District Court New South Wales Medium Neutral Citation: R v Kerry John Wallace [2014] NSWDC 348 Hearing dates: Wednesday 26 November 2014 Date of orders: 26 November 2014 Decision date: 26 November 2014 Jurisdiction: Criminal Before: Judge Tupman DCJ Decision: 1. Accept that the officer conducting search formed a reasonable suspicion, therefore the search was lawful under s 21 and evidence arising from that search is admissible. 2. On balance the desirability of admitting the evidence of analysis of the drugs found on the accused outweighs the undesirability of doing so. Therefore the evidence will be admitted. Catchwords: CRIMINAL LAW – Judge Alone Trial – Application to Exclude Evidence – Accused Searched by Officer Without Warrant – Analysis of Drugs Found in Accused's Possession Admitted Nonetheless on Balance. Legislation Cited: Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Regulations 2011, Regulation 10 Evidence Act 1995, s138 (3) Law Enforcement (Powers and Responsibilities) Act 2002, s21(1) (d) Cases Cited: R v Rondo 126 A Crim R 562 Category: Procedural and other rulings Parties: Crown Kerry John Wallace Representation: Counsel: Ms. D. Paterson (Crown Trial advocate) Mr. S. Corish (Defence counsel) Solicitors: Mr. J. Stephenson (DPP solicitor) Ms. P. Purcell (solicitor) File Number(s): 2014/0003214 Judgment 1. There are two applications before the Court to exclude evidence. The first is to exclude evidence following the search of the accused in the early hours of 6 January 2014. The argument on behalf of the accused is that this search was illegal and that evidence flowing from it therefore should be excluded. 2. The argument relies on the provisions of s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 which in S21(1)(d) provides that: "An officer may search a person without warrant if that officer suspects on reasonable grounds inter alia that the person had in his or her possession or under his or her control a prohibited plant or prohibited drug." 1. There has been a significant amount of evidence called on this voir dire but I propose to summarise it as quickly as possible, particularly because this is meant to be a three to five day trial and we are already at the end of day three. 2. The facts here are that Senior Constable Lay, the officer-in-charge of this investigation, approached the accused not long after midnight on 6 January 2014, whilst the accused was a DJ in the DJ's booth, in the upstairs area of the Abercrombie Hotel in Broadway, Sydney. The accused had just finished working as a DJ at a dance party operated by a business or entity called SASH, which was owned through a company of which he was a director. A number of DJ's including the accused worked with that business. They, at the relevant time, operated a dance party every Sunday at the Abercrombie Hotel. SASH had been in existence for some time operating from various venues including some before the Abercrombie Hotel but in the Abercrombie Hotel for at least the preceding 12 months. 3. The Abercrombie Hotel was due to close down and 5 January 2014 was to be the last dance party run by SASH operating there. The fact of the dance party and the fact that it was the last SASH dance party at the Abercrombie Hotel was advertised to patrons, including that it was to operate on Sunday in the normal course of events. Also advertised to patrons was a list of the DJs who would be playing and a playlist. 4. The accused was one of those nominated to work as a DJ towards the end of the day. He was there, however, as one of the operators of the dance party from the time that the dance party started, including for a large part of the earlier part of the day, assisting those admitting patrons, stamping patrons, overseeing the operations of individual DJs, collecting drink tokens and distributing them and similar activities. 5. There was a very large crowd on this occasion, larger than anticipated, more probably than not because it was the last dance party to be held at the Abercrombie Hotel. 6. Over the preceding 12 months or even longer, police had received intelligence or reports that those operating the SASH dance parties at the Abercrombie Hotel were involved in supplying illegal drugs, particularly cocaine and ecstasy and that this supply was connected with the DJs and with the DJ's booth. There were in particular two Crime Stoppers reports made, one in November 2012 and another in January 2013, specifically nominating this accused as a person who as a DJ at these dance parties on Sundays, supplied these drugs in those circumstances. 7. Following the last of those two Crime Stoppers reports, police conducted an undercover and overt operation on the premises in July 2013, discovering at least one person using drugs in the DJ's booth at the SASH party there and also at the time, observing a person overdosing on drugs and others using drugs. There were intelligence reports created as a result of that operation in July 2013. 8. I accept from Senior Constable Lay's evidence that following that operation in July 2013, police placed some conditions on the licensee of the Abercrombie Hotel, in an attempt to minimise the likelihood of drug supply and use recurring in connection with the SASH dance parties, but that police believed that by January 2014, compliance with these conditions was diminishing. Senior Constable Lay was the officer‑in‑charge of an operation conducted to coincide with the last dance party on 5 January. 9. I accept that initially, a reason to put such an operation in place, was to ensure that this event did not escalate into any anti‑social events, including to ensure that patrons did not cause problems in circumstances where they all knew that the premises were about to close down. That was not however the primary purpose of the operation by the time it was conducted on 5 January. By the time the operation commenced in the afternoon of 5 January, Senior Constable Lay had already conducted a briefing with those officers who were to be involved in the operation. By that stage, the purpose of the operation had extended to include detecting people involved in the use and supply of illicit drugs and to ensure compliance with liquor licensing. The operational orders were tendered on this voir dire. 10. The operation included a number of officers in plain clothes attending at the dance party, mingling with others who were there, pretending to be patrons. It also included Senior Constable Lay and Officer Vescio in uniform, waiting outside and communicating regularly with the plainclothes officers inside as to their observations. 11. The text messages passing to and from those officers inside and Senior Constable Lay are tendered. These included advice that those officers were observing patrons using and supplying drugs. None of the text messages makes any specific reference to either the accused, nor any individual inside the DJ's box. There were however observations made of people using and supplying drugs, and that in general terms was passed on in the text messages, as is clear from the wording of the text messages. 12. The plainclothes officers and Senior Constable Lay and Officer Vescio went back to Redfern Police Station for a dinner break. Whilst there, they had conversations about what they had observed. Later the officers went back to the hotel, the plainclothes officers staying there until about 10.30, and Senior Constable Lay and Vescio going inside in uniform later, around about midnight. There had been an agreement for the music to stop at 11 but it stopped at about midnight. 13. Senior Constable Lay I accept went upstairs not long after midnight where the accused had been working as a DJ in the DJ's booth, with the dance party just recently ended. The music had stopped but there were about 20 patrons still left in the area, who started to disperse I accept when they saw police officers in uniform arriving. There were about six people or so in the DJ's booth, including the accused. The accused was no doubt a person of interest and Senior Constable Lay knew that at the time he was in the hotel on that occasion. This much had been made known to all the officers present during the course of the briefing earlier that day. 14. I accept Senior Constable Lay walked over to the DJ's booth and I accept that as he did so about four people who had been inside walked out. As he walked towards the accused, I accept that was when he noticed the accused was holding a black satchel or bag. His evidence is that at that stage he noticed the accused was sweating and to his mind, according to his evidence, appeared to be under the influence of a drug, albeit slightly. 15. He had a conversation with him, which appears in his statement, which was initially in fairly general terms. His evidence was that during this interaction with the accused, the accused appeared to him to be nervous and to be having trouble keeping eye contact with him. His evidence was also that the accused's grip on the black bag tightened and he appeared reluctant to release his grip on the bag. At that stage he said he formed a suspicion that the accused may be in possession of an illegal drug inside the bag. 16. He gave evidence that this suspicion was based on a combination of factors, including the immediate observations to which I have just referred, namely the accused apparently sweating, being nervous, not keeping eye contact, and also tightening his grip on the bag. His evidence was however that these observations were all in the context of the accused being a person of interest for drug supply because of those Crime Stoppers reports to which I have referred, and also the intelligence known to him flowing from the police operation in July 2013. That included his knowledge that during the course of that operation, drugs were apparently accessed, at least on one occasion, in the DJ's booth during the course of the SASH dance party at the Abercrombie Hotel, and there were those using drugs in the crowd and connected with that dance party. 17. Senior Constable Lay also gave evidence that he personally made observations of people apparently under the influence of drugs when he walked through the crowd on his way to the upstairs on this evening, that he evidenced as being people who were apparently sweating, whose eyes were wide and whose pupils were dilated. Whether or not there be other explanations for these sorts of observations, they are observations consistent with a person under the influence of a drug. 18. This was then the context or background, according to Senior Constable Lay, in which he formed a suspicion, when he spoke to the accused in the DJ's booth, that he may be in possession of a prohibited drug. 19. There was other evidence on this voir dire of a further issue, namely a conversation alleged to have occurred between Senior Constable Lay and Constable O'Leary at Redfern Police Station sometime between 7 and 8 during the dinner break, which included an informal debrief. There is a dispute about that evidence to the extent that Senior Constable Lay did not make any notes about what was in fact said to him by Constable O'Leary, and nor did she. 20. Further, there are some aspects of Constable O'Leary's evidence which might give rise to some doubt about whether or not any person she saw, apparently involved in activities consistent with drug supply in the DJ's box, was in fact the accused or whether she had made a mistake about the identity of that person. That might have some bearing on the extent to which the actual content of her conversation with Senior Constable Lay can be accepted. 21. I do not, however, feel the need to make any determination about that dispute because of the view that I have reached that, even without that evidence, a suspicion based on reasonable grounds for searching the accused has been established by the evidence. 22. I accept Senior Constable Lay's evidence about what were his observations of the accused on that night. It may be that there are other explanations for the accused's sweating; including the fact that it was 5 or 6 January and he had just finished working. However, I accept his observation that the accused was sweating. His opinion that the accused was slightly intoxicated I accept as being a valid opinion based on the observations that he said he made. He gave evidence that the accused appeared nervous and did not make eye contact. There has been no suggestion that these were not accurate observations, rather that there may be some other explanation for these observations. 23. It is submitted that I would find that when Senior Constable Lay approached the DJ's booth, he did so with the formed intention already of searching the accused's bag. I do not accept that submission. His evidence was that he did not see that the accused was holding a bag until he got closer and that evidence is consistent with the time of day and the nature of the surroundings. I also accept that the conversation initially was of a very general nature, which is also contrary to an assertion that Senior Constable Lay approached with the already formed view of searching the accused's bag. 24. The test to be applied is what was in the mind of the officer conducting the search. That is clear from the decision of the Court of Criminal Appeal in R v Rondo 126 A Crim R 562 at para 53. 25. The general propositions surrounding the basis on which the Court is to make a finding about whether or not this is a reasonable suspicion has been established for the purposes of this provision of LEPRA. It is clear, and I accept, that a reasonable suspicion is a lesser position than a reasonable belief but more than a possibility. Neither can it be arbitrary. Significantly the important situation is what is in the mind of the police officer conducting the search in this case. 26. The officer Senior Constable Lay knew the background available from the Crime Stoppers reports and the intelligence report arising from the police operation in July 2013. The fact that there had been nothing specifically involving this accused in any of those reports since January 2013 does not in my view affect the fact that this was capable of operating properly on his mind to form a proper suspicion. 27. In fact as recently as July 2013 police had conducted an operation in that same hotel and found exactly the same behaviour as suggested in the crime stoppers report, namely that drugs were being used and apparently supplied in the DJ's box at a SASH party at the Abercrombie Hotel, albeit not in the presence of this accused nor by this accused. 28. I reject the submission on behalf of the accused that the provisions of s 21 mean that police must have a specific suspicion connected with individual, not a group. Clearly any police officer searching or detaining an individual without a warrant must have a suspicion based on reasonable grounds about that individual, but that suspicion can be based on knowledge of that person's membership or association with a particular group in certain circumstances. Whether or not in those circumstances the suspicion is a reasonable one must always depend on the particular circumstances of any case. It could obviously never be reasonable to suspect that someone had committed a crime or was in possession of a drug or similar, simply because that person was for example, of a particular ethnic group or came from a particular suburb or was a particular religion. 29. But this case is nowhere near as general as that. In this case police had information which, to an extent was verified by their operation in July 2013, that either DJs working at SASH dance parties or those involved with the DJs at those SASH parties at the Abercrombie Hotel on Sundays, were involved in supplying specific drugs. They also had specific information and knowledge that this accused was alleged to be one of those people, namely a DJ working at SASH parties who had in fact just finished working as a DJ at this particular SASH party and was still in the DJ's booth. 30. On the evidence which I have accepted, Senior Constable Lay saw evidence himself that many of those patrons at the dance party were under the influence of drugs. One person to his knowledge had been arrested earlier in the evening, in possession of and therefore in deemed supply of drugs. All of this I accept was operating on his mind when he approached the accused in the DJ's box and made the observations that I accept he did. 31. In the circumstances, I accept then that he formed the suspicion he did, and in those circumstances I accept that that suspicion was a reasonable one. Therefore the search was lawful under s 21 and evidence arising from that search is admissible. 32. A further application is made to exclude the analysis of the drugs found in the possession of the accused. That challenge to the admissibility of the evidence is made on the basis that the analysis was done contrary to the provisions of regulation 10 of the Drug Misuse and Trafficking Regulations. That regulation appears in the section of the regulations involving the disposition, destruction, possession and analysis of prohibited drugs taken into possession by police officers during the course of investigations under their general powers, and in particular in relation to the provisions of the Drug Misuse and Trafficking Act. That regulation, inter alia, provides that such drugs taken into the custody of police following, in this case the search of an individual, must be submitted as soon as possible but, in any event, no later than 14 days after they come into the possession of the police. 33. The argument on behalf of the accused is that the provisions of this regulation are couched in mandatory terms. In this case, the drugs found in the accused's satchel on search were taken into possession of police on 6 January and were submitted to what was then called DAL on 23 January. That is thus three days outside the upper limit set by the regulation for the analysis of drugs pursuant to regulation 10. 34. The Crown's argument, as I understand it, would appear to be that on construction of the regulation I would not find that this was a mandatory provision. I am referred to authorities to that effect. Whilst I accept that the use of the word "must" does not necessarily indicate that any particular statutory provision is mandatory, it seems to me that the combination of that word and the words in brackets "(in any case no more than 14 days)" mean that the provisions of this part of regulation 10 are mandatory. In other words, drugs taken into possession of the police must be submitted for analysis no later than 14 days after they come into possession of the police. 35. That did not occur here. The analysis was conducted by DAL. The results were made available. The Crown seeks to rely on that analysis either by the tender of a certificate or some other way but nonetheless by tendering a certificate. The argument is that the drugs, having been submitted for analysis outside the mandated 14 days, the evidence arising from what is alleged to be that illegality, ought be rejected. I do accept that the provision is mandatory. The evidence is clear that the drugs were submitted three days outside the 14 days. Thus, the submission of the drugs for analysis was not in compliance with regulation 10. 36. As such, I accept that the evidence is unlawfully obtained, given that the analysis itself depends on the taking into possession of the drugs by the laboratory in contravention of the mandatory provision of regulation 10. However, it then turns to determine whether or not despite this illegality, the evidence ought to otherwise be admitted pursuant to s 138 of the Evidence Act. 37. One of the issues in relation to my determination on this point is that there is very little evidence on which I can make any decisions. Section 138(3) sets out a number of matters that the Court may take into account in exercising the discretion that is, engaging in the balancing exercise that is an inherent part of s 138 of the Evidence Act. That section provides that the evidence is not to be admitted unless the desirability of admitting it, outweighs the undesirability of doing so. 38. Dealing with some of those matters or those matters that are relevant for S138(3), I accept that the probative value of the evidence is very high and its probative value gives rise to the significant importance of the evidence in the proceedings. Unless the evidence of analysis is admitted, the Crown case must fail because they cannot prove that whatever it was that the accused had in his satchel, was in fact a prohibited drug. 39. The offence itself is a serious offence, as is any drug supply offence. This of course however is not, by any stretch of the imagination, at the top end of drug supply offences, given that the quantities are relatively small and it is brought as a deemed supply offence. 40. As to the gravity of the contravention and the reason for the contravention, so far as the latter is concerned, I have absolutely no evidence whatsoever to allow me to make a finding. 41. As to the gravity of the contravention, it is hard to determine. The purpose of this regulation it seems to me, is equally hard to determine. It seems to me that there are three possible likely purposes of this regulation and I have, during the course of debate, given voice to one that seemed obvious but thought about it more carefully since adjourning. 42. It seems to me that there are three possible purposes. One is a largely machinery provision to enable the admission of evidence of analysis by way of certificate without the need to call witnesses. However, the general regulations contained in Part 3 covering more than that, it seems to me that that cannot be the overriding purpose of this regulation. 43. A second possible purpose it seems to me is to ensure the possibility of contamination, degradation, loss or the like of such evidence is minimised. That is a possible purpose of this regulation, but looking further at that regulation it seems to me that it is probably not the only purpose. The reason for that finding is because nowhere in the regulation is to be found a time limit set for the analysis of the drugs, provision for the way in which they must be specifically sealed or retained by a laboratory or similar matters. 44. The third possible purpose of this regulation is to ensure that evidence in serious cases gathered by police is properly marshalled and made available for analysis in a timely manner. It seems to me that this is another likely purpose, particularly so to ensure continuity of evidence and to ensure a lesser risk of the possibility of allegations of corruption or improper behaviour on the part of police in the context of criminal proceedings. That is not just a fanciful issue and is clearly evidenced in the findings of the Police Royal Commission in New South Wales. 45. However, it is hard to actually determine what the purpose of the regulation is and therefore very difficult to determine how grave the contravention is. Whatever the purpose is, and it may be a combination of all three, in fact these drugs were submitted for analysis only three days outside the 14 day period. That is a factor to take into account in determining that the contravention is not of itself of significant gravity. There is no other evidence to suggest that except for the submission of the evidence three days after the 14 day cut-off period there was anything to suggest the quality of the analysis was in any way compromised. 46. That having been said, however, I want to make it clear that I am not by making that finding attempting to reverse any onus. In fact the Crown has chosen not to call any evidence in relation to this issue, making it very difficult to make proper findings. 47. If this were a case in which the drugs were submitted for analysis much later than three days after the cut-off period, the outcome may well be very different. The question on balance is whether the desirability of omitting the evidence outweighs the undesirability of doing so. The balance is a fine one in this case, in my view. Clearly enough without the evidence the Crown case fails. 48. The case is serious but not the gravest of matters being tried in the criminal courts. On the other hand, it is incumbent upon police to comply with regulations and statutory provisions. They are there for a reason. The fact that the reason is not abundantly clear in relation to this regulation does not, however, absolve them from complying with it. It is important that police not only comply with regulations but know what those regulations provide and that those at management levels in the Police Service make it quite clear to those operating at street level and at ground level what their powers are and, more particularly, what the limitation of their powers is. There are good policy reasons based in history in New South Wales and generally why those powers should be understood and the legislation limiting and imposing those powers should be strictly complied with and enforced. 49. However, it is a balancing exercise whether or not to admit this evidence and I have concluded that on balance the desirability of admitting it outweighs the undesirability of doing so. The evidence of analysis will, therefore, be admitted. 50. Counsel for the accused has quite properly indicated that even though in strict terms the certificate is not admissible as such, such a point will not be taken at the trial in the event that the Court decided to admit the evidence. ********** 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: 25 August 2015