District Court New South Wales Medium Neutral Citation: R v Buddee [2016] NSWDC 422 Date of orders: 09 November 2016 Decision date: 09 November 2016 Jurisdiction: Criminal Before: McClintock DCJ Decision: (1) The evidence is excluded under s 138 of the Evidence Act 1995. Catchwords: CRIMINAL LAW – discretion to exclude evidence – illegally or improperly obtained evidence – random breath testing – "random crime stops" – use of motor traffic power for improper purpose – illegal stop and search – arrest – search and seizure – statutory interpretation – police powers – principle of legality – exercise of a power for ulterior purpose – human rights – freedom of movement – privacy – evidence obtained in "random crime stop" excluded. Legislation Cited: Drug Misuse and Trafficking Act 1985 Evidence Act 1995 International Covenant on Civil and Political Rights 1980 Law Enforcement (Powers and Responsibilities) Act 2002 Road Transport Act 2013 Cases Cited: Application of Huy Huu Lee [2009] ACTSC 98 Brown v the Regional Municipality of Durham Police Service Board (1998) 116 OAC 126; (1998) 131 CCC (3d) 1 (Ont. CA) Bunning v Cross (1978) 141 CLR 54 Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 DPP v Magnus Kaba [2014] VSC 52 Filippetti v R (1984) 13 A Crim R 335 Police v Prinse [1998] SASC 6567 (26 February 1998) R v Mellenthin [1992] 3 SCR 615 (Canada) R v Pizarro (NSWDC 20 October 2015 unreported) Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] 426 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Category: Procedural and other rulings Parties: The Crown Michelle Maree Buddee Representation: Counsel: Ms M Millward (the Crown) Ms S Beckett (Michelle Maree Buddee) Solicitors: Director of Public Prosecutions Legal Aid NSW (Michelle Maree Buddee) File Number(s): 2015/310492 Judgment 1. This is a judgment in respect of an application on the voir dire in the trial of Michelle Buddee. There is an objection to the admissibility of evidence obtained following a stop and search of a motor vehicle containing the accused, being motor vehicle AE70NI, by police on 22 October 2015 in Desmond Street, Merrylands. As a result of the search of the vehicle, a small mints tin was found which contained 6.76 grams of methylamphetamine at an approximate purity of 80 per cent. The accused is charged on indictment with supply based on the alleged possession of the mints tin and its contents. 2. Ms Beckett, who appears for Michelle Buddee, seeks to have the material obtained during the search excluded under s 138 of the Evidence Act 1995 as having been obtained improperly or unlawfully. There were a number of bases upon which this application was made. These were developed both in argument and in written submissions. 3. The bases upon which the application may be summarised as: 1. The stopping of the motor vehicle was for an unlawful and improper purpose and the police were acting outside any lawful conferral of authority or power. 2. Even if the police were initially acting within a lawfully conferred power or authority to stop the vehicle, their conduct became unlawful or improper when they used the random breath test power for an ulterior purpose of conducting a criminal investigation into the occupants which was not otherwise authorised at law, particularly the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA"). 3. Even if the initial stop was lawful and the police were able to identify the driver and later conduct a criminal investigation, 1. they improperly or unlawfully interrogated the occupants; and 2. they improperly or unlawfully or both detained the occupants. 1. Even if the stopping of the motor vehicle was lawful, the subsequent search of the motor vehicle was unlawful because, when police made the decision to search the motor vehicle, there were no reasonable grounds for the exercise of the power to search and, accordingly, the search and the subsequent seizure was unlawful. 1. The voir dire evidence consisted of the tender of exhibit A which consisted of 14 documents. There were four police officers involved: Plain Clothes Senior Constable Daniel Embleton, Plain Clothes Constable Joshua Jones, Plain Clothes Constable Christopher Daley and Plain Clothes Constable Scott Harrison. The exhibit consisted of an original statement and a statement made after requisitions from the DPP of each officer together with the duty book extract from each officer's duty book relevant to the events and the notebook extract of each officer where it existed relevant to the events. 2. In addition each of the officers gave evidence and was cross examined. 3. I propose to outline the relevant evidence of each witness and make specific findings of fact. I will then outline the applicable legislation. Following that I will outline issues and arguments and make the determinations. Evidence on the Voir Dire 1. Constable Embleton in evidence in chief was taken to his statements, notebook and duty book. The first statement was dated 28 October 2015. This statement was witnessed by Constable Hartigan, a fact that may have relevance later. He gave evidence that on 22 October 2015 he was involved that day in operation 'Lightfingers'. He attended a briefing relating to the operation. The operation focussed on antisocial behaviour and stealing offences. He was initially working as part of a group of two on foot in Merrylands in the vicinity of the shopping centre. Later in the afternoon the police were in groups of four. In the groups of two he was working with Constable Jones, in the group of four he was also working with Constables Daley and Hartigan. They had moved into a vehicle at around about 3pm. 2. They stayed around the same area in Merrylands, that is the shopping centre in the streets surrounding it and near the CBD of Merrylands. 3. He was in the vehicle travelling along Chetwynd Road when he saw a vehicle travelling in front of him on that road. He followed it for some time; a map was tendered but the point at which he commenced to follow it was off the map. 4. He said the vehicle turned into Desmond Street. He activated the warning lights and siren and signalled the Holden Commodore to stop. He said the reason he activated the siren and warning lights was "For the purpose of a random breath test." He was able to recite that this was under schedule 23 of the Road Transport Act 2013. Despite the siren and the lights being activated he did not believe there was any conversation whatsoever at any time with any of the officers in the vehicle about the matter. He said that he had spoken to the driver, informed her that she was stopped for the purpose of a random breath test and asked her to produce her licence. She produced a licence. He said he completed a breath test requiring her to talk into the Alcolizer. This item had been obtained from the police car. He said he had it with him when he got out of the police vehicle. There was a negative reading. He noticed a passenger and a number of large photo frames containing memorabilia from the movie Scarface. 5. He returned to the police vehicle and completed a check on her driver's licence. He completed the check himself. The driver's licence was active. The actual portion of his statement refers to him returning to the police vehicle and completing "checks utilising VKG", that is the police radio system. What checks he completed were not specified in his statement, apart from the licence check on the accused. 6. He approached the vehicle and again spoke to the driver, that is the accused. He cautioned her saying "as I said earlier I am Constable Embleton from Merrylands Police, you do not have to say anything if you do not wish to. Do you understand this?" He did not specify why he was cautioning her. 7. In evidence he gave an unsatisfactory explanation for the cautioning, essentially suggesting that it was somehow habit. He said "Anything you say or do can be recorded and used in evidence. Do you understand that?" She replied "Yes". He did not specify what the evidence might relate to. 8. In his statement he then said: "I've completed a check on your driver's licence and it's all good, however I just want to ask you about these photo frames, who owns these photo frames of Scarface?" 9. In evidence he said he then asked her about a piece of memorabilia which was on the back seat of the vehicle. She is said to have responded: "Me I bought them, they are mine. I love the movie." 10. In his statement he said he went on with the conversation: "Yeah the movie is all right, is there anything else within the vehicle that there shouldn't be?" 11. She is said to have responded: "Um there's an ice pipe next to my seat." He records himself as saying: "Is there any ice in the vehicle?" She is reported as saying: "No, well at least I don't think so." 12. He records himself as saying: "Okay well we are now going to search the vehicle for drugs and implements used in administering any drug. I will get yourself to exit the vehicle and do not touch the ice pipe next to your seat. I will also get you sir to exit the vehicle as well" this being a reference to the passenger. 13. In evidence he was able to recite that he was exercising a power under "section 36 of LEPRA 2002". 14. A search revealed the abovementioned drug. After the finding his statement records him saying: "Michelle, I am going to ask you some questions about the Eclipse container I located next to your driver's seat. You do not have to say anything if you do not wish to. Do you understand this?" 15. She is said to have replied: "Yes". He then goes on to say: "Anything you say or do I will record and this can be used in evidence in court. Do you understand this?" She is said to have answered: "Yes". He then asked: "The question is, whose is the Eclipse mints container?" And she is said to have answered: "Mine". 16. It is common ground that there was no "Eclipse" mints container and that in fact the container was branded "Mentos". In evidence the officer indicated that whilst he said that she was looking at the tin and he was pointing to it. 17. He then asked "Is what's inside it yours?" She answered "Yes but I think it's empty". She was then asked further questions and indicated that the contents looked like ice and that she did not know what the quantity was. He then arrested her for possession of a prohibited drug. 18. He was taken to his duty book which recorded: "Vehicle stopped Desmond Street, Merrylands, arrested Buddee for supply." 19. When taken to his notes of the conversation, he indicated that he recorded her details from 4.10pm at the car and after the conversation he recorded It. At some stage Constable Jones signed this notebook. Nowhere in the duty book does he mention any kind of breath test. The notes say: "4.10pm Desmond and David Street, Merrylands, search vehicle of interest AT70N1, silver Commodore, person of interest Michelle Buddee; [her birthdate and licence number and phone]; Kalil Baysari, Q: 'Michelle I'm going to ask you some questions about this Eclipse container I located next to your driver's side door.' (Caution)" 1. There is nothing of any previous conversation recorded in the notebook or verified by Constable Jones. Curiously despite the car being described as a "vehicle of interest" no officer referred to doing any registration check. As noted, the VKG records were not produced. 2. In response to questions from the Crown, Constable Embleton confirmed that he had neither recorded in his notes nor in his first statement any mention whatsoever of a breath test. He did not regard it, he said, as relevant to the offence he charged the accused with. He agreed that, in response to requisitions from the DPP solicitor, he informed her by email on 2 June 2016 that he had conducted a breath test. This was the first mention in any document of a breath test being conducted. 3. There is no mention in the notes of any part of the conversation regarding the photo frames in the back of the car or any form of caution prior to searching and there is no mention of any conversation prior to asking questions about the 'Eclipse' (in fact Mentos) container. 4. In the ERISP, which became exhibit 1 on the voir dire, Senior Constable Embleton, after introducing the topic as the supply of ice, a prohibited drug, provides the following factual background or narrative to which he seeks agreement: "Q. Okay Michelle do you agree that about 3 oh, sorry 4.10pm myself and my off-siders stopped you in Desmond Street, Merrylands? A. Yes I think it was Merrylands, I don't know the exact street. Q. Okay but do you agree that I … A. Yes. Q. … pulled you over? A. Yes. Q. Okay and at the time you were driving a silver coloured Holden Commodore? A. It's a Holden Commodore 2003 V. Yes. Q. Okay and is that your vehicle? A. Yes. Q. Do you know the registration of the vehicle? A. Something beginning with N. Q. Okay. A. Not exactly sorry. Q. No worries, do you agree when I stopped you I asked you for your licence and I informed you that I was a police officer? A. Yes. Q. Okay and then I told you that I intended to search your vehicle for prohibited drugs? A. Yes. Q. During the search of the vehicle I had a conversation with you relating to a mint container which was located next to the driver's seat in your vehicle? A. (No audible reply) Q. Do you agree with that? A. That you had a conversation with me? Yes. Q. Do you agree that it was in relation to Eclipse mint container? A. Yes. Q. Do you remember what you told me about the container? A. That it was mine. Q. Do you agree I asked you questions about that container? A. Yes. Q. Do you remember what you responded? A. That I didn't know what was in there and then you found a bag of ice. I don't know how much there was in there. Q. And at that point of time I informed you, you are under arrest". A Yes." 1. At this point in the interview with the accused she is then shown some photographs and then asked questions about her associations with Khalil Balasari commencing with: "At the time we stopped you this afternoon who was in the car with you?" 1. Later she was asked: "Q. You also, when I stopped you today you admitted there was a pipe in the vehicle? A. Yes. Q. You told me the pipe was yours? A. Yes. Q. And what is the pipe used for? A. To smoke drugs with. Q. Okay no worries, and that's obviously yours? A. (No audible reply.) Q. Or it's just a pipe? A. It's just a pipe. 1. These latter questions confirm one particular of Constable Embleton's account of what was said with the accused after the stop. They do not provide any confirmation of when or in what context or at what time the admission relating to the pipe was made. 2. Despite the claim that the stopping was for an RBT in the ERISP there is no reference to stopping for an RBT. There is no reference to the production of an alcolizer or being asked to speak into it or what she said at the time when she was speaking into it; no reference to the conversation about the items on the rear seat; no reference to a return and immediate caution; and no reference to the admission taking place prior to the search. 3. There is simply no reference in any contemporary material produced to the stopping being for an RBT. There is no reference in any contemporaneous material to a breath test actually being administered. 4. In Constable Jones' diary the incident is described as: "Person of interest Bassari Kalil, date of birth address, location Desmond Street, Merrylands re vehicle of interest/person of interest stop, vehicle of interest stopped above, person of interest in passenger seat of vehicle of interest. Driver Michelle Buddee. Vehicle of interest searched. Senior Constable Embleton asked me to come and search inside a green Mentos container which was in the driver's seat. Observed plastic bunched up inside container, numerous small clear, resealable bags, four bags containing crystal shard material, ten smaller bags empty. Photographs taken of containers on driver's seat, POI Buddee questioned by Embleton. Conversation as per recording in Embleton's notebook. Remainder of VOI searched, no further drugs located, broken ice pipe was seen between driver's seat and centre console. Party conveyed to MPS" [being Merrylands Police Station] "Person of interest Khalil left location." 1. Despite the existence of recording sheets for RBTs and a mechanism to do so, no record of any kind was apparently created concerning the stopping for an RBT or the administration of an RBT, (see Embleton and Daley transcript 74.) 2. The first reference in any of the documents produced occurs on 28 October 2015 where in Constable Embleton's statement he states in paragraph 5 that after stopping the vehicle he reports that he stated: "I'm Constable Embleton of Merrylands Police Station. You've been stopped today for a random breath test, do you have your licence there for me?" 1. She is said to have said "Yes". 2. He notes that at this time the accused handed him a licence in the name of Michelle Buddee. Whilst speaking to the accused he sighted a male in the passenger seat and some photo frames of the movie Scarface. He returned to the police vehicle to do checks on the licence. There is no mention of any actual RBT taking place. 3. He then says that he returned to the driver's side and the conversation took place as I have previously indicated and he started to caution her and ask questions about the photo frames of Scarface. 4. It is noteworthy that despite an apparently complete narrative nowhere is it indicated where there was an RBT administered. There may be some confusion as to whether he asked for details of Kalil Baysari or another constable did and told him. Constable Jones claimed that he had taken Baysari's licence to do checks. He had handed his notebook to Embleton when he did the checks, that is regarding Baysari. (Transcript 48). 5. The evidence established that it was Embleton who decided to pull the car over and no one else was informed why it was being pulled over. The evidence established that Embleton conducted the inquiries regarding the two licences. Baysari had a record for drug possession. 6. Daley recalled Embleton returning to the vehicle where "he conducted a number of checks on the police radio". (Transcript 70.22). He first recalled that he conducted the "checks in relation to Michelle Buddee and the vehicle itself". There is no mention of this elsewhere. Michelle Buddee did not have a criminal record. 7. At this stage Embleton also had the full particulars of Baysari. Daley specifically recalled "hearing information in relation to drug possession" being given by the radio operator. (Transcript 70.8 and following). I have no doubt that this occurred and that it related to Baysari. 8. The next thing Daley recalled was information from Senior Constable Embleton about finding an ice pipe and "him saying "we were going to do a search of the car" (Transcript 71). 9. Apart from these and other original recollections, Jones made his statement from the COPS event authored by Embleton. 10. Hartigan was a witness to the first statement of Embleton on 28 October 2015 and to Daley's first statement on 17 December 2015 but claimed he had made his own statement of 5 May 2016 as to the conversation solely from his memory of the events and without being prompted of by any document. There is a strange coincidence between the recollection and the other conversations said to be recalled. 11. Despite the fact that no one mentioned conducting a RBT on Michelle Buddee in any contemporaneous notes, when the issue arose in the next year - when the legality of the stop was obviously an issue and requisitions were issued – each officer could recall Embleton carrying a RBT device or some other corroborating details. Given the other evidence of the officers about the purported number of RBT stops that they conducted as part of their general duties, this claim seems very difficult to believe. 12. I regard this evidence as being inconsistent with the earlier statements and notes and unlikely to be accurate or a memory and, at best, it must be a reconstruction. 13. It was put to Embleton that no RBT was ever administered. Ultimately the whole of the later account of the suggested legality of the stopping and searching rests entirely on the final account given by Embleton. None of the other officers (even in their later statements) suggests they witnessed any RBT being administered. Submissions of the Parties. 1. As was acknowledged by Ms Beckett the accused bears the onus in the application of establishing the impropriety or illegality. I note already that I have included the arguments in respect of the application. However put in relation to the evidence the suggestion is that the vehicle was stopped by Constable Embleton as part of pro-active policing which was referred to in evidence and without lawful justification. It was also put that whilst Constable Embleton sought to justify the stopping on an apparently lawful basis of a motor traffic safety power that that was not the real purpose of the stopping and the purpose was for pro-active policing or investigation. This was an ulterior purpose which was said made the stopping unlawful. If I were against her in respect of that submission, it was submitted that Constable Embleton did not in reality conduct a breath test and that the stopping was in fact a "random crime check" to conduct criminal investigation and not a proper purpose. Even if the stopping was lawful it was put that there was an illegal detention. 2. The Crown in submissions suggested that the evidence of the stop was for the purpose of an RBT. She indicated that Constable Embleton's first account was not a complete account of the events and that the statement: "I stopped you and asked you for your licence and I informed you that I was a police officer and then I told you that I was intending to search the vehicle for drugs." was not the complete event and that his later account was the more accurate. 1. The Crown suggested that the facts could be distinguished from the case of R v Pizarro (NSWDC 20 October 2015 unreported) and that there was no evidence that stopping of the car was in fact a ruse for the exercise of a power to search. The Crown said there was no deliberate misusing of powers conferred by the RBT legislation. The Crown conceded that there was no power to hold the accused once the licence was produced and no power to compel the passenger to speak or demand identification from him. The Crown conceded the detention (if there was one) was unlawful but this would essentially not lead to the exclusion of the evidence. The Crown suggested that the lack of any record of the RBT was not important. The Crown suggested that there was nothing in the conduct of the police that suggested the collateral purpose and that the impropriety, if it existed, was not grave and that the material would be admitted under s 138. 2. This of course is not a full outline of the Crown's arguments which were economically put but nevertheless occupied a significant number of pages of the transcript. The Relevant Law 1. Section 138 subsections (1) and (3) are generally based on the principles in Bunning v Cross (1978) 141 CLR 54. Some insight into what is meant by "impropriety" or "improperly" in these cases is gained from the Court of Criminal Appeal in Robinson v Woolworths Ltd (2005) 64 NSWLR 612; NSWCCA [2005] 426. Unlawfulness includes a reference to Australian law whether written or unwritten. Basten JA referring to Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66 said: "[23] It follows that the identification of impropriety requires attention to the following propositions. 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." 1. There are a significant number of powers relevant to police stopping and searching vehicles and arresting the occupants, it is necessary to examine whether police have the power to stop a vehicle in the present circumstances and then to search the vehicle in order to determine whether the search was either unlawful or improper and whether the evidence was unlawfully or improperly obtained. 2. The police already have wide ranging powers relating to stopping and searching motor vehicles. I note the sections of the LEPRA, in particular s 21: the power to search and seize and detain things without warrant; s 36: the power to search vehicles and seize things without warrant; s 36A: the power to stop vehicles; and s 37: the power to stop vehicles at road blocks. I also note the power under the LEPRA in respect of making particular sites the subject of searches with drug dogs and the capacity to declare various areas in respect of searches for drugs. There is a power under the Act for controlled operations which can authorise otherwise illegal behaviour. I also note the power of a police officer to request disclosure under s 14 of the driver or passenger's Identity in certain circumstances, none of which applied here. 3. The Road Transport Act provides a power to conduct a breath test. ROAD TRANSPORT ACT 2013 - SCHEDULE 3 SCHEDULE 3 – Testing for alcohol and drug use … Division 2 - Random breath testing and breath analysis 3 Power to conduct random breath testing (1) A police officer may require a person to submit to a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that: (a) the person is or was driving a motor vehicle on a road, or (b) the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or (c) the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road. (2) Before requiring a person to submit to a breath test under subclause (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person's breath by requiring the person to talk into a device that indicates the presence of alcohol. (3) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle. (4) A person must comply with any request or signal made or given to the person by a police officer under subclause (3). Maximum penalty: 10 penalty units. 4 Arrest following failed breath test (1) A police officer may exercise the powers referred to in subclause (2) in respect of a person if: (a) it appears to the officer from a breath test carried out under clause 3(1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's breath or blood a concentration of alcohol of more than zero grams in 210 litres of breath or 100 millilitres of blood and the officer has reasonable cause to believe the person is a novice driver in respect of the motor vehicle concerned, or (b) it appears to the officer from a breath test carried out under clause 3(1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's breath or blood a concentration of alcohol of not less than 0.02 grams in 210 litres of breath or 100 millilitres of blood and the officer has reasonable cause to believe the person is a special category driver in respect of the motor vehicle concerned, or (c) it appears to the officer from a breath test carried out under clause 3(1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's breath or blood a concentration of alcohol of not less than 0.05 grams in 210 litres of breath or 100 millilitres of blood, or (d) the person refused to submit to a breath test required by a police officer under clause 3(1) or fails to submit to that test in accordance with the directions of the officer. (2) A police officer may: (a) arrest a person referred to in subclause (1) without warrant, and (b) take the person (or cause the person to be taken) with such force as may be necessary to a police station or such other place as the officer considers desirable, and (c) detain the person, or cause the person to be detained, at that police station or other place for the purposes of submitting to a breath analysis in accordance with this Division, and (d) if clause 5A permits the taking of a blood sample from the person-take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a prescribed place and there detain the person (or cause the person to be detained) for the purpose of the person providing such a blood sample in accordance with clause 5A. 1. The objects of the Act are to consolidate such provisions in relation to road users, road transport and the improvement of road safety in the jurisdiction and to provide assistance for the improvement of road traffic and safety and efficiency. There is nothing to suggest that those powers have anything to do with matters other than road safety and offences committed under the Act and relating to road safety. Factual Findings 1. The entire propriety and legality of the stopping and searching of the vehicle relies on the accuracy and reliability of Constable Embleton's latter accounts of the events. None of the immediately contemporaneous documents supports any conclusion other than that the specific purpose of stopping the vehicle was for criminal investigation or the prevention of crime – a random crime stop'. 2. Nevertheless some background needs to be provided to the operation in which the officers thought themselves to be involved. There was a significant amount of evidence led in respect of how the officers described their conduct at that time as being "proactive policing". 3. The term was never satisfactorily defined by any officer but it sounded very much like the items I have described above, namely, crime prevention by "random crime stop". Ms Beckett provided a schedule of all the references in the transcript to the elusive nature of this process outlined below are two instances of that description. 4. At transcript 31.01: "Q. And then when you go on general duties you are in proactive crime mode? A. Yes I was at that time yes. Q. What's the proactive crime mode, what happens? A. So we are basically just out being proactive in regards policing, stopping ... Q. So driving around, possibility of awaiting notification of some incident that you have to attend, is that right? A. That's right. Q. And otherwise you said 'stopping vehicles'? A. Yes. Q. And investigating crime? A. That's basically it." 1. At transcript 65.03: "Q. And was it your idea to get the particulars of the passenger? A. Again I don't recall, I don't recall if I was instructed or I took it upon myself, it could have been either way. Q. Is that the normal practice in a breath testing when you're breathalysing someone? A. Yes, sometimes I'll do that. Q. What power do you have to do that? A. There's no power but if they voluntarily offer their details up I'll take it. Generally I ask 'Can I' you know 'Can I see your licence or your details?' and 98% of the time they say sure. Q. Does proactive policing mean going out and stopping cars ostensibly for RBT and then seeing whether there's anything to be suspicious about? A. I would say that falls within the scope, I wouldn't say it's all about that but I guess that comes along with it." 1. At transcript 90.14: "Q. You'd been undertaking the task, Taskforce Lightfingers that day? A. Yes, that's correct. Q. And that had been proactive policing, is that right? A. That's right. Q. How many RBT's had you undertaken that day? A. I don't recall. Q. Are RBT's something that you frequently do with proactive task force? A. Yes. Q. Is it your experience that when RBTs are undertaken, that other proactive inquiries are also made at that time? A. Yep correct. Q. That can include searching vehicles? A. Yes, yeah. Q. That can include obtaining details of other people that aren't necessarily the drivers of the vehicle? A. Correct." 1. None of the officers could recall any conversation in the vehicle regarding pulling the vehicle over. This seems strange given the distance and length of time that the vehicle was followed. Similarly there was no evidence that any enquiry was made on VKG despite the vehicle being a "vehicle of interest". 2. There was no evidence that Embleton said anything to anyone when he put the lights and siren on, no evidence that he said anything when he stopped the vehicle and no evidence that he said anything when he exited the vehicle. This again is passing strange, but even stranger is the purportedly unsynchronised process of one officer coming around one side, one coming around the other and one staying at the back while the fourth stayed in the car. There is no satisfactory explanation for why this would occur on an RBT of a woman who, according to Constable Embleton, was being stopped for a relatively prosaic breath test where there were no obvious security issues. 3. Senior Constable Jones said that whist the car was in between him and Senior Constable Embleton he approached the passenger in the vehicle. (Transcript 48.01 and .35). Senior Constable Embleton agreed that at the time he was first talking to Ms Buddee, Constable Jones would have been on the passenger side of the vehicle. (Transcript 36.46). 4. It appears that at this stage either Senior Constable Embleton directed or Constable Jones took it upon himself to ask the passenger for his details. (Transcript 60.44). At around this time Constable Jones said that he assumed Embleton was in conversation with the driver but he could not hear what was said. (Transcript 61.25). 5. Senior Constable Embleton agreed that the taking of Baysari's details had nothing to do with an RBT. (Transcript 43.40). Constable Jones said that sometimes it was his practice to get particulars of passengers, agreeing that he had no power to do so (see above) but asking them "voluntarily" to give their details. (Transcript 65.10). He had no recollection of whether Baysari actually volunteered the information. (Transcript 66.09). 6. As I indicated, the only source for any claim to legality was Senior Constable Embleton. I am not satisfied of the accuracy of the claim made by officers in respect of Senior Constable Embleton having an alcolizer. This came well after the event and, given the description of multiple other stops, is unlikely to be an uncontaminated memory. Even if it could be relied upon, it does not alter the finding that the power was being used for a purpose other than for road safety. 7. As I indicated in argument, having viewed him in the witness box and having heard his evidence, I have serious doubts about the reliability and accuracy of Senior Constable Embleton's evidence. 8. Firstly, all the records created on the day contradict what he says. The records largely speak for themselves; they evidence that there was a stop and search of a vehicle of interest and persons of interest. 9. Once it is accepted that he made the VKG enquiries and was informed that there were issues relating to "drug possession" by one or other of the occupants, his account of the return to the vehicle and his cautioning and his conversation with the accused could only be very charitably described as "reconstruction". 10. When Senior Constable Embleton returned to Ms Buddee at the driver's side window, he cautioned her in the form I have already suggested. He did not release her. 11. He said that he cautioned her out of habit and that he was going to ask her about items in the car (Transcript 12.10) and that he did so because he intended to question her about the memorabilia that he had already agreed did not in reality excite his suspicion (T 40.15). This clearly cannot be true. 12. He then commenced questioning about the items in the car relating to having checked the licence, that it was "all good" and then asking about who owned the photo frames. (See above). 13. Despite saying that he formed no suspicion at this point he then asked the further question "Is there anything in the car that there shouldn't be?" 14. Once the account is seen against the background of what was undoubtedly in his mind, namely that an occupant was involved in drug possession, the whole account given in the evidence is entirely unbelievable. This conclusion is based on the objective facts but it also accords with my overall impression that I have of the officer in the witness box and the officer's evidence, namely that it was an attempted reconstruction to justify prior conduct. 15. However, even ignoring the difficulties of Senior Constable Embleton, the circumstantial case independently established that the events did not occur the way they were stated by Senior Constable Embleton. As was pointed out by Ms Beckett, all of the independent circumstances point away from a real RBT having been conducted and towards the fact that it was not for a motor traffic purpose. She further outlined conduct which, when seen in combination, supported this analysis. 1. The coordinated approach of the officers all exiting the vehicle, save for the one remaining within the police vehicle; 2. the coordinated interrogation of the driver and the passenger; 3. the requirement of the passenger to identify himself; and 4. the requirement that they remain whilst their identities and background checks were carried out. 1. I conclude that the officers' accounts were an unreliable, fractured and incomplete narrative of the events of the night prior to and during the stop. The evidence of the claim to exercise the power to stop for an RBT is inconsistent with the records. It was substantially an account reconstructed to retrospectively justify the stop and the detention. The totality of the evidence inevitably leads to the conclusion that the road safety power to pull people over randomly for a breath test was in fact being selectively relied upon to pull people over on a hunch or mere suspicion that they might be involved in crime. I am satisfied that this was occurring. 2. Once it is accepted that Senior Constable Embleton had it clearly in his mind that one of the occupants was under suspicion for drugs, it is clear that his curiosity was not being sparked by the photo frames and that the caution was not simply out of habit. The account of the reasons for the conversation is unlikely to be accurate and its content is similarly unlikely to be accurate because it is based entirely on a false premise. 3. In the ERISP, the accused did adopt an admission as to the ice pipe but no context is given as to when this occurred and it is not put to the accused that this was the justification for the search. 4. It is perhaps noteworthy that the Crown relies on a series of oral admissions made after an officer determined to caution a suspect. As I have said, I find the reason for the caution as outlined unsatisfactory, although if it did occur it may have been on the basis of intelligence that would not have justified either a search or an arrest. 5. Nevertheless, once the officer determined to interrogate the accused and go on an expedition fishing for evidence of crime, he should have properly recorded the interview. 6. No attempt was made, even in the interview, for the accused to adopt any notes or narrative of any alleged conversations. 7. Given the clear reconstruction, it is impossible to determine whether the admission was made at the time alleged by Senior Constable Embleton or later. General Principles 1. In DPP v Magnus Kaba [2014] VSC 52, Bell J outlined in some detail the law and principles applicable in the present circumstances. Much of what follows is directly attributable to the exposition of the authorities in that case. In summary, liberty is only to be curtailed by specific provisions of law. At common law any unlawful interference of any kind with personal liberty creates an action in damages, "[e]ven apparently minor deprivations of liberty are viewed seriously by the common law" and ground monetary compensation. 2. The powers of the individual and the State are not to be exactly equated. It is wrong to equate the same principle pertaining to private individuals - that they may do everything which is not specifically forbidden - with the powers of police officers where the opposite is true. Any action they take must be justified by law, they must be able to point to lawful authority for all actions undertaken. They must act in a bona fide exercise of a power and not for an ulterior purpose. 3. In Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88, the High Court was concerned with the extent of police powers to detain in custody for questioning someone who had been lawfully arrested. 4. Justices Mason and Brennan referred with approval to the statement of Deane J in Cleland v the Queen in which he said: "It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed." 1. They concluded: "The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes." 1. Police do have the power to arrest on reasonable suspicion. Police do not have the power to arrest for questioning or facilitating an investigation. At common law police had no authority to stop the vehicle and or subject the driver or passenger to questioning, to detain them or search them or their car. If it exists, that authority had to be found in statute. 2. A person should be regarded as having submitted to compulsion where, without the application of threat or application of physical restraint, he or she reasonably believes the choice to do otherwise does not exist. 3. Individual liberty is both a foundational principle of the common law and a recognised right and freedom in its own right. It is one to which the principle of legality applies in interpretation. 4. The general right to liberty includes the right to personal freedom of movement. 5. There is a right at common law to use public roads but it is not an absolute right. It has to be exercised according to law and according to licensing and Road Traffic legislation. Statutory Interpretation: Principles 1. The purpose of conferring the random breath test power is the maintenance of road safety and the licensing system. 2. The principle of legality has to be applied to the interpretation of the provisions. "At the same time curial insistence on clear expression of an unmistakable and unambiguous intention to abrogate or curtail fundamental freedoms …" (Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 at [12]) 1. Applying that principle to the legislation which unmistakably intends some interference to be authorised and only to the point recognised in the principle of legality that is, one has to identify the right and freedom, which I have done, and then identify the nature of the restriction. 2. Bleby J in Police v Prinse [1998] SASC 6567 (26 February 1998) referring to powers relating to stopping vehicle noted: "There may be circumstances where it can be shown that the exercise of the powers under s42 has been carried out capriciously or for an identifiable purpose not connected at all with legitimate policing of the law. In those circumstances, the stopping and what follows may be unlawful. Examples, some of which were mentioned in argument, may include that of a male police officer stopping a vehicle and asking the female driver for her identity for the purposes of inviting her out, or stopping a vehicle and offering to purchase it, or to inquire of the driver about the result of a sporting event. Responsible policing does not necessarily require in all circumstances the disclosure of the immediate or ultimate purpose of an inquiry. Indeed, in some circumstances, such disclosure may well be contra-indicated. It cannot be presumed, because the exercise of the power under s42 is not justified in a particular case by reference to a suspicion or belief, that it is exercised for an unlawful purpose. However, if it is quite apparent from the nature of the inquiry made or directions given that the stopping and questioning has no connection whatever with proper policing inquiries but is merely a capricious exercise of the power or an abuse of the power for a purpose irrelevant to law enforcement, then it may well fall into the unlawful category." 1. The limited purposes of such powers was referred to in the case of R v Mellenthin [1992] 3 SCR 615 (Canada). Police randomly stopped a vehicle without suspicion under provincial legislation. They asked what was in a bag in the front seat and on a search they found drugs. Upon the grounds that the search was unreasonable, the trial judge excluded the evidence. The Appeal Court overturned this. The Supreme Court restored the acquittal. The unanimous judgment of the court (Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ) held that the police had abused their power which had to be directed to the aims of road safety. Their Honours stated firmly: "[624] However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search." 1. Another Canadian case is Brown v the Regional Municipality of Durham Police Service Board (1998) 116 OAC 126; (1998), 131 CCC (3d) 1 (Ont. CA) where a checkpoint was set up to stop motor cycle gang members. Again the stopping was found to be arbitrary and unjustified and unlawful. In discussing those powers the then court (Doherty, Weiler and Goudge JJA) said: "Officers who stop persons intending to conduct unauthorised searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on [the statutory power] even if they also have highway safety concerns when making the stop." 1. Applying these principles, it is clear that Parliament intended to distinguish motor traffic powers from criminal investigation powers. The random nature of the motor traffic powers is a very significant interference in the liberties of citizens lawfully going about their business. They are not part of the criminal investigation powers conferred by LEPRA. There was a clear intention to delineate powers based on suspicion of the commission of crime from powers directed primarily at ensuring road safety and proactively preventing driving over the prescribed content of alcohol. 2. The authorities and statutory interpretation all point to the proposition that the RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection. 3. That is what happened in this case. I do not find that there was a mixed purpose. 4. It may be added that the police cannot rely on a statutory RBT power to engage in "proactive" policing or satisfy a curiosity or hunch not amounting to a specific state of mind as required by LEPRA. 5. At no time, of course, prior to the stop and detain, did the police claim to have any relevant reasonable suspicion. Nor, prior to the elicited admission, was there any material available upon which a suspicion could have been based. 6. It was also conceded that there was no power to detain the driver and the passenger once they were satisfied that the driver had complied with the provisions relating to the production of a licence. She was free to go and ought not to have been further detained. There is no power to require a passenger to provide identification and no power to restrain any further movement whilst the vehicle is checked apart from those statutory powers. Nor is there any power to restrain or require any further interruption to the driver or the passenger's journey. 7. This conduct was also illegal and improper. 8. Senior Constable Embleton should not have attempted to elicit admissions when he had no reasonable basis for questioning the accused, nor a reasonable suspicion at that time. I find it disturbing that there was no electronic record of the conversation, particularly when the admissions were being positively elicited and concerned serious criminal conduct. 9. In conclusion, the police purpose in stopping the vehicle was not to conduct a random breath test. The stopping was illegal; the detention whilst enquiries were made was illegal; the process was not based on any legally justifiable state of mind of the part of the officers. The failure to reliably record the admissions which were sought to be elicited in my view was also improper. 10. Under s 138, therefore, the evidence of the possession of the drugs was obtained unlawfully as a consequence of a contravention of Australian law. It was obtained, as I said, as a result of an illegal stopping, an illegal interrogation, an illegal detention and, ultimately, by questioning which I regard as improper. 11. The Crown therefore now bears the onus of demonstrating that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which I have found it to be obtained. 12. In considering whether the Crown has discharged the onus I may take into account the following, that is the matters in subsection (3): 1. The probative value of the evidence. There is no doubt that the evidence of the finding of the drugs has high probative value. Ms Beckett indicated that there were aspects of the conversation which were denied and that she would rely upon the so-called "Filippetti defence". (See Filippetti v R (1984) 13 A Crim R 335). Whilst there are indications in the ERISP that such a defence might be open, that is a factual matter at trial and in my view does not diminish the probative value at least of the existence of the drugs. 2. The importance of the evidence in the proceedings. It was acknowledged that the evidence was fundamental to the proceedings. 3. The nature of the relevant offence, cause of action or defence and the nature of the subjective matter of the proceeding. All cases of drug possession are serious and involve a degree of criminality. In this case the Crown relies upon the deeming provision of s 29 of the Drug Misuse and Trafficking Act 1985 and the circumstances of the finding and associated items, as I have indicated, to base the allegation of supply. The amount is a relatively small amount. It is barely above the amount which would bring it into this court. It is just over the deemed supply amount. The amount itself is not inconsistent with personal use all other things being equal, although the existence of the bags points away from this conclusion. If it were proved, would be at the bottom range of seriousness for such an offence. 4. The gravity of the impropriety or contravention. The gravity of the impropriety and contravention was significant. I adopt the words her Honour Justice Penfold in the Application of Huy Huu Lee [2009] ACTSC 98: "[68] This is not a case in which the police entrapped a person, or participated in the commission of an offence themselves. In one sense the impropriety in this case may be less serious than the kind of impropriety that involves police engaging in, or provoking, criminal activity. In another sense, however, a breach of clear rules that have been laid down by the legislature to permit certain kinds of police investigation in certain circumstances, while prohibiting certain other kinds of investigative activity in order to protect the civil liberties of members of the community, may be more objectionable. This is because it undermines the protections that benefit all members of society and particularly those innocent members who may find themselves wrongly suspected of criminal activity. Certainly it does not seem to me that Miles CJ's comments require me to accept as tolerable police activity that can only be justified by a warrant that turns out to have been seriously defective or that seems to be directly inconsistent with specific provisions of the Crimes Act 1900 enacted to protect innocent members of society." 1. Whether the impropriety or contravention was deliberate or reckless. I have little doubt that the conduct of Senior Constable Embleton was as a part of what appears to be a directed activity that went under the name of "proactive policing". The various descriptions of the process of "proactive policing" were highly suggestive of the proposition that without any reasonable suspicion people were being pulled over and investigated for matters unrelated to road safety. The reconstruction purporting to justify the stop and detain again is suggestive of a conscious attempt to justify, on a lawful basis, what was known by police to have been improperly undertaken in the first place. However characterised, the conduct demonstrated a disregard for the proper use of police powers and a disturbing assumption that police could pull over anyone on a whim. 2. Whether the impropriety or contravention was contrary or inconsistent with the right of a person under the International Covenant on Civil and Political Rights 1980. At least three articles cover the rights involved here, none of which I will read: article 9; article 12; and article 17. The conduct of the police was contrary to these provisions and as such fundamental rights, as I have already indicated, were infringed. 3. Whether any other proceeding has been taken or is likely to be taken. There is no evidence of any other proceeding being taken against the police. 4. The difficulty of obtaining the evidence without impropriety or contravention of an Australian law. There is no doubt that a lot of crime could be proactively prevented simply by providing the police with the power to interfere with every citizen on every occasion in every place, to allow them to arbitrarily stop and search anyone on a hunch or a suspicion. That is not a power they now have and such a power is antithetical to any free society. 1. As noted, I need to assess the matters relating to undesirability and desirability and they are not limited to 138(3). In addition I also take into account that the officers acted outside their lawful authority. I can take into account disciplining police for illegality and impropriety, deterring future illegality, protecting individual rights and encouraging other methods of police investigation. Certainly in relation to the latter three I take those matters into account in this case. 2. I also take into account and note that the court should refrain from being seen to unjustifiably condone police misconduct. There was some argument following my questions relating to the repeated observation by this court that the RBT power was being used for criminal investigation. I asked whether I could take into account the anecdotal material that appeared before me and which I have made previous decisions in respect of and whether this could be regarded as a routine abuse of power. 3. I have been persuaded not to take judicial note of these matters. In particular, I have referred to my judgment in Pizarro where police random breath test powers were being used as a transparent ruse to pull over persons where their number plate was the subject of a return from an electronic number plate recognition system but where there was no reasonable suspicion. In that case I, having undertaken the balancing exercise, admitted the evidence. Obviously there is a desirability and public interest in punishing possession and potential supply of illegal drugs and in crime prevention generally. However the amount in this case is relatively small, as I have indicated. The matters that I have pointed to suggest to me that, in the exercise of this power, and having regard to the factual findings and the nature of the fundamental interference in fundamental rights, it is desirable to indicate that those rights are protected and that police are generally deterred from a cavalier attitude being taken to those rights. 4. Having weighed up all the matters in s 138, and s 138(3) in particular, and the additional matters I have referred to, and taking account of the factual findings, I propose to exclude the evidence, having regard to the desirability of the evidence not outweighing the undesirability of admitting the evidence which was obtained improperly. 5. I make the following order. 1. The evidence is excluded. ********** 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: 26 May 2017