of the report. 79In my view, with due respect to an eminent jurist, that is a proper statement and should be applied by the courts in all States, including this one. 80The final case referred to and relied upon was R v Chapman . That case turned upon the finding that the action of the police officer in a technical sense was an unlawful detention of the accused by creating an opportunity "to turn over" his vehicle after the powers of the Road Traffic Act had been exhausted and in circumstances such that the evidence obtained after that time was unlawfully obtained. 81His Honour Williams J, found that in conducting their inquiries, the police were using their powers "so as to create an opportunity to pursue an examination of the vehicle". (See p 344). The distinguishing feature of the case is that the powers in the Road Traffic Act have been used in order to create an opportunity to search in circumstances where Parliament has carefully circumscribed police powers of search and the conditions under which they may be exercised. (See pp 345 and 349). 82Williams J referred to the comments of Stephen and Aickin JJ in Bunning v Cross at p 350, and it is, I think, relevant to remind oneself of the way their Honours in the High Court considered what was at stake in questions of this kind. 83Their Honours Stephen and Aickin said in Bunning v Cross at pp 77 and 78: "The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about, with safeguards for the individual. These safeguards, the executive and of course the police forces, should not free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards, its toleration by the courts would result in the effective abrogation of the legislative safeguards of individual liberties, suborning it to the executive arm. This would not be excusable, however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be 'a less evil' that some criminals should escape than that the government should play an ignoble part." And their Honours make reference to the well-known comments of Holmes J in Olmstead , a US Supreme Court authority. 84Moreover their Honours continue: "The Court 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 leaving the inadmissibility of the resultant evidence when, of their very nature, they involve no overt confines on 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." 85I should say that those comments were relevant in the late 1970s when Bunning v Cross was decided. There are many who think they are of greater relevance considering the legislative changes which have been made in recent times and perhaps different in context in this country and in others. Finally at p 351, his Honour Williams J considered the application of the Bunning v Cross factors in the case before him and determined that on balance the evidence should be excluded in this case, he having identified an undesirable practice of a relevant police officer which he considered was honest but nevertheless unwarranted and should be desisted from. 86Moving then to the present case, in my opinion the accused has failed to make out a case on the balance of probabilities that the officer acted illegally or improperly. For the reasons expressed above, I am of the view that despite what the officer intended to do, the accused interpreted the statement made by the officer as a request and not a demand or a direction. 87That conclusion, as I say, is based on the particular admissions made by the accused to Constable Prior in the record of interview. The result may well have been different had that statement not been made. 88Mr Edwardson of Queen's Counsel relied upon the failure of the officer to take notes of this exchange. He contended that there was no reasonable explanation for the lack of notes and the lack of notes deprive his client of the opportunity to affirm or contest their accuracy. He relied upon the comments of Olsen J in Coleman v Zanker at p 16. 89As I say, the admission by the officer in that case, however, was against the background that the defence contended the officer had embarked upon a deliberate and specific campaign to harass the appellant and make life difficult for him. There were, in that case, serious questions as to the officer's credibility. The ultimate finding was the officer's discovery of the evidence was not casual, accidental or fortuitous. It was the direct product of unlawful conduct on the officer's part. 90In the present case Mr Edwardson QC did not seek to attack the credibility of Officer Magnoni on that basis. He argued that the officer was reckless but did not go to the point of saying he intentionally breached the law. 91In my view, in these circumstances, the failure of the officer to record the conversation in his notebook and permit the accused the opportunity to verify it does not hold the same significance. 92Mr Edwardson QC also sought to invoke the presumption applicable to confessions induced by improper conduct that once there are inducements made, it is incumbent upon the Crown to prove confessions were voluntary. In my opinion, the Evidence Act does not mandate that presumption in the present case. 93He also submitted that the assertion by the officer that he sought consent of the accused was - and I quote I think as best I could take it - "an ex post facto reconstruction to justify his position". 94I do not agree with that submission. In the first instance it is clear that the officer made the request at the same time that he indicated his intent to search. Accordingly, it is incorrect to say that such a request was ex post facto. It is certainly pertinent to ask why it was necessary for the officer on the one hand to claim that he had a legal right to conduct a search, and on the other ask for the consent of the accused. The fact that he did ask may reflect upon whether he held a bona fide opinion that the search was in fact legal. On the other hand, he may have done it for more abundant caution. 95In any event, my finding that the accused gave his consent willingly makes this issue inconclusive. 96Mr Edwardson QC sought to distinguish the facts in Leonard's case, and in my view, his arguments in that regard are valid. This case is closer to the line, in my view. 97He submitted that there were two potential categories of conduct. The first was an intentional non-compliance and the second was recklessness. He submitted the following matters indicate an unfairness to his client. Firstly, the officer's declaration of intent to search irrespective of the accused's position; secondly, that the search was a fait accompli; thirdly, the officer did not consider whether the information would properly found a reasonable suspicion invoking his statutory power to search; and finally, that the statement of consent was an ex post facto reconstruction by him. 98In my opinion, the officer did not intentionally contravene the law. The inference I draw from the facts is that he mistakenly believed that the facts he relied upon grounded a reasonable suspicion and he actually held that belief. This was the direct effect of his evidence, and in my view nothing in the transcript of the committal proceedings contravenes that conclusion. 99A more difficult question is whether or not the officer was reckless in that contravention. Judging the matter purely objectively, it is difficult to see how any reasonable and competent police officer could have come to the conclusion that the accumulation of circumstances referred to him in his evidence constituted a reasonable suspicion that the accused was in possession of drugs. 100The law as referred to in Leonard's case defines recklessness for present purposes as a police officer acting in the knowledge that he might be acting in breach of a statutory duty but nevertheless deliberately deciding to proceed and undertake a risk, or a finding that the officer failed to give any thought to whether or not there was a risk of a search being illegal in circumstances where, if any thought had been given, it would have been obvious that there was such a risk. (See pp 248 and 249). 101There is no evidence of the officer acting in the knowledge that he might be breaching his statutory duty. A more difficult question is whether the officer gave any thought to whether there was a risk of a search being illegal in the context established by the evidence. 102It seems clear to me the officer gave no thought to the proposition that he might be wrong about his weighting of those factors and hence gave no thought to the proposition that there was a risk that the search was illegal. 103In considering this question, it is well to remind oneself that matters obvious in hindsight may well be less obvious at the time a decision is made. 104On balance, however, I conclude that the officer was not reckless, having regard to both limbs of the definitions I have referred to above. 105In the event that my primary conclusion is incorrect, namely that the accused gave his consent voluntarily, I am required to consider the factors in s 138 to determine whether the evidence should be excluded or admitted. They are the following: 106The question of what is the probative value of the evidence? In my view I agree with the Crown's submission in this regard. In this context, the probative value of the evidence is high. It establishes an essential and perhaps fundamental element of the offence, namely that the accused was in possession of the drugs the subject of the supply charge. 107The second matter is the importance of the evidence. In the present case it seems clear that if the evidence is excluded, the prosecution fails in its entirety. It is of vital importance to this prosecution. 108The next matter is the seriousness of the offences. In my view, the offences are serious offences which involve possession of quantities of drugs well in excess of the trafficable quantity and in one case of very high purity. It is not necessary that the offences be of the most serious cases, but simply that they are serious offences, and in my view these clearly fit that description. 109The next is the degree of impropriety involved. It is clear, as I have indicated based on the statement of principles from the highest authorities, that an illegal search is undoubtedly a serious breach of the rights of a citizen of a free country. 110In the present case, however, the accused had been initially stopped and detained for a lawful purpose and I conclude that the officer was acting on honest suspicions held by him, although they were clearly not reasonable. 111The next question is whether or not the impropriety was deliberate or reckless and I have already given my reasons for holding that they were, in the circumstances, neither of those. 112I therefore conclude the desirability of admitting the evidence outweighs the undesirability of admitting it. 113Finally, I appreciate this has been a long or relatively long decision, but I am duty bound, I think, to make a number of matters which I will call a postscript. I have made a number of comments about the conduct of the police officer which, in my view, are cause for concern and I propose to repeat them. 114In my view, the officer's failure to make notes of the conversation, and more particularly his justification for that failure, seem to me to be a matter which ought to be reconsidered and acted upon. I accept that the exigencies of an officer alone with a suspect at the time may preclude the immediate making of notes. I hope to be realistic enough to understand that the security and other issues which an officer would have on his mind are high in the order of events. 115However, the fact that when he got to the police station he did not put pen to paper and in effect allow the accused if he was minded to consider what he had then put, seems to me to be a matter which could have been remedied, and in my view should have been. 116The next is that the practice of having an officer, in this case Senior Constable Magnoni, who was significantly concerned in a contested search and arrest of a person, involved in a record of interview about which those matters are subsequently discussed, should, in my view, unless necessary, be avoided. It has the vice that an accused person may be inhibited in expressing any complaints about the officer's activities and it encourages the officer to put his version of the events rather than permitting the accused the freedom to express his own views about the matter. 117The third is the use of leading questions by both officers involved in the record of interview, and in my view they should be avoided. It has the potential problem that undue pressure might be brought to bear upon the accused. In this context, I do not consider it objectionable that an adverse proposition is put to the accused for his or her comment, but that was not what occurred in this case. 118The last matter is, the resort by an investigating police officer to stereotypes and generalisations in forming adverse views of a suspect, without any critical analysis, that in the present case such generalisations may be wrong, should, in my view, be discouraged. 119These are matters which may cause unfairness to a suspect but in addition may jeopardise the viability of a proper prosecution of an offender. Furthermore, if the practices are widespread, they would serve to lessen the authority of the police force in the community. 120In my view, all parties have an interest in ensuring that these matters are attended to, and if, on proper consideration by the relevant authorities there is force in my comments, that some steps be taken. I leave that to the good sense of those in control of the police service. 121Gentlemen, that is my decision. ********** 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: 23 May 2011