LAWS2311/JURD7311 LITIGATION 1 CRIMINAL PROCEDURE SUPPLEMENTARY MATERIALS Semester 1, 2012

Table of Contents Page

Class 14: 2 Powers relating to arrest Class 15: Class 16: 49 Class 17: 80 Class 18/20: Search and Seizure Powers with Warrant 99 Class 21: 143 Right to Silence and Taping of Interviews Class 22/23: Admissions and Exclusionary Rules of Evidence 174 These supplementary materials were prepared by Associate Professor Annie Cossins in 2011 and revised by Associate Professor Michael Legg in 2012. Interrogation of Suspects: Police Entry and Search of Premises Investigations and questioning Police Search of Person and Seizure 39 Introduction: background to LEPRA

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CLASS 14 INTRODUCTION: BACKGROUND TO THE LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES ACT) 2002 (NSW)
Although the Law Enforcement (Powers and Responsibilities Act) 2002 (NSW) (known as LEPRA) was enacted in the wake of the 1997 Wood Royal Commission, it was a long time coming since it did not commence operation until 1 December 2005. According to the NSW Ombudsman, it represents the most extensive codification and consolidation of the criminal law enforcement powers most commonly used by police in [NSW].1 LEPRA covers an incredibly wide range of police powers that relate to: arrest, personal searches, drugs, investigation and questioning of suspects, sniffer dogs, vehicles and traffic direction, firearms and explosives, public order directions, intoxicated people, the use of force, property in police custody and the establishment of crime scenes.

EXTRACT FROM THE NSW OMBUDSMAN, ISSUES PAPER ON LEPRA2

1.2.1 The Wood Royal Commission [T]he Wood Royal Commission into the NSW Police Service [of 1997] was central to the reform of police powers in NSW. In discussing measures which could help reduce the incidence of corruption and misconduct within the Police Service, the Royal Commission recommended the consolidation of police powers, saying that this would:

Help strike a proper balance between the need for effective law enforcement and the
protection of individual rights Assist in ensuring clarity in areas where uncertainty exists, and reduce the possibility of abuse of powers through ignorance, and Assist in the training of police.

Of the benefits put forward by the Royal Commission, it is the first that has been most frequently raised in promoting LEPRA. 1.2.2 Further influences In the last 10 years there have been numerous other events, reports and statutory developments which have provided further strength to the argument that police powers should be consolidated. LEPRA belongs to a raft of legislation which has been introduced in recent years to extend, refine and articulate police powers. The following are examples of a trend towards fuller statutory articulation of police powers: the new statutory scheme concerning investigations and questioning during detention after arrest, [first enacted] in 1997 under Part 10A of the Crimes Act 1900 (now Part 9 of LEPRA); the knife laws of 1998 [Crimes Legislation Amendment (Police and Public Safety) Act 1998], and the forensic procedures legislation introduced in 2000. This trend was supplemented by the release in 1998 of the non-statutory Police Code of Practice for Custody, Rights, Investigation, Management and Evidence (The Code of Practice for CRIME).
1

NSW Ombudsman (2007) Issues Paper: Review of Certain Functions Conferred on Police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman: Sydney, p.3. NSW Ombudsman (2007) Issues Paper: Review of Certain Functions Conferred on Police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman: Sydney, pp.4-6; footnotes omitted.

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In 1998, the then Minister for Police described the Police Powers (Vehicles) Bill 1998 as the second stage of a three-stage plan to consolidate police powers, and indicated that the third stage would involve consolidation of police powers into a single, coherent piece of legislation. In 1999, the NSW Drug Summit called for a review of drug law enforcement powers in order to remove any ambiguities which may impede effective police action. LEPRA brings many of these changes under one piece of legislation in an attempt to make police powers more accessible to police officers and ordinary citizens. LEPRA seeks to define the conditions upon which police powers can be exercised, thereby providing a range of procedural safeguards for the individual. This is in marked contrast to the situation in the past when the law provided little if any guidance to the police as to how they should exercise their common law or statutory powers. 1.2.3 The development of LEPRA

LEPRA did not commence until 1 December 2005, some three years after assent. This delay occurred because the NSW Police Force needed to develop and implement adequate systems to ensure the smooth introduction and operation of the legislative changes, and to educate and train police and other staff about these changes. 1.3 1.3.2 Implementation of LEPRA Education and training

Training about LEPRA was mandatory for all police. From July 2005, Education Services rolled out a training package throughout all units and Local Area Commands (LACs). 1.3.3 Systems changes to COPS

The implementation of LEPRA required the NSW Police Force to update its technology systems. Changes to COPS were completed in November 2005 . The primary change to COPS was in relation to how police record information about searches, crime scenes . *****

1. Can police officers be sued if they exercise their powers unlawfully?

Despite the fact that extensive technological and educational changes have taken place to ensure police officers are aware of their powers and the limits to those powers under LEPRA, the case law is filled with examples of individuals bringing proceedings against police and other authorities and claiming a variety of unlawful conduct including: unlawful arrest, false imprisonment, assault by police, defamation and malicious prosecution. These cases no doubt represent the tip of the iceberg since it is only the highly motivated and/or the relatively well-off or those whose cases are funded through legal aid who have the time and/or the money to commence proceedings against

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police. Mrs Ibbett was one such person who brought an action against two NSW police officers when they entered her house in the early hours of the morning.

New South Wales v Ibbett [2006] HCA 57; (2006) 231 ALR 485
3 GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ. The respondent ("Mrs Ibbett") brought an action in the District Court for damages occasioned by reason of the conduct at her house of two members of the NSW Police[3]. 4 The State was identified by s5 of the Crown Proceedings Act 1988 (NSW) ("the Crown Proceedings Act") as the proper defendant. This rendered the State generally amenable to an action in tort based upon vicarious liability. In former times, the circumstance that police officers often acted in the exercise of common law or statutory powers and according to "independent" discretions would have taken an action such as that of Mrs Ibbett outside the scope of the vicarious liability of the Crown. However, in this respect, there has been further legislation. 5 Section 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) ("the 1983 Act") deems police officers to be persons in the service of the Crown. Section 8 renders the Crown vicariously liable in respect of torts committed by such persons in the course of their service and in performance or purported performance of an independent function. No occasion arises in this appeal to examine the statutory equation of the State, created by the Constitution of the Commonwealth, with the Crown. The 1983 Act can be interpreted in accordance with its own terms and without reference to any possible constitutional questions. 6 Counsel for the State emphasised that s8 is drawn in terms which apply the "master's tort" theory of vicarious liability, associated with the reasons of Fullagar J in Darling Island Stevedoring and Lighterage Co Ltd v Long, whereby the master is liable for a breach of duty resting on the servant, not on the master, and broken by the servant. The other theory, that adopted by Kitto J in Long, treats the act of the servant as the indirect act of the master. 7 Mrs Ibbett's action was commenced on 10 December 2002 against the State as third defendant and Senior Constables Pickavance and Harman as first and second defendants. Before trial, Mrs Ibbett discontinued her action against the individual defendants and the action proceeded to a hearing before Phegan DCJ (sitting alone) as one solely against the State. However, in 2003, the 1983 Act was amended, with respect to the pending litigation, by the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) ("the 2003 Act"). The changes made by the 2003 Act of its own force relevantly applied to the pending action (s9G(2)). Further, s9B introduced a special regime in the following terms: "(1) A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person. (2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown. (3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort." For the purposes only of s9B(3), the State admitted vicarious liability for the conduct of the two police officers. 8 Mrs Ibbett was born in 1931. Her husband had died in 1995. Mrs Ibbett had owned three shops and had worked as a paymistress for 17 years. The trial judge accepted her evidence,

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saying that she gave her testimony in a clear and matter of fact way, and without any sign of exaggeration or reason for suspecting invention. 9 Mrs Ibbett had three children, a daughter and two sons. One son, Warren, born in 1958, returned to live with his mother since his release from prison in 1997. This was after he had served a term of five and a half years imprisonment. That was the third of three lengthy periods of imprisonment served by him. He said in evidence at the trial of the present action that he had been a drug user "on and off over the years". 10 The events complained of by Mrs Ibbett occurred in the early hours of 23 January 2001 at the house then owned and occupied by her in Forster ... The premises had four bedrooms and an attached double garage with access from the house. 11 Shortly before 2.00am on 23 January 2001, whilst Mrs Ibbett was asleep in the main bedroom across a hallway directly behind the garage, her son arrived home in his van. He was pursued by a police vehicle. The police vehicle was occupied by the two police officers, Senior Constables Pickavance and Harman. They were acting under operational orders "to keep a lookout for" Mr Ibbett. However, the only offence, commission of which the police reasonably suspected Mr Ibbett, was a driving offence. 12 Mr Ibbett drove into the garage of the house and, using a remote control device, closed the roller door. As the roller door was closing, Senior Constable Pickavance dived under it and sought to arrest Mr Ibbett. He had no proper basis for making such an arrest or entering the property. He was not uniformed and was wearing casual clothing. 13 There was a commotion with both parties shouting or screaming at each other. This awakened Mrs Ibbett. Whilst Senior Constable Pickavance had his service pistol directed at Mr Ibbett, Mrs Ibbett opened a door leading from the hallway into the garage. She heard her son say to Senior Constable Pickavance, "Who are you? Get outta here." She repeated words to that effect, at which stage Senior Constable Pickavance swung towards her, pointing his gun at her and said, "Open the bloody door and let my mate in." Mrs Ibbett had never seen a gun before and was petrified. The trial judge regarded that description of her state of mind as no exaggeration. 14 To this point, Senior Constable Harman had been outside the house but came in when the roller door to the garage was re-opened. Like Senior Constable Pickavance, he was not uniformed and wore casual clothing. 15 Mr Ibbett was removed to the driveway, handcuffed and pushed to the ground. Uniformed police arrived. Mr Ibbett's vehicle was removed onto the driveway and searched. He himself was returned to the garage and strip searched. Criminal proceedings were commenced against Mr Ibbett. However, these were subsequently withdrawn. 16 At the trial in the District Court of Mrs Ibbett's claim for damages against the State, Senior Constable Pickavance denied that he had pointed a gun at Mrs Ibbett, but his evidence was not accepted. The trial judge described him as "conspicuously careless with the truth". Senior Constable Harman was treated as a more forthright and reliable witness but much of his evidence impressed the trial judge as coloured by a sense of loyalty to his fellow officer. 17 Phegan DCJ concluded: "It is very difficult to escape the conclusion that, contrary to their evidence, the police officers were on the look out for Ibbett, identified his van as it came along Lakes Way, pursued it and, in their determination to effect an arrest and in doing so find evidence of either house breaking or possession of drugs or both, had followed Ibbett into his mother's premises. Ibbett may have exceeded the speed limit and may even have driven erratically at times giving Pickavance and Harman some justification for an arrest and one of the subsequent charges which were laid against Ibbett. The hope of being able to make more serious criminal charges stick was dashed by the lack of adequate evidence found either on Ibbett or in his van." 18 His Honour found that the entry into the property by both police officers had been without lawful justification and had amounted to trespass to land. His Honour also held that the

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confrontation between Senior Constable Pickavance and Mrs Ibbett was more than sufficient to justify the requirements of an immediate apprehension of harm on her part, intentionally caused by Senior Constable Pickavance so as to amount to an assault. 19 These findings were not challenged in the Court of Appeal and are not challenged in this Court. Rather, the appeal turns upon questions concerning the damages that Mrs Ibbett was entitled to recover. 26 Before turning to consider the issues thus raised, three preliminary matters should be noted. The first is that, whatever may be the significance for the law of trespass of the undisturbed presence of guests of the occupier, the facts of this litigation have a narrower focus. Mr Ibbett was living in his mother's house and was a member of the household, not a guest in any transient or merely social sense; the position in respect of such persons may be put to one side in deciding the first issue on this appeal. 27 The second preliminary matter is that the case cannot be approached on the footing that the conduct of the police officers was to be explained in whole or part by reference to known violent propensities of Mr Ibbett. There was no finding to that effect and, in any event, Senior Constable Pickavance had denied pulling his gun but was not believed. 28 The third matter is that the police officers appear to have received limited "re-education" from other officers (not of superior rank) with respect to their conduct at Mrs Ibbett's house on the night in question. Senior Constable Harman said he had "a quick briefing", the content of which he could not recall. Senior Constable Pickavance said he was told at a five minute meeting with an Education Development Officer ("EDO") that he should not have rolled out Mr Ibbett's vehicle and should have got a search warrant. The EDO said, "Oh boys you'd better do better next time." Mrs Ibbett said that she was offended by this seemingly trivial and apparently dismissive response to what had happened to her. Trespass - the interest protected 29 We turn first to consider the award of aggravated and exemplary damages for the circumstances in which the trespass to Mrs Ibbett's property was committed by the two police officers. It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers. It is not the concern of the law here to protect title in the sense of ownership but, as in the present case, the party in possession may often also be the owner. But how extensive is that interest in exclusive possession? 30 In Plenty v Dillon, Mason CJ, Brennan and Toohey JJ said of the proposition that the trespass to the plaintiff's farm was of such a trifling nature as not to found liability in damages: "[b]ut this is an action in trespass not in case and the plaintiff is entitled to some damages in vindication of his right to exclude the defendants from his farm". In their discussion of the tort of trespass in their joint reasons in Plenty, Gaudron and McHugh JJ said that the policy of the law here was the protection of possession of property and the privacy and security of the occupier. Among the authorities to which their Honours referred was the statement by Lord Scarman in another trespass case, Morris v Beardmore, emphasising the fundamental importance attached by the common law to the privacy of the home. 31 Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing. The interest of the plaintiff against invasion of the exclusive possession of the plaintiff extends to the freedom from disturbance of those persons present there with the leave of the plaintiff, at least as family members or as an incident of some other bona fide domestic relationship. The affront to such persons may aggravate the infringement of the right of the plaintiff to enjoy exclusive and quiet possession. 32 The decision of the majority in the Court of Appeal to uphold the award of aggravated damages partly by reference to the affront to Mrs Ibbett of the treatment of her son as well as herself was consistent with basic principle. The same is true, subject to what now follows, of the

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award of exemplary damages for the trespass. This outcome invites attention to the second main complaint by the State, namely, that respecting alleged "double punishment" for the same wrong. Exemplary damages 38 The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government. ... 39 [W]what is well established is that an award of exemplary damages may serve "a valuable purpose in restraining the arbitrary and outrageous use of executive power" and "oppressive, arbitrary or unconstitutional action by the servants of the government". The words are those of Lord Devlin, no supporter of the general use of this remedy. His Lordship added that: "the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service". 40 In Kuddus v Chief Constable of Leicestershire Constabulary, Lord Hutton considered these remarks of Lord Devlin with the added authority of his own judicial experience in Northern Ireland Lord Hutton concluded in Kuddus: "I think that a number of cases decided by the courts in Northern Ireland during the past 30 years of terrorist violence give support to the opinion of Lord Devlin in Rookes v Barnard[30] that in certain cases the awarding of exemplary damages serves a valuable purpose in restraining the arbitrary and outrageous use of executive power and in vindicating the strength of the law. Members of the security forces seeking to combat terrorism face constant danger and have to carry out their duties in very stressful conditions. In such circumstances an individual soldier or police officer or prison officer may, on occasion, act in gross breach of discipline and commit an unlawful act which is oppressive or arbitrary and in such cases exemplary damages have been awarded." His Lordship added: "In my opinion the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. It serves to deter such actions in future as such awards will bring home to officers in command of individual units that discipline must be maintained at all times." 57 The doctrine, associated in Australia with Enever v The King, which excepted the exercise of independent discretions from the legislative changes otherwise providing for the vicarious tort liability of the Crown, would have denied any award of exemplary or other damages against the State in the present case. The changes introduced by the 1983 Act rendered the State vicariously liable in tort, but s9B, introduced by the 2003 Act, denies attribution of liability to the State in the present litigation simply by reference to a "master's tort" theory. The scheme of s9B is to require persons in the position of Mrs Ibbett to sue only the State, and to do so "instead" of making a claim against the police officers. 58 There are several qualifications to this new legal regime. The State is not rendered vicariously liable for police torts if it otherwise would not be so liable (s9E(a)). The State may deny vicarious liability (s9B(3)), something it did not do in this case. Further, there is preserved the possibility that the State may claim damages, contribution or indemnity against police officers (s9E(b)). This too did not occur here. However, a principal object of the 2003 Act was to require the bringing of actions against the State instead of against the police officers concerned and to do so without affecting the rights of recovery by plaintiffs. 59 In the Second Reading Speech in the Legislative Assembly on the Bill for the 2003 Act, the Minister for Police explained the reasons for the Bill by referring to vindictive claims made against individual police officers by criminals they apprehended and to the stress thereby caused,

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even though "individual officers may not be personally liable to pay damages". However, he added that "plaintiffs' rights of recovery are not affected by the bill". 60 Spigelman CJ concluded on the evidence that the re-education programme indicated conduct by the State which was perfunctory in the extreme. Basten JA referred to Adams and said that although: "the inadequacy of the subsequent counselling was not the fault of Constable Pickavance, the evidence as to what took place in that regard prevents the State arguing that an award is not necessary to give effect to the purpose identified in Adams". It was consistent with principle and with the evidence for their Honours to have included those considerations in their treatment of the awards of exemplary damages. It follows that all of the State's criticisms of the awards of damages upheld by the majority of the Court of Appeal fail. The appeal should be dismissed with costs. *****
Ibbetts case gives rise to the issue of whether or not the police are allowed to enter premises to arrest a person. Section 10, LEPRA provides police with the power to enter to arrest or detain someone or execute warrant: (1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant. (2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling. (3) A police officer who enters premises under this section may search the premises for the person. (4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose. (5) In this section: "arrest" of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment. Consider the facts in Ibbett above. 1. Did the two plain clothes police officers have to power to enter Mrs Ibbetts house under s10?

2. What are the threshold issues that must be satisfied before the power under
s10 can be exercised? See also s201, LEPRA.

3. If s10, LEPRA does not give the police the power to enter Mrs Ibbetts house to
arrest her son, consider Halliday v Nevill, below. Does this case provide support for the proposition they had a common law right to enter Mrs Ibbetts house?

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POWERS RELATING TO ARREST

PART 8, LEPRA
Section 99, LEPRA This provision gives a police officer the power to arrest, without a warrant, a person in the act of committing an offence, who has just committed an office (the caught red-handed situations) or a person who has committed a serious, indictable offence. This latter situation would arise where there is evidence, such as identification or DNA evidence, to identify the offender. But s99(2) deals with the more ambiguous situation where a person has not been caught red-handed and there is no clear evidence they have committed an offence. It applies where an officer suspects on reasonable grounds that the person has committed an offence. Recent case law has had to consider what these words actually mean. Much has been written about the past tendencies of police to focus on certain age groups (usually young men) and certain races (often those of Indigenous or ethnic background) in relation to policing practices. But the courts take a dim view of policing based on vague suspicion or racial stereotyping.

1.

What amounts to suspects on reasonable grounds?

R v Rondo [2001] NSWCCA 540

27 SMART AJ: John Rondo appeals against his conviction by a jury in the District Court of supplying a prohibited drug (cannabis leaf - 224 grams) and cultivate prohibited plant (59-63 cannabis plants). The supply charge arose out of his possession of the cannabis leaf. He was acquitted of offering a bribe to a police officer. 29 In outline the police stopped a vehicle being driven by the appellant, searched it and allegedly found $860 in the console and some cannabis leaf in the glovebox. The appellant was arrested and taken to Chatswood Police Station but he refused to answer questions. The police obtained a detention warrant and a search warrant to search the home where he lived with his mother. Upon searching, they allegedly found some cannabis leaf and some cannabis plants. 49 The initial question was whether at the time Cons[tables] Gautier and Barnes stopped the appellant either reasonably suspected the appellant of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence or either reasonably suspected that in the vehicle being driven by the appellant there was anything stolen or otherwise unlawfully obtained or anything used or intended to be used in the commission of an indictable offence. 50 The judge did not canvass the legality of the police requiring the appellant to stop his vehicle. If there was no lawful stopping of the appellant it was submitted that the subsequent search was illegal. The subsequent search could not have taken place but for the stopping. 51 The evidence that the police had to support stopping the vehicle was that a young fresh faced man was driving a smart fast open coupe with some panel damage along Epping Road and when asked if the car was his, he replied "No". The mere fact that the appellant was driving a car which he did not own or lease or hire is not sufficient to give rise to a reasonable suspicion. Many late teenagers and young adults drive cars belonging to a parent or a sibling. At the time of stopping the appellant [the police] did not have any material on which he could form any of

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the reasonable suspicions referred to in s.357E [under the Crimes Act, this was the source of the power to search; now repealed; see s21 LEPRA] 52 In Streat v Bauer; Streat v Blanco I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects" . 53 These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility.. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. 54 On the information which Barnes had he did not have reasonable grounds to form any of the suspicions mentioned in s.357E. It was not open to him to "reasonably suspect" any of the matters referred to in s.357E. Hence the stopping of the appellant and his vehicle was unlawful. 55 The appellant contended that as the stopping was unlawful the evidence as to the search should not be admitted. That followed upon an illegal act and the prosecution should not be able to enjoy the fruits of its own illegal conduct. It does not follow that because the police have unlawfully stopped a vehicle they are precluded from investigating whether any offences have been committed. For example, they may see something which reasonably makes them suspect that a serious crime has been committed, for example, a balaclava with eye holes, a knife with blood or a housebreaking implement. 56 Where a vehicle has been unlawfully stopped it becomes a matter for the Court's consideration whether evidence obtained as a consequence revealing a criminal offence should be admitted: see s.138 of the Evidence Act 1995. Much will depend on the offence alleged and its relative seriousness as well as all the other circumstances. 57 Where a vehicle has been unlawfully stopped it is of importance where a search is subsequently conducted that such search be one that is lawful. The judge directed his attention to that issue rather than whether the appellant and the Supra had been lawfully stopped. 58 [T]he judge took the view that the appellant's alleged actions, after the Supra had stopped and the police had stopped behind it, in reaching across to the passenger's side of the Supra and appearing to place something in its glovebox might reasonably raise a suspicion within s.357E to enter the mind of the police officer and that he honestly did so. The judge recognized that this was a borderline case. Placing an item in a glovebox at any stage is a very routine matter. Mostly it would be an innocent everyday act not calling for comment. The Crown relied on the time at which the item appeared to be placed in the glovebox, that is just after the vehicles had stopped and Cons Barnes was leaving the police vehicle to go to the appellant in the Supra. My mind has fluctuated as to whether the appellant's alleged actions were sufficient to ground the reasonable suspicion alleged. Not without doubt I have concluded that it was open to the judge to find that they were. Both the amount of money found, namely, $860 and the quantity of cannabis leaf found, namely 9.4 grams were small. 60 In the exercise of his discretion the judge did not take into account that the Supra was unlawfully stopped and that all else flowed from that. That stopping of the vehicle amounted to an unlawful interference with the appellant's freedom of movement and harassment. The failure to take such an important matter into account vitiates the judge's exercise of his discretion.

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Section 138 refers to evidence obtained "in consequence of" an impropriety or of a contravention of an Australian law. The words "in consequence of" are important in the present case. 64 Once the police officer found $860 in the console and the marihuana in the glovebox, he had reasonable cause to suspect that the appellant had committed an offence, albeit a relatively minor one. The subsequent arrest of the appellant and taking him to Chatswood Police Station were not unlawful nor was his detention for four hours However, the police officer did not become aware of any offence until after he had stopped the Supra unlawfully and searched it.

R v Minh Quoc Le [2005] NSWCCA 40

2 BARR J (with whom Bryson and Hoeben JJ agreed): This is an appeal against conviction. The appellant was tried by a jury in the District Court and found guilty of using an offensive weapon to prevent police investigation . 3 There is a single ground of appeal, namely that the trial judge erred in admitting evidence as to the appellants possession of a gun. 4 At 9:55pm on Monday 1 July 2002 Constable Gewargis and Senior Constable Rahme, were patrolling Smithfield in a police vehicle. They came to a street next to Rosford Reserve. That was an area which Constable Gewargis knew was used for criminal activity, particularly for dealing in drugs. The officers came upon two Mercedes motor vehicles. One was parked by the kerb and the other, no more than twenty metres from it, was parked at right angles to it in a drive at the entrance to the reserve. The first vehicle was gold and the second blue. Each car contained a driver and three other occupants. Constable Gewargis spoke to the driver of the gold car. The driver told him that the occupants of the cars were together. As they spoke, the blue car sped away. The officers followed it and stopped it. Constable Gewargis spoke to the driver, Mr Thadanabath. Mr Thadanabath told him that he did not know the occupants of the gold car. Senior Constable Rahme inquired about the registration of the gold car and the status of Mr Thadanabaths driving licence. Apparently those records were in order, but the officers also received over the police radio a warning that Mr Thadanabath might carry a pistol and that he was recorded as having engaged in gang and drug activity and in possessing firearms. Constable Gewargis directed the driver and the other occupants to get out of the car and stand on the footpath. They did so. Constable Rahme asked them for identification. The appellant handed him his driving licence. Constable Gewargis told Mr Thadanabath that he intended to search the car. He asked whether there was anything in it that should not be there and Mr Thadanabath said that there were not. So did the appellant. The officers began searching. Constable Gewargis found a crowbar on the floor behind the drivers seat. Mr Thadanabath said that he had been doing some work with it. The officer went to the other rear door and began searching the floor and seat. He found a fifty-dollar note. All the occupants denied knowing whose it was. Constable Gewargis stood in front of the appellant and asked him if he had anything on him that he ought not to have. The appellant took a few steps back and said nay. The officer directed him to turn around and, when asked why, said that he was going to search him. He tried putting his left hand onto the appellants back pockets but the appellant kept twisting away, preventing him from doing so. The officer thought that he was trying to hide something. He asked whether he had something on him and the appellant said no. The officer ran his hand down the appellants back and felt something hard underneath the jacket. He took hold of his right shoulder and turned him round. He lifted the back of the jacket and saw a black pistol taped to the appellants back. ... The appellant took hold of the pistol in his right hand, turned and pointed it at Constable Gewargis stomach. The officer took hold of his right wrist with both hands and tried to wrest the pistol from his grasp. The struggle went on for some time and the appellant was subdued when the officers sprayed him with capsicum spray and struck him with a baton. 5 Evidence of these matters was taken before the jury, but defence counsel applied for it to be withdrawn. The submission was that the evidence was unlawfully obtained and that the trial judge

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ought not, in the exercise of his discretion, ought to allow it to remain before the jury. The trial judge gave a short judgment stating that he found no breach on the part of the police and that in any event the evidence would be admitted within the exercise of the discretion under s138 Evidence Act. 6 The first question that arises on appeal is whether there was evidence upon which his Honour could properly find that the evidence was lawfully obtained. 7 Constable Gewargis agreed in evidence that when he required the appellant and the other occupants of the car to alight and stand on the footpath he was arresting them. Counsel submitted at trial and on appeal that the officer had no proper cause to make that arrest. 8 Section 352 Crimes Act sets out circumstances in which a constable may apprehend a person without warrant. [This section has been repealed. The relevant provision is now s99, LEPRA. Section 352 contained similar wording to s99: with reasonable cause suspects] ... 10 The same Act confers a power to detain and search suspects [s 357E has now been repealed; the relevant provision is now s21, LEPRA]. 11 The meaning of the term reasonably suspects which, I think, is not materially different from the expression with reasonable cause suspects as used in s352, was considered in Rondo . The Court of Criminal Appeal made the following statement (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. 12 Constable Gewargis undoubtedly suspected that the occupants of the cars were engaged in some criminal activity. This evidence was adduced. The officer was being asked about the time when he first spoke to Mr Thadanabath. Q And it is fair to say at that particular point in time the only thing then under investigation was, well effectively whether Thadanabath held a valid drivers licence? A Well I became suspicious with the answers that he was giving me because when I spoke to the driver of the gold coloured Mercedes he told me that they were together. When I spoke to Thadanabath he told me that he didnt know the occupants of the gold coloured Mercedes. I then thought to myself: well, why would one tell me that theyre together and the other telling me that theyre not together? Hes left the scene as soon as we turned up. I felt that perhaps well hes either hiding something or hes trying to get out of the area because of something. 13 In his second judgment his Honour referred to a submission by defence counsel that the intelligence the police had about Mr Thadanabaths criminal tendencies was not received until after the arrest and could not therefore have informed Constable Gewargis suspicions at that time. The submission depended upon a comparison between the recorded time of the police radio broadcast and the time of arrest as recorded by the arresting officer. His Honour appears to have accepted that submission. 14 One may therefore infer that his Honour proceeded to judgment upon the understanding that Constable Gewargis knew the following when he arrested the appellant 1. There were two expensive cars, each containing four young occupants, parked close together at 9:55pm, well after dark, on the edge of a reserve; 2. Dealers in illegal drugs often did their business there;

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3. The driver of the blue car, in which the appellant was a passenger, behaved suspiciously by driving it off at high speed while the officer was speaking to the driver of the other car; and 4. The two drivers gave the officer inconsistent answers: the first told him that the occupants of the two cars were together but the driver of the appellants car told him that he did not know who was in the first car. 15 His Honour concluded that Constable Gewargis had and was entitled to have the reasonable suspicion required for the exercise of the search and detention rights under s357E. His Honour referred to R v Rondo. 16 It seems to me that his Honour was entitled, applying what this Court said in Rondo to the facts that I have summarised, to find that Constable Gewargis reasonably suspected the appellant of having or conveying any thing unlawfully obtained or used or intended to be used in the commission of an indictable offence. Dealing in any prohibited drug would have been an indictable offence. 17 His Honour did not deal with the submission about the unlawfulness of the arrest, as it depended upon the power in s352, as opposed to the unlawfulness of the detention and search, dependant on the power arising from s357. It was submitted on appeal that his Honour was bound to find in all the circumstances that the arrest of the appellant was unlawful and that that unlawfulness tainted the search that followed. 18 I do not accept that submission. First, the evidence of what Constable Gewargis knew was in my view sufficient to ground a suspicion with reasonable cause either that the appellant had committed an offence of the kind contemplated by s352 or that he was loitering in a highway during the night about to commit a serious indictable offence. The dealing in any prohibited drug would have been a serious indictable offence. 19 Secondly, the power to detain under s357E arose independently of any power of arrest under s352. Even if the arrest was unlawful, that unlawfulness could not have affected the lawfulness of the detention and the search which followed. This is not a case in which an arrest led to the discovery of information or to the prompting of further inquiry which led to the revelation of unlawful activity. The discovery of the pistol strapped to the back of the appellant resulted directly from his detention and search, both of which his Honour correctly concluded were lawful. 20 I would dismiss the appeal.

2.

Is it necessary to arrest the person?

This sounds like a silly question, however, the drafters of the legislation had in mind the fact that arrest should be an act of last resort. In other words, police officers should consider why exactly they are arresting a person and what they hope to achieve by the arrest. For example, an alternative power to arrest comes from s197: the power to give reasonable directions in public places. Rather than arresting a person, s197 allows a police officer to order a person to move on, for example, from a public place to prevent public disorder. Section 99(3) stipulates that a police officer must not arrest a person unless he or she suspects on reasonable grounds that it is necessary to do so to achieve one or more of the six purposes listed under sub-section (3). In other words, sub-section (3) qualifies or limits the power of arrest set out in s99(2). Unless one of the purposes in sub-section (3) is met, the arrest will be unlawful. This means that there should be: a deliberate addressing of the purposes in Section 99(3) by the police officer concerning the particular person to be arrested. This is not

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to say that a ticking off of a checklist exercise must be undertaken but rather that the facts personal to the person to be arrested must be considered (Hage-Ali v NSW [2009] NSWDC at [202], per Elkaim DCJ). Whether or not s99(3) has this effect in practice may be doubted as Elkaim DCJ noted in Hage-Ali v NSW [2009] NSWDC at [127]: [the detective] said that when effecting the arrest she had Section 99 in mind and would not arrest without reasonable cause. I found her assertion that she would have had Section 99 in mind hard to accept. I do not say this out of criticism of the detective in the manner she went about her duties but rather as an observation that a busy police officer about to effect an arrest would perform a checklist of the provisions of Section 99. Nonetheless, police officers ought to be aware of the alternatives to arrest, as Elkaim DCJ noted in Hage-Ali at [135]:

the [Police] Code of Practice for Crime. At page 10 of this document the following is stated:"Alternatives to arrest Be mindful of competing requirements between the rights of individuals to be free and the need to use the extreme action of arrest so you can commence proceedings against people who break the law. You must not arrest unless it is necessary to achieve one or more of the purposes set out in section 99(3) of LEPRA (see Exercising the power to arrest). The alternatives to arrest include the following:Caution Warning Infringement notice Penalty notice Court attendance notice (eg field or 'future CAN) Youth justice conference."
The main issue at stake in relation to giving police the power to arrest is the need to ensure that a person is not unlawfully deprived of their liberty, the most basic of human rights. As Deane J observed in Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 528:

The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. They provide the general context of the present case.
The purpose of the arrest was one of the issues the magistrate had to consider in McLean, below which discusses in detail the relationship between s99(2) and (3).

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R v McClean [2008] NSWLC 11

1 MAGISTRATE D. HEILPERN: This is a matter where the defendant has been charged with two offences assault police and resist arrest under s58 of the Crimes Act 1900. The hearing thus far has been conducted on the basis of a preliminary voir dire . I am tasked to determine two matters in the voir dire; the admissibility of the evidence pursuant to s138 of the Evidence Act and whether the prosecution have proved beyond a reasonable doubt that the police were acting in the execution of their duties. The Facts 3 At 11.15pm [on 30 November 2007] Constable Eugenio and Constable Billing arrive[d] at 35-47 Wilson Street, Darlinghurst in relation to [a] radio call re a malicious damage occurring now. Upon arrival they saw the accused and a male companion Mita standing on the balcony in front of unit 108. Constable Billing asked why they were there. She was told by the defendant that the lady who lived in unit 108 had a dog that did not belong to her, that it once belonged to their friend who had recently passed away. Constable Billing spoke to the resident of unit 108 who told her that they (ie the defendant and Mita) had been banging on the door and window, and that she wanted them to leave her alone. By this time Senior Constable Cameron had arrived, in response to an urgent radio call that two people were attempting to break into a unit. Senior Constable Williams and Constable Carter joined the group shortly afterwards. Senior Constable Williams says that the call he responded to was for a suspected aggravated break enter and steal offence which was in progress. The area in which they all were present was a walkway approximately two metres wide passing outside the front entrance doors to the units . Senior Constable Cameron then states she had a conversation with the accused as follows: Cameron: What is your name? Do you have any ID on you? The accused ranted for a while before handing me her license. I handed this license to Constable Eugenio and Eugenio recorded the details of her drivers license in his notebook. Senior Constable Cameron then had a conversation with the occupant of unit 108. The occupant was difficult to understand and distressed. Senior Constable Williams noticed that the defendant was raising her voice, that her clothing was dishevelled, and he could smell intoxicating liquor on her breath. He tu[r]ned and faced her and said: we have been called here because someone has tried to break into this unit while an elderly lady is at home inside. I have been informed that you were in the immediate vicinity and are suspected of trying to break into this ladys unit. As youve been told before you are not obliged to say or do anything, but anything that you say or do, will be taken down and used in evidence. Do you understand that? The defendant said something (unknown) at this point. Senior Constable Williams said: At this point you have to wait here until we make further inquiries about what has happened. We will get some details from you and carry out some checks. Failure to comply and you may be committing an offence. Do you understand that? The defendant said We dont have to stay here. Senior Constable Williams said: You have to stay here until we finish our inquiries and if there is no offence committed then you will be free to go. After some discussion with the male Mita, Senior Constable Williams said: We will just do some checks on the radio and after we have completed our inquiries youll be right to leave. Constable Eugenio took his notebook down to the vehicle on the ground level and sought information regarding the accused. This took some five minutes. Again from Senior Constable Camerons Statement: At this time the accused walked toward Senior Constable Williams and said words to the effect of I dont have to stay here. Senior Constable Williams moved and stood in front of the accused (sic) arm and said: You cant go yet. The accused put both arms up and pushed

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[him] in the chest with her inner forearms. This caused [him to lose his balance and step backwards. He then moved forward and took hold of the accuseds right arm, she then immediately began to pull her arm away from him. I said: Thats it youre in. 4 A struggle then took place with the defendant continuing to attempt to pull free. She grabbed hold of the hand rail and would not release it until police, as described by Senior Constable Williams: escalated the force required and inflicting severe discomfort upon the accused. 5 Eventually [the defendant] was handcuffed with her wrists behind her with the assistance of other police. She was then told that she was under arrest for assault, and cautioned. She was transported to the police station, charged and released some hours later on a court attendance notice without bail or any bail conditions. 6 It is the push to Senior Constable Williams that gives rise to the assault charge, and the attempts to pull free and difficulties in handcuffing by Constable Cameron that give rise to the resist charge. It is conceded by the prosecution that the defendant was not charged in relation to the original matter. Submissions Defendant 7 The defendant submits that an element of each offence is that I must be satisfied beyond a reasonable doubt that the police were acting in the execution of their duty. Further, that pursuant to s99 (LEPRA) I cannot be satisfied that the police were acting in the execution of their duty. Further it is submitted that the detention or arrest in the first instance was so that an investigation could take place, and that is not a factor permitting arrest at common law or by the statute. Arrest later seems to have continued for the purpose of checking the identification by radio already given. Arrest is a last resort, and to arrest for investigation is ill advised and unnecessary. Accordingly I could not be satisfied beyond a reasonable doubt that the police were acting in the execution of their duty. 8 Alternately, the defendant submits that the evidence is inadmissible pursuant to s138 of the Evidence Act, in that it was illegally or improperly obtained . The expected consequence of an improper arrest in these circumstances was the resultant actions of the defendant. Submissions Prosecutions 9 The prosecution submits that the defendant was under arrest, and that the police were empowered to place the defendant under arrest as they had a reasonable suspicion that she had committed an offence. They were investigating the offence and were entitled to ensure a suspect was detained whilst that investigation took place. The prosecution submit[s] that the police required her to be there for the purposes of investigating the matter. Further, ss 11 and 12 of LEPRA make it clear that the police can require identification from a person, and that it is an offence not to provide it. The prosecution argue that it flows from those sections that the police have the power to detain a person while their identity is being checked. Accordingly, it is submitted, the police were acting in the lawful execution of their duty, and the arrest was for the purpose of s99(3)(a), of ensuring that the defendants identity was confirmed so that they could be brought before a court. In terms of s138 the prosecution concede that the assault police was at the lower end of the scale for this type of offence. Further Submissions 10 Preparation of the reasons for decision in this matter led me to the conclusion that I required some further submissions from the parties, relating to the cases of Adams v Kennedy and Ors [2000] NSWCA 152 and Christie v Leachinsky (1947) AC 573. Mr Horan confirmed his submission that the arrest was lawful in that the arresting officer had reasonable grounds for suspecting an offence based on the radio message he had received, and the information received from other police. He gave clear reasons for the arrest, that it was not arrest for questioning, and that the other suspect was dealt with by a court attendance notice as he remained on the scene and did not resist. Accordingly, the police were acting in the execution of their duty. Ms Moody reiterated her previous submissions. Execution of Duty

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11 For each of the offences an element required to be proved is that the police were acting in the execution of their duty: (my emphasis) 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriffs officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years. 12 It is now apparent that if an arrest is unlawful, (or that there is doubt as to this issue), the police officer is not acting in the execution of his duty, and the charge is to be dismissed. .... 13 The High Court considered this issue specifically in Coleman v Power and Ors [2004] HCA 39 per McHugh at 118: (my emphasis) Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K, after reviewing the authorities on the scope of an officer's duty, the Full Court of the Federal Court said : "The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein." An officer who unlawfully arrests a person is not acting in the execution of his or her duty. In Nguyen v Elliott, the Supreme Court of Victoria set aside convictions for assaulting and resisting an officer in the execution of his duty when the arrest was unlawful and therefore not made in the execution of the officer's duty. The accused was approached by two constables who believed that he might have been involved in drug dealing. The accused attempted to walk away but was detained by the first officer who wished to search him. The accused became aggressive and kicked the first officer. The second officer crossed the street to assist the first officer to control the accused. The accused was forced into the police vehicle and continued to protest. He was then taken out and handcuffed during which the accused bit the second officer on the hand. Before the magistrate, the first officer acknowledged that he did not reasonably suspect that the accused was in possession of drugs but was merely curious about whether the accused possessed drugs. The charges relating to the first officer were dismissed. The prosecution claimed the second officer's position was different because he had good reason to believe he was lawfully assisting his partner to effect an arrest for what the second officer assumed was an assault on the first officer. Hedigan J held that the conviction for resisting arrest could not stand: "... it cannot be said that a police officer is acting in the execution of his duty to facilitate an unlawful search and arrest. The right of citizens to resist unlawful search and arrest is as old as their inclination to do so. The role of the courts in balancing the exercise of police powers conferred by the State and the rights of citizens to be free from unlawful search and seizure may be traced through centuries of cases." In setting aside the conviction, Hedigan J applied the decision of the Full Court of the Supreme Court of Victoria in McLiney v Minster where Madden CJ said: "... it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has a perfect right to use reasonable efforts to beat him off and get out of his custody."

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Hedigan J held that, although the second officer acted in good faith, his conduct was also unlawful and he was not acting in the execution of his duty when assisting the first officer to effect an unlawful arrest. These authorities show that once the conduct of an officer is unlawful, the level of physical response offered by an accused is irrelevant to a charge involving the "execution of duty" or "performance of duty". 14 Thus the law to be applied is that the prosecution must prove beyond a reasonable doubt that the police officer alleged to be assaulted, and the police officer alleged to be resisted were acting in the execution of their duty in the sense that the arrest was lawful. Was the arrest lawful? 15 The law has recently been codified by the introduction of LEPRA, and I am aware of no decision of the higher courts that deals with this issue. Accordingly, it is appropriate to consider in detail the general approach of the courts regarding arrest or detention for investigation. 16 The interpretation of statutes regarding the personal liberty of persons, particularly the detention of persons ought be construed strictly - Smith v. Corrective Services Commission (N.S.W.) [1980] HCA 49. 17 The defendant referred to the cases DPP v Carr (2001) 127 A Crim R 151, and Fleet v District Court of NSW & ors [1999] NSWCA 363 (unreported 8 October, 1999). In that latter case the court found: Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve. 18 In Zaravinos v State of New South Wales [2004] NSWCA 320 the Court of Appeal examined the circumstances where Mr Zaravinos had attended a Police Station at the invitation of the Police. In that case Bryson J sets out in his judgment at paragraph 37: Arresting a person for questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, are relevant where the validity of the exercise of the power to arrest is in question. 19 At common law, arrest for the purpose of investigation or interrogation is unlawful. Authority for this proposition is found in Williams v R [1987] HCA 36, per Mason and Brennan JJ at 15: In Reg. v. Larson and Lee (1984) VR 559, Hampel J. said, at p 568: "The words 'as soon as practicable' in the section refer to the time required to bring the person arrested before a justice and not to the time which the police may choose to take after arrest to make further enquiries or conduct further investigations. The section is designed to safeguard persons in custody after arrest from being held by the police for questioning or further investigations or otherwise." That view is surely right. If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words "as soon as practicable" cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person's complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence. In Reg. v. Eyres (1977) 16 SASR 226, at p 231, Walters J. held that deprivation of liberty could not be justified merely for the purpose of asking questions. The jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences. King C.J. in Reg. v. Miller (1980) 25 SASR

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170, in a passage with which we would respectfully agree (at p 203) pointed out the problems which the law presents to investigating police officers, the stringency of the law's requirements and the duty of police officers to comply with those requirements - a duty which is by no means incompatible with efficient investigation .The competing policy considerations are of great importance to the freedom of our society and it is not for the courts to erode the common law's protection of personal liberty in order to enhance the armoury of law enforcement. It should be clearly understood that what is in issue is not the authority of law enforcement agencies to question suspects, but their authority to detain them in custody for the purpose of interrogation. If the legislature thinks it right to enhance the armoury of law enforcement, at least the legislature is able - as the courts are not - to prescribe some safeguards which might ameliorate the risk of unconscionable pressure being applied to persons under interrogation while they are being kept in custody. The jealous protection of personal liberty accorded by the common law of Australia requires police so to conduct their investigation as not to infringe the arrested person's right to seek to regain his personal liberty as soon as practicable. Practicability is not assessed by reference to the exigencies of criminal investigation; the right to personal liberty is not what is left over after the police investigation is finished. 21 In the same case Wilson and Dawson JJ found: It is beyond question that at common law no person has power to arrest a person merely for the purpose of questioning him . The question in this case is whether a policeman has any power to defer bringing before a justice a person whom he has arrested in order to use the time to question the person or to investigate in some other way the offence or offences upon suspicion of which the arrest was made or any other offence or offences which the arrested person may have committed. A person who is arrested may be detained only for the purpose of bringing him before a justice to be dealt with according to law. For arrest is the beginning of imprisonment and, whilst it is recognized that imprisonment before trial may be necessary in the administration of criminal justice, it must be justified in accordance with the law. The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease. 9. This being the purpose of arrest, any delay in bringing a person under arrest before a justice, even if it is to effectuate some other purpose such as the questioning of that person in order to dispel or confirm the suspicion which was the basis of the arrest, is to defeat, however temporarily, the true purpose. A person is not to be imprisoned otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring him before the justice to be dealt with according to law. That, as we conceive it, is one of the foundations of the common law. 11. Because the extent of the power of arrest and the deprivation of freedom which it involves are such important matters, it is not surprising that the law has been expressed in an uncompromising way. In Bales v. Parmeter (1935) 35 SR (NSW) 182, in a passage which has frequently been cited with approval in this country, Jordan C.J. put it as follows at pp.188189: "But suspicion that a person has committed a crime cannot justify an arrest except for a purpose which that suspicion justifies; and arrest and imprisonment cannot be justified merely for the purpose of asking questions ... No person is entitled to impose any physical restraint upon another except as authorised by law. This rule applies as much to police officers as to any one else, although the law allows them somewhat greater powers in this respect than it allows to other citizens. Where the imposition of physical restraint is authorised by law it may be imposed only for the purpose for which it is authorised ... it may be imposed by a police officer in the course of arresting and bringing before a magistrate a person for whose arrest no warrant has issued, but whom the officer, with reasonable cause,

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suspects of having committed a crime or an offence punishable whether by indictment or summarily under any Act. This authority existed with respect to felonies at common law. It was extended to other offences by statute . But the statute, like the common law, authorises him only to take the person so arrested before a justice to be dealt with according to law, and to do so without unreasonable delay and by the most reasonably direct route . Any detention which is reasonably necessary until a magistrate can be obtained is, of course, lawful, but detention which extends beyond this cannot be justified under the common law or statutory power. Thus, it has been held that if in the course of an arrest which is otherwise for a lawful purpose, the arresting constable takes the arrested person to some place to which it would not be reasonable and proper to take him in the course of bringing him before a magistrate, for the purpose of searching him there, the detention in that place and the search are unauthorised and therefore actionable ." And at p.190 Jordan C.J. answers the very question posed in this case: "If a person has been arrested, and is in process of being brought before a magistrate questioning within limits is regarded as proper in New South Wales - indeed, within very narrow limits, it is regarded as proper in England; but a police officer has no more authority to restrain the liberty of a suspected person for the purpose, not of taking him before a magistrate, but of interrogating him, than he has of restraining the liberty of a person who may be supposed to be capable of supplying information as a witness." 22 In Adams v Kennedy and Ors the court quoted with approval the following comments from Christie v Leachinsky (1947) AC 573. "Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. . Blind, unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil. 23 LEPRA in its long title is said to be an Act to consolidate and restate the law relating to police powers and responsibilities. [Section 99 of LEPRA then quoted.] 24 In the second reading speech of LEPRA it was stated that this section represented a codification of the common law of arrest. Analysis 25 It is my view of s99 of LEPRA that subsection (2) states a general power, and then subsection (3) qualifies that power. The words must not arrest in subsection (3) are an unambiguous representation of parliamentary intent creating preconditions for a lawful arrest. Indeed, it is hard to imagine a clearer statement of parliamentary intent. Investigation is not one of these preconditions. 26 It is arguable that subsection (3) limits those preconditions to circumstances of arrest by the words for the purpose of taking proceedings. Thus, the argument goes, police need only have a reasonable suspicion to arrest, and then can detain for the purposes of investigation without concern for s99(3). Sections 109 to 114 of LEPRA do provide powers for detention after arrest for the purposes of investigation, however it was not submitted by the prosecution that these sections were relied upon. It is clear that those sections do not confer any power to detain a person who has not been lawfully arrested see s 113(1)(a) of LEPRA. Further, such an interpretation would represent such a significant departure from the common law prohibition regarding arrest for investigation that it could not be said to represent a codification of the common law. 27 Thus the correct analysis is that to affect a lawful arrest the officer must first have a suspicion on reasonable grounds that the person has committed an offence. Secondly, the officer must not arrest unless it is necessary to do so to achieve one or more of the purposes set out in 99(3)(a) (f). Detention following arrest may be permissible for the purposes of s109 to 114 of LEPRA, but only if the arrest is lawful in the first instance.

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28 It is common ground that although police did not use the word arrest, that the defendant was in fact placed under arrest. 29 For the purposes of this judgment, I am assuming that there was a reasonable suspicion that the defendant had committed an offence, and thus that s99(2) was met. The reasons for this reasonable suspicion include the radio information, the communication with other police, the information being provided by the alleged victim, the statement of the defendant regarding the dog, the location of the accused, her manner and appearance. 30 The prosecution submit firstly that the defendant was placed under arrest early in the scenario for the purpose of investigation of the crime at hand. Clearly this is the only reasonable inference from the material tendered. In my view the contention that such an arrest is lawful is flawed for two reasons. Firstly, it is utterly inconsistent with the common law, that parliament has expressly stated that it has intended to codify. Secondly, it is not a ground to be found in s99(3). If parliament intended by legislation to grant police the power to deprive a person of their liberty in circumstances where there was a suspicion that they had committed an offence, but that there was further investigation required, then further investigation or some similar words would be found in s99(3). In short, such a submission is inconsistent with the clear legislative intent of s99(3) and flies in the face of the law as expressed by the highest court in this country based on centuries old common law principles. 31 The courts and the parliament have spoken loudly, clearly and repeatedly it is not enough to arrest a person simply because there is a reasonable suspicion that they have committed an offence. Arrest will be unlawful unless it is necessary to achieve one of the purposes set out in s99(3). It is not one of those purposes that further investigation needs to take place. Arrest is a last resort. The wisdom of the common law and statutory restrictions on arrest is clear from the facts in this case . To paraphrase from the leading cases above, the right to be free from police detention or physical force is not what is left over once the police have completed their investigations. Blind, unquestioning obedience does not flourish on Australian soil either. 32 The prosecution next contend that the purpose for the arrest then became the confirmation of the defendants identification pursuant to ss 11 and 12 of LEPRA . 33 There is no contention that the police were entitled under s11 to request the identity. It was provided. If it was not then the defendant could have been guilty of an offence. Subject to s99(3) they could have been arrested for that offence. The identification in the present facts was a photolicence, with a name address, licence number and other details. There is no evidence that there was anything remotely suspicious about the licence given, or as to why it needed to be checked. In my view, if parliament had wanted to grant police the power to detain people while their identity was confirmed with reference to an external source, then it would have clearly stated so. There is simply no evidence from which an inference can be drawn that it was necessary to arrest the defendant, or continue to arrest the defendant, to ensure her attendance at court pursuant to s99(3)(a). However, even if I am wrong as to this, in my view if the initial arrest was for the purpose of investigation, and that was unlawful, it does not matter that the purpose of the detention then changed to something else McHugh J makes this clear in Coleman v Power. The poisoned root affects the entire tree. 34 Having read the exhibits and heard submissions from the parties I am not satisfied beyond reasonable doubt that the arrest was lawful, and accordingly am not satisfied beyond reasonable doubt that the police were acting in the execution of their duty. Thus the prosecution has failed to prove one essential element of each offence to the requisite degree and the charges are dismissed.
Note that in McClean above, the prosecution submitted that ss 11 and 12 of LEPRA make it clear that the police can require identification from a person, and that it is an offence not to provide it.

3.

The principles governing police procedure at the time of arrest

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Since the Second Reading Speech of LEPRA states that s99 represents a codification of the common law power of arrest, common law limitations on that power apply. The principles governing arrest at common law were set out in the oft-cited English case Christie v Leachinsky [1947] AC 573. These principles have been adopted in several NSW cases, including Johnstone below. Also note s4, LEPRA which sets out the relationship of LEPRA to the common law: Relationship to common law and other matters (1) Unless this Act otherwise provides expressly or by implication, this Act does not limit: (a) the functions, obligations and liabilities that a police officer has as a constable at common law, or (b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property. (2) Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace. Many questions arise at the time a person is arrested: 1) do the police have say any particular words, such as you are under arrest? 2) is the arrestee entitled to know what they are being arrested for? 3) do the police have to know precisely the offence for which the person is being arrested or will a vague description suffice? 4) are the police entitled to physically restrain the person at the time of arrest?

Johnstone v State of New South Wales [2010] NSWCA 70

1 BEAZLEY JA (with whom McColl JA agreed): On 26 August 1997, the appellant, Adam Christopher Johnstone was arrested by Senior Constable ONeil on the western side of the railway line at Towradgi [at the southern end] . The passenger exit from the railway station was at the northern end. Johnstone was arrested [for] failing to comply with a direction under the Transport Administration (Railway Offences) Regulation 1994 (the Regulation), cl 41(1) to supply his full name and residential address, after having been warned it was an offence to refuse to comply with such direction (the cl 41 charge). 2 [He was] charged with that offence, as well as with two offences of assault a police officer in the execution of his duty, cross a railway line on foot where an overhead bridge was provided, two offences of resist a police officer in the execution of his duty, and unlawfully assault a special constable in the execution of his office. All charges were dismissed, either at the Local Court level, or by Phelan DCJ on appeal to the District Court. 3 Johnstone subsequently brought proceedings against the State of New South Wales pursuant to the Law Reform (Vicarious Liability) Act 1983 and the Crown Proceedings Act 1988, claiming that he had been wrongfully arrested, wrongly imprisoned and assaulted by Senior Constable ONeil and Special Constable Fitzpatrick. Mr Johnstone also alleged that Senior Constable Munn joined in the arrest without reasonable grounds, wrongfully took him into custody and thus wrongfully imprisoned him. In addition, he claimed that Senior Constable Munn assaulted him whilst assisting in the wrongful arrest, by hitting him with a baton. Mr Johnstone contended that as a consequence of these assaults, he suffered personal injury and claimed

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damages, including aggravated and exemplary damages. The claim was heard by Balla DCJ, who dismissed it on the basis that the arrest was lawful. This appeal is from her Honours decision. 4 The issues raised on the appeal were as follows: 1. Was the arrest lawful? This raised two questions: (a) Did the arresting officer, Senior Constable ONeil, comply with the common law obligation to inform Mr Johnstone of the true reason for his arrest? (b) Was the arrest, which was without a warrant, made in accordance with the provisions of the Crimes Act 1900, s 352 (now repealed)? 2. If the arrest was lawful, did the officers nonetheless use excessive force in effecting the arrest? 3. Did Senior Constable Munn separately assault Mr Johnstone by hitting him on the knee with a baton, independently of the lawfulness of the arrest? 4. Was the appellant on railway land pursuant to an implied licence? 11 The factual dispute between the parties was of some importance, having regard to the action taken by the officers. If Mr Johnstone was correct, he had not crossed the railway lines. Rather, he had entered onto the railway land on the same side of the tracks as he was detained. If the police officers version was correct, Mr Johnstone had to cross the railway lines to be on the side where he was stopped. If he had not crossed the railway tracks, he had not committed the offence of crossing the railway line on foot where an overhead bridge was provided. The trial judges factual findings 12 The trial judge was not persuaded that Mr Johnstone was a reliable witness. Whilst her Honour acknowledged that there were some inconsistencies in the evidence of the officers, she did not consider that those matters were of sufficient importance, or went to any substantial issue, so as to cause her to prefer the evidence of Mr Johnstone over that of the officers. [P]referring the evidence of the officers, her Honour made the following findings : [1] [Mr Johnstone] walked off the end of the railway platform onto the area around the tracks intending to walk to Wollongong; [2] he walked across the tracks; [3] the transit officers decided to leave the train and speak to him because he was down the southern end of the platform which was unusual, he was carrying a duffel bag and they were aware that there had been theft of copper from the railway lines. [4] as they left the train and walked towards [Mr Johnstone] they saw him walk from the platform onto the area around the tracks and then walk across the tracks; [5] they asked him to stop and he did; [6] they asked him to show them the contents of his bag and he did. They did not find anything unusual in the bag; [7] [Senior Constable] ONeil asked [Mr Johnstone] for identification because he had not yet fully established what was in [Mr Johnstones] bag, his purpose for being on the railway line, his concern that [Mr Johnstone] may have been going to commit some offence on the railway line and because he had already committed an offence under the railway by laws by being on railway land. [8] when [Mr Johnstone] had confirmed his identity [Senior Constable] ONeil intended to undertake a check by police radio. He informed [Mr Johnstone] that if the check showed he had no prior history or problems with the railways he was going to give him a caution but if he had had he was going to give him a fine. [9] [Mr Johnstone] handed [Senior Constable] ONeil a Medicare card which disclosed his name. [Senior Constable] ONeil asked for identification which showed his name, date of birth and address. [Mr Johnstone] refused and asked for his Medicare card to be returned. [Senior Constable] ONeil refused to return it because he had not completed his inquiries and had not finished noting down the details on the card.

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[10] [Mr Johnstone] did not provide his address or any information about where he was living at the time. [Senior Constable] ONeil told [Mr Johnstone] that if he did not supply his name and details he would have to be arrested. [Mr Johnstone] wanted to leave and tried to snatch the Medicare card from [Senior Constable] ONeil. He started to become defiant, hostile and agitated. [Mr Johnstone] pushed [Senior Constable] ONeil and shaped up in a fighting stance. [11] [Mr Johnstone] was handcuffed after a struggle in which all three of them fell to the ground. In the struggle, [Senior Constable] ONeil tried to hit [Mr Johnstone] with his baton but missed. [Mr Johnstone] headbutted [Senior Constable] ONeil twice, tried to headbutt [Special] Constable Fitzpatrick and scratched [Special] Constable Fitzpatrick. [Mr Johnstone] was kicking and spitting. [12] a number of police officers arrived after [Mr Johnstone] had been handcuffed. [13] [Senior Constable] ONeil assisted [Mr Johnstone] by picking him up by his arms. [14] the officers walked [Mr Johnstone] up towards the railway station. He was not taken along the same path as he had used when he had left the platform. When they reached a white metal fence [Mr Johnstone] was lifted, rolled over and caught by other police and lowered to the ground. He was then walked to a police caged vehicle. [15] [Mr Johnstone] was taken to a police station and charged. [16] on the following day he was taken to hospital for the treatment of an injury to his knee. First issue: was the arrest lawful? 13 Two questions arise for consideration in determining whether the arrest was lawful. First, whether Mr Johnstone was informed by the arresting officer of the true reason for his arrest in accordance with the common law principles stated in Christie v Leachinsky [1947] UKHL 2; [1947] AC 573. Secondly, whether Senior Constable ONeil was entitled to arrest Mr Johnstone without a warrant: the Crimes Act 1900, s 352 (now repealed but in force at the time). Section 352 provided, inter alia, that a constable may apprehend without a warrant any person whom the constable had reasonable cause to suspect had committed an offence. Compliance with the common law principles 14 Senior Constable ONeils evidence was that the reason for the arrest was Mr Johnstones failure to supply his full name and residential address in contravention of the Regulation, cl 41. Clause 41 was in the following terms: 41(1) An authorised person who suspects that a person who is on a train or on SRA property has contravened a provision of this Regulation may direct the person to provide his or her full name and residential address to the authorised person. (2) A person to whom such a direction is given must comply with it. (3) A person is not guilty of an offence under this clause unless the person was warned, when the direction was given, that it is an offence to fail or refuse to comply with such a direction. 15 The States case at trial was that Senior Constable ONeil suspected that Mr Johnstone had contravened the Regulation, cls 14 and 29 and that he was thereby entitled to act under cl 41 and direct Mr Johnstone to provide his name and residential address. Clauses 14 and 29 provided: Entry to and exit from SRA premises 14(1) A person must not, without reasonable excuse, enter or leave a station, platform or other work or premises connected with a railway, otherwise than by a place designated by the SRA for entry or exit. Crossing railway line-generally 29(1) A person must not cross or drive a vehicle over a railway line except by means of a level crossing, bridge or subway constructed for that purpose. 16 The appellant challenges that there was a breach of either provision. However, it is convenient for the purposes of the present question, that is, whether Senior Constable ONeil complied with

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his common law obligation to tell Mr Johnstone the true ground of his arrest, to proceed on the findings made by the trial judge, which were based on an acceptance of the officers evidence. However, the following matters bear noting. 17 There was no dispute on the appeal that Senior Constable ONeil and the other officers present at the time of the arrest were authorised persons within the terms of cl 41(1). At trial, Mr Johnstone did not concede that the events occurred on railway land. This was not in issue on the appeal. However, Mr Johnstone maintained his contention that he was on railway land pursuant to an implied licence, as people frequently walked along the railway tracks to the knowledge of state transit officers. It was argued that if there was such an implied licence, there would not have been a breach of cl 14(1). 18 There was also a dispute before the trial judge as to whether Mr Johnstone had walked across the railway lines. The trial judge resolved that dispute in favour of the arresting officer, who said he saw Mr Johnstone walk across the railway lines. That finding is challenged on the appeal. However, assuming for present purposes that her Honours finding is correct, Mr Johnstone had thereby contravened cl 29(1). On that basis, Senior Constable ONeil was entitled to act under cl 41(1) to direct Mr Johnstone to provide his full name and residential address. 19 Mr Johnstone refused to give his residential address. To that extent, there was a failure to comply with the direction given by Senior Constable ONeil. However, that failure only constituted an offence if Mr Johnstone had been warned at the time the direction was given that non-compliance was an offence: see cl 41(3). Senior Constable ONeil did not tell Mr Johnstone, in express terms, that it was an offence not to comply. However, he did tell Mr Johnstone he would have to arrest him if he did not give his name, address and date of birth. There was no statutory permission to ask for the date of birth. However, it was not suggested that that, of itself, meant there was no contravention of cl 41. ... 20 Her Honour found that Mr Johnstone was informed of the true ground of his arrest, that is, that he had not provided his name and details. Her Honour held, therefore, that Mr Johnstone was lawfully arrested. Trial judges reasons in finding that the officers had complied with their common law obligations 21 The question of the lawfulness of the arrest arose both in the context of the Crimes Act, s 352 and at common law. In the context of considering the lawfulness of the arrest pursuant to the Crimes Act, s 352, her Honour said it was unnecessary to determine whether Mr Johnstone had contravened cl 41, as she was satisfied that the officers had reasonable cause to suspect that Mr Johnstone had contravened cls 14 and 29. Her Honour held that a breach of those regulations constituted offences ... punishable by summary conviction under any Act for the purposes of s 352. Accordingly, her Honour held that there were grounds on which Senior Constable ONeil could proceed to arrest Mr Johnstone. 22 Her Honour acknowledged, correctly, that in addition to the requirements of s 352, an arresting officer was obliged to comply with the common law principle that a person must be told the true ground of his arrest: see Christie v Leachinsky. 23 Her Honour recorded that Mr Johnstone had been told that if he did not supply his name and details he would have to be arrested and that Senior Constable ONeil believed that a failure to do so was a contravention of the Regulation, cl 41. Her Honour also noted that Senior Constable ONeil was of the view that Mr Johnstone had committed an offence by being on railway land and by crossing the running lines. Her Honour next observed that: Accordingly [Mr Johnstone] was informed of a reason for his arrest. He was convicted. His appeal was upheld because the warning did not comply with subsection (3). [Mr Johnstone] was also charged in relation to an offence which was not mentioned as a reason for his arrest at the time. 24 As I understand this part of her Honours reasoning, the reference to Mr Johnstone being told a reason for his arrest was a reference to being told that if he did not supply his name and details he would have to be arrested. On this basis, her Honours additional comment, that Senior

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Constable ONeil was also of the view that there had been a contravention of cls 14 and 29, was superfluous. I will return to this later, as the State contends that Senior Constable ONeil also told Mr Johnstone he was being arrested for breaching cl 29. 25 Her Honour then set out various passages from Christie v Leachinsky, to which I make fuller reference below, including Viscount Simons third proposition, that a person need not be told the true ground for his or her arrest if the person must know the general nature of the alleged offence for which he or she is detained. Her Honour also referred to State of New South Wales v Delly, where Ipp JA endorsed the view that it is not necessary for the arresting officer to specify the charge in respect of which the person was being arrested, but that the officer was required to inform the person of the facts which had given rise to the arrest. 26 Her Honour held that the qualifications to the general principle apply in this case. 27 Her Honour then [held Mr Johnstone was informed] of the true ground of arrest i.e. that he had not provided his name and details [and the police were not required to formulate the actual charge or charges he ultimately faced. He was lawfully arrested]. 28 Having regard to these findings, it appears that her Honours conclusion that the qualifications to the general principle apply in this case, is a reference to the passage from Ipp JAs judgment in State of New South Wales v Delly, at [10], that it is not necessary for the arresting officer to specify the charge for which a person is arrested. I say this because her Honours finding that Mr Johnstone was informed of the true ground of arrest i.e. that he had not provided his name and details sits uncomfortably with the notion that it is not necessary to tell a person of the true ground of the arrest if the circumstances are such that the person must know the general nature of the alleged offence for which he is detained. Principles governing arrest at common law: Christie v Leachinsky 29 I will assume for the purposes of this issue that the preconditions for arrest without a warrant prescribed by the Crimes Act, s 352, were satisfied in this case. However, s 352 (and any present statutory equivalent [i.e. s99, LEPRA]) is not the sole determinant of whether an arrest is lawful. In addition, the arresting officer is required to inform the person arrested of the true ground on which the arrest is being made: Christie v Leachinsky. (This principle is now reflected in the Law Enforcement (Powers and Responsibilities) Act 2002, s 201.) 30 In Christie v Leachinsky Viscount Simon summarised the principles that govern a lawful arrest in the following propositions, at 587-588: (1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is one of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away. His Lordship observed that there may be exceptions (other than those stated in propositions (3) and (5)) to the general rule that a person is entitled to know the substance of the reason he is

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being deprived of his personal liberty. His Lordship also indicated that the propositions he had enunciated were not intended to constitute a formal or complete code. Rather, they indicated the general principle of our law on a very important matter. 31 Viscount Simon considered, at 586, that according to text books of acknowledged weight and in cases actually decided it was established that: ... in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested. 32 The terminology used in these old authorities varied somewhat and may be the cause of some variation of the language used by their Lordships. This in turn raises a question whether there is a difference in the statement of principle amongst their Lordships, a matter considered by Ipp JA in State of New South Wales v Delly, to which I return below. However, some reference to Viscount Simons resort to the old writings is appropriate at this point to demonstrate the different language used. 33 One of the texts to which Viscount Simon referred was Burn's Justice Of The Peace, (described by his Lordship as a work of acknowledged authority which has gone through more than thirty editions, having first appeared in 1755), where the author (at Vol 1, 302) stated: ... where a constable acts without warrant by virtue of his office of constable, he should, unless the party be previously acquainted with it, notify that he is a constable, or that he arrests in the Queen's name, and for what. (emphasis original) His Lordship also referred to Hales Pleas of the Crown (Vol II, c 10, 82), where the authors state that where a person is arrested on suspicion, the arresting person must acquaint the party with the cause of his arrest (emphasis added). Viscount Simon considered that in the more modern text, Archibalds Metropolitan Police Guide (7th ed), at 713, the same: ... general rule was affirmed [it should be noted at this point that his Lordships language changes so as to make reference to the charge for which the arrest is made] that the person making the arrest should, at the time, state on what charge the arrest is being made. 34 Viscount Simon, at 587, then referred to a number of old authorities, including Mackalleys Case [1572] EngR 234; (1611), 9 Co Rep 65b, Cro Jac 279, 14 Digest 313, 3288, where it was held, relevantly, that the arresting officer ought to show for what cause he made the arrest. His Lordship then summarised the principles which he considered were established in the old authorities in the passage reproduced at [30], above. 35 The next major opinion was that of Lord Simonds, who approached the consideration of whether an arrest was lawful first by looking at the position where a person was arrested upon a warrant. His Lordship observed that in that case, the warrant should state the charge upon which the arrest is made. His Lordship continued: I can see no valid reason why this safeguard for the subject should not equally be his when the arrest is made without a warrant. The exigency of the situation, which justifies or demands arrest without a warrant, cannot as it appears to me, justify or demand either a refusal to state the reason of arrest or a mis-statement of the reason. (at 592; emphasis added) (Having regard to the facts of Christie v Leachinsky, it is likely that his Lordships comment as to the misstatement of the reason was directed to the circumstances where a person was purportedly arrested without warrant for one offence, when in fact the arresting person had in mind another offence altogether. This statement has importance to the matters before the Court for reasons to which I will return.) 36 At 593, his Lordship stated that the arrested man is entitled to be told what is the act for which he is arrested, although it was not necessary for there to be any technical precision in the words used. As his Lordship observed, at 593: ... it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general

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proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The charge ultimately made will depend on the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary: for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing. This is, I think, the fundamental principle, viz., that a man is entitled to know what...are the facts which are said to constitute a crime on his part. If so, it is manifestly wrong that a constable arresting him for one crime should profess to arrest him for another. Of what avail is the prescribed caution if it is directed to an imaginary crime? And how can the accused take steps to explain away a charge of which he has no inkling? 37 Lord du Parcq, after reviewing the old authorities, stated, at 598: The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submitted to arrest, or blamed for resistance. The right to arrest and the duty to submit are correlative. 39 His Lordship then stated, at 600: The omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a mere irregularity. Arrest and imprisonment, without a warrant, on a charge which does not justify arrest, are unlawful and, therefore, constitute false imprisonment, whether the person making the arrest is a policeman or a private individual. 40 Finally, Lord du Parcq observed, at 601: If when a charge which does not justify arrest has been expressly made the person charged is entitled to resist apprehension, I find it impossible to suppose that the law will hold the arrest good if it subsequently appears that the officer had in his own mind an unexpressed suspicion that a felony had been committed ... But, if a reason has been stated which is, on the face of it, insufficient to justify arrest without warrant, no man could safely defend his liberty if some other ground for the arrest, which the officer had deliberately chosen to conceal from him, could subsequently be brought forward by way of justification. 41 The rationale for the principle stated in Christie v Leachinsky was explained by Ipp JA in State of New South Wales v Delly at [9], where his Honour said: The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: . 42 In a case such as the present, one could add to the factors referred to by his Honour above, the proposition that if a person is sufficiently informed that a failure to comply with an official direction is an offence, the person may have an opportunity to conduct herself or himself in such a way that no offence is committed. 43 Ipp JAs observation that persons are entitled to know why they are being arrested, itself has an underlying rationale, namely, that a person is not to be deprived of her or his liberty without lawful cause. Indeed, a persons personal liberty has been described as the most basic human right or freedom: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 per Gleeson CJ at [19]. The corollary is that arrest is the deprivation of freedom: Donaldson v Broomby [1982] FCA 58; [1982] 40 ALR 525; (1981) 60 FLR 124 per Deane J at 126:

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44 That this fundamental entitlement to personal liberty underpins the principles stated in Christie v Leachinsky,is apparent from the observation of Viscount Simon, at 585, that: ... a citizen who is prima facie entitled to personal freedom should know why for the time being his personal freedom is interfered with. 45 His Lordship stated that this principle was a matter of substance. 46 The question whether an arrest was lawful in accordance with the common law principles discussed in Christie v Leachinsky arose in State of New South Wales v Delly. In that case, Ms Delly was arrested for murder in circumstances where a person had been killed in her apartment. She was in another room of the apartment when the murder occurred and, upon seeing the deceaseds body, she told those responsible to get rid of it. She then cleaned up the lounge room. Police attended the apartment early the next morning and arrested her. She was not informed that she was under arrest and it followed, was not informed of any reason for her arrest. 47 At trial, the arresting officer was asked what Ms Delly was arrested for. He answered: A. Well, the information that we had was that she had removed the wallet from Paul Harris after he was deceased, so therefore she was under arrest as either one of the principals or an accessory to that murder. 49 Ipp JA, at [7], observed a difference in the language of Viscount Simon and Lord du Parcq on the one hand, and Lord Simonds on the other, as to what a person must be told by an arresting officer for the common law principle to be satisfied. His Honour considered that Viscount Simon and Lord du Parcq required that the person arrested be told of the charge, or crime, or offence for which the arrest is made, whereas Lord Simonds stated that the person arrested is entitled to know the facts for which he is arrested and that it is not necessary that the arresting officer formulate a charge at the time of the arrest, let alone the charge which may ultimately be preferred. 50 Ipp JA at [8], stated that both approaches accommodated the proposition that it was not the law that an arrested person must be given detailed particulars of the case against him or her. The person must be told why they are being arrested. How much information the person needs to be given will depend on the circumstances . His Honour noted that Lord Simonds approach had been followed in this State in R v Kane [2001] NSWCCA 150 and by Weinberg CJ of the Supreme Court of Norfolk Island in R v McNeill (Ruling No 1) [2007] NFSC 2 (at [205]). This approach is consistent with that of Martin CJ of the Supreme Court of the Northern Territory in Clark v Trenerry (1996) 125 FLR 260. 51 For myself, I would not read the opinions of Viscount Simon and Lord du Parcq as requiring that a person should be told the charge, or crime, or offence for which he or she is arrested. Whilst both make reference to the need for a statement of the charge, it is apparent from their Lordships opinion overall that what is required is a statement in non-technical language of the substance of the reason for which it is claimed the freedom of the arrested person is to be restrained: see especially the fourth proposition stated by Viscount Simon, set out above, and the statement of Lord du Parcq, at 598 (reproduced at [37] above). It is likely that the word charge was used in the sense explained in other parts of their Lordships opinions as set out above. 52 At [10], Ipp JA endorsed the approach of Lord Simonds (and implicitly rejected what he considered to be the narrower approach of Viscount Simon and Lord du Parcq). His Honour continued: The notion that the lawfulness of the arrest depends on the police officer specifying the charge (and not on informing the person being arrested of the facts which have given rise to the arrest) goes further than is necessary to protect the position of the person arrested. Further, in my view, the notion is impractical and ignores the practical reality that the arresting officer may not be qualified or in a position to formulate the appropriate charge. (This is the paragraph to which the trial judge referred in her judgment.)

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53 [In Delly], Tobias JA based his reasons on Viscount Simons third and fourth propositions. His Honour said, at [63]: Viscount Simons third proposition is that it is only if the person arrested must know the general nature of the alleged offence for which he or she is being detained that the requirement that that person be informed of the reason why he or she has been arrested ceases to apply. True it is, as his Lordships fourth proposition makes clear, that it is unnecessary that the arrestee be informed by the use of technical or precise language but he or she is still required to be informed in substance of the reason why he or she is required to submit to a restraint on his or her freedom. That reason must be sufficiently precise as to make it clear to the person arrested as to why the arrest is taking place which, in turn, requires the arrestor to notify the arrested person, at least in general terms, of the alleged offence or charge for which the arrest is being made: [Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78] at 84 [24]; Abbassy v Commissioner of Police of the Metropolis [1989] EWCA Civ 7; [1990] 1 All ER 193 at 197-198. 54 His Honour considered that the police had failed to satisfy those requirements. He said that at the very least, the police would only be discharged of their obligation to inform Ms Delly of the reason why she was being arrested if she must have known that it was for some criminal offence connected with the murder (see Viscount Simon in Christie v Leachinsky). The highest the evidence went was that Ms Delly thought she could be in trouble when her de facto partner was arrested for the murder, because of what she had seen and what she had done in cleaning up the blood in the flat. His Honour said that concession fell short of what was necessary for Viscount Simons third proposition to come into play. 55 [In Delly], Basten JA, at [102], referred to the police officers evidence that, as Ms Delly had removed the deceaseds wallet after he was killed, she was under arrest either as a principal or as an accessory to the murders. His Honour considered it was that information which should have been conveyed to Ms Delly, in order for the arresting police officer to have complied with his common law obligation. His Honour continued: The other judgments in this Court consider in some detail the nature of the information to be conveyed by the police officer to the person being arrested. Ipp JA, adopting the language of Lord Simonds in Christie, concludes that it is not necessary for the arresting officer to formulate any charge at all, much less the charge that may ultimately be found in the indictment: at [7] above. The distinction sought to be drawn is between notification of a charge and notification of the act or conduct which forms the reason for the arrest. However, the use of explanatory language to define the parameters of the requirement should not be understood as drawing a distinction between two different categories of information. The information to be supplied by the arresting officer is his or her reason for carrying out the arrest. Pursuant to s 352(2) of the Crimes Act 1900 (NSW), as then in force, the arresting officer was required, with reasonable cause, to suspect the person of having committed a particular kind of offence. Unless Superintendent Little had such a suspicion, he was not entitled to arrest the Respondent. If he did have such a suspicion, it must have been with respect to an offence of the kind identified in the section. It was that suspicion which needed to be conveyed. As the authorities make clear, technical language is not required (such as reference to being an accessory after the fact) and identification of conduct will often be sufficient (I believe that X was murdered and that you stabbed him). In the present case, Superintendent Little gave evidence as to his suspicion ... it was that information which should have been conveyed. 56 In my opinion, Basten JAs comment that the common law requirement as to arrest does not involve drawing a distinction between two different categories of information is correct. What must be determined is whether what a person was told was sufficient, so as to be informed of the true reason for the arrest. What is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the

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police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is. 57 The question whether what the person was told was sufficient has to be assessed objectively having regard to the information which is reasonably available to the officer: Abbassy and another v Commissioner of Police of the Metropolis [1989] EWCA Civ 7; [1990] 1 All ER 193 per Woolf LJ at 197. His Lordship referred to Taylor v Chief Constable of Thames Valley Police at 3164. In Taylor, Clarke LJ considered that the best statement of these principles was to be found in Fox v UK [1990] ECHR 18; (1991) 13 EHRR 157, where the European Court of Human Rights stated: ... any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness ... Whether the content ... of the information conveyed [is] sufficient is be assessed in each case according to its [own] special features. 58 The reference in Fox v UK to the need to state the legal grounds for arrest undoubtedly derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 5(2), which provides that a person must be told the reason for the arrest and any charge against him. The common law principle does not require a statement of the charge. Nonetheless, there may be circumstances in which the crime has to be indicated. Thus, in Delly, each of their Honours considered that the respondent needed to be told that she was being arrested in relation to the murder and why that was so. Was Mr Johnstone informed of the true reason for his arrest? 59 The question whether Mr Johnstone was informed of the true reason for his arrest depends upon two matters: first, what was the offence for which he was arrested; and, secondly, whether what Mr Johnstone was told was sufficient compliance with the officers common law obligation to tell him the true ground for his arrest. Senior Constable ONeils evidence 63 Senior Constable ONeil reiterated that he had not used the word offence, but that he had told Mr Johnstone that he would be arrested if he did not supply his name and address. He said, I warned him that if he didnt give me his name and address hed be arrested. 64 There was some difficulty with Senior Constable ONeils evidence, in that he gave his evidence in indirect speech and often in a summary or conclusory way. There is also confusion in his evidence as to the order in which he made various statements. The evidence of Mr Johnstone and Special Constable Fitzpatrick also requires consideration so as to obtain a complete picture of what was, or was not, said. However, given the trial judges adverse credit finding against Mr Johnstone, I propose to consider his evidence only to the extent that he agreed with questions put to him by the respondents counsel (on the basis that those questions must have been asked on instructions), or where his evidence did not contradict Senior Constable ONeils evidence. Was it sufficient for Mr Johnstone to be told that unless he supplied his name and details he would be under arrest? 70 I have already indicated that I understand her Honours finding that this case fell into the qualifications to the general principle was a reference to Ipp JAs statement in State of New South Wales v Delly that a person does not need to be informed of the charge in respect of which he is arrested. I have also indicated my view that, depending on the circumstances, whilst a formal charge does not have to be articulated at the time of the arrest, a person may have to be told the substance of the offence for which the arrest is being made. The finding of Basten JA in Delly as to what Ms Delly needed to be told in the circumstances illustrates this. 71 It is also necessary to keep in mind that the true reason for an arrest has to relate to an offence or offences which the person either committed or was suspected of having committed. Senior Constable ONeil gave evidence that the offence for which he arrested Mr Johnstone was not supply his name and address ... not supply his particulars. In other words, he arrested him

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for a purported breach of cl 41. It is what Mr Johnstone was told in respect of that offence which, therefore, must be considered. 72 The present case is complicated by the fact that there is no offence under the Regulation of failing to provide details to an officer when asked. A contravention of cl 41 only occurs if a person who is given a direction to provide his or her details is warned, at the time the direction is given, that it is an offence to fail to comply and the person then fails to do so. 73 Although the point was not argued, I do not see that a person can be lawfully arrested for an offence not known to the law. If I am correct in that, then for the arrest in this case to be lawful, Senior Constable ONeils statement to Mr Johnstone, that he would have to arrest him if he didnt give his details, had to be sufficient both to inform him that it was an offence if he did not do so and to inform him of the true reason for his arrest. That was the way the matter was argued by the State. That argument did not deal with the requirement that a warning must be given at the time that a person is directed to provide his or her details, but, for the reasons which follow, that matter can be put to one side. 74 In my opinion, the States submission that the arrest was lawful for the reasons found by the trial judge fails for the following reasons. A person is only liable to arrest if he or she has committed an offence, or is suspected of having committed an offence. Whilst no particular form of words is required, a statement, in the context of what was happening here, that if he did not give his name and address he would be arrested, is qualitatively different from being warned that it was an offence if he did not do so. 75 This was not simply a case of Mr Johnstone being asked for his name and address and being told that he would have to be arrested if he did not supply them. Rather, he was told the officers wanted identification so that they could check up on him and see if he had previously been fined for railway offences. The officers informed him that if he had not previously been in trouble for railway offences, they would not take any action against him other than by way of a warning on this occasion. Mr Johnstone became impatient with the further demands for additional identification and details and particularly impatient when Senior Constable ONeil refused, without any lawful basis for doing so, to return his Medicare card. It was in the course of this deteriorating situation that he was told that he would be arrested if he did not supply his details. 76 At this point, there were other possibilities why Mr Johnstone might be arrested. It might have been because the officers suspected that Mr Johnstone had crossed the railway lines, or for being on railway property . It might also have been because they suspected he had stolen copper bond, being the matter that had first excited the police officers interest. Looked at objectively, the failure to give the additional identification and particulars might rather have been viewed as a withdrawal of co-operation and thus have simply been the catalyst for Senior Constable ONeil to decide to arrest him on one of these other grounds. 77 Therefore informing Mr Johnstone that if he didnt supply ... his name and details he would have to be arrested might have amounted to no more than telling him that if he did not co-operate and supply his details they would not go as lightly on him as they had previously intimated. Put another way, it was not self-evident from Senior Constable ONeils statement that the failure to provide his details was the reason for which Mr Johnstone would be arrested. Words which are equivocal or which do not self-evidently refer to the true ground for the arrest, as was the case here, would, in most circumstances, be inadequate to satisfy the common law requirements for an arrest. [B]eing equivocal, [they] did not bring the case within the qualifications to the general principle . In my opinion, the words used here were inadequate to inform Mr Johnstone of the true reason for his arrest. 78 the States [arguments] overlook what happened after Mr Johnstone was told he would be under arrest if he didnt provide his details. On Senior Constable ONeils evidence, Mr Johnstone pushed him. [T]he sequence of events appears to be that it was after Mr Johnstone pushed him that Senior Constable ONeil told him he would be arrested if he did not provide his details. Mr Johnstone pushed him twice more. Senior Constable ONeil stepped back and told

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him hed be under arrest. Mr Johnstone then put his fists up in a fighting stance. Senior Constable ONeil explained, Hed been told he was understand [sic] arrest and it was at that point that the officers grabbed Mr Johnstone. 79 By this stage, Senior Constable ONeils earlier statement, that Mr Johnstone would be under arrest if he did not provide his details, was rather remote. Even if that was what Senior Constable ONeil intended, things had moved on. Mr Johnstone was told he was under arrest after he pushed Senior Constable ONeil. How a person would reasonably connect the earlier statement with the arrest, which followed Mr Johnstone pushing Senior Constable ONeil, is elusive. In my opinion, a reasonable connection cannot be made. 80 Accordingly, for the reasons I have given, I am of the opinion that what Mr Johnstone was told was not sufficient to inform him of the true reason for his arrest. It follows, in my opinion, that the arrest was unlawful.

SAFEGUARDS RELATING TO POWERS

PART 15, LEPRA In Johnstone above, Beazley JA stated that the requirement that an arresting officer must inform the person arrested of the true ground on which the arrest is being made is now reflected in the Law Enforcement (Powers and Responsibilities) Act 2002, s 201. Section 201 applies to a whole range of powers exercised by police under LEPRA, as set out in sub-section (3), including the power to arrest, the power to search a person and even the power to give a direction to a person. In particular, s201(1)(c) states that a police officer must provide the person subject to the exercise of the power (such as arrest) with the reason for the exercise of a power referred to in sub-section (3). However, it is the common law, as enunciated in Johnstone, above, that determines the scope of the reasons that must be given to the arrestee. In addition to reasons, s201 requires a police officer to provide evidence that s/he is a police officer (unless they are in uniform) as well as their name and place of duty. The requirements of s201 are known by police as the WIPE provisions which stands for warn that failure to comply may be an offence; inform of the reason for the exercise of the power; provide your name and place of duty; and evidence that youre a police officer.3 Section 201(2C) also requires a police officer to warn a person that the failure to comply with a request or direction is an offence.

1.

Arrest by private persons

Section 100, LEPRA gives a person, other than a police officer, the power to arrest, without warrant. This is the so-called citizens arrest and gives members of the public and other authorities (such as security officers and store detectives) the power to arrest someone in NSW if a person is in the act of committing an offence, has just committed an offence or they have evidence that a person has committed a serious indictable offence.
3

NSW Ombudsman (2007) Issues Paper: Review of Certain Functions Conferred on Police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman: Sydney, [2.9].

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In Photi v Target Australia Pty Ltd [2007] NSWDC 265, below, the plaintiff sought damages for wrongful arrest, false imprisonment and assault after she was unlawfully arrested by a security employee of Target stores, Burwood, Mr Geoffrey Parker. She had been shopping with her sister and young daughter when she was accosted with by Mr Parker who said he had seen her rip open a packet of razors and place them in her belongings.

Photi v Target Australia Pty Ltd [2007] NSWDC 265

23. GIBSON DCJ: The first thing Mr Parker said, according to the plaintiff, was "Give me back my razors". He then said, "I work here and I saw you steal some razors" . In response to denials by the plaintiff he said "The cops will be here soon, give me back the razors youve stolen"; "The police will be here soon, give me back my razors you stole" and "Look, give me back the razor. You stole the razors". ... 24. Mr Parker then grabbed the plaintiff by the arm, the plaintiff sad in her evidence. He dragged her to the front of the store next to the registers where the trolleys were. She told him again "Look I havent taken anything, you can check my bag". Mr Parker replied, "There is no need, the cops will be here soon". She then said "Look you can check my bag, I havent done anything. You can either check my bag or I am leaving" but he did not do so. She started to walk off. Mr Parker then grabbed her by the back of her pants and her shirt and dragged her further into the store . He dragged her from the left side of the cash registers towards the right hand side and towards the office administration centre. The plaintiff said, "Let me go, I havent done anything". 28. The plaintiff said she was then dragged about eight metres to the office door and that throughout this time Mr Parker kept saying "Give me back the razors, I saw you steal the razors".
The court then held:

147. It is conceded that Mr Parker arrested the plaintiff. The burden is on the defendant to prove the lawfulness of the arrest (Zaravinos v State of New South Wales [2004] NSWCA 320 ). The question is whether Mr Parker arrested the plaintiff without lawful justification. Pursuant to s.352(2) [now repealed], which is relied upon by the defendant as justifying the arrest, Mr Parker could only lawfully have made an arrest without warrant if the offence had actually been committed, or immediately thereafter, according to the submissions of the plaintiff ... 148. The plaintiff submits that Mr Parker arrested the plaintiff for an ulterior purpose, namely to obtain further information regarding the location of the razors. Mr Parker in fact said "Once we were walking back to the office I felt I had to find out where the razors were" ... This is not a lawful purpose for arresting a person. Those who arrest must be persuaded of the guilt of the accused; a person cannot be arrested so as to seek further evidence and detaining the person who is arrested or taking him to some spot where they can or may find further evidence is not a lawful purpose for arresting the plaintiff (see John Lewis & Co v Tims [1952] AC 676 at 691). 149. Mr Parker did not know where the razors were. In addition, his high-handed and confrontational conduct meant that the arrest was inappropriate. The plaintiff denied having the razors and offered to show him what was in her bag. He would not accept her denial or her offer to show him what was in her bag. By the time they reached the manchester section and she tipped open the contents of her bag to show she did not have the razors, his persistence in taking her to the office to be physically searched was really little more than bullying conduct. The plaintiff submits that Mr Parker persisted in his conduct in respect of the plaintiff because he was ashamed of his confrontational and high-handed behaviour to her. However, a more likely explanation was

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not that he was ashamed of his conduct, but that he was unable to back down. He had created a scene in which other Target employees and Westfield security officers were present. ... 150. The defendant has not discharged its onus in relation to wrongful arrest and false imprisonment and the plaintiff is entitled to damages.

2.

How much force can be used to make an arrest?

Even though ss230 and 231, LEPRA state that it is lawful for a police officer to use such force as is reasonably necessary to carry out their powers, how much force is reasonable in the circumstances of an arrest? Moses examines the common law on this issue and applies it to the facts of the case.

Moses v State of NSW [2010] NSWDC 243

[1] GIBSON DCJ The plaintiffs bring proceedings for defamation, wrongful arrest and false imprisonment and assault and, in the case of Mr Moses (the first plaintiff), malicious prosecution arising from the circumstances in which each of them was arrested by officers and constables of the New South Wales Police Force in George Street, Waterloo on 5 September 2008. [10] The circumstances surrounding the arrest of the plaintiffs, the subsequent charging of Mr Moses, and those charges being dropped, may be summarised as follows. Police were carrying out a covert operation on 5 September 2008 to catch an offender who had been snatching womens handbags from the seats of cars which were stopped in peak hour traffic along the busy McEvoy Street/Botany Street/Elizabeth Street roads. There had been descriptions of the suspect by the victims and the Operational Orders of 1 September 2008 set out a procedure for the offender to be caught in the act, as well as identifying by name certain possible offenders. This list did not include either of the plaintiffs. On 4 September 2008, two police officers spotted the offender committing such a robbery and gave chase but he escaped. The next night, police were waiting again. When he saw Mr Moses walking down the street, one of the police officers called to the others that Mr Moses was recognised by him as the offender from the day before, and he was seized and arrested. Mr Kawenga, who was with Mr Moses, was also seized and arrested. [Both were tackled to the ground by police, although Moses suffered more injuries. Moses gave evidence that was tackled and assaulted by a group of persons and that Just, as soon as they saw me, they ran after me and tackled me. Didnt say they were police or anything. He said that in addition to kicking and punching him they put a set of keys to the side of his head, which he thought was a knife. He said the police said to him while he was on the ground the police screamed at him and accused him: Where are you fucking going? Youre robbing women. Youre a thief. You rob from women. It was only at the end of the circumstances in which he was tackled to the ground that these persons finally said they were police. Mr Moses said: I was struggling with them and they said they were police and I stopped struggling. He was then handcuffed behind his back. His face rolled at some stage against the mud or the ground and he felt his face against the ground. The police then said to him: Youre under arrest for stealing a ladys handbag yesterday, after they restrained him.] [11] Mr Moses and Mr Kawenga were conveyed to the police station and a record of interview carried out. Mr Kawenga was released without charge but Mr Moses was charged with two offences, one was the bag snatch carried out on 4 September 2008 and the other related to his conduct on 5 September 2008. [12] The bag snatches continued and police came to realise from the description of the offender that Mr Moses may not have been the culprit. The police carried out a second undercover operation carried out on 23 September 2008 and the offender, who turned out to be a person named in the first Operational Orders of 1 September, was apprehended committing a robbery. On 12 November 2008 the charges against Mr Moses were withdrawn. "Such force as is reasonably necessary"

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[160] [In relation to ss230 and 231, LEPRA,] [t]he question is what force is "reasonably necessary". The elements of the tort of assault [161] The NSW Court of Appeal in Rixon v Star City Pty Ltd (2001) 53 NSWLR 98; [2001] NSWCA 265 noted the definition set out in Clerk & Lindsell on Torts, 17th ed (1995) London, at 590: "[56] A traditional definition of assault is "an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect . The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty; see generally Clerk & Lindsell 12-13." [162] If an assault is proved, it is for the defendant to prove that the assault was justified. Smith J in Walker v Hamm [2008] VSC 596 at [37][38]: "[37] Where the defendant alleges justification for the blows struck, the law would appear to be that the onus of proof will rest with the defendant to prove that the action taken was justified. That will turn on a consideration of all the evidence but if, on the evidence, the defendants fail to establish lawful justification for the relevant physical contacts, liability will follow. ... [163] As these are police officers, ss 230 and 231 of the LEPRA apply. ... [164] Concerning the circumstances in which police may be found to have assaulted a person they have arrested or otherwise detained, the defendant relies upon Woodley v Boyd [2001] NSWCA 35 at [37] per Heydon JA: "[37] According to some writers, at common law, which applies in New South Wales, a person effecting an arrest may use whatever force is "reasonable" in the circumstances (Archbold: Criminal Pleading Evidence and Practice 2000 para19-39) or "reasonably necessary" (Wiltshire v Barrett [1966] 1 QB 312 at 326 and 331). "Thus if the arrestee offered resistance, the arrestor could increase his force in proportion to the force of that resistance": R W Harding, The Law of Arrest in Australia (eds Duncan Chappell and Paul Wilson) The Australian Criminal Justice System (2nd ed, Butterworths, 1977) page 254. A more elaborate test has been propounded in the context of whether the killing of a felon in the course of committing a felony is a justifiable homicide, or manslaughter, or murder. It was put thus by the Full Court in R v Turner [1962] VR 30 at 36: "When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (ie the commission of a felony or the escape of the felon)." It may perhaps be questioned whether the tests stated apply where the arresting party causes injury to the arrested party, as distinct from death. However, for present purposes it is convenient to assume, as counsel for both the plaintiff and the defendants did, that R v Turner states the law in that context as well. In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said: "It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this

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duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case." The same duties and considerations apply where a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances."" [165] In Woodley the plaintiff resisted arrest and in the ensuing struggle broke his arm. On appeal, it was noted that the plaintiff had failed to particularise the circumstances in which the police officer put his hand on his arm to restrain him, which could have been considered provocative . Constable OBrien said that only reasonable force was used to control Mr Moses as did Detective Acting Sergeant Buttel . [166] When apprehending the plaintiffs, the police had the following information: (a) They believed Mr Moses, but not Mr Kawenga, was the person they were looking for. (b) Mr Moses was not trying to leave the scene; he was walking along the street and Mr Kawenga was sitting in the car at the time they moved to seize Mr Moses. Mr Kawenga then ran away but stopped. (c) There is no claim of self-defence by the police officers, or that they were assaulted by either plaintiff. (d) This was not a crime scene where there was risk of danger to a third person or victim, such as a report of a domestic violence situation. There was in fact no report of any crime and there were no pedestrians in the immediate vicinity who were likely to be attacked or endangered. (e) In terms of "agony of the moment", there was no claim of urgency on the basis that a crime was about to be committed, or the offenders about to leave the scene. (f) Police substantially outnumbered the two plaintiffs, not only in personnel numbers but equipment (Rowe v Kemper [2008] QSC 193; [2009] Qd R 1 the presence of six police officers for one offender a relevant factor). (g) The police were not called to an emergency scene, but in place, ready to spring into action. Findings concerning the assault claim brought by Mr Kawenga [167] In relation to Mr Kawenga, the two police officers who pursued him would have been entitled to assume that he was attempting to flee. The way in which they grabbed hold of him was not sufficiently firm to cause any bruising. The leg sweep was to get him to sit on the ground. On the "agony of the moment" test, given that Mr Kawenga appeared to be attempting to escape, despite being called out to ("Police", "stop"), this is force that is within the parameters of ss 230 and 231. Findings concerning the assault claim brought by Mr Moses [168] In relation to Mr Moses: (a) He was either "loitering" or walking along the street at a normal pace, not fleeing, and there was no suggestion by the police that he attempted to flee, which reinforces the impression given by all the evidence that the police, who were in plain clothes, "jumped" him in a surprise move. (b) Although he struggled, he appears to have been in the grip of police officers so effectively that any struggle was ineffectual, suggesting overpowering force.

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(c) He was grabbed by at least three, and up to eight, officers in a melee, and forced to the ground with his face down into the mud. He suffered minor lacerations to his face and chest. (d) He had not been seen to commit a crime and there was no victim or potential victim within the vicinity on the evidence before me. It was not put to Mr Moses that he was approaching a car slowed down in the traffic, or watching the traffic to look for a victim. The highest the police evidence went was that his manner was "nervous". [169] The amount of force used to stop and arrest Mr Moses was not reasonable force. While the apprehension of Mr Kawenga was understandable (in that he was fleeing) Mr Moses had been walking or "loitering" along the street. There is no evidence that the manner of his walking along the street would cause the police to believe he was likely to commit an offence, or to be dangerous to members of the public, or that he was fleeing the scene. The Operational Orders required the officers to wait until an offence was committed or about to be committed, and there was no such evidence here. As there were so many police officers on the scene, he could have been stopped if he attempted to flee. It was a dark rainy night and Mr Moses was wearing a hooded jumper, yet the only reason for stopping him was that Detective Constable Porter had identified him and, as police knew, identification evidence was notoriously unreliable as a general rule. If they thought Mr Moses was the offender, they could have stopped him to have a better look or, since they were in plain clothes, approached Mr Moses unobtrusively (although I note this was not put in cross-examination). Judging by the ease with which Mr Kawenga was apprehended after he started to run, Mr Moses would not have got far, if he had tried to escape. [170] Accordingly I find that the force used to effect Mr Moses arrest was excessive. I have set out in Section F below a consideration of his claim for damages.

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CLASS 15: DETAINING A PERSON AFTER ARREST

Certain procedures are essential after a person is arrested. Section 99(4) codifies the common law requirement that a person is to be taken, as soon as is reasonably practicable, before an authorized person (usually a magistrate) to be dealt with according to law. This means charges will be laid by the police, the defendant will be entitled to legal representation if they cannot afford their own lawyer, and bail will be granted or denied.

THE REQUIREMENTS OF PART 9, LEPRA

Part 9 contains several safeguards for those who are arrested and detained in custody. Note that, under s110, Part 9 also applies to a person who is in the company of a police officer for the purpose of participating in an investigative procedure even if they havent yet been arrested if: the police officer believes there is sufficient evidence to establish that the person has committed an offence; the police officer would arrest the person if they attempted to leave; or the police officer has given the person reasonable grounds to believe they would not be allowed to leave if they wished to do so. The general scheme of Part 9 is set out in ss109 and 111, LEPRA which is to:

specify the period of detention

authorize that detention provide for the rights of the detained person specify to whom Part 9 applies.

What is the period of detention?

According to s114, a person may be detained for the investigation period defined under s115. The investigation period begins when the person is arrested and ends at a time that is reasonable but is not to exceed 4 hours. This period may be extended by a detention warrant: s118.

What is a reasonable time?

Sections 116 and 117 set out all the relevant circumstances to be taken into account when calculating a reasonable time. Section lists 12 circumstances that are to be considered (if relevant). Section 117 sets out the times that are to be disregarded in relation to calculating the investigation period.

Detention warrants

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Sections 118-120 set out how a police officer may apply for an extension of time of the investigation period which can be extended by up to 8 hours. However, in applying for an extension of time certain requirements must be met. See Rondo, below.

Rights of the detained person

Sections 122-130 set out these rights: s122: custody manager to caution the detained person and give her/him a summary of Part 9 s123: right to communicate with friend, relative, guardian, legal representative s124: right of foreign national to communicate with consular official s125: when requirements do not have to be complied with s126: provision of information to friend, relative or guardian s127: provision of information to certain other persons s128: provision of interpreter s129: right to medical attention s130: right to reasonable refreshments and facilities

Vulnerable persons
The Law Enforcement (Power and Responsibilities) Regulations 2005, Division 3, contains further safeguards for vulnerable persons, that is: children those with impaired intellectual or physical functioning Indigenous persons those from a non-English speaking background. Reg 25 states that the custody manager must assist a vulnerable person to exercise their rights under Part 9, an obvious necessity since children, for example, will be totally unaware of those rights. A vulnerable person is entitled to a support person who may be present during a police interview, although for children, a support person must be present during any interview or investigative procedure. For Indigenous people detained in custody, the custody manager must immediately inform the Aboriginal Legal Service of that persons detention. Revision question On a Saturday night, at 11pm, police stop a teenage boy, Jeff, aged 17 years, as he crosses a road, waving a beer bottle around. He is accompanied by a teenage girl, Celia, aged 14 years, who shouts out, You cant touch me, Im Aboriginal. Jeff is asked about the ticket machine at the local railway station which was badly damaged the week before when someone tried to jemmy it open but no money was taken from it. Joe, slurring his words, says Yeah I did it but I didnt get no money out of it. The police drive Jeff and Celia to the railway station. Celia shows the police where Jeff said he hid the tools he used to attack the ticket machine. Celia tells them shes going home but they tell her to shut up and stay where she is. By this time it is 1.30am. Police then take Jeff and Celia to the police station, although they stop on the way to buy Jeff and Celia food from McDonalds. By the time they get to the police station, it is 2.30am. Celia complains that she wants to go home while Jeff falls asleep on a detectives desk. The police do not begin to question Jeff until 4am.

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1. Have Jeff and Celia been arrested? 2. On what grounds can the police detain Jeff? 3. On what grounds can they detain Celia? 4. For how long can the police detain Jeff and Celia? 5. Can the police detain Jeff longer than the period of time under LEPRA? If so, how do they go about doing this? 6. What rights can Celia and Jeff exercise? 7. What are the polices obligations to Jeff and Celia?

BREACH OF PART 9, LEPRA

The following cases consider the consequences of breach of different provisions of Part 9, including the regulations (or the predecessor to Part 9 which was Part 10A, Crimes Act 1900).

R v Rondo [2001] NSWCCA 540

The CCA considered the validity of a detention warrant that was issued under s356I, Crimes Act 1900, which was the predecessor to s120, LEPRA. 11 SPIGELMAN CJ (with whom Simpson J agreed): Form 1 was prescribed for an Application for Detention Warrant. It was this form that was filled out, in part, in the present case. 12 The purpose of a Form 1 is to enable the magistrate to whom the application is made to formulate in his or her own mind the state of satisfaction which s356G(5) mandates. Specifically, s356I imposes mandatory requirements for the contents of an application. It is, accordingly, surprising that the Form 1 specified by the Regulations does not precisely follow the paragraphs of s356I(1). 13 For example Form 1 requires in par [1] that the Applicant set out the offences for which "the detained person was arrested". The requirement in s356I(1)(a) is in different terms: "the nature of any offence under investigation". There are two kinds of offences capable of answering this description. First, the offence for which a person is arrested, referred to in s356C(2). Second, there is any further offence, not being an offence for which the person was arrested but with respect to which a police officer "forms a reasonable suspicion as to the persons involvement", pursuant to s356C(3). Form 1 does not contain any provision for identifying an investigation under s356C(3). It refers only to the identification of the offences for which a person was arrested, which is referrable only to the investigation permitted under s356C(2). 14 Similarly, there is not an identity of expression between par [6] of the Form 1 and s356I(1) (d). The former requires the applicant to state "the grounds on which" he or she has "formed a belief that the investigation period should be extended beyond four hours". Section 356I(1)(d) requires the application to state: "the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation". The Form 1 does not necessarily direct the attention of an investigating officer to the matters required to be placed before the magistrate in this regard. 15 Part 10A of the Crimes Act [now Part 9, LEPRA] seeks to reconcile in a balanced manner the conflicting interests involved in ensuring the efficacy of police investigations, on the one hand, and respecting the rights of citizens, on the other hand. Its origins can be traced to the decision of the High Court in Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278, where the Court affirmed the common law position that an arrested person is required to be taken before a justice as soon as practicable. This decision posed significant difficulties for the conduct of police investigations. An integrated scheme was first proposed by the New South Wales Law

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Reform Commission in its report Criminal Procedure: Police Powers of Detention and Investigation After Arrest Report LRC 66, December 1990 esp Ch 3. The legislation was supported by Justice Wood, the Royal Commissioner into the New South Wales Police Service. (See Royal Commission into the New South Wales Police Service Final Report vol 2 May 1997 esp at pars [7.123]-[7.131].) Part 10A was introduced into the Crimes Act 1900 by the Crimes Amendment (Detention After Arrest) Act 1997. 16 The content of an application is of central significance for the operation of the Pt 10A scheme in terms of ensuring that the balance between the requirements of police investigation and the rights of citizens is maintained. The investigating officer must fill out the form accurately in order to enable the magistrate to perform his or her critical checking functions, for which the Act makes mandatory provision. 17 Whether or not an error leads to invalidity of the warrant will depend on all of the circumstances of the case, specifically the nature and significance of any inaccuracy or inadequacy in the contents of the application. It is not every error which will lead to the conclusion that there is no valid warrant and, accordingly, that the maximum investigation period was not extended under s356D(2), with the consequence that detention was not authorised after the period of four hours for purposes of s356C(1). This would be a contravention of the law within s138 of the Evidence Act 1995 "in consequence of which" evidence may have been acquired. 18 The Appellant was not legally represented on appeal. He was, however, represented at the trial and a number of criticisms of the Detention Warrant were made on his behalf. On the appeal he focused on two issues. First, the fact that the application was unsigned and secondly the provision of inaccurate information, specifically with respect to par [6] of the Form 1. 19 I agree with Smart AJ that the absence of a signature on the application is not a breach. 20 Section 356H(1) makes provision for an application to be either "in person or by telephone". By s356H(2) an application "in person" must be in writing in accordance with Form 1. Pursuant to s356H(3) an application "made by telephone must be made by facsimile (instead of orally) if the facilities to do so are readily available for that purpose". That does not convert an application by means of "facsimile", which is defined in s356H(11), into an application in writing. It remains an application by telephone, which does not require a signature or, incidentally, compliance with a Form 1. Nevertheless, an application by telephone (including by facsimile) is required to satisfy the provisions of s356I. It is understandable why, as in this case, a facsimile confirmation of an application by telephone adopts the Form 1 prescribed for purposes of an application "in person". 21 In the present case the Appellant placed particular reliance on the error in par [6] of the application that there was "no explanation". The answer suggested that the suspect was being evasive and refused to answer questions. This was an incorrect impression to give. It would have been more accurate, in accordance with the evidence given before Judge Gibson, if the police officer had said that there was an explanation, but that the investigating officer did not find it credible. I would interpret the words used in this way. It would not, of course, be a proper use of the power to detain, for it to be exercised for the purpose of keeping a person in custody until he or she offered an explanation. 22 If this error had stood on its own, as I interpret it, only an infelicity of expression, I would not have reached the conclusion that this was a failure of sufficient significance to conclude that the mandatory requirements of s356I(1)(d) were not satisfied in the present case, with the further consequence that the magistrate could not properly reach the stage of satisfaction required under s356G(5). Nevertheless, in view of the combined effect of this error and other errors, which are plain on the face of the documentation, I am satisfied that invalidity of the requisite character occurred. 23 The Crown is required to establish on the balance of probabilities that a warrant was issued pursuant to s356H(10). As Smart AJ concludes, in the present case there was no affidavit

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verifying the facts placed before the magistrate in the application made by telephone, i.e. by facsimile, in accordance with the requirements of s356H(9). The requirement of verification, whether at the time of an application in person, or within a day of an application by telephone, is not a mere formality. 24 Furthermore, par [4] which requires an answer to the question "The following investigation has taken place to date" is left blank. This par [4] is in the same terms as the introductory words of the mandatory requirement in s356I(1)(c) to the effect that a warrant must include the information as to "what investigation has taken place". Some aspects of the investigation conducted are found in the answer to pars [6] and [7] in the Form used in the present case. However, the requirements of the Act have not been addressed in terms. 25 The cumulative effect of all of these deficiencies is such as to satisfy me that in the present circumstances of the case the Detention Warrant was not valid. SMART AJ: 115 Section 356I(1) prohibits the issue of a detention warrant unless the application includes specified information. Section 356I(1)(c) requires specification of what investigation has taken place. Paragraph 4 in the application form provides space for detailing the investigation. This space was left blank. Section 356I(1)(d) requires that reasons for believing continued detention is reasonably necessary to complete the investigation be stated. The form does not specifically provide for such information and it was not given. Instead the form asks for the grounds on which the belief was formed that the investigation period should be extended beyond 4 hours. The answer provided was that the appellant had failed to give an explanation for his possession of money and drugs. This is not a reason for believing continued detention is reasonably necessary to complete the investigation. The form should be amended so that the questions seek the information required by the Act. The issuing justice was not authorised to issue the detention warrant because of inadequacy of information. 116 Further, s.356G(v) prohibits the issue of a warrant unless the authorised justice is satisfied of four matters. These include that the investigation is being conducted diligently and without delay; that the further period of detention is reasonably necessary to complete the investigation; that there is no reasonable alternative means of completing the investigation otherwise than by continued detention; and circumstances exist making it impractical for the investigation to be completed within the four hour period. The justice declared himself satisfied that the investigation was conducted diligently, investigation was ongoing with earlier issue of search warrant and requirement to take offender to premises during conduct of search. Subject to what was contained in the custody management record, there was no evidence before the justice to enable him to be satisfied that the investigation was being conducted diligently and without delay; that further detention was reasonably necessary to complete the investigation; that there were no reasonable alternative means ...; or that circumstances existed making it impractical ... The detention warrant was unlawful. 118 Provision of Inaccurate Information In the application for the detention warrant Cons Gautier has stated: (1) the appellant was arrested for the following offence/offences: Goods in custody and possession of prohibited drugs (2) the evidence on which the appellant was arrested is as follows: Vehicle Search revealed (?) $860 in cash and 8 grams of cannabis heads (5) Further investigation of the offence/those offences is proposed as follows: Search warrant on 28 Mindarie Street Lane Cove, defendant's place of abode As earlier indicated Cons Gautier did not complete the section of the form requiring him to state what investigations had taken place to date. There was no assertion anywhere in the form that the police wished to investigate another or other offences. The form does not provide for this to be stated. It should. The grounds on which Cons Gautier had formed a belief that the investigation period should be extended beyond 4 hours were stated thus:

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"The defendant has offered no explanation as to where the $860 have (sic) come from and where the cannabis has come from." This statement is inaccurate and provides no justification for extending the time. Cons Gautier should have disclosed the explanations which were offered by the appellant for consideration by the justice. 119 Cons Gautier thought that the possession of a wad of notes totalling $860 and the particular packaging of the marihuana found in the glovebox were not consistent with the appellant purchasing the marihuana at the Great Northern Hotel. He also thought that the appellant was probably coming from his mother's home in Mindarie Street; it was close to Centennial Avenue and the appellant had entered Epping Highway from Centennial Avenue. Cons Gautier suspected that the marihuana came from the home where the appellant lived and that he had more there. This material does not appear in either application. 120 The justice was asked to act on the incorrect statement that the defendant had offered no explanations as to where the $860 and the cannabis had come from. He had offered an explanation. No other ground was advanced before the justice for the issue of a detention warrant. The real grounds were not placed before the justice. The justice can only act on the material placed before him. Accordingly the detention warrant was invalidly issued. 121 The appellant also relied on what he claimed was the contradictory version of the facts appearing in the application for the search warrant. The grounds of that application were stated thus: "The defendant was stopped with $ 860 in cash in the centre console of Japanese sports car. Also found in the vehicle were two bags containing a total of 12 grams of Cannabis heads estimated value of $500. The Cannabis was separated in 4 bags. Three small resealable plastic bags and one large plastic bag containing the majority of the Cannabis. The defendant was also in possession of a mobile phone which rang constantly whilst police spoke to the defendant at the scene. At the scene the defendant offered police monetary and drug bribes but contradicted this statement by saying that he had was not currently working. (sic) When questioned at the scene the defendant stated that he had purchased the drugs at the local pub. Later at the station the defendant denied any connection with the drugs. At the scene the defendant stated that he obtained the money from a cash job that he had just finish (sic) as a film contractor but contradicted this statement by saying that he had (sic) was not currently working." 122 This is a further version of the facts and was in support of Cons Gautier's stated belief in the search warrant application that there was on or in the premises known as 28 Mindarie Street, Lane Cove "cannabis plant, leaf and related items." The versions are contradictory to the extent that in the detention application it was stated that no explanations had been offered, whereas the passage quoted summarises the explanations offered. The words "at the local pub" are an inadequate but not inaccurate description of the Great Northern Hotel. I do not see any contradiction in the alleged statement by the appellant that he had obtained the money from a cash job he had just finished as a film contractor and that he was not currently working. In the preparation of the application for a detention warrant the constable was not careful and accurate. 123 Section 138 Discretion As the detention warrant was invalid the question arises whether the evidence subsequently obtained should be admitted, despite it being unlawfully obtained. [We consider s138 later in the course.]

Neal v Ambulance Service of New South Wales [2008] NSWCA 346

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Facts: On the night of 27 July 2001, Mr Neal (the plaintiff) suffered a serious blow to the head whilst walking alone in Newcastle. Police discovered him and called an ambulance. He rejected assistance from the ambulance officers. Since he was clearly inebriated, the police took him into custody under the Intoxicated Persons Act 1979 (NSW). The following morning, his condition was observed to deteriorate and, being unable to rouse him easily, the police had him taken to the Mater Hospital. A CT scan done at the Mater Hospital showed an extradural haematoma with a fracture to the skull. The plaintiff was transferred to the John Hunter Hospital for surgery to drain the extradural haematoma. The plaintiff suffered different ongoing disabilities following the assault. Some, particularly his right-sided weakness (hemiparesis), were allegedly caused from the failure to take him to hospital when the police found him in the street. He brought proceedings in the District Court for negligence against the State (as responsible for the polices alleged negligence) and the Ambulance Service of New South Wales. He was only successful against the Ambulance Service, recovering damages assessed on the basis of a loss of a chance of a better outcome. He appealed against the trial judges findings with respect to the States liability and damages. The Ambulance Service cross-appealed in relation to its liability. The issues for determination on appeal were: [inter alia] (ii) whether the police were liable to the plaintiff for breaching their duty of care by failing to take the plaintiff to hospital, either immediately he arrived at the police station or at 3:45am 26 BASTEN JA (with whom Tobias JA agreed): The powers of the police with respect to intoxicated persons, now found in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the 2002 Act), Part 16, were, at the time of the incident, contained in the Intoxicated Persons Act. With respect to people detained for questioning under Part 9 of the 2002 Act, the officer having responsibility for the detained person (the custody manager) must arrange immediately for the person to receive medical attention if it appears to the custody manager that the person requires medical attention or the person requests it on grounds that appear reasonable to the custody manager: s 129. Although no such provision was found in the Intoxicated Persons Act (nor now in Part 16 of the 2002 Act) it may be accepted that a duty in similar terms would arise under the general law. Further, if one public authority having custody of a person with knowledge of a particular disability or susceptibility requiring care or medical attention, transfers the person to another public authority having similar responsibilities, the duty of care on the first will extend to passing on relevant information of that kind: see Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283. By analogy, a similar duty would arise in the case of ambulance officers unable to provide relevant medical assistance, in circumstances where they know, or should know, that the person is about to be taken into custody by the police. 27 The argument below focused on the question whether the police had power to take the plaintiff to hospital. The trial judge found that they did by the combined operation of ss 3 and 5 of the Intoxicated Persons Act. The relevant operative provisions, found in s 5, were as follows: 5 Detention of intoxicated persons (1) A police officer may detain an intoxicated person found in a public place who is: (a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or (b) in need of physical protection because the person is intoxicated. (3) An intoxicated person detained by a police officer under this section is to be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the intoxicated person. (4) An intoxicated person detained by a police officer under this section may be taken to and detained in an authorised place of detention if: (a) it is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the intoxicated person, or

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(b) a responsible person cannot be found to take care of the intoxicated person or the intoxicated person is not willing to be released into the care of a responsible person and it is impracticable to take the intoxicated person home, or (c) the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person. 28 One purpose of the power to detain is to provide physical protection because, whether through incapacity or otherwise, due to intoxication, the person is unable to care for himself or herself. Such a situation can clearly arise in circumstances where the person is suffering an injury which requires medical attention. The fact that the person may decline medical assistance does not vitiate the power of detention. Nor does the fact that the person is presently refusing medical assistance necessarily vitiate the obligation to pass on to the custodian information relevant to the persons medical needs. Apart from other considerations, it may be reasonable to expect that a person who is significantly intoxicated may change his mind when the effects of the alcohol or drugs diminish. 29 Although the power to detain may arise in circumstances where a person is in need of medical treatment, there is no power to require the intoxicated person to undergo medical treatment. If the plaintiff had been willing to go to hospital, it is unlikely that he would have been detained. Similarly, if, whilst in detention, he had asked to be taken to hospital, it seems likely that, in acceding to that request, he would simply be released from detention . 32 Even if a hospital were a responsible person, and was prepared to take the plaintiff (as seems likely considering his physical condition), it is clear that there is no power to release a person into such care if he or she is not willing: s 5(4)(b), second limb. The plaintiff did not go to hospital in the ambulance at 2.30am because he refused assistance. Whether or not the police had power to detain him for the purpose of taking him to a hospital, it is beyond doubt that they had no power to require him to remain in a hospital. If he had maintained the view expressed to the ambulance officers, it is probable that he would have left the hospital, unless the police intervened to take him back to the police station.

Campbell and 4 Ors v Director of Public Prosecutions (NSW) [2008] NSWSC 1284
1 HIDDEN J: The five plaintiffs, Ian Campbell, Garry Campbell, Vivian Campbell, Brett Rotumah and Steven Rotumah, were prosecuted in the Local Court at Bega for a number of charges arising from events at Bermagui on the night of 7 October 2006 and the early hours of the following morning. Most of the charges were dismissed, but all five were convicted of affray and Brett Rotumah was also convicted of assault occasioning actual bodily harm. All of them were placed on good behaviour bonds. 2 They have appealed to this Court against their convictions, pursuant to ss52 and 53 of the Crimes (Appeal and Review) Act 2001. Section 52 provides for an appeal as of right on a ground that involves a question of law alone. Section 53 provides for an appeal by leave on a ground involving a question of fact or a question of mixed law and fact. The defendant, the Director of Public Prosecutions, did not prosecute the matter in the Local Court, but has taken over the conduct of the proceedings in this Court under s10 of the Director of Public Prosecutions Act 1986. 3 The grounds of appeal relate to the magistrates admission into evidence of transcripts of electronically recorded interviews by police with four of the plaintiffs. 4 There are seven grounds of appeal. The first five are concerned with the admission of the police interviews, while the last two are directed to the soundness of the convictions. It will be necessary to examine some of the evidence when dealing with those last two grounds. However, it is convenient to consider first the grounds relating to the admission of the police interviews. For that purpose, a bare outline of the facts is sufficient.

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5 The plaintiffs are all Aboriginals. It was the prosecution case that, on the night of 7 October 2006, they had been drinking in a park next to the Bermagui bridge. They saw some racist graffiti written on the bridge and became upset. This was said to have led to violent incidents involving the plaintiffs and two white men, Aaron King and David Campbell (who, I take it, is no relation to the three plaintiffs of the same name). These incidents led to the charges the subject of this appeal. The interviews 7 The grounds relating to the admission of the police interviews are relied upon by all the plaintiffs except Vivian Campbell, who declined to be interviewed. The other four plaintiffs took part in electronically recorded interviews, in which each of them made relevant admissions. [The] principal focus is the way in which the magistrate dealt with an issue under s138 of the Evidence Act. 8 The transcripts of the interviews were admitted after an inquiry on the voire dire. The evidence disclosed that the interviewing officer, Snr Cst Barry, had arranged for the plaintiffs to attend the Bermagui police station. Ian Campbell, Steve Rotumah and Brett Rotumah attended some time after 6pm on the Sunday, 8 October 2006. Garry Campbell presented himself at about the same time on the Monday, 9 October. Upon their arrival, they were arrested and Snr Cst Barry referred them to the custody manager on duty for the purpose of procedures under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). On the Sunday the custody manager was Sgt Flood, and on the Monday Snr Cst Crouden. 9 Section 109 of LEPRA explains that the objects of Part 9 are to authorise the detention of a person under arrest for the purposes of investigation and to provide for the rights of that person. 10 Of more importance for present purposes are certain clauses of the Regulation made under the Act. Clause 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 provides that certain persons should be categorised as vulnerable. Among those categories are Aboriginal persons or Torres Strait Islanders. Clause 27 entitles a vulnerable person to have a support person present during any investigative procedure in which he or she is to participate. Special provision for Aboriginals and Torres Strait Islanders can be found in cl 33, and it is this provision which lies at the heart of the appeal. Clause 33(1) is in these terms: 33(1) If a detained person is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must: (a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified: (i) that the person is being detained in respect of an offence, and (ii) of the place at which the person is being detained, and (b) notify such a representative accordingly. 11 The custody manager dealing with each of the plaintiffs read to him a document entitled Caution and Summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), and gave him a copy of that document. Among other things, the document informed them of their right to silence and their right to seek legal advice. It also informed them of their right, as Aboriginals, to have a support person with them. However, it said nothing about the obligation of the custody manager under cl33. 12 The evidence was that all three police officers knew that the plaintiffs were Aboriginals. The officers were familiar with the LEPRA requirements, including cl33. The Aboriginal Legal Service in the relevant area was the South Eastern Aboriginal Legal Service, to which I shall refer as the ALS. It had been the practice of the custody managers to notify the ALS by fax if an Aboriginal person came into their custody, but his Honour found that none was sent on these occasions. In any event, to do so would have been a futile exercise. As the plaintiffs had attended

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the police station outside ordinary business hours, it was most unlikely that there would have been anyone at the ALS office. This also the police knew. 13 In the event, none of these plaintiffs had a lawyer present when interviewed or had access to a lawyer immediately before being interviewed. His Honour found that cl33 had not been complied with, so that the plaintiffs were interviewed at a time when their custody was tainted by illegality. Accordingly, a question arose whether evidence of the interviews should be rejected pursuant to s138(1) of the Evidence Act 1995, on the basis that it had been obtained in contravention of an Australian law. [The s138 issue is dealt with later in the course.]

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LAWFUL ARREST UNDER LEPRA

s99(1): terms satisfied or s99(2): suspicion on reasonable grounds plus s99(3): for one of the purposes (a)-(f) plus Christie: reasons given unless Christie exceptions apply plus s201: (a), (b) & (c)

______________________________________________________________________ DETENTION FOR QUESTIONING?

YES If ss99(1) or (2) plus (3) complied with: PO can qu re the offence (s114(2)) or another offence (s114(3)) for investigation period (s115) When is an arrest unlawful? terms of s99(1) not met NO If s99(3) not complied with no detention for quing/inquiries (Johnstone; McLean) When is detention unlawful? if the arrest is unlawful e.g. arrest for the purpose of questioning/investigation lawful arrest but undue delay in taking before magistrate: s99(4)

insufficient facts to found a reasonable

suspicion: s99(2) apply Rondo principles examples: Minh Quoc Le

for a purpose other than those in s99(3) e.g. to question, investigate

lawful arrest but suspect detained for longer than investigation period (ss115-117) with no extension (s118)

reasons not given (Christie principles)

if s201 not complied with exceptions: Christie principles #3 & #5; s201(2): not practicable to do so

extension of investigation period but

detention warrant invalid: s118(5)

if arrest occurs after unlawful entry:

lawful arrest but breach of Pt 9 (ss122-131)

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Halliday

exception: s125

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CLASS 16: POLICE SEARCH OF PERSON AND SEIZURE

Police powers in relation to searching a person under LEPRA can be divided into three categories: (i) search without arrest: and detain s21 (power to search persons and seize things without warrant) s21A (ancillary power to search persons) s26 (power to search for knives and other implements in public places & schools) s27 (failure to comply with requests under s26) s28 (power to confiscate knives or other implements) ss149-150 (sniffer dog searches) (ii) search with arrest: s23 (power to carry out search on arrest) s23A (ancillary power to search persons) s24 (power to carry out search of person

dangerous

dangerous

(iii) search after arrest: in custody)

1. Types of searches
There are three types of searches that are authorised under LEPRA: (i) frisk search (ii) ordinary search (iii) strip search Each type of search is defined under s3, LEPRA: "frisk search" means: (a) a search of a person conducted by quickly running the hands over the person's outer clothing or by passing an electronic metal detection device over or in close proximity to the person's outer clothing, and (b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing. "ordinary search" means a search of a person or of articles in the possession of a person that may include: (a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and (b) an examination of those items. "strip search" means a search of a person or of articles in the possession of a person that may include: (a) requiring the person to remove all of his or her clothes, and (b) an examination of the person's body (but not of the person's body cavities) and of those clothes.

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EXTRACT FROM: NSW Ombudsman (2007) Issues Paper: Review of Certain Functions Conferred on Police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman: Sydney, chapter 2. 2.8.4. The application of the search definitions ... The main distinctions [between frisk and ordinary searches] include that while outer clothes can only be removed voluntarily as part of a frisk search, their removal may be required as part of an ordinary search. And while a frisk search only extends to the removal of outer clothing, an ordinary search may additionally require the removal of gloves, hats, socks and shoes. In comparison, the personal search powers and safeguards in Queensland and Western Australia only make a distinction between searches that involve the removal of clothing and those that do not. [T]he data provided by police indicates that ordinary searches are the most common search performed by police, comprising 71% of all searches in the field and 75% of all searches in custody. Our consultations with police suggest that, in practice, the distinction between frisk and ordinary searches is sometimes blurred. The officers we consulted suggested that their normal practice of conducting a pat down search could fall into either a frisk or an ordinary search. One officer said: I personally dont know the difference between a frisk search and an ordinary search. It seems exactly the same to me. So when I do my COPS events I alternate between one or the other depending on how Im feeling. A number of officers indicated that the creation of the three tiers of searches has not had any impact on their search practices. A number of officers indicated that they use their common sense and do what is necessary and appropriate at the time, regardless of the definitions. As one officer told us: When Im searching someone out on the street I dont think in terms of frisk or ordinary because normally I just do a search one way. If you think theyve got a knife on them or whatever youre searching them for, youre going to do it as thoroughly as you can without being intrusive and then the next category of search would be if youre being more intrusive. But when Im out there I dont think of whether Im doing a frisk or ordinary search. Some officers told us that they think the definitions are too prescriptive. As one officer said: I just think theyve broken it down a little bit too much and over complicated it. Considering that most of the legislation is based around it being reasonable and whats necessary given the situation, it would be much easier just to have the level of search required based on whats reasonable and necessary in a situation. 2.10. Safeguards to ensure dignity and privacy The section 32 safeguards are intended to ensure that a police officer conducting any search has regard to the searched persons right to privacy and maintenance of dignity throughout a search. These safeguards apply to all personal searches to the extent that it is reasonably practicable . 2.10.1. Telling the person if and why they will be required to remove any clothing Under section 32(2), police must inform the person to be searched whether they will be required to remove clothing during the search, and if so, why it is necessary, if it is reasonably practicable to do so in the circumstances. In our consultations, we asked police officers whether they tell the person if they will be required to remove clothing and why. A number of officers indicated that it was common sense to tell the person that they will be required to remove their clothes and the reason why. One officer said: If youre going to [require] someone to remove their clothes to strip search or something like that in the field, which is really rare, well then obviously youre going to tell them because theyre going to get offended. If you say I believe youve got some gear in your pants Lets come around the corner here and just do a quick strip search, the majority of the time, most people are compliant and we have no worries.

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Our observations to date suggest police do not always tell the person being searched whether they will be required to remove clothing or the reason why they will need to remove their clothing, as indicated in the following case study. 2.10.2. Asking the person to co-operate Under section 32(3), police must ask for the persons cooperation, as far as is reasonably practicable in the circumstances. Many of the officers that we spoke to indicated that asking for cooperation assists their work. For instance, when we asked officers whether they ask for the persons cooperation, one officer commented: I think thats the way it normally is. Its all about communication with them. It makes it pretty difficult if you dont. Another officer said: You seek [their cooperation] wherever you can, especially in this area because youve got so many people who have always used drugs but more recently use ice, they can snap in an instant, so the more cooperation you can get with them the better. Others have indicated that they only ask for a persons cooperation if the person starts to get violent or begins to be uncooperative. One officer said, Unless they begin to not co-operate, I dont think you need to ask. 2.10.3. Providing reasonable privacy for the person searched and conducting the search as quickly as is reasonably practicable Under section 32(4), police must conduct a search in a way that provides reasonable privacy for the person searched, and must conduct the search as quickly as is reasonably practicable in the circumstances. In our consultations, a number of officers indicated that, in practice, reasonable privacy varied depending on the type of search being conducted. As one officer said: We dont do anything out in public. Frisk search is fine because thats just doing their pockets or whatever like that, but anything else you should really take them somewhere else more private even if its around the street.124 Our observations of searches suggest that the application of the requirement for reasonable privacy can vary depending on the circumstances and the officers involved, as indicated in the two case studies below. Case study: High visibility policing of a youth event We observed frisk and ordinary searches performed on people who were indicated by a drug detection dog as they moved from the train station to the venue. On this occasion, police set up a number of tents, which provided six separate spaces in which searches could be conducted and advised us that this had been done to provide people with a level of privacy. Once an indication had been made, two police officers were introduced and took the person to a tent to perform the search. While we only observed frisk and ordinary searches, strip searches were also performed in the tents. We did not observe any searches outside the tents. 2.10.4. Carrying out the least invasive kind of search practicable in the circumstances Under section 32(5), police must conduct the least invasive kind of search practicable in the circumstances. The Code of Practice for CRIME reminds officers of this requirement three times: once in the chapter on custody, and twice in the annexure concerning the rules for the conduct of personal searches. In the three-tiered regime, searches increase in invasiveness from frisk, through ordinary, to strip. Analysis of the COPS data indicates that the second tier, ordinary search, is the most common type of search performed by police. When we asked police about the circumstances in which they conduct searches, a number of officers indicated that their work generally requires an ordinary search at minimum for reasons of safety and effective policing. As one officer said: Its very rare to do a frisk search. I dont even know whether Ive done one, 99% of our searches would be ordinaries. I dont think Ive ever recorded a frisk. 2.10.4.1. Religious clothing While a scarf may generally be considered outer clothing, and therefore acceptable to remove as part of a frisk search if removed voluntarily, or an ordinary search if removal is required by police, a Muslim woman might consider a requirement to remove her headscarf or hijab to be

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unreasonable if her practice is to wear the hijab when in public. In some instances particular provisions have been included in legislation to make provision for religious practices. 2.10.5. The general prohibition on searching genitals or breasts Under section 32(6), police must not search the genital area of a person, or the breasts of a female, or the breasts of a transgender person who identifies as a female, unless the officer suspects on reasonable grounds that it is necessary to do so for the purpose of the search. Officers are reminded of this requirement three times in the Code of Practice for CRIME. In our consultations, some of the circumstances that officers identified as warranting a strip search which might involve a search of a persons genitals included the secretion of drugs and dangerous objects. For example, when we asked officers what situations they think generally warrant a strip search, one officer told us: Theres quite a number of people in the Command who we know will carry drugs hidden underneath their genitals or very close to their anus. The instant they see police theyll put their hand there and itll disappear inside. Police have to have a fairly reasonable suspicion that theyve got drugs and they might have seen the person shove something into their clothing at the time of arrest [which would warrant a] strip search. 2.10.6. Same sex searches Under section 32(7), a search must be conducted by a person of the same sex as the person being searched as far as reasonably practicable in the circumstances. In consultations, we asked officers what they think of this requirement and whether it is difficult finding an officer of the same sex to conduct a search. The officers we spoke to indicated that same sex searches are a long-standing police practice. Some of the comments made by officers included: You always had to have a same sex officer searching them so that hasnt really changed. That stuff was all in CRIME before anyway. Even before it was sort of policy, it just happened anyway. You wouldnt want to leave yourself open anyway because theres enough complaints kicking around without that sort of thing. One officer in an urban area pointed out that it is relatively easier to ensure that an officer of the appropriate sex is available to perform a search in the city than in rural areas, saying: Being in the city theres plenty of police, male or female... I understand in other places there is difficulty getting somebody of the same sex especially female to come and do it but in the city you dont have a problem. An officer in a rural area explained that, while there are not as many female police officers, police can comply with this safeguard with the assistance of female corrective services officers, saying: The majority are males around the place but I think that most teams have got a female or two in each team to cover [searches]. It could occur [that no female officer is available to search a female], especially on late shifts that would happen, but that wouldnt be very often and we have Corrective Services here as well, they help us out, as we do them. According to the NSW Police Annual Report 2005-06, at 30 June 2006 there were 14,634 sworn officers in the NSW Police Force, 141 including 3,739 female police officers, constituting 25% of police. 2.10.6.1. In the field As discussed above, the majority of searches were conducted by an officer of the same sex.143 However, when searches of men and women are considered separately, the statistics show that in the first 12 months since LEPRA commenced, 861 (67%) women searched in the field were searched by a male officer. By comparison, 1,391 (13%) men searched in the field during the same period were searched by a female officer. In real numbers, more men than women were searched by an officer of the opposite sex. We have observed a number of searches where officers have waited for a female officer to conduct the search of a female. However, we have also identified instances in which a search was conducted by an officer of the opposite sex ... 2.10.6.2. In custody

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The Code of Practice for CRIME states that for searches in custody if a search is conducted by someone of the opposite sex [police should] record this fact along with the reason/s [for the search]. When searches in custody of men and women are considered separately, the data indicates that in the 12 months since LEPRA commenced, 11,234 (55%) females searched in custody were searched by an officer of the opposite sex. In comparison, 12,087 (11%) of males searched in custody were searched by an officer of the opposite sex during the same period. There could be a number of factors to explain the proportion of females searched by an officer of the opposite sex including the number of female officers in the NSW Police Force and the proportion of males and females searched by police. 2.10.7. No questioning during the search Under section 32(8), a person must not be questioned while being searched, as far as this is reasonably practicable. In our consultations, a number of the officers we spoke to suggested that they would generally complete their search before asking questions for safety reasons. For instance, one officer said: Id probably wait until its all out because you want to make sure theyve got no weapons on them. If youre finding stuff on them, youd empty their pockets straight out but that depends on the person. However, some officers suggested that in circumstances where it was necessary to ask questions, they would suspend the search and question the person about items found. For instance, one officer told us: It depends what it is. If it was just drugs, I would personally stop searching and ask a question. If its a knife or something related to a dangerous weapon, then Id continue searching and make sure all of its off first. One officer suggested that questioning might occur during a search where there are a number of officers available to take part in the search, saying: If youve got three or four officers there and someones standing there, taking all the goods as the searchers are handing it to you, well then you might question them about it, say Alright mate, whats the story with this, is this yours? 2.10.9. Ensuring that the person is left with appropriate clothing if clothes are seized Under section 32(10), if clothing is seized because of the search, police must ensure the person searched is left with or given reasonably appropriate clothing to the extent that it is reasonably practicable. In our consultations, police have suggested that they always ensure that the person searched is left with appropriate clothing. However, one officer has told us that in circumstances where he thought the person might use whatever they could to harm themselves, he would take everything away from them: Ive had [somebody] try and nick themselves in the back of the truck when Ive been driving and that scared the hell out of me, Ill take everything off them. Ill put them in there nude if I have to. To date, we have not observed any searches where a persons clothing was seized. Nor has a statistical analysis of the practical application of this provision been possible. 2.11. Safeguards for strip searches 2.11.1. Necessity, and the seriousness and urgency of the circumstances Section 31 provides: A police officer or other person who is authorised to search a person may conduct a strip search of the person if the police officer or other person suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out. In comparison, the test for a strip search under the Commonwealth Crimes Act 1914 only requires that police suspect on reasonable grounds that a strip search is necessary in order to recover a seizable item or evidentiary material,154 while the test under the Western Australian Criminal Investigation Act 2006 only requires that police reasonably suspect that a strip search is necessary in the circumstances.

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The Code of Practice for CRIME states You may not strip search as a matter of policy. You must be able to justify your decision in each case,156 and advises officers that any search that involves the removal of more than outer clothing should be treated as a strip search.157 The Code also reminds officers that it is always open to you to consult a senior officer (supervisor, duty officer, custody manager) before undertaking a strip search. The COPS data provided by police indicates that strip searches are the least common type of search conducted by police, comprising 2% of searches in the field and 5% of searches in custody. In our consultations, we asked police officers what circumstances they thought would warrant a strip search. Factors such as the offence for which the person was being arrested, any warnings recorded on the COPS system, and officer and suspect safety were frequently mentioned. Some of the comments made by police included: If you believe that theyve got something on them that they could use to hurt themselves with whilst theyre in custody and theyve secreted it on their person somewhere. Whilst theyre in your custody theyre your responsibility, so if youve got that information youre going to strip search them. It depends on if the persons under arrest, what offence theyve committed and if theyre remaining in custody and a drug user that might have history for secreting drugs in a certain place. When Im going to search someone before I put them in the back of the truck, its as thorough as I can possibly make it for my own safety and colleagues.162 These comments, coupled with our observations, suggest that police regularly consider necessity and the seriousness of the situation. However, urgency may be more difficult to measure and demonstrate. Case study: High visibility policing of a dance party drug dog operation As part of our research we observed a high visibility drug dog operation at a dance party in Sydney. Four drug dogs were used to identify people who may have been in contact with prohibited substances and approximately 30 police officers were available to conduct searches at the venue. Police set up a tent prior to commencement of the operation and explained to us that the tent would be used to provide greater privacy when conducting strip searches. During the operation, people who were indicated by the drug dogs were asked to move to a designated open area next to the tent where frisk and ordinary searches were performed. In the event that a strip search was required, police generally informed the person that this would be done in the tent. Initially, only one person at a time could be searched in the tent. Consequently, there were times when queues of up to four people waited to be strip searched. The Shopfront Youth Legal Centre commented in relation to strip searches that anecdotally, we still [hear] about strip searches all the time, done really quite routinely, not in exceptional circumstances. Shopfront also highlighted the fact that there is a tension between searching as an investigative procedure and searching as an occupational health and safety measure for the police, the person who has been arrested and other people who may be in custody. 2.11.2. Same sex strip searches While section 32(7) applies to all searches, it is relevant to consider strip searches conducted by officers of the opposite sex separately, given the higher level of intrusiveness involved in such a search. The Searching Manual says that unless exceptional circumstances exist, a strip search is to be conducted by officers of the same sex as the person being searched. In the 12 months since the commencement of LEPRA, the COPS data indicates that 83% of strip searches in the field were performed by an officer of the same sex as the person being searched, as illustrated below. We randomly audited 24 strip searches in the field that were recorded as being conducted by an officer of the opposite sex and found that more searches were performed by an officer of the same sex than the data suggests. The audit shows that: For eight of the fourteen records which statistically recorded a female being searched by a male, the narrative explained that a female police officer, customs officer or correctional officer in fact performed the search.

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 For one of the ten records which statistically recorded a male being searched by a female, the narrative explained that a male officer in fact conducted the search. This sample audit suggests that more searches may have been performed by an officer of the same sex as the person searched than the data suggests. It was more common for searches in custody to be performed by an officer of the same sex. In the first 12 months since LEPRA commenced, the COPS data indicates that 91% of strip searches in custody were performed by an officer of the same sex as the person being searched, as shown below. The relatively lower number of strip searches performed by an officer of the opposite sex in custody may suggest that police are more aware of the need to ensure that an officer of the same sex conducts a strip search as opposed to a frisk or an ordinary search. However, this also means that 8% of strip searches in custody are recorded as being conducted by an officer of the opposite sex, despite the more controlled conditions of the custody room. In real terms the data indicates that 286 women and 282 men were recorded as being strip searched by an officer of the opposite sex in custody. 2.11.3. Conducting a strip search in a private area Under section 33(1), a strip search must be conducted in a private area that is not in the presence or view of persons of the opposite sex or persons who are not necessary to the search. The Searching Manual says that when a strip search is to be conducted, it should be out of public view, ideally at the nearest police station. In comparison, the Queensland Police Powers and Responsibilities Act 2000 restricts searches in public to outer clothing, unless an immediate and more thorough search is necessary, and goes on to say that if a more thorough search is required it should be conducted out of public view where possible. The provision goes on to say that suspecting that a person may have a concealed firearm, knife or bomb may be an example of circumstances in which a more thorough search is immediately necessary, and a shop or police station could be examples of an appropriate place to conduct a search out of public view. 2.11.3.1. Strip searches in the field As indicated above, the three location types most frequently used by police to perform strip searches are law enforcement places, outdoor and public places, and transport. We asked police officers about their experience of conducting strip searches in the field. Police generally indicated that they ensure searches are conducted in a reasonably private place and that this was common practice before LEPRA commenced.173 However, what constitutes a private area in the field can vary from officer to officer, as indicated by some of the quotes below: You can hide behind the back or side of the truck, if youre in the middle of the main street, and worst comes to worst you can get two coppers to stand either side in the alcove of the truck doors. If we want to do a full strip search, if we have to go that far, you can just take them to an alcove and do it. Most of them will just do it on the street. Ive seen shirts and trousers removed at the most. Its very situational. If its okay and theyre under control then obviously well wait for a truck. Very rarely would you ever do a full strip search in the street or in a public place. You wouldnt, Ive never seen it done. In consultations, the Shopfront Youth Legal Centre suggested that some people might choose to be strip searched in public for reasons of swiftness and safety: Theres always going to be that tension because a person doesnt really want to be dragged down to the station or into public toilets and things. Sometimes people might almost prefer to be searched in public because at least then theres other people who can potentially look on, you know so that the police cant get in a few swift kicks and punches. 2.11.4. The presence of a parent, guardian or personal representative Under section 33(2), a parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. The term personal representative is not defined in LEPRA.185 It is not clear whether this means a person can ask that a friend be

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present, or whether the term is confined to a legally appointed personal representative. In consultations, we asked officers about the application of this provision. One officer commented: Not when youre doing a search, no, probably never. We mainly worry about that for interviews. Ive never had anyone really complain about it too much. If theyve committed an offence or if we need to strip search them, we generally have a very good reason to do it and quite often its something that cant wait for officers safety type reasons. The issues of officer safety referred to in the quote above might include concerns that the person has an object on them which they could use to harm police. In consultation, the Shopfront Youth Legal Centre indicated that clients have told them: If police encounter someone on the street and they want to search them, normally [police] tell all the persons friends to nick off. [Police] generally dont like to be watched while theyre doing things. While section 33(2) allows for the presence of a support person, it does not specify whether police are required to inform a person that they can have a support person present. 2.11.5. Strip searching a child or person who has impaired intellectual functioning Under section 33(3), a strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must, unless it is not reasonably practicable in the circumstances, be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the child or person, in the presence of another person (other than a police officer) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person. In his second reading speech, the Attorney General said: This provision has been included to protect the interests of those who may not be able to protect their own interests, and may also assist police in the conduct of the strip search. 2.11.5.1. Comparison with the Crimes Act 1914 (Cth) There is no separate threshold test in LEPRA for determining when a strip search might be conducted on a child or person with impaired intellectual functioning. In comparison, section 3ZI(1)(f)(i) of the Commonwealth Crimes Act 1914 states that a strip search of a child between the ages of 10 and 18 or a person incapable of managing his or her own affairs may only be conducted if the person or person has been arrested and charged or if a magistrate orders that it be conducted. Section 3ZI(2) provides that the magistrate must have regard to the seriousness of the offence, the age or any disability of the person and such other matters as the magistrate thinks fit in making an order under section 3ZI(1)(f)(i). 2.11.5.2. Children between 10 and 17 years old The COPS data indicates that 2,506 children between the age of 10 and 17 were searched in the field in the first 12 months of operation under LEPRA (see Figure 15, following page). Of those searches, 20 (1%) involved a strip search. We have not been able to analyse how many of these strip searches were attended by a support person because COPS does not record this information for searches in the field. The COPS data also indicates that 17,902 searches in custody were conducted on children between the age of 10 and 17 in the first 12 months since LEPRA commenced (see Figure 16, following page). Of those searches, 351 (2%) involved a strip search. The data also indicates that 22 (6%) of those children had a support person present. It is mandatory for police to record whether a support person was present for all strip searches in custody. In our consultations, some police said that it can be difficult to get a support person for the young person and that they go ahead with searches if a parent or other representative is unable to attend. For example, one officer in a non-metropolitan area told us: In custody we wait plenty of times for support people [up to] two or three hours but the fact is, around this area that most times you cant get a support person. You ring up the kids parents and they refuse to come in so you have great difficulties and no-one will come in for them. However, other officers in the same LAC suggested that a support person would be obtained for the search, given that a support person would be required in order to conduct an interview: Generally theyll be back in the charge room anyway because they are juveniles, so once you get to the charge room you need a support person anyway for the other processes, to interview them and so theyll have a person there.

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In other commands, officers have indicated that they rely on different groups for support persons in circumstances where the young persons family are unable or unwilling to attend. For instance, some officers have said that they contact the Department of Community Services, while others indicated that they have a custody support list which includes organisations such as the Salvation Army. 2.11.5.3. People of impaired intellectual functioning We have not been able to analyse how often police have arranged for people to have a support person present because the COPS data only notes when a support person was in fact present. Nor have we observed any searches where a support person was present. In consultations, we asked police how often they interact with people who have an intellectual impairment and how they identify people with impaired intellectual functioning. Responses were quite varied. Some officers indicated that they often deal with such people, while others indicated that they very rarely do so. In terms of identifying people who have an intellectual impairment, different officers said that their cumulative experience as a police officer, their conversations with the person and their knowledge of the individual all assist them to identify if the person has an intellectual impairment. A number of officers indicated that they find it useful to have a support person present. One officer told us it assisted to have a support person present because they [have] a better rapport with the person.201 Some officers said that they would only arrange for a support person if the person being searched requested it. Others indicated that it is impractical to arrange for a support person to attend, particularly in the field. One officer commented: If youre out on the street and theres some bloke there whos supposedly knocked something off and youre going to search him, [even] if hes someone working in the sheltered workshop, youre still going to go over and search him. In order to canvas some of the issues concerning people with impaired intellectual functioning, we consulted with the Intellectual Disability Rights Service (IDRS) and the Criminal Justice Support Network (CJSN) who indicated that two thirds or more of their calls for assistance are from case managers, workers, family members, guardians and the like who have become aware that a person with an intellectual disability is being held by police. The IDRS said: We know of a number of cases where people have said I have a disability, I want a support person, [and] police have either refused to call someone or said they couldnt find anyone to call, even when they had our details and we have had contact with the police and then gone ahead anyway, or said Oh, no, you dont have a disability. The IDRS suggested that practical tools police might use to help them identify whether a person has impaired intellectual functioning might include showing the person some text to see if they have difficulty reading and writing, and asking them if they go to a special school or whether they are on a disability pension. The IDRS also indicated that, even where police have identified that a person has impaired intellectual functioning, police do not always contact them for the search, saying: So often, weve had police say Oh, were not interviewing them so you dont need to send a support person or they ring us afterwards and say Were just letting you know, weve had someone in, we didnt interview them, so we didnt need to get a support person. The IDRS explained that many of their clients experience high levels of anxiety when interacting with police and indicated that having a support person can help to reduce the level of anxiety experienced by the person, which may make it easier and quicker for police to conduct the search. In relation to the willingness of people being searched to have a support person present, the IDRS said: Weve never had somebody refuse a support person and weve found that quite interesting because we know people like to hide their disability but because of the anxiety levels and how difficult it is in the police station, people are always really happy to have somebody there. So they may be saying Oh Ive only got ADHD, but theyre still saying Yes, I want a support person. 2.11.6. The prohibition on the search of body cavities and searching by touch

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Under section 33(4), a strip search must not involve a search of a persons body cavities or an examination of the body by touch. The term body cavities is not defined in LEPRA. The Code of Practice for CRIME reminds officers that they cannot search body cavities as part of a strip search in the section on custody and the annexure containing rules relating to personal searches, but does not provide further guidance on what a body cavity is. The Searching Manual instructs officers to start their search at the top with the hair, mouth, and ears, but reminds officers two paragraphs later that there is no power for police to conduct a search of the body cavities (Remember the mouth is considered a body cavity). In consultations, many officers indicated that they do not search a persons body cavities. However, when asked specifically if they ever ask to look inside a persons mouth, a number of officers indicated that they do, suggesting that some officers do not consider the mouth to be a body cavity. One officer told us: They carry balloons in their mouth all the time and they swallow them when police approach them so you might ask them to open their mouth. Another officer said: At a safe distance [Id ask them to] open their mouth and just move the tongue around, thats about it. Wed do that as part of the strip. One officer suggested that in certain circumstances it would be appropriate for police to physically extract objects from a persons mouth: No we dont though when I was doing street drug stuff, a couple of times in genuine fear for someones safety when you see someone get a capful, get a handful of heroin and throw it in their mouth, weve tried to get that out because if one of those pops or cracks inside theyre probably going to die and Id have no problems justifying that to a Court, why I was trying to rip something out of someones mouth. Recent amendments provide police with the power to require a person to open their mouth when exercising stop, search and detain powers under section 21. However, police appear to have interpreted this provision as having a broader application. In February 2007, police published an article, advising officers that: If you are exercising a power to search a person, you can require the person to open his or her mouth or shake their hair if you have reasonable suspicion that the person is concealing something in those places. If searches of the mouth are limited to searches performed under section 21, this may have created an anomalous situation whereby a police officer can require a person to open their mouth before arresting them, but cannot do so once they move to an arrest. Police have advised that they will consider amending the Searching Manual to include a more comprehensive description of the section 21A amendment. 2.11.7. The prohibition on removing more clothes than reasonably necessary Under section 33(5), a strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. In comparison, the Queensland, Police Powers and Responsibilities Act 2000 provides that the person must be given the opportunity to remain partly clothed during the search, for example, by allowing the person to dress his or her upper body before being required to remove items of clothing from the lower part of the body. So far, we have not identified any concerns in relation to the application of section 33(5). 2.11.8. The prohibition on undertaking any more visual search than is necessary Under section 33(6), a strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. There may be an issue of whether police are provided with the appropriate powers to make reasonable directions for the purpose of conducting a visual search. For instance, in Queensland, the Police Powers and Responsibilities Act 2000 provides police with the power to require the person to hold his or her arms in the air or to stand with legs apart and bend forward to enable a visual examination to be made. So far, we have not identified any concerns in relation to the application of this provision. 2.11.9. Presence of a medical practitioner

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Under section 33(7), a strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present.224 This provision makes allowance for a person of the opposite sex to be present during a strip search if the person is a medical practitioner. The equivalent provision in the Crimes Act 1914 (Cth), on which the search provisions in LEPRA are based, expresses this safeguard as an exception to the rule that says strip searches must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched. In consultations, police have said that they have not performed any strip searches where a medical practitioner has been present. We also asked officers when this provision might be useful. In response, a number of officers suggested that no doctor would be willing to attend for the purpose of a strip search. One officer asked, How would that work? Who would pay for that? Another officer said, Where would you get a doctor from? Youve got no chance of getting a doctor to come here. Other provisions in LEPRA provide for a medical practitioner to conduct a search of a person in custody in order to obtain evidence. 2.11.10. Prohibition against searching children under 10 years old Section 34 provides that children under 10 years of age must not be strip searched. The COPS data indicates no children under the age of 10 have been strip searched by police since LEPRA commenced. Indeed, police who have been interviewed as part of our consultations have indicated that it is extremely rare for a child under 10 years of age to come to police attention in a way that requires a strip search.

2. Search without arrest

In order for a person to be searched under s21, without arrest and without a warrant, a police officer must suspect on reasonable grounds that one of four particular circumstances exist: (a) that the person has something stolen or otherwise unlawfully obtained in his/her possession or under his/her control (b) that the person has a dangerous article (see s3) that was used or is being used in or in connection with the commission of a relevant offence; (c) that the person has a dangerous article in a public place used as above; (d) that the person has a prohibited plant or drug in his/her possession or under his/her control. See s20, LEPRA for definition of a relevant offence. If suspicion on reasonable grounds exists then the police officer can stop, search and detain the person, and search anything in the possession of the person, such as clothing or a bag. As a result of the search, the officer may seize and detain: (a) anything the officer suspects on reasonable grounds is stolen; (b) anything that the officers suspects on reasonable grounds amounts to evidence of the commission of a relevant offence; (c) any dangerous article (see s3) (d) any prohibited plant or drug. See Rondo, previously discussed, for what amounts to suspect on reasonable grounds and Lassanah, below. For use of force in relation to carrying out a search, see ss230 and 231 and previous reading on use of force. The following case discusses the scope of s21, LEPRA. Consider what powers the police could exercise in searching, first, Mr Lassanah, the residential support worker,

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and second, Mr Oddie who was intellectually disabled, neither of whom, were under arrest at the time.

Lassanah v State of NSW (No.3) [2010] NSWDC 241

1 GIBSON DCJ: The plaintiffs by statement of claim filed on 12 November 2008 bring proceedings for defamation, wrongful arrest and false imprisonment arising out of the circumstances in which, on 10 June 2008, each of them was detained by officers of the New South Wales Police. 2 The first plaintiff is a tertiary-qualified mental health worker who [works] for the Department of Community Services as a Residential Support Worker. 3. The second plaintiff suffers from profound intellectual disabilities . Mr Oddie has a "very limited vocabulary" and his basic comprehension of sentences is "very limited" . 4. The first defendant is the State of New South Wales, against whom proceedings are brought by reason of the liability of the State of New South Wales for the conduct of police officers who detained and searched the plaintiffs on the day in question . 5. The second defendant is the owner of a jewellery and watch store in King Street, Sydney, known as "TAG HEUER". 6. The statement of claim pleads the following two causes of action: (a) On 10 June 2008, on the footpath outside 119 King Street, Sydney, the defendants wrongfully arrested and falsely imprisoned the Plaintiffs ; and (b) A claim for defamation, brought against the first defendant only. 9. The statement of claim also pleads that at the request of the second defendants servants or agents, and because of information given by them to police officers, the plaintiffs were detained on the footpath and gutter outside 119 King Street Sydney for one hour. The plaintiffs were searched and the police officers took and failed to return the first plaintiffs drivers licence. This was done in the presence of members of the public who were passing, which caused the plaintiffs humiliation and embarrassment. Aggravated and punitive damages are sought. 16. The first defendant admits the police officers attended the Tag Heuer premises (although denying that they were present for one hour as pleaded), admits that the plaintiffs were detained, asserting that this was lawful pursuant to s 21(1)(b) [LEPRA] and asked for identification and searched but otherwise denies the allegations. 31. One of the persons for whom [Mr Lassanah] cared for on a regular basis was the second plaintiff, Mr Oddie. 32. The first plaintiff gave evidence and was cross-examined and I had an opportunity to observe his demeanour in the witness box. The first feature of the Mr Lassanahs appearance that is relevant to these proceedings is that he does not have the appearance of a dangerous person. He is a person of average height and slim build, with the erect carriage and neatness of appearance that persons who have spent a long time in the military or naval forces seem to acquire. He speaks with a strong accent; one of the police officers who attended the scene said in his evidence that Mr Lassanah spoke with an American accent . 33. The second feature concerning Mr Lassanahs appearance is that his racial background is immediately noticeable. The first impression given is that he is a black American, although in fact he was born in Liberia and emigrated to America as a young teenager. The second plaintiff 34. Mr Oddies appearance had to be observed by me, and by the parties, from the well of the court, since he was too intellectually disabled to give evidence. 35. Mr Oddie was neatly dressed and well-behaved, but it was immediately apparent from his facial expression and behaviour, and lack of awareness of his surroundings, that he is profoundly

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intellectually disabled. I will not distress the members of his family by describing this in more detail, other than to say that his intellectual disability is immediately obvious to an observer. 36. However, despite this disability, Mr Oddies appearance and demeanour is not that of a dangerous person. He sat very quietly in the courtroom, although at one stage, apparently because he was frightened, he started whistling. It soon became clear that he was very frightened about being in court. 41. Mr Lassanahs job included taking the second plaintiff on excursions as part of the program to help to integrate him within the community ... The Department provided him with a hire car for the purpose of taking Mr Oddie on excursions trips to Darling Harbour, the beach and the like. 42. On the day in question, he took Mr Oddie to breakfast at McDonalds, this being Mr Oddies choice, and then drove to King Street as part of Mr Oddies days activities. While they were in the city, Mr Lassanah decided to look for a gold watch for himself. He already had a gold chain and a gold ring and he wanted to have a gold watch to go with it , so he decided to visit the Tag Heuer and Rolex shops. 43. During this shopping excursion Mr Lassanah said that he and Mr Oddie were wearing what he called "just normal clothes, something like this" , indicating the very neat shirt and trousers that he was wearing while giving evidence in the witness box. ... 44. Mr Lassanah and Mr Oddie had to be "buzzed" into the Tag Heuer shop, which had a security door. When they came in, Mr Lassanah told the staff members, a male and female, that he wanted to look at the watches for sale. He looked at watches in a case and asked to see some of them. This meant the staff had to unlock a case containing watches and take out the watches so that he could have a look at the quality of the watch. Mr Lassanah described the staff as being polite, helpful and very talkative and said there was no sign of hostility ... Mr Lassanahs own demeanour during this conversation, judging by his description of what was discussed and the CCTV tape, was similar to his demeanour in the witness box. I observed he had a courteous manner and a quiet voice, that he listened to questions without interruption and that he answered in a responsive and helpful fashion. 45. Mr Lassanah said he was in the shop for between five to fifteen minutes. Mr Oddie only remained in the shop with him for the first few minutes, but then wanted to go outside to smoke a cigarette. Mr Oddie was then "buzzed" out of the shop, and remained outside the shop for the remainder of the Mr Lassanahs visit. He can be seen on the CCTV looking at Mr Lassanah through the window. He is not misbehaving in any way. He could not, of course, return to the shop unless he as "buzzed in" by the staff. 46. Mr Lassanah told the salesman he was not interested in the watch he was looking at, and the salesman said something like: "Goodbye, nice seeing you", to which Mr Lassanah replied: "Okay, if I change my mind, Ill come, maybe I I have to go look across the street to see if I see something that I like" ... Mr Lassanah then went to the Rolex shop, where he looked at watches for another six to seven minutes ... The same process occurred in the Rolex shop; the plaintiffs entered, after the Rolex shop staff unlocked the door. The first plaintiff was shown a watch and they then left the Rolex shop, walking back down King Street towards where he had parked his vehicle. This entailed walking past the Tag Heuer shop. 47. The description given by the first plaintiff of the circumstances of arrest was as follows: A. [The cops said] [t]he employee of the shop said that you guys were trying to, to attempting to steal. Pulling on drawers and trying to pull on the drawers and the glasses in an attempt to steal the watch." I said, "No. Thats not true, thats not true. I just went there. I talked to the employees of the store and they serviced me. I left." He said, "No. The employees told us that you guys were attempted to steal a watch." And then he said there might be some item missing. I said, "No, we didnt steal anything. I just went to see if there was something that I like, so I can buy." And he said, "Okay, pull over on the side," and then he search us. And then after they had us sat in the gutter and stuff and while they talked to the employees in the shop.

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49. Mr Lassanah went on to say that he was told that if he did not co-operate he would be handcuffed and have to go down to the police station, and the police officer had his hand on the handcuffs when he said this. 50. An important feature of this conversation was that the first plaintiff told the police immediately that the second plaintiff had an intellectual disability. When they were told to sit on the footpath, the second plaintiff was attempting to stand up and the police officer said: "Sit down. Do you want to be a tough guy?" To which the first plaintiff said: "No, he has an intellectual disability" This was, or should have been, important information to police officers conscious of their obligations under the Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW) (rr 24 and 27) concerning "vulnerable persons". 55. It is important to note a significant feature of this investigation the total lack of any written record of any kind apart from these names and addresses. Not one of the other police officers who attended made notes of any kind of what had been alleged, or what conduct they were investigating, or of any questions that were put to the plaintiffs (in fact, no questions were put to the plaintiffs, according to the unchallenged evidence of Mr Lassanah). 56. The plaintiffs were searched and enquiries were made on the radio. It was at this stage that the police became aware that Mr Oddies prior record consisted of Mental Health Act matters as a juvenile ... Mr Lassanah had no prior criminal history. 70 Police officers receive training to enable them to identify person who are vulnerable persons. They are aware of the need for a support person to be present during investigations and enquiries and this entitlement is not limited to a formal interview or to a period in which an alleged offender had been arrested or is in custody. It applies to "any investigative procedure": Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), r 27. The police officers denial of knowledge of Mr Oddies intellectual disability is submitted by the plaintiffs to be further evidence that the police "put their heads together". It is hard to understand how these experienced police officers could have overlooked so many clues. The discrepancy concerning the extent of conversation and volume of the words spoken by the police: The police claimed that the two plaintiffs were argumentative, wanting to know the reason for their arrest, and was speaking in loud voices ... Given Mr Oddies almost complete inability to speak, this is implausible. So is the claim by Leading Senior Constable Ansted that he was speaking probably "a bit lower than an ordinary voice" ... I have set out below, in more detail, my reasons for accepting the evidence of the plaintiffs, but the similarity and precision of the evidence of tones of voices (especially in circumstances where Constable Coates, for example, could not remember what was said by the plaintiffs in their loud voices ) is implausible. Description of the scene in King Street: Leading Senior Constable Ansted said that it was not that busy in King Street at the relevant time and he did not see anyone standing around looking. Constable Lentfer similarly denied that people were standing around looking Mr Lassanahs evidence was that there were hundreds of people "standing, looking, passing by" ... The CCTV footage clearly demonstrates this; 312 people were counted as having walked past ... The police had been called to an armed robbery scenario and would have wanted members of the public to keep away. Claims of speaking in a soft voice and that not seeing any bystanders at the time, in the context of one of Sydneys busiest streets just after the end of the lunch hour rush period, are implausible. The liability of the defendants for wrongful arrest and false imprisonment 122. Mere words may be sufficient to amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a persons notice that he is under compulsion and he therafter submits to the compulsion: Lewis v Norman [1982] 2 NSWLR 649 at 655E per Enderby J. If there has been an arrest, the onus to prove its lawfulness will shift to the defendant: Zaravinos v State of NSW [2004] NSWCA 320; (2004) 62 NSWLR 58 at 63. 123. However, I am satisfied that the plaintiffs were not in fact arrested.

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124. There is no need for an arrest for an imprisonment to exist: Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299 at [35] per Ipp JA. False imprisonment occurs when a defendants actions directly, intentionally or negligently cause the confinement of the plaintiff, for however short a period of time: Goldie v Commonwealth [2004] FCA 156 at [17] per French J. A person may be "imprisoned" without realising it (Myer Stores Ltd v Soo [1991] 2 VR 597 at 599 per Murphy J); the restraint may be sufficient if the plaintiff has a justified apprehension that if he or she did not submit, force could be used: Myer Stores Ltd v Soo at 625 per McDonald J. 125. The place of the arrest can be "in the open field, or in the stocks, or in the cage in the streets or in a mans own house" (Myer Stores Ltd v Soo at 599 per Murphy J, citing Meering v Grahame-White Aviation Co Ltd (1919) 122 LT Rep 44). 126. Fault and malice are irrelevant to questions of liability: Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at 272. The elements of the tort of false imprisonment 127. The elements of the tort of false imprisonment have helpfully been summarised by the Victorian Court of Appeal in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250; [2007] VSCA 289 (McFadzean) These principles were reduced to a series of statements of principle in Whittaker & Anor v Child Support Registrar & Anor [2010] FCA 43; [2010] 264 ALR 473. I gratefully adopt the principles drafted by counsel for the respondent in those proceedings, as set out by Lindgren J at [177]: "(a) the plaintiff bears the onus of proof to establish that what happened (having regard to any restraints and any possibilities of egress) can be constituted as imprisonment; (b) false imprisonment is constituted by unlawfully subjecting another to total restraint of movement; (c) the restraint must be total but it need not involve the use of force it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion; (d) the restraint may be comprised of a threat against the person or valuable property; (e) the restraint must be imposed contrary to the persons will; (f) where there is no application of force there must be evidence of complete submission by the plaintiff; (g) there is no false imprisonment if there is only partial obstruction of the will, whatever inconvenience it may bring, if the means of escape are available; (h) the submission by the prisoner must be in response to duress sufficient to make any consent given ineffective to bar the action; (i) it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiffs decision to remain, the conduct must have overborne the plaintiffs will; (j) in each case, it is a question of fact whether a restriction is so severe as to be characterised as false imprisonment; (k) whether [sic where] there is a reasonable means of egress, it does not matter that the plaintiff did not use it there can be no false imprisonment; (l) there are four factors to be considered in determining whether any ability to leave was a reasonable one: (i) threat or danger to self; (ii) threat or danger to property; (iii) distance and time; and (iv) legality; (m) there may need to be a serious risk (possibly even life threatening) before a means of escape is considered to be unreasonable; (n) an avenue of egress may be reasonable even if it requires a plaintiff to commit a minor trespass;

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(o) a mere partial interference with freedom to travel by one route does not compel a person to remain." 128. Persons may not feel free to leave, or not be able to leave, in circumstances falling short of actual false imprisonment, as the court pointed out in State of South Australia v LampardTrevorrow [2010] SASC 56: "[282] We agree with counsel for the State that the fostering of Bruce Trevorrow does not readily fall under the heading of false imprisonment or wrongful imprisonment. In part this is attributable to the use of the word "imprisonment" to capture the factual essence of the cause of action. The factual essence of the cause of action is the placing of a "total restraint" on the plaintiffs movement. That restraint need bear no similarity to what one would normally describe as imprisonment. The law has moved on from any such limitation. [283] But the restraint must be total. For example, an available means of escape from a restraint might mean (depending on the circumstances) that the restraint is not total." 129. In such circumstances, any such restraint is not confinement or imprisonment, because the person is in reality free to leave: Balmain New Ferry Co Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379 at 387; [1906] HCA 83; 13 ALR 249 at 252; McFadzean at [54][89]; State of South Australia v Lampard-Trevorrow [2010] SASC 56. 130. The responsibility of the first and second defendant for the plaintiffs being detained is the next issue for determination. The relevant legal principles concerning the first defendant 131. The first defendant accepts that it has the onus of proving that the stop search and detention [was] justified, submitting that it has discharged this onus by establishing that the plaintiffs were detained pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) . 132. The police stopped, searched and detained the plaintiffs because, it is submitted, they suspected on reasonable grounds that the plaintiffs had in their possession or under their control something stolen or otherwise unlawfully obtained and/or something used or intended to be used in connection with a relevant offence, namely an indictable offence for the purposes of s 20. 133. What were those reasonable grounds? Leading Senior Constable Ansted said : "The man said, the manager said to me that there were two males in the shop. There they are down the road. They were walking away. He said they were in the shop to me. They were acting suspiciously. They were lifting the cabinets on the - sorry, the glass tops on the cabinets and he identified them to me walking down the road and they were walking away from the Tag shop, so he pointed out their identification to me, described them. I noticed them walking away from the Tag Heuer shop. He then said they were attempting to rob the store. He believed they were going to steal something. Further, he said to me that there was a hold-up the previous week in the shop." 134. [I]t was put to Leading Senior Constable Ansted that he did not believe what the manager said, to which [the] Constable said that the information given to him by the manager constituted "reasonable grounds to stop those persons to find out exactly what they did at the store, not that they robbed the store, attempted to rob the store." He said he believed that he had reasonable grounds on the basis of information he had from the manager. He agreed that he told the radio operator that "two male persons have been in the shop behaving suspiciously" and that they had been "in the shop looking around suspiciously" and that this was what the manager told him "a couple of times" . 135. Constable Lentfer said : "...the manager had told Chad Ansted that there were two males previously in the store that had been acting suspicious and they were tapping - or being very hard on metal casings which enclosed watches and trying to pull panels of the glass apart with their hands. The manager thought that they were either going to try to rob from him or steal from him, and he indicated

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that the two men that were stopped by police and we were talking with were the males the manager had indicated too." 136. Constable Lentfer described how he carried out the search , where he said he told each of the plaintiffs: "I said that, "My name is Constable Greg Lentfer and I'm from The Rocks police. We've got information from the manager of the store at TAG Heuer that youse have been acting suspiciously, banging on the glass cabinets and trying to pull the panels apart, and he felt like youse were trying to steal from him or rob him. This is the reason why I want to search you, just to see if youse have anything that might have been stolen, unlawfully obtained in your possession, or any implements that may be used to commit an offence." 138. It is submitted that the police were responding to a hold-up button having been activated in circumstances where the store manager provided this information and that the plaintiffs were stopped, although not arrested, pursuant to the provisions of s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). 139. The submissions of the first defendant are predicated upon there having been no arrest. [T]he first defendant states that "all police officers said there was no arrest The plaintiffs were merely stopped, it is submitted, and that the plaintiffs claim of an arrest "must fail" because the preamble to the Law Enforcement (Powers and Responsibilities) Act 2002 states that it is an Act to permit the stopping and searching of persons in circumstances where an arrest has not occurred. 140. The plaintiffs submit that at common law it has been held that if a person is not free to go, then they have been arrested, referring to R v ODonoghue (1988) 34 A Crim R 397: "An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient: Alderson v Booth [1969] 2 QB 216 at 220-221; but they are not always necessary - what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36." 141. It is submitted that nothing in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) alters the common law definition of arrest. It is further submitted that these arrests were unlawful. The powers of the police to stop and search under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) 142. Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which includes s 21, refers to a variety of powers including not only arrest but stopping, detaining and searching without arrest. It is Part 8 which deals with the power of arrest, which is a different concept from the power of stop, search and detention set out in Part 4. 143. I am satisfied that the plaintiffs were not in fact arrested. They were stopped and searched under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) because of the very serious allegations , namely that they had been behaving suspiciously in the circumstances where these persons believed that an armed robbery was being attempted. 144. The question of what amounts to reasonable suspicion has been set out by the High Court in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266: "In the first place, the precise force of the word "suspect" needs to be noticed. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence." 145. I am satisfied that the police did not arrest the plaintiffs, either at common law or pursuant to Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). They were called to the scene to investigate a potential robbery of a store and were exercising their rights to stop and search under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). That is not an arrest.

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155. [After considering the case law], I am satisfied that the second defendants servants or agents promoted and caused the plaintiffs being stopped, detained and searched by the police, and that their continued insistence that the plaintiffs had misconducted themselves in the store after the police arrived unnecessarily prolonged the plaintiffs detention, in that the police were obliged to investigate the store employees mischievous claims. I say "mischievous" because I am satisfied from the evidence that the button was pressed well after the plaintiffs left the store, in circumstances where there was no threat, and where it is clear from the CCTV footage that nothing untoward had occurred. Conclusions concerning liability for first and second defendants for false imprisonment 166. The circumstances under which a person who gives information to the police that leads to wrongful detention will be liable to the person wrongfully or falsely detained have been explained by the Court of Appeal in Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 and more recently in Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [104] per Ipp JA. What is necessary is for the person to be active in promoting and causing the imprisonment as opposed to the mere giving of information to a police officer. 167. In Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd [2009] NSWDC 4; (2009) 9 DCLR (NSW) 123, the store employee gave evidence which I, as the trial judge, did not accept and this finding was upheld on appeal. In the present case, the store employees have elected not to give any evidence. 168. The presence of a "mischievous quality" (see Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [113]) is not something that is limited to clear evidence of dishonesty or invention of the kind that occurred in Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd. If that were the case, liability could be avoided merely by not calling evidence of the intention, dishonest or otherwise. 169. The deliberate giving of wrong information should be treated differently, whether or not there is evidence of it or not from the store employees in question. On any analysis, there is no conduct of the plaintiffs on the CCTV tape which could possibly lead to any suspicion that they were tapping on the glass or attempting to open the glass cabinet, and in particular no evidence that they were using any implement to do so. 170. In conclusion, I am satisfied that the second defendant or its servants or agents made false accusations about the plaintiffs to the police as follows: (a) The hold-up button was wrongly activated, after the plaintiffs had left the store premises and on any reasonable analysis, there was no question of there being any reason for concern. (b) The manager of the store told Leading Senior Constable Ansted that the plaintiffs were acting suspiciously in the shop, tapping on the glass, trying to lift the glass of the display cabinets and attempting to rob or steal from these cabinets when it is clear from the CCTV that no such conduct occurred . (c) These statements were repeated to Sergeant Gibson and in particular Leading Senior Constable Ansted said that Sergeant Gibson was told that the plaintiffs had been "lifting up the lids" The CCTV footage confirms that no such conduct occurred . (d) Mr Lassanah was not cross-examined on his evidence that he was treated well in the shop and was not cross-examined on his evidence that as he left the manager said "Goodbye nice seeing you" ... . (e) I accept the submissions of the plaintiffs that if the manager or other employees of the second defendant had really suspected the plaintiffs, they should have kept the door closed and rung for the police either when the plaintiffs were in the premises or shortly thereafter, and they should not be encouraging other persons to enter the store. No explanation has been provided as to why the alarm was activated after the plaintiffs left the shop. The submissions of the second defendant that the CCTV footage of one of the staff members bending over means that the alarm must have been activated in the shop while the plaintiffs were in the shop is incorrect as the times for the calling of the police demonstrate. The speed with which the

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police arrived after the alarm and the times on the radio call records for the police confirm that the alarm was activated after the plaintiffs had left the shop. It was simply coincidence that the plaintiffs were walking down the street from the Rolex shop when the police arrived. (f) Nor do I accept the assertions that the second defendants premises had been robbed the week beforehand. No material was put before the court to demonstrate that this had in fact occurred. 171. The facts of this case are very unusual. Unlike Webster v Coles Myer Ltd; Thompson v Coles Myer Ltd, there is CCTV footage of the whole of the event, and there is objective evidence that no criminal offence of any kind took place. Whatever the reason for pressing the hold-up button (and I decline to speculate as to what that may be), the claim that the plaintiffs were lifting up or trying to open the cabinets amounts to the giving of information that is so far removed [from] what occurred that it must have been false, in circumstances where it was virtually impossible for the police officers to do anything to exercise independent discretion or judgment, other than to detain the plaintiffs. 172. I also find it would have been apparent to the second defendants staff, whether or not they knew of Mr Oddies intellectual disability, that it was not possible to conduct a conversation with him. The essence of selling goods in a shop is oral communication with a customer. A customer who cannot speak, or with whom conversation is very limited, is clearly someone with a disability. Whether or not Mr Lassanah told the staff in the shop that Mr Oddie was intellectually disabled, his inability to speak and the unmistakable affect of his demeanour would make it very hard to miss that he is intellectually disabled. Neither he nor Mr Lassanah could have been mistaken for potential store robbers. 173. I am satisfied that the second defendant, by the conduct of its servants or agents, caused and procured the wrongful detention of the plaintiffs. 174. Accordingly I am satisfied that each of the first and second defendants are liable for the false imprisonment of each of the plaintiffs. I have considered issues of damages and the crossclaim separately. I shall next consider the claim for defamation.

3. Use of Drug Detection Dogs

Section 146, LEPRA, gives the police the general power to use drug detection dogs. Drug detection using dogs can either be conducted without a warrant (s148) or with a warrant (s149). This means the police cannot enter premises with sniffer dogs unless they have a warrant, but they can use sniffer dogs outside those premises. These provisions are controversial, yet very few challenges have been made to the use of these powers by people who have been searched by sniffer dogs. These provisions are clearly designed to target young people since s148 allows the police to use sniffer dogs without a warrant at any premises used for the consumption of liquor that is sold at the premises (but not restaurants or other dining places) and in public places where sporting events, concerts, dance parties or parades are being held.

4. What amounts to a search?

What exactly amounts to a search by a sniffer dog is discussed in Darby below.

Darby v Director of Public Prosecutions [2004] NSWCA 431

1. GILES JA: The appellant was charged with possession of methylamphetamine and cannabis leaf. The substances were found after the detection of cannabis by a police drug detection dog. In the Local Court the magistrate ruled that the actions of the dog constituted an unlawful search,

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and that evidence of finding the substances should not be admitted. The prosecution offered no further evidence and the charges were dismissed. The respondent appealed to the Supreme Court, contending that the magistrate had erred in law. The judge upheld the appeal. In this further appeal the appellant seeks to reinstate the position before the magistrate. 34 In his reasons the judge identified the issues before the magistrate "7. The primary issue raised before the Magistrate was the lawfulness or otherwise of the actions taken by a police dog named Rocky (Rocky) and what had been done by police as a consequence. In this regard, the question posed was whether what was done by Rocky, who was then under the control of Senior Constable Richardson, amounted to a search, either by the dog itself or as part of the search undertaken by police, other than Senior Constable Richardson and Rocky. 35 Before the judge there specifically arose a question of assault. 36 His Honour then dealt with the question as an argument of the respondent. He recorded "24 Senior counsel for the defendant next submitted that what was done by Rocky constituted a search. The search of the defendant began, so he argued, when Rocky detected the scent, or alternatively, indicated its source. Furthermore, he argued that the actions of Rocky constituted an assault, and that as the origin of the information on which Detective Sergeant Gentle and Constable Schmidt formed their suspicion in relation to the defendant was illegal, it was not a proper or lawful basis for a reasonable suspicion." The appeal to this Court 50 It is necessary to appreciate in more detail what Rocky did. 51 In his evidence in chief Senior Constable Richardson said that on detecting a scent Rocky's nostrils would flair and he would start to sniff rapidly. He was trained to indicate with his nose the source of the scent, and to follow the scent to its source, to put his nose on the source, and to sit down beside it. If the substance was in a person's pocket, he was trained to put his nose on the pocket. 52 Rocky had detected substances on a number of prior occasions on the night of 24-25 February 2001. Details were not given. 53 At about 1.55 am Senior Constable Richardson was standing on the outer part of the footpath outside the NV Nightclub, with Rocky beside him on a lead. A line of people, the appellant amongst them, was waiting to go into the nightclub. 54 Senior Constable Richardson gave the evidence "A. I was just standing on the roadway, as we had - on top of the gutter, as we had just completed a walk through of the nightclub and basically I was waiting for other police to come out of the nightclub and regroup. At this time the drug detection dog Rocky has indicated a scent, has picked up a scent. I've observed this and let - encouraged the dog, telling him he was a good boy. I have let him lead me towards the source of the scent. He has then put his nose on the defendant's pocket. [A]s I'm in plainclothes I've then informed the defendant that the dog is a police dog, I said to him I'm Senior Constable Richardson and this is a drug detection dog, I`m finding that the drug detection dog has detected the scent of a drug on the airways around him. At this time the defendant just kept walking and did not stop. At the same time drug detection dog Rocky kept indicating to me with his nose on the defendant's pocket, so as the defendant walked, the dog kept walking with him and kept pushing his nose into the defendant's pocket [then he would sit, then push his nose into the pocket again]. I noticed that the defendant was becoming a little bi[t] agitated with this and at this time Sergeant Gentle walked up and asked the defendant to stop. Q. And was he sort of ferreting in his pockets, if I can use that expression, with his nose? A. Yes. Q. Alright but in any effect [sic] he was bunting him with his nose, isn't he? Do you understand that expression? A. Yes.

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Q. I take it that if the dog amongst a crowd of people merely sat down without putting the nose on the person or in this case ferreting on the pocket, that you wouldn't be able to say for sure whether it was one person or the other because of the proximity to people? A. That's correct." 58 Regard to the actual evidence also casts doubt on the judge's view that the bunting and ferreting were at some remove from the appellant . 59 I understand the respondent to have accepted, when the matter was raised, that we can look at the evidence to flesh out the magistrate's findings; the appellant said nothing to the contrary. In my opinion, the bunting and ferreting to which her Honour referred should be understood as Rocky bunting or nudging the appellant with his nose and pushing or ferreting at his pockets with his nose, and Rocky putting his nose on the appellant's pocket should be understood as the successive events of which Senior Constable Richardson gave evidence as the appellant walked away and Rocky followed. Rocky's attentions were unwelcome to the appellant, who tried to walk away and to push Rocky's head away, and the appellant made that known. 60 The first question is whether, short of Rocky bunting and ferreting and putting his nose on the appellant's pocket his actions were a search. This properly means a search by the police, through Rocky. 61 The context is s 37(4) of the Act, and in that context the search is the intrusion into personal integrity which the police can not undertake without authority. The question is asked to ascertain whether the police need authority. Authority was needed in the present case if the police would otherwise commit trespass to the person. 62 A police officer would have been entitled to walk in the vicinity of the appellant and, if he were able to smell cannabis leaf in the appellant's possession, form a reasonable suspicion sufficient to entitle him to search the appellant. He would not thereby commit trespass to the person. Treating a drug detection dog as an extension of the police officer, an aid to his olfactory senses, the position is unchanged. It matters not that the dog acts differently from the police officer in the way he detects and indicates, short of bunting and ferreting and putting his nose on a pocket, the presence of a substance, or that the dog acts under the encouragement of the police officer. There is still not a trespass to the person, and there is not a search. In my opinion, Rocky's sniffing in the vicinity of the appellant, indicating that there was a scent without putting his nose on it, was not a search. 64 [In Question of Law Reserved (No 3 of 1998)] Olsson J said (at 226-7) "In essence the situation, apropos the accused, was, conceptually, no different than if he happened to be at the bus depot holding the suitcase and the police officer lawfully, but casually, walked past with a sniffer dog, who reacted positively when it came near the suitcase. In both instances the reaction of the sniffer dog was plainly adequate to arouse in the mind of the police officer a reasonable apprehension that the accused was in possession of an illegal drug - so as to warrant an actual search of the suitcase itself. ... According to its normal connotation the word "search" implies some physical intrusion into what is searched, for the purpose of examining what is in it. That word is not apt to describe the mere act of detection of an odour generated by the content of the item searched, which is released into the atmosphere surrounding it without any positive acts of a third person to effect that release. In this regard it seems to me that the Crown is on sound ground when it argues that a sensory perception of any type simply cannot constitute an act of searching, because it is a passive act which cannot possibly constitute a trespass. As Sir Robert Megarry V-C said in Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 640, the reason why a search which is not authorised by law is illegal is that it involves commission of the tort of trespass in relation to the land, goods or person searched. A mere act of enabling a dog to sniff the air in the vicinity of a suitcase

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involves no trespass to it, just as, to paraphrase the learned Vice-Chancellor, neither the eye nor the ear can be guilty of trespass." 69 ... In my opinion, Olsson J's assessment is correct. [T]he reasoning against a search is compelling. 70 The second question is whether, because of Rocky's bunting and ferreting and putting his nose on the appellant's pocket, his actions were a search. The engagement of search with trespass to the person means that in this case it amounts to the same question as whether those actions by Rocky were a trespass. 72 In this case the focus is properly on battery, the infliction of unlawful force which may be involved in an unauthorised search. The distinction between assault and battery has been said to be "in terms more easily understood by philologists than by ordinary citizens" (Collins v Wilcock (1984) 3 All ER 375 at 377 per Robert Goff LJ), and in common parlance the infliction of unlawful force is spoken of as an assault. This usage has crept into the law, as a convenient abbreviation . The distinction remains, and must be recognised. 73 ... Where Rocky was trained as a drug detection dog, was taken on the patrol, and after he caught a scent outside the NV Nightclub was encouraged to go to the source of the scent, I consider that he was an instrument through which, if there was a battery, it was a battery by the police. ... 75 The respondent's submissions included that there was no assault because the facts did not make out that the police intentionally or recklessly caused the appellant to apprehend immediate infliction of unlawful force. ... The flaw in the submission was its dependence on assault rather than battery. 76 If Rocky had done no more than place his nose on the appellant's pocket, it may be that there would have been only identification of a place for the police to search, and no search by the police through Rocky. But there was more. Rocky was pushing and ferreting at the appellant's pockets with his nose, and was pursuing the appellant in the manner earlier described with the appellant attempting to push him away. At this stage Rocky was doing what the police could not do without authority. If Senior Constable Richardson had placed his hand on the appellant's pocket, had pushed against it, had ferreted at it although not getting his hand in it, and when the appellant moved away had followed him and done the same, it seems to me that his actions would correctly be described as searching for the contents of the pocket. He would have been doing the equivalent to, perhaps more than, what is sometimes known as a pat-down search. Rocky was similarly searching, and in my opinion on the facts of this case there was a search. 79 [I]n Boughey v The Queen (1986) 161 CLR 10. Mason, Wilson and Deane JJ, with whom Gibbs CJ relevantly agreed, said (at 27) that positive hostility or hostile intent was not necessary [to establish a battery] . 80 In Collins v Wilcock Robert Goff LJ said (at 378) "We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, 'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner' (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation. But so widely drawn a principle must inevitably be subject to exceptions. [A] broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is

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inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped . 81 More particularly as to police officers, his Lordship said (at 379) "Of course, a police officer may subject another to restraint when he lawfully exercises his power of arrest [P]olice officers have for present purposes no greater rights than ordinary citizens. It follows that, subject to such cases, physical contact by a police officer with another person may be unlawful as a battery, just as it might be if he was an ordinary member of the public. But a police officer has his rights as a citizen, as well as his duties as a policeman. A police officer may wish to engage a man's attention, for example if he wishes to question him. If he lays his hand on the man's sleeve or taps his shoulder for that purpose, he commits no wrong. He may even do so more than once; for he is under a duty to prevent and investigate crime, and so his seeking further, in the exercise of that duty, to engage a man's attention in order to speak to him may in the circumstances be regarded as acceptable But if his use of physical contact in the face of non-co-operation persists beyond generally acceptable standards of conduct, his action will become unlawful; and if a police officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest. ... What is not permitted, however, is the unlawful use of force or the unlawful threat (actual or implicit) to use force and, excepting the lawful exercise of his power of arrest, the lawfulness of a police officer's conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this country." 82 In the present case, the police were not attracting the appellant's attention through Rocky. Nor was Rocky being walked and, as an exuberant dog might do, nuzzled a passing pedestrian in one of the "physical contacts of ordinary life". He was encouraged to do what he did. And what he did was more than placing his nose on the appellant's pocket, and included the bunting or nudging to the appellant's genital area. As I have said, these attentions were unwelcome to the appellant, who moved away a number of times, kept pushing Rocky's head away, said to get the dog away, and became agitated. ... In my opinion, what occurred was a battery. 83 The third question is whether the search through Rocky was authorised pursuant to s 37(4) (a) of the Act. The respondent submitted that it was, because Rocky's actions in detecting a scent, prior to the bunting and ferreting and putting his nose on the appellant's pocket, founded a reasonable suspicion that the appellant had possession of cannabis. 84 Depending on the circumstances, the actions of a drug detection dog short of a search could provide grounds for reasonable suspicion of possession of a prohibited substance. ... In the present case there were many people in the line outside the nightclub. Senior Constable Richardson agreed that if the dog amongst a crowd "merely sat down without putting his nose on the person ... you wouldn't be able to say for sure whether it was one person or the other because of the proximity to people". That did not exclude formation of a reasonable suspicion, from Rocky's actions prior to search, that the appellant had possession of cannabis. There was more in this case than Rocky merely sitting down. Reasonable suspicion does not mean knowing or believing which person in the crowd has possession of the substance, and can be satisfied by a factual basis for conjecture or surmise short of proof (see George v Rockett (1990) 170 CLR 105 at 115-6). That Rocky's actions prior to search founded a reasonable suspicion was open, although as I will describe the evidence and findings were deficient. 86 Section 37(4)(a) requires not just grounds for reasonable suspicion, but that the searching police officer have the reasonable suspicion. Senior Constable Richardson, potentially the searching police officer through Rocky, was not asked anything about forming a reasonable suspicion. After the magistrate had ruled that there was a search, her decision being founded on Rocky seeking out the appellant and touching him, the prosecution could have mounted a case that Rocky's earlier actions gave rise to reasonable suspicions. It did not do so.

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87 For the respondent's present submission, further findings of fact would be necessary. While a reasonable suspicion was open on the facts, it was by no means inevitable given Senior Constable Richardson's evidence about which person in a crowd. The matter was not addressed in the evidence; nor was it addressed in the submissions before the magistrate, a transcript of which is in the appeal papers. So far as her Honour made an implicit finding on the evidence as it stood, it was that a reasonable suspicion was not formed until after the search. ... 88 The prosecution placed all its eggs in the basket of no search. It had ample opportunity, but it did not mount a case that, to the extent that there was a search, the search was authorised by a reasonable suspicion. The respondent should not now be permitted to advance such a case. 90 ... Search by the police, through Rocky, without a reasonable suspicion providing authority for the intrusion into the appellant's personal integrity, would in my opinion have met the common law requirement and meets the statutory requirement [for impropriety under s138]. ... 91 The magistrate's rejection of the evidence of finding the substances in the appellant's possession has not been shown to be erroneous. The consequent dismissal of the charges should stand. 99 IPP JA (with whom McColl J agreed): Before the magistrate, the essential foundation of all the respondent's arguments was that the actions of the dog, "Rocky", constituted an illegal search. That is to say, before the magistrate, the admissibility of the challenged evidence was dealt with on the basis that it turned on whether the actions of the dog constituted a lawful search. 100 In addition, before the magistrate, it appears to have been common ground, or at least not in issue, that the police had held reasonable suspicions, for the purposes of s 37(4)(a) of the Drug Misuse and Trafficking Act. 101 [I]t is, I think, plain from the way in which the hearing before the magistrate was conducted that the admissibility of the evidence turned on the question whether the conduct of the dog amounted to a search, and the reasonable suspicions or otherwise of the police were not regarded as an issue at all. 102 At the hearing before O'Keefe J, the first issue was whether "what was done by Rocky constituted a search". As O'Keefe J concluded that no search had taken place he came to the conclusion that the magistrate's decision refusing to admit the evidence "was erroneous in law". 103 A further issue arose before his Honour as to whether what was done by Rocky constituted an assault on the appellant and, for that reason, a trespass to the person. This issue had not been raised before the magistrate. The appellant asserted that there had been a "search conducted as a result, and during the course, of a trespass to the person [that is, an assault]". Thus, before O'Keefe J the question of whether there had been an assault arose only in the context of an argument that there had been a search. 120 In his reasons O'Keefe J said: Search is an ordinary English word. The Oxford English Dictionary (2nd Ed 1989 p 804805) defines the verb to search when used in relation to a person to mean to examine by handling, removal of garments, and the like to ascertain whether any article (usually, something stolen or contraband) is concealed in his clothing. In the New Oxford Dictionary of English the word search, when used as a verb, conveys trying to find something by looking or otherwise seeking carefully and thoroughly. (1998 Ed, p 1677). The Macquarie Dictionary defines the verb to search as meaning to go through or look through carefully in seeking to find something; to examine (someone) for concealed objects by going through their pockets. (Third Edition, p 1916). In Chambers English Dictionary the same verb is defined as meaning to explore all over with a view to finding something; to examine closely; to examine for hidden articles by feeling all over (1988 Edition, p 1328). In Collins Concise English Dictionary the word search when used as a verb is defined as meaning to look through (a place, etc) in order to find someone or something (Australian Edition 1984, p 1040).

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Relevantly the generally accepted connotation of search is that it involves looking carefully in order to find something that is hidden. When it relates to a person, it carries the implication of some physical intrusion onto the person (for example by patting down the clothing of such person) or into the clothing or body of the person the subject of the search." 121 As to the meaning of "search," I would adopt what is said in this regard in Question of Law Reserved (No 3 of 1998) [1998] SASC 7163; (1998) 71 SASR 223. "Search", as the term is used in s 36(4)(a) of the Drug Misuse and Trafficking Act, and when applied to a person, involves examining the person for the purpose of finding out whether any prohibited drugs are in his or her clothing or body. On the evidence, none of Rocky's actions were performed for this purpose. All his actions, in relation to the appellant, were performed for the purpose of identifying to the police officers present which person in the crowd of people was the person who possessed the drug, the smell of which the dog had detected. 122 Rocky had been trained, once he had picked up the scent of cannabis, to go towards the source of the scent, and if it emanated from a particular person to put his nose on the clothing of that person at that place where the scent was coming from. This was done solely for the purpose of identifying the person possessing the drug, not for the purpose of searching. The dog was not looking for the drug. He knew where it was. 123 As Senior Constable Richardson agreed, had Rocky not gone up to the appellant and ferreted "on the pocket", the police would not have known, for sure, which person had the drug which the dog had scented. There were so many people milling about that ferreting may have been needed as part of the identifying exercise. Rocky was merely completing the identification of the person who was in possession of the drug. By doing that the dog was not carrying out a search. 124 Accordingly, in my view, O'Keefe J rightly held that the magistrate erred in finding that there had been a search. Having regard to the way in which the voir dire was conducted, the magistrate should have admitted the evidence (subject to any issue under s 138 of the Evidence Act). 126 As regards the question of assault, I consider that O'Keefe J rightly refused to find that an assault had been committed as, before the magistrate, the appellant had not submitted that an assault had occurred, had made no challenge to the evidence on this basis and had not argued that the magistrate's discretion under s 138 should be exercised in his favour by reason of an assault. Accordingly, there were no factual findings relevant to this issue. As the question of assault had not been raised, it was not investigated. Accordingly, I do not think that it should determine or affect this appeal. 127 Giles JA has pointed out that the focus in the case should be whether the conduct of Rocky amounted to a battery. I respectfully agree, but in my view, what I have said about assault applies equally to battery. 129 I would add that there has never been an investigation or findings as to whether any identification of the appellant and the possible formation of a reasonable suspicion preceded any possible illegal conduct of the police through the actions of Rocky. 130 There are three possible findings that could be made in regard to the conduct of the dog. Firstly, the evidence is capable of establishing that the identification of the appellant as a person possessing prohibited drugs occurred before the dog touched the appellant. The second possible finding on the evidence is that that identification occurred as soon as the dog laid his nose on the outside of the appellant's pocket, before any bunting or ferreting took place. The third possible finding is that the identification only occurred after some or all of the bunting and ferreting. Depending on which finding is made, different consequences may follow. Those consequences may relate both to s 37(4)(a) of the Drug Misuse and Trafficking Act and s 138 of the Evidence Act. 131 For example, should the identification of the appellant have been completed prior to the commission of a battery, reasonable suspicion under s 37(4)(a) may have been formed

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immediately upon that identification. If the identification was complete before any assault or battery occurred, that - arguably - may prevent any subsequent search from being illegal (any assault or battery then, arguably, being unconnected to the search). 132 Other permutations of findings are open. It is pointless, however, for this Court to speculate on these matters. It is first necessary for a proper investigation of the issues to be carried out in the Local Court and for detailed findings to be made. The precise findings made would also be relevant in the exercise of any discretion under s 138. 133 I would add that it is not only the evidence of the police search that might be in issue in establishing the guilt of the appellant. The actions of Rocky themselves are relevant to the guilt of the appellant. This is not a matter that has previously been considered. 135 In my view, the order of O'Keefe J remitting the charges to be dealt with in accordance with law should stand. The Local Court should however deal with the matter in accordance with the law as set out in the judgments of this Court. In particular, depending on the attitude adopted by the parties, all the issues discussed in this judgment, including the point when identification was first made, the legality of the search, the reasonableness of the police suspicions, the effect of s 138 of the Evidence Act, and the question of assault and battery could be considered afresh in the light of all the evidence that might be led and proper findings could be made. [Appeal dismissed.]

5. Search with Arrest

Section 23 does not allow the police to arbitrarily search a person who has been lawfully arrested. Note that if there has been no lawful arrest, any search subsequently conducted will also be unlawful, since s 23 is contingent on there having been an arrest, either under s99 or under a warrant. This is also the case with s23A. Section 23A allows the police to search a persons mouth or hair if they suspect on reasonable grounds that a thing of the kind referred to in s23(1) or (2) is concealed there. The police must only conduct a search under s23 if they suspect on reasonable grounds (see Rondo) that it is prudent to do so in order to ascertain whether the arrested person is carrying anything dangerous, that could be used to escape, with respect to which an offence has been committed or that was used or is intended to be used in the commission of an offence. Note the difference between s23(1) and s23(2). Sub-section (2) gives the police the power to search a person who is arrested for the purpose of taking the person into lawful custody, that is, in situations where the person is arrested other than for an offence. This situation might arise, for example, where the person has breached an AVO, or the Bail Act or has escaped from some mental health facility. Anything of the kind referred to in subsection (1) or (2) that is found during a search can be seized and detained by the police under s23(3).

EXTRACT FROM: NSW Ombudsman (2007) Issues Paper: Review of Certain Functions Conferred on Police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman: Sydney, chapter 2 (footnotes omitted)
2.8.1.2. Suspecting on reasonable grounds that it is prudent to conduct a search on arrest In order to carry out a search on arrest, police must suspect on reasonable grounds that it is prudent to do so. This test differs from the tests in sections 21 and 26, in that police are only

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required to suspect on reasonable grounds that it is prudent to conduct a search once a person is arrested rather than suspecting that specified circumstances exist or that the person has a dangerous implement in their custody. The Searching Manual and the Code of Practice for CRIME do not elaborate on the test for suspicion on reasonable grounds that it is prudent to do so. However, both provide police with guidance on what constitutes reasonable suspicion with regard to search powers. The Searching Manual refers to Justice Smarts findings in Streat v Blanco (1998) where he said: In part it is a subjective test, because he must have formed a genuine suspicion in his own mind In part, it is also an objective one, because there must also be reasonable grounds for the suspicion, which he had formedThe point does not depend on whether the arresting officer himself thought at the time that the suspicion was reasonable. The question is whether a reasonable man would be of that opinion having regard to the information which was in the mind of the arresting officer. The Searching Manual goes on to note the NSW Ombudsmans 1998 Report, Policing Public Safety, and advises officers that: You should be prepared to explain why and how you developed your suspicion that the person should be subject to a search and what you were searching for. Points here could include your observations, details of conversation you had with the suspect, aspects of his behaviour which gave rise to suspicion, your knowledge of the person, including CNI checks, COPS checks, warnings etc, and the knowledge of other police. The Code of Practice for CRIME includes a dictionary of terms which defines reasonable grounds to suspect as follows: A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be some grounds which would create in the mind of a reasonable person an apprehension or fear that the person has committed an offence. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials that may be inadmissible in evidence. What is important is the information in the mind of the police officer making the arrest at the time the officer did so. Having ascertained that information, the question for a court is whether that information afforded reasonable grounds for the suspicion which the police officer formed. Given that having a lawful basis for a search may affect the admissibility of any evidence found, giving clear guidance to officers as to the relevant factors which are or are not relevant to consider may be a useful exercise. 2.8.3. The power to search a person on arrest for the purpose of taking the person into lawful custody A particular example of how police powers may differ depending upon the purpose of the exercise of a power is the power in section 23(2) to search a person who has been arrested for the purpose of being taken into lawful custody. This search power is limited to circumstances where an officer suspects on reasonable grounds that it is prudent to ascertain whether the person is carrying anything that would present a danger to a person or assist the person to escape from lawful custody. The Code of Practice for CRIME advises officers that the limited search power (in section 23(2)) applies to searches on arrest other than for an offence. A number of circumstances could fall within the ambit of this search power including searches on arrest for breach of bail, and searches on arrest for the purpose of conducting a breath analysis. . It has not been possible to analyse how many searches were performed using section 23(2) as the COPS data does not specify whether the person was arrested for an offence, under a warrant or in order to be taken into lawful custody. What is important in respect of this power however, is that there is no power to search for evidence of an offence unless there is a separate reasonable suspicion that specified circumstances exist or that the person has a dangerous implement in their custody.

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6. Search after Arrest

A person must be in lawful custody for a search under s24 to be lawful. This power to search is wider than the power to search under s23 since no suspicion on reasonable grounds is required and the search can be for any particular thing.

EXTRACT FROM: NSW Ombudsman (2007) Issues Paper: Review of Certain Functions Conferred on Police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman: Sydney, chapter 2 (footnotes omitted)
2.8.2. Searches in custody Section 24 provides police with the power to search a person in lawful custody (whether at a police station or at any other place), and seize anything found in that search. Exactly what is meant by lawful custody is open to a number of interpretations. Lawful custody is defined in section 3 as meaning lawful custody of the police. In his second reading speech, the Attorney General stated that section 24: sets out the search powers that may be exercised by a police officer after the person has been arrested and taken into custody. The reference to a police station or other place in section 24 suggests that custody could be characterised according to location. [T]he police recording system COPS requires officers to classify searches according to their occurrence in the field or in custody; the majority of searches classified as custody searches occur in a police station location. Other definitions of custody include the elements of location, restraint and belief, to varying degrees, suggesting that the term is a complex mix of a number of factors. For example, the Butterworths Australian Legal Dictionary defines custody as: Confinement; imprisonment; being in the keeping or charge of officers of the law. Custody includes the elements of dominance and control of the liberty of a person, and the state of being guarded and watched to prevent escape. A person shut up by a police officer as if in prison, or held in restraint by a police officer, is held in police custody.76 In the textbook Crime, Ross cites the cases of Smith v The Queen (1957) and R v Amad (1962) in defining custody. In Smith v The Queen, Justice Williams said: The term in custody in the Judges Rules is not a term of art. It is not confined to a person who has been arrested after a charge has been preferred against him. Any person who is taken to a police station under such circumstances that he believes that he must stay there is in the custody of the police. He may go only in response to an invitation from the police that he should do so and the police may have no power to detain him. But if the police act so as to make him think that they can detain him he is in their custody. In R v Amad, Justice Smith said: A person is to be regarded as in custody not only after formal arrest, but also where he is in, say, a police vehicle, or on police premises, and the police by their words and conduct have given him reasonable grounds for believing, and caused him to believe, that he would not be allowed to go should he try to do so.78 In deciding whether the Royal Commission into Aboriginal Deaths in Custody had jurisdiction to investigate the death of Mr Gundy who was shot when police raided his home in the course of looking for someone else, Justices Morling and Gummow found that: Persons restrained for a brief period in their dwelling house to enable the police to satisfy themselves that the wanted man was not there and that no one was threatening the police could be regarded as being in custody within the meaning of the Letters Patent. Their Honours went on to say that:

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To confine the meaning of custody to that state which follows arrest or similar official act is, in our opinion, to pay too close a regard to legal forms rather than the substantive character or quality of police activity. In Uniform Evidence Law, Odgers notes that while the term police custody is not defined, the NSW Court of Criminal Appeal in R v McKellar (2000) has given the term the normal meaning of under physical restraint. If the definition of custody does not turn on location, it is arguable that section 24 is worded in a way that could cover any search following an arrest performed by police under Part 4 of LEPRA, since a person may be considered to be in lawful custody once arrested. However, a counter argument may be that the order of the provisions and the intention of parliament as expressed by the Attorney General in his second reading speech suggest that section 24 would only cover those circumstances not already covered by section 23 or, alternatively, be specifically aimed at custody in a police station or other place, and generally not in the field.

Revision questions 1. For the past year, police have received regular information from an informant that Chad Morgan is a drug dealer. However, Chad is very careful and the police have not been able to catch him in the act of selling drugs or talking about selling drugs. They also have no evidence that he keeps drugs in his house. Can they arrest Chad for speeding, and then use that to justify searching his person for drugs? 2. Can they use the arrest to justify a search of his car for drugs? 3. Of his house? 4. Alternatively, could the police target Chad, who will be attending a concert on the weekend, by taking a sniffer dog to the concert? 5. If the sniffer dog indicates a positive result, what type of search can the police conduct on Chad?

7. What safeguards apply?

When exercising any of the search powers discussed above, the police must comply with s201, as discussed previously. For example, in Lassanah, the police were in uniform so they didnt have to supply evidence that they were police officers. But they were required to state their names and their place of duty (s201(1)) (which they did), the power they were about to exercise (search of the person) and the reason for that search (s201(3)). They would also have to say that a refusal to comply with a search was an offence (s201(2C)). In relation to the detention of a vehicle, vessel or aircraft for a search, a police officer must not detain the vehicle for any longer than is reasonably necessary for the purpose (s204).

EXTRACT FROM: NSW Ombudsman (2007) Issues Paper: Review of Certain Functions Conferred on Police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman: Sydney, chapter 2 (footnotes omitted)
2.9. The general safeguards 2.9.1. Providing evidence that the person is a police officer (if not in uniform)

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Police are required to provide evidence that they are police officers unless they are in uniform. In consultations, police indicated that it has always been their practice to provide evidence that they are a police officer when arresting and searching a person if they are not in uniform. In May 2006, we observed an underage drinking operation conducted by plain-clothes police officers. During that operation the officers we observed all provided evidence that they were members of the NSW Police Force during their interactions with the public. We are not currently aware of any concerns having been raised in relation to the requirement that officers provide evidence that they are a police officer. 2.9.2. Providing the officers name and place of duty Police are required to provide their name and place of duty to the person before or as soon as practicable after the person is searched. Police are only required to identify themselves once if more than one power is being exercised. In consultations, a number of police have indicated that this is generally not a contentious issue where searches on arrest or in custody are concerned. A number of officers also indicated that was the practice of police prior to the introduction of LEPRA. The NSW Police Force nameplate policy includes an option for officers to wear a badge that identifies the officer according to a three-digit number with their unit or command underneath. A number of officers pointed out that the requirements in section 201(1)(b) conflict with the badge policy, which allows police to identify themselves using a number rather than their name. As one officer put it: Being in full uniform I choose to have a number plate as opposed to a name badge because I like to remain [anonymous] for my personal security, weve all had threats, we all deal with unsavoury type characters. Some officers from regional areas also expressed concern for their personal safety when required to provide their name and place of duty. For instance, one officer said Weve got family here and its sometimes been the case where an officer has had his garage sprayed and items stolen from his house. Some officers indicated that they did not consider it was necessary to provide their name and place of duty in general circumstances. For instance, some officers told us: Its not about me, its about our job and what we do not as individuals. It shouldnt have anything to do with our name. If people want to make a complaint and get our names, not a problem in the world, but we shouldnt be telling people.101 Some officers also suggested that they should not be required to provide their name and details to those people they deal with frequently, if the person already knows the officer. The view of the Shopfront Youth Legal Centre was that police should have to provide this information given that they are in a position of power The Shopfront also commented We used to get a lot of complaints before LEPRA about police refusing to give their name and things. We havent had so many complaints since [LEPRA commenced]. 2.9.3. Providing the reason for the exercise of the power Police are required to tell the person why a search power is being exercised.105 All of the officers we spoke to suggested that they always tell the person they are searching why the search is being conducted. One officer said, Commonsense is, if youre going to speak to someone, youre going to tell them why youre speaking to them. However, in consultations, The Shopfront Youth Legal Centre commented: I do get a lot of clients who report that the police dont tell them why theyre searching them, they [just say] Oh, were searching you. 2.9.4. Warning that failure to comply may be an offence In December 2006, section 201(1)(d) was repealed and replaced with section 201(2C) by the Police Powers Amendment Act 2006. The new provision provides for a two step warning that is only required if a person is not already complying with a direction or a request made by police in the course of exercising a relevant power. It is arguable that section 201(2C) only applies to those powers that specify a power to request or direct. However, it could also be argued that a power that involves the making of a request or a direction may apply to the exercise of the personal search powers which inherently involve a number of requests or directions such as can

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you stand over here, take your jacket off, hold your arms out for me, open your bag, or take off your shoes. 2.9.4.1. Warning and cautioning When a person is arrested in the field, police must caution the person that they do not have to say or do anything, but that anything the person does say or do may be used in evidence.108 Police also provide this caution when a person is taken into custody at a police station or other place of detention. The giving of a caution in custody does not affect a lawful requirement by a police officer that a person answer questions or do things. In consultations with police, a number of officers expressed concern that it may be confusing to warn a person that failure to comply with a police request or direction may be an offence, where the person is also told that that they do not have to say or do anything. One officer said: The main thing is its confusing. You arrest someone, you caution them, then explain their rights to them [that they do not have to say or do anything], and next minute youre saying you have to do what I tell you. However, there are officers who believe that there is no confusion between warning and cautioning. For instance, one officer indicated that his practice when arresting a person is to tell the person: You have the right not to answer my questions but there will be times when you are obliged to do what I tell you and I will let you know when you have the right to remain silent or when you are obliged to do something. In response to police concerns about warning and cautioning, police published an article in August 2006 in the Police Weekly that advised officers on measures that could be taken to fulfil the warning and cautioning requirements in an effective way that would not compromise any of the evidence. The article, entitled How can I ensure that a person understands the official caution after I have complied with the safeguards in section 201?, explained the application of the safeguards and how they can be used to assist police in their work, saying: The rationale for the safeguards is that if people know who you are, know the reason youre exercising the power and that not complying with your requests may be an offence, it is believed that less people are likely to resist you.114 In November 2006 the Police Powers Legislation Amendment Act 2006 amended section 201 by inserting subsection (2C) which now clarifies that police only have to warn the person that failure to comply is an offence if the person is not complying with the police requests or directions.

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CLASS 17: POLICE ENTRY AND SEARCH OF PREMISES

Without an implied license, as discussed in Halliday v Nevill, the police have limited powers to enter a persons property without a warrant. Unless the police have a warrant which allows them to enter specified premises, or unless there is an implied license to enter someones house or business, the police can only enter a persons property under a statutory power, such as ss 9 or 10, LEPRA. Section 9 codifies the common law power to enter premises if there has been, or is likely to be a breach of peace, or someone has been injured or will be injured on particular premises. A common example of lawful entry under s9 is where the police are called to a family violence situation and are required to break into a house because they believe someone has been hurt or will be hurt. Section 10 gives the police the power to enter premises to arrest a person or to detain a person under an Act. In exercising the power under s10, however, the police must believe on reasonable grounds that the person to be arrested or detained is on the premises. If the police do not have an implied license to enter premises or a warrant, and their entry does not comply with either ss9 or 10 then the entry will be unlawful. Any subsequent search will also be unlawful. In exercising their powers under s9 or 10, the police must also comply with s201 and ss230 and 231, LEPRA.

Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1

1 GIBBS C.J., MASON, WILSON and DEANE JJ. This is an appeal by special leave from the decision of Brooking J. of the Supreme Court of Victoria . The appellant [was charged] with one offence of escaping from legal custody, two offences of resisting police in the execution of their duty and two offences of assault. These charges, together with a charge of driving a motor car while disqualified from obtaining a licence and driving a motor car whilst his blood alcohol content exceeded the prescribed maximum on each of which the appellant was convicted, all arose from an incident which occurred in West Heidelberg shortly after five o'clock one afternoon in January 1982. At that time two police officers named Nevill and Brida were on a motorised patrol of the area. [T]hey saw the appellant, who was known to Police Constable Brida as a disqualified driver, reversing a motor car out of the driveway of premises at 375 Liberty Parade. Having driven out into the street, the appellant apparently saw the police car approaching and immediately drove back into the driveway from which he had come. The police officers stopped their vehicle across the mouth of the driveway, alighted and entered the premises at 375 Liberty Parade by walking down the open driveway. There they engaged the appellant in conversation. He had been drinking. He was aggressive and denied that he had driven on the roadway. Police Constable Nevill then arrested the appellant for driving whilst disqualified; this happened while the three men were standing on the driveway inside the premises near the rear of the car that the appellant had been driving. 2. Then, while the appellant and Police Constable Nevill were walking back down the driveway towards the police car, the appellant suddenly broke away from Police Constable Nevill's grasp and ran across Liberty Parade and entered his own home at number 370. The police officers pursued him into the house where a scuffle took place before he was finally overcome.

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The two charges of resisting the police officers and the two charges of assault all relate to the scuffle that occurred in his own home. 3. The Magistrate held that the arrest of the appellant in the driveway of 375 Liberty Parade was unlawful because the arresting officer was a trespasser on those premises at the time of the arrest. He therefore dismissed the [charges] . 4. Brooking J. proceeded on the basis: (a) that the Stipendiary Magistrate must be taken to have found that at the time of the arrest Police Constable Nevill was in the driveway without the permission of the occupier of 375 Liberty Parade and that he was not prepared to dispute such a finding, and conferred by s.458 of the Crimes Act 1958 (Vict.) as amended did not confer by implication a power to follow the suspect on to private property for the purpose of effecting the arrest. On that basis, Police Constable Nevill was a trespasser on the premises at 375 Liberty Parade at the time when he purported to arrest the appellant. His Honour came to the conclusion however that, even if that were so, the arrest itself was lawful. It followed, in his Honour's view, that the appellant escaped from lawful custody in breaking away from Police Constable Nevill and that the entry of the police officers into the appellant's home at 370 Liberty Parade in pursuit of him was authorized by s.459A of the Crimes Act. 5. ... It is common ground that the appeal must fail unless Police Constable Nevill was, at the time he arrested the appellant in the driveway of premises at 375 Liberty Parade, a trespasser on that driveway. The evidence on that question is sparse. On that evidence however, we consider that the only conclusion which is open as a matter of law is that Police Constable Nevill had an implied licence from the occupier of the premises to be upon the driveway. 6. While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked . The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it . Nor, in such a case, will the implied licence ordinarily be restricted to presence on the open driveway or path for the purpose of going to the entrance of the house. A passer-by is not a trespasser if, on passing an open driveway with no indication that entry is forbidden or unauthorized, he or she steps upon it either unintentionally or to avoid an obstruction such as a vehicle parked across the footpath. Nor will such a passer-by be a trespasser if, for example, he or she goes upon the driveway to recover some item of his or her property which has fallen or blown upon it or to lead away an errant child. The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier's possession nor injury to the occupier, his or her guests or his, her or their property. 7. The evidence indicates that the premises at 375 Liberty Parade were residential premises with an open driveway to the roadway. There is no suggestion that the driveway was closed off by a locked gate or any other obstruction or that there was any notice or other indication advising either visitors generally or a particular class or type of visitor that intrusion upon the open

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driveway was forbidden. That being so, a variety of persons with a variety of legitimate purposes had, as a matter of law, an implied licence from the occupier to go upon the driveway. The question which arises is whether, in those circumstances, the proper inference as a matter of law is that a member of the police force had an implied or tacit licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the immediate vicinity of that driveway. The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that that question be answered in the affirmative. That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land. All that that conclusion involves is that, in the absence of any indication to the contrary, the implied or tacit licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it. It follows that Police Constable Nevill was lawfully upon the driveway of 375 Liberty Parade when he arrested the appellant. 9. We would dismiss the appeal.

Plenty v. Dillon [1991] HCA 5; (1991) 171 CLR 635

1 MASON C.J., BRENNAN AND TOOHEY JJ. Mr Plenty is the owner and occupier of a small farm at Napperby near Port Pirie, South Australia. He and Mrs Plenty are the parents of a girl who, at the time of the events giving rise to the present litigation, was aged 14 years. An allegation was made in July 1978 that the child had committed an offence and a complaint was laid against the child alleging that she was in need of care and control. 3. Constable Dillon, accompanied by Constable Will, went to Mr Plenty's farm in order to serve the fresh summons either personally on the child or, by non-personal service, on the father. Their entry onto the farm for this purpose was the occasion of an alleged trespass for which Mr Plenty brought the present action. ... [I]n the view taken of the facts by a majority of the Full Court of the Supreme Court of South Australia, Mr Plenty had expressly revoked any implied consent given to any police constable to enter upon his farm in order to serve the summons or any other document relating to the matter concerning his child. The appeal to the Full Court proceeded on that footing and the defendants were content to argue the present appeal on the same footing. Thus the issue for determination is simply whether a police officer who is charged with the duty of serving a summons is authorized, without the consent of the person in possession or entitled to possession of land and without any implied leave or licence, to go upon the land in order to serve the summons. 4. The starting point is the judgment of Lord Camden L.C.J. in Entick v. Carrington (1765) 19 St Tr 1029, at p 1066: "By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing ... If he admit the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him." The principle applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons. As Lord Denning M.R. said in Southam v. Smout (1964) 1 QB 308, at p 320, adopting a quotation from the Earl of Chatham: "'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may

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enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.' So be it - unless he has justification by law." And in Halliday v. Nevill [1984] HCA 80; (1984) 155 CLR 1, Brennan J. said (at p 10): "The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law." 5. The proposition that any person who "set(s) his foot upon my ground without my licence ... is liable to an action" in trespass is qualified by exceptions both at common law and by statute. The first ground relied on to authorize or excuse the entry of Constables Dillon and Will on Mr Plenty's farm on the occasion of the attempted service of the fresh summons was the common law rule known as the third rule in Semayne's Case [1572] EngR 333; (1604) 5 Co Rep 91a, at p 91b [1572] EngR 333; (77 ER 194, at p 195) which reads: "In all cases when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the (King)'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors". 6. The scope of the third rule in Semayne's Case is : "It is laid down as a general rule in our books, that the sheriff, in executing any judicial writ, cannot break open the door of a dwelling-house; this privilege, which the law allows to a man's habitation, arises from the great regard the law has to every man's safety and quiet, and therefore protects them from the inconveniences which must necessarily attend an unlimited power in the sheriff and his officers in this respect; hence, every man's house is called his castle. ... Yet in favour of executions, which are the life of the law, and especially in cases of great necessity, or where the safety of the king and commonwealth are concerned, this general case has the following exceptions: 1st. That whenever the process is at the suit of the king, the sheriff or his officer may, after request to have the door opened, and refusal, break and enter the house to do execution, either on the party's goods, or take his body, as the case shall be. " The third rule in Semayne's Case provides justification for more than a mere entry onto land; in terms it relates to breaking into a dwelling-house. The justification afforded by the rule is needed only when the alleged trespass is of that kind . Of course, justification for breaking into a dwelling is justification for entering on the land on which the dwelling stands. However, the third rule in Semayne's Case affords justification for an entry, whether by breaking into a dwellinghouse or not, only when the purpose of the person making the entry is either "to arrest ... or to do other execution of the (King)'s process". It is not suggested that the defendant police officers proposed to arrest Mr Plenty's daughter. They had no authority to do so. The magistrate had power to issue a warrant for her arrest but he did not do so. So the question is whether the police officers were engaged in "execution of the (King)'s process". 7. The cases draw a distinction between execution of the King's process and the execution of process sued out for a litigant's private benefit. The distinction is based on the difference between the public interest which is served by execution of the King's process and the private interest which is served by execution of other process . It is by no means clear that proceedings under ss.8 and 15 of the Juvenile Courts Act are proceedings "when the King is party" but, assuming that the public interest in such proceedings makes "the King ... [a] party" for the purposes of the third rule in Semayne's Case, the question remains whether the service of a summons pursuant to s.27 of the Justices Act is an "execution of the (King)'s process"? There is a surprising dearth of authority on this question. 8. The present case is not concerned with the application of the third rule in Semayne's Case to an arrest without warrant on a criminal charge (a problem addressed in Lippl v. Haines (1989) 18 NSWLR 620 ), nor with its application to the execution of a justice's warrant authorizing

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either arrest or search and seizure , nor with its application to the carrying into effect of a court's judgment, order or warrant. It is concerned only with the application of the third rule in Semayne's Case to the service of a summons. It would be surprising to find that the third rule does apply to the service of a summons, for that would mean that the defendants in this case were authorized not only to go onto Mr Plenty's farm but, if need be, after demand for entry, to break down the door of his home to effect service on his daughter. We do not think that so invasive an operation can be attributed to the third rule. We take the third rule's reference to execution of process to relate to the enforcement of process which is coercive in nature, that is, to the execution of process against person or property : "to do execution, either on the party's goods, or take his body, as the case shall be". The service of a summons is not an execution of process of that nature. 9. A summons to appear before a court of summary jurisdiction does not of itself compel a defendant to appear. Its primary purpose is to ensure that natural justice is accorded to a defendant by giving the defendant notice of the subject of the complaint and an opportunity to be heard. Service of a summons, unlike the execution of a warrant of arrest, does not coerce a defendant to appear, though a failure to appear in answer to the summons may lead to the issue of a warrant . The coercive nature of a warrant of arrest has long been contrasted with the noncoercive nature of a summons. The service of a summons is not the execution of coercive process against either person or property. As Lord Goddard C.J. said in R. v. Holsworthy Justices; Ex parte Edwards (1952) 1 All ER 411, at p 412: "Serving a summons is not an 'execution under the process of any court of justice'; it is simply the commencement of process." Common law authority tends against the proposition that the third rule in Semayne's Case applies to service of a summons on premises entry onto which has been forbidden by the person in possession and entitled to possession thereof. It follows that the common law gave no authority to Constables Dillon and Will to go onto Mr Plenty's farm in an attempt to serve the fresh summons on Mr Plenty's daughter. 10. Next, it is submitted that the statutory power to serve a summons, either personally or non-personally, carries with it the right to make such entry on land as is necessary to effect service. This argument would construe the statute as conferring a right to enter private premises without consent even though the person in possession has no connection with the matter to which the summons relates. Some statutes which confer a power to arrest have not been construed as carrying a right to enter on private property although, in other cases, a statutory power of arrest has been held to carry a qualified right to enter: see Halliday v. Nevill, at pp 15-16. But a statute which confers a power to arrest is of a different order from a statute which prescribes the manner of service of a summons and which confers no power on a person to do a thing that that person is not free to do at common law. Section 27 of the Justices Act is merely facultative, giving to the process-server an option as to the manner of service. It confers no relevant power. The option of personal or non-personal service for which s.27 provides relates simply to the sufficiency of the giving of notice to a defendant after which the justices may proceed to hear and determine the matter in the exercise of their jurisdiction. In truth, the provisions of s.27 do nothing to create an implication that a process-server availing himself of either of the options acquires a power to enter upon private land without the leave or licence of the person in possession or entitled to possession thereof. 11. The grounds advanced by the defendants to justify their entry fail. Their entry was wrongful, and the plaintiff is entitled to judgment and an award of some damages. What is a breach of the peace?

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The words, breach of peace, have not been defined under s9, LEPRA so we must turn to the case law to determine the scope of these words, as well as the scope of a statutory power like s9.

Kuru v State of New South Wales [2008] HCA 26

1 GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ. In the early hours of 16 June 2001, police received a report of a male and female fighting in a flat in suburban Sydney. Police treated the report as a "violent domestic" requiring available officers to attend as quickly as possible. Six police officers went to the flat. Mr Murat Kuru (the appellant) and his then fiance (now wife) who lived there had had a noisy argument, but, by the time police arrived, the fiance had left the flat with the appellant's sister. When police arrived, the front door of the flat was open. The police officers went into the flat. Two friends of the appellant, who did not live in the flat, were in the living room and the appellant was taking a shower in the flat's bathroom. 2 When the appellant came out of the bathroom, he found that the police were in the flat. The police asked if they could "look around" and the appellant agreed. After the police had looked in the two bedrooms, they asked to see "the female that was here". The appellant said that she had gone to his sister's house. He asked the police to leave the flat. The police asked for the sister's address and telephone number. The appellant said he did not know the address but at some point he wrote a telephone number (presumably his sister's number) on a piece of paper. The appellant repeated his demand that the police leave. He did this several times, very bluntly and with evident anger. Still the police did not leave. 3 At some point the appellant jumped onto the kitchen bench. He was later to say that he did this to get the attention of everyone in the room. Whether he then jumped off the bench towards the police, or jumped off in the opposite direction, was disputed. That dispute need not be resolved. There is no dispute that having got down from the bench, the appellant moved towards the police, with his arms outstretched, and made contact with one of the officers. A violent struggle followed. The appellant was punched, sprayed with capsicum spray, and handcuffed. As he was led to a police vehicle, he twice fell down stairs leading from his flat to the ground floor. He was taken to a police station and lodged in a cell wearing nothing but his boxer shorts. He was released from custody some hours later. 4 The appellant brought proceedings against the State of New South Wales in the District Court of New South Wales claiming damages for trespass to land, trespass to the person, and false imprisonment. ... 5 At first instance the appellant succeeded. Judgment was entered for him for $418,265 with costs to be assessed on a "solicitor and client" basis. 8 Evidence given at the trial may well have permitted framing the issues between the parties differently. There was evidence that might have been understood as permitting, even requiring, examination of whether the appellant's conduct went beyond taking reasonable steps for the removal of trespassers, and whether the conduct of the police went beyond the application of reasonable force to arrest a person impeding them in the execution of their duty. But the parties having chosen to litigate the appeal to the Court of Appeal on the conventional basis that has been identified, neither sought in this Court to submit that any issue about the use of excessive force either by the appellant, if his ejecting the police officers was otherwise lawful, or by the police officers, if their restraining the appellant was otherwise lawful, should now be considered by this Court. 9 The Court of Appeal (Mason P, Santow and Ipp JJA) held that the State's appeal should be allowed. All members of the Court of Appeal concluded that, despite the appellant's withdrawal of permission for police to remain in his flat, the police were not trespassers when the appellant first made physical contact with one of the officers. The judgment entered at trial was set aside and in its place judgment was entered for the State.

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10 [B]oth Santow JA and Ipp JA held that the police had both statutory and common law justification for remaining on the appellant's premises, despite the appellant having withdrawn permission for them to remain in his flat. 12 The appeal to this Court should be allowed. There was neither statutory nor common law justification for the police remaining on the appellant's premises. Common law justification? 40 The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property 4. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle. There being no evidence of danger to life or property, it was not suggested that this was such a case. 41 In its written submissions in this Court the State submitted that where police "apprehend on reasonable grounds that a breach of the peace has occurred and unless they involve themselves may recur, or alternatively that a breach of the peace is imminent, they may enter private dwelling premises for preventative and investigative purposes, acting only in a manner consistent with those purposes and remaining only for so long as is necessary for those purposes". It is convenient to treat this submission as identifying the asserted common law justification. It should also be said at once, however, that the submission was cast at a level of abstraction that did not identify the facts of this case that were said to engage the justification. 43 As was pointed out in this Court's decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter5. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land6. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable. 44 In the case of a police officer's entry upon land, this is not necessarily a great burden. As has already been pointed out7, the police officer may then (or earlier) seek a warrant which may be granted in large terms8. Such a warrant may be sought by telephone9. It is granted by a Magistrate. Although the grant of a warrant is an administrative act, it is performed by an office-holder who is also a judicial officer enjoying independence from the Executive Government and hence from the police. This facility is thus an important protection, intended by Parliament, to safeguard the ordinary rights of the individual to the quiet enjoyment of residential premises. Where a case for entry can be made out to a Magistrate, the occupier's refusal or withdrawal of permission to enter or remain may be overridden. However, this is done by an officer who is not immediately involved in the circumstances of the case and who may thus be able to approach those circumstances with appropriate dispassion and attention to the competing principles at stake10. 45 In Halliday v Nevill, this Court held that if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without
4 5

Maleverer v Spinke (1538) 1 Dyer 35b at 36b [73 ER 79 at 81]. Halliday v Nevill (1984) 155 CLR 1 at 10; [1984] HCA 80; Entick v Carrington (1765) 2 Wils KB 275 at 291 [95 ER 807 at 817]; Great Central Railway Co v Bates [1921] 3 KB 578 at 581-582; Southam v Smout [1964] 1 QB 308 at 320; Morris v Beardmore [1981] AC 446 at 464; Eccles v Bourque [1975] 2 SCR 739 at 742-743. 6 Halliday (1984) 155 CLR 1 at 10. 7 Above at [18]. 8 s 357G(3). 9 s 359G(4). 10 Halliday (1984) 155 CLR 1 at 20 per Brennan J.

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indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose that in itself involves no interference with the occupier's possession or injury to the person or property of the occupier, or the occupier's guests. But as Brennan J pointed out11 in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another there is "a contest between public authority and the security of private dwellings". 46 Argument in this Court about an asserted common law justification for the police officers remaining in the appellant's flat necessarily referred to general statements made in decided cases, about "preventing" a breach of the peace, especially some statements on that subject made in the decision of a Divisional Court of the King's Bench Division in Thomas v Sawkins12. Particular emphasis was given to two statements in that case. First, Avory J said that "[t]o prevent ... a breach of the peace the police were entitled to enter and to remain on the premises". Secondly, Lord Hewart CJ said that "a police officer has ex virtute officii full right [to enter and remain on private premises] when he has reasonable ground for believing that an offence is imminent or is likely to be committed". 47 It is to be noted that neither of these statements countenances an entry or remaining on premises for investigating whether a breach of the peace has occurred or determining whether one is threatened or imminent. Nothing else that was said in Thomas v Sawkins would support such a power and no reference was made to any decision that would cast the power so widely. Rather, the focus of what was said in Thomas v Sawkins was upon prevention of a breach of the peace, not upon any power of investigation. 48 As has been cogently argued in academic commentary 13 on Thomas v Sawkins, the statements made by Avory J and Lord Hewart CJ that have been set out earlier were cast in "unnecessarily wide terms"14. The immediate context for the decision in Thomas v Sawkins was the attendance of police at a public meeting held to consider, among other things, a call for the dismissal of the chief constable of the county. For at least Avory J, and perhaps the third member of the Court, Lawrence J, much turned on the fact that the meeting was a public meeting to which all members of the public were invited. What was decided in Thomas v Sawkins must be approached with the facts of the case well in mind, and of course, the facts of the present case are very different. 49 These considerations apart, when it is said that a police officer may enter premises to "prevent" a breach of the peace, it is necessary to examine what is meant by "prevent" and what exactly is the power of entry that is contemplated. Is the power to enter one which permits forcible entry? Does preventing a breach of the peace extend beyond moral suasion to include arrest? Is the preventing of a breach of the peace that is contemplated directed ultimately to prevention by arrest? 50 Some of these questions have since been considered in English decisions. Those later decisions proceed from the premise stated15 by Lord Diplock in Albert v Lavin that: "[E]very citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will."

11 12

(1984) 155 CLR 1 at 9. [1935] 2 KB 249. 13 Goodhart, "Thomas v Sawkins: A Constitutional Innovation", (1936) 6 Cambridge Law Journal 22; Feldman, The Law Relating to Entry, Search and Seizure, (1986) ("Feldman") at 324-331. 14 Feldman at 324. 15 [1982] AC 546 at 565. See also Coleman v Power (2004) 220 CLR 1 at 24 [10] per Gleeson CJ; [2004] HCA 39.

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As is evident, not only from the passage just cited but also from some of the later English decisions, working out the application of a premise so broadly stated is not free from difficulty16, not least in deciding what constitutes an actual or threatened breach of the peace17 and what steps, short of arrest, may be taken in response18. 51 And for the same reasons, the State's submission, set out earlier in these reasons, to the effect that police may enter premises if they apprehended on reasonable grounds that a breach of the peace has occurred and may recur, or that a breach of the peace is imminent, suffers the same difficulties. Further, the State's submission that police may enter for "preventative and investigative purposes" would, by its reference to "investigative purposes", extend the power much further than any description of common law power given in the English cases. There is no basis for making that extension. Whatever may be the ambit of the power of police (or of a member of the public) to enter premises to prevent a breach of the peace, that power of entry does not extend to entry for the purposes of investigating whether there has been a breach of the peace or determining whether one is threatened. 53 It is sufficient for present purposes to accept, without deciding, that at the time of the events giving rise to this litigation New South Wales police officers were bound to "keep the peace". ... But in the present matter, by the time police went to the appellant's flat, there was no continuing breach of the peace and nothing in the evidence of what happened thereafter suggested that, but for the police officers not leaving the flat when asked to do so, any further breach of the peace was threatened or expected, let alone imminent. However broadly understood may be the notion of a duty or right to take reasonable steps to make a person who is breaching or threatening to breach the peace refrain from doing so, that duty or right was not engaged in this case. It was not engaged because, by the time police arrived at the appellant's flat there was no continuing or threatened breach of the peace. And no breach of the peace was later committed or threatened before the eruption of the violent struggle that culminated in the appellant's arrest. 54 It follows that the continued presence of police officers in the appellant's flat, after he had asked them to go and a reasonable time for them to leave had elapsed, could not be justified as directed to preventing a breach of the peace. No other form of common law justification for remaining in the appellant's flat was suggested.
Revision question Jamal Charara lives in a block of flats where he is playing loud music in his garage. Neighbours call the police after he refuses to turn down his music. The police attend at 2.30am in the morning. The police give Charara a noise abatement direction, under s 277(1)(a) of the Protection of the Environment Operations Act 1997, to stop playing his music. He refuses, saying the police dont have a warrant so he can do what he likes. The police enter the garage and turn off the music. Charara tells them to get out of his garage. He is asked to give his name but refuses. 1. Were the police allowed to enter the garage? 2. Was Charara within his rights to tell the police to leave the garage? 3. Can he refuse to give his name? As the police walk back to their car, Charara turns the music on again. The police return, tell him he is under arrest, place handcuffs on him and take him to the station. He violently resists the police officers while his wife films the arrest on a video-camera.
16

See Feldman, "Interference in the Home and Anticipated Breach of the Peace", (1995) 111 Law Quarterly Review 562; cf McLeod v United Kingdom (1998) 27 EHRR 493. 17 Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29 at 31-32. 18 McLeod [1994] 4 All ER 553 at 560.

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4. Was Charara lawfully arrested? [See Charara v NSW [2009] NSWDC 263]

1. Scope of s10, LEPRA

As stated above, s10 allows the police to enter, and stay for a reasonable time, to arrest or detain a person. There are three threshold conditions before the police can exercise their powers to enter premises under s10 lawfully:

(i) (ii)
(iii)

they must have a power to arrest or detain a person (under s99, LEPRA or under a warrant or, for example, the power to detain under the Mental Health Act 2007); they must believe on reasonable grounds that the person in question is on the premises (see George v Rockett, for what belief on reasonable grounds means); they must comply with any requirements under LEPRA before entering the premises (such as the requirements for announcement before entry: s201).

If they do not have a warrant to arrest the person, their power of arrest will come from s99(1) or (2). It is necessary to go to the common law to find out the scope of s10 as discussed in Merritt and Nassif.

R v Merritt [2002] NSWCCA 368

1 SIMPSON J (with whom Beazley JA and Sully J agreed): [T]he appellant was convicted of using an offensive weapon to prevent lawful arrest. ... 2 He now appeals against conviction. ... The appeal involves a very short point concerning the formalities necessary for police officers to observe before forcibly entering private premises for the purposes of arresting a suspect. During the course of argument the question of what becomes a forcible entry has also emerged. 3 On 25 May 2001 Detective Senior Constable Dodd and Senior Constable Little, while on patrol in the Gosford area, observed the appellant driving a Commodore motor vehicle. Dectective Dodd, at least, was aware the appellant was a disqualified driver. They pursued his vehicle for a time but then terminated the chase. 4 At about 1pm on 8 June, Detective Dodd, this time in company with Constable Webster, went to a caravan park in Ourimbah where the appellant lived. They spoke to his sister, Shonna Merritt, at the doorway of the appellant's caravan. Constable Webster then called to the appellant - whom he believed to be inside the caravan - "Police. Paul, I know you're in there. Come out where we can see you". Another woman believed to be the appellant's girlfriend told the police they could not enter without a warrant. The police officers then entered the van to arrest the appellant. They located him in a curtained bedroom section of the van. Detective Dodd asked him to come out and told him he was under arrest. Detective Dodd said, "Paul, you're only wanted on a couple of driving matters. Don't do anything silly". Constable Webster told the appellant to come out of the caravan showing his hands and said that if he did not do so, "I'll have to spray you". The appellant refused to leave. The appellant moved towards the police officers with a clenched fist. Constable Webster sprayed the appellant with capsicum spray. The appellant sat on

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a bed and the police officers attempted to immobilise and handcuff him. However Detective Dodd was overcome by the capsicum spray and the appellant was able to break free. He armed himself with a spear which he held above his head and swung it three times in the direction of Constable Webster's face. The appellant threatened to stab both officers. They left the van. ... Detective Dodd took out his police revolver and ordered the appellant to drop the spear which he lowered but continued to hold. He closed the door of the van, the police officers outside. Additional police officers attended. The appellant was arrested and taken to Gosford Police Station. 5 The only issue in the appeal is whether the attempted arrest of the appellant was lawful, that is, whether police officers had the necessary basis for entering the appellant's caravan to arrest him and whether they discharged their duty in doing so. 6 In order to make such an arrest lawful, two conditions are necessary. They are: (i) That there are reasonable and probable grounds for believing that a person sought in relation to the commission of an offence is in the premises, and (ii) That proper announcement is made prior to entry. (See Lippl v Haines [(1989) 18 NSWLR] 420; The Queen v O'Neill [2001] NSWCCA 193, 122 ACrimR 510). Here the appellant does not dispute that the police officers had reasonable and probable cause for believing that he was inside the caravan and that he had committed an offence that would justify his arrest. However, the appellant does challenge the adequacy of the announcement made by the police officers. In my view, that challenge must succeed. 7 In R v O'Neill this Court considered what amounts to proper announcement in similar circumstances. After reviewing the authorities, Mason P with whom Sully and Dowd JJ agreed: "Unless the exigent circumstances exceptionally applies (see Lippl v Haines) or unless the statute provides to the contrary, the Constable proposing to force entry in order to execute coercive process ... Such a search or arrest warrant sought to effect an arrest must state a lawful reason for entry without permission. The cause or purpose that must be announced by the officer and rejected by the resident is a basis for entry without consent. Gleeson CJ refers to this in Lippl v Haines on the officer's `authority'." 8 Some discussion arose about whether the circumstances in the present case were "exigent" but in this regard it is only necessary to note that the offences in relation to which the officers wished to arrest the appellant had been committed two weeks previously and there was, in the evidence, no reason to believe that the appellant was about to flee. In my opinion, no lawful reason for entry was stated by the police officers before they entered the caravan - it was not until after they had entered that they indicated, and then somewhat obliquely, that "a couple of driving matters" were the reason for intended arrest. That may or may not have been sufficient, if stated before entry. My tentative view was that it would not have been, but it occurred, in any event, too late, after entry had been made. 9 In this respect I would reject the Crown's submission that the police made patently clear that their intention was to arrest the appellant in relation to "driving matters". I would also reject the Crown's submission that, because the caravan door was open, there was no forcible entry. The fact that a door to private premises is open does not give anybody, including police, authority or licence to enter against the will of the occupant. Here, the appellant's girlfriend had made it perfectly clear that no authority or licence was given. "Forcible entry" does not necessarily connote breaking or smashing of part of the premises. It connotes entry against the wishes or the will of the occupant. In those terms that entry was plainly forcible. 11 In my opinion, the appeal against conviction must succeed. The orders I propose are: (i). The appeal be allowed. (ii). The conviction and sentence be quashed.

DPP (NSW) v Nassif and Anor [2002] NSWSC 1065

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LEVINE J: 1 The Director of Public Prosecutions seeks orders pursuant to s104(2) and s109 of the Justices Act 1902 quashing the order of Magistrate Ms J Betts dismissing informations against the first and second defendants. The defendants were charged with offences of assaulting a police officer in the execution of duty occasioning actual bodily harm (Crimes Act 1900 s60(2)); assaulting a police officer in the execution of duty (s58); hindering a police officer in the execution of duty and resisting police officers in the execution of duty (Crimes Act s546C). 4 ... On 15 March Senior Constable Howell detected on his vehicles radar another ehicle travelling at 84kph in a 50kph zone. [The constable approached Nassif and asked to see his license. He refused, refused to give his name and entered his house. The constable said Nassif was under arrest for refusing to give his name. He told the constable to get off his property. Backup police officers arrived as the constable was trying to negotiate with the driver and his family to see Nassifs license. The family told the police they could not enter, that it was private property and they should get a warrant. The constable said he didnt need one because he was in pursuit of a speeding driver, Nassif. The family stood at the gates of the property to prevent the police from entering and arresting Nassif. 6 The defendants remained at the gates and refused to move and the first defendant pushed the driver away from the police. It was these actions which formed the basis of the hinder police charges. 7 The first defendant placed his hands to his rear and said Arrest me. This was in the presence of his mother, the second defendant. I was invited by counsel for the defendants to assume that the emphasis was on the word me. This I cannot do. It may well be that the words were uttered in a way that could be consistent with the first defendant offering himself for arrest, that is, being compliant and submitting, or it could well be that the words were said defiantly. I do not know. In any event, as an officer moved to arrest the first defendant the second defendant started screaming and pushing against Howell at which time he was on the roadway side of the gate at the side of the house. The driver rushed forwards with his fist clenched saying Ill kill you and Howell used capsicum spray, some of which came in contact with the defendants. Shortly thereafter, the first defendant punched another officer in the face. Howell and another officer went down the driveway towards the driver who ran towards the police holding a long pole in a baseball-type grip and yelling, Ill kill you. Howell drew his firearm and told him to drop it. The other officer sprayed the driver with capsicum spray. The driver swung the pole (which was in fact a broom handle) at Howell, hitting him on the hand and then ran into the backyard. The first defendant also ran into the backyard where he was arrested by other officers. The premises were searched but the driver was not located. Apparently, in all about fourteen police vehicles ended up attending at the scene. 9 On 26 March 2002 the learned Magistrate dismissed each of the informations concluding that: On the evidence taken...[at] its highest, I am not of the view that the announcement made by Constable Howell to Christopher Nassif and Saada Nassif was indeed a proper announcement as required. Accordingly, the entry upon the premises by police was unlawful. [A]s a result of that [un]lawfulness anything that flowed thereon after that time must be disposed of by way of dismissal. 10 Her Worship was satisfied that the police had the reasonable suspicion that the person (the driver) was involved in the commission of an offence, namely, speeding. [O]f course the reasonable suspicion of Constable Howell extended beyond that - this driver had committed an additional offence by refusing to disclose his name. Her Worship found that Howells announcement to the driver that he was under arrest and that there would be a forceful entry when assistance arrived was a proper announcement. The prosecution relied upon that announcement as that required to be given to the defendants. In addition, the prosecution relied upon the

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announcement made to the defendants that they were hindering police and that if they did not move they would be arrested. 11 Her Worship found that the second defendant did not fully appreciate what was being said but that she had some knowledge of English. This finding was made presumably in the light of the clear evidence given by Constable Howell that the second defendant had said: You have no right to come in, this is our property. 12 Whilst her Worship did remark to the effect that it was not a common occurrence for persons to be arrested for the offence of speeding, the commonality or otherwise of the occurrence is not a critical factor. As I have remarked above, this is not a mere speeding matter but one, by the time the driver had entered into the house, which had involved an escalation of that offence to the commission of another, namely, the refusal to give details. 13 Her Worship also stated: The announcement in relation to Mrs Nassif, in my view, in the absence of her knowledge of English to any substantial degree, I cannot be satisfied that she was made fully aware of why the police were on the premises. It was acknowledged that there was no issue that the officers, by their uniforms, were identifiable as police officers. Her Worship went on to consider that whether or not the first defendant gave the police an implied license to be on the premises it could not be extended to an implied license given by Mrs Nassif. 14 S352(1)(a) of the Crimes Act 1900 states: Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act. [see s99, LEPRA]. A forcible entry by police officers is permitted where there is reasonable and probable grounds for belief that the person sought was in the premises and a proper announcement is made prior to entry (Lippl v Haines (1989) 18 NSWLR 620). Lippl involved the forcible entry by armed police officers into a house where a suspected criminal was thought to be. In the course of entry damage was occasioned to both property and persons. No announcement was made prior to entry except that an officer called out Police here. The Court of Appeal held that the law on this subject is the same as the law expounded by the Supreme Court of Canada in Eccles v Bourque (1974) 19 CCC (2d) 129. In that case three plainclothes and armed officers entered an apartment to apprehend a suspect wanted upon warrants. The officers knocked at the door and when it was opened one officer produced his badge and said Vancouver City Police. The officers said they were looking for a man wanted on a warrant and that they wished to search the premises. The Court held that the announcement sufficiently discharged the duty upon police to give notice. In the course of the judgment of the Court given by Dickson J, his Honour said (133-4): Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations for this. An unexpected intrusion of a mans property can give rise to violent incidents. It is in the interests of the personal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest, that a police officer identify himself and request admittance. No precise form of words is necessary. In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry. 15 The law in Eccles has been accepted as good in this country in a number of cases: Kennedy v Pagura (1977) 2 NSWLR 810 at 812; Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1 at 16 per Brennan J and R v ONeill [2001] NSWCCA 193; (2001) 122 A Crim R 510. 16 In ONeill, the police in seeking to enter private premises stated a number of times to the occupier that they needed to speak to him. The police then forced their way into the house and were then attacked. Mason P stated that the appeal raised the question of what was a proper

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announcement and referred to a number of authorities including Lippl and Eccles. His Honour said : [28] These principles were not met in the present case because the officers' announcements went no further than to request entry on a basis which the respondent was entitled to refuse (ie We need to speak to you). [29] This was not a case where earlier circumstances would, together with the words used, have expressed implicitly the officers' intent to arrest . An extreme example of such phenomenon would occur if a person who was arrested or in the course of being arrested fled directly to his or her residence and the police followed in hot pursuit . [30] The learned trial judge appears to suggest that an announcement of intention to arrest would not have sufficed in the present case . I respectfully disagree. Had such announcement been made then breaking down the door would have been authorised, at least after a sufficient interval to infer non-cooperation. However, the judgment below does not stand upon that sentence and I would otherwise affirm it. 17 The decision in ONeill is further considered in Regina v Merritt . There the Court was concerned with a statement made after entry, which statement was made in connection with a couple of driving matters. Simpson J expressed a tentative view that that statement would not have been sufficient had it been made prior to entry . 18 For the plaintiff it is submitted that the police had two valid reasons to enter upon the land: first, to arrest the driver for refusing to give his name and address; and secondly, to arrest the defendants for hindering pursuit of the driver. In order to have lawfully gained entry the police were required to give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority by identifying themselves as law enforcement officers and (iii) notice of purpose by stating a lawful reason for entry. It is clear that in the present case the first and second requirements were fulfilled, and it is apparent that the learned Magistrate did not hold that an announcement stating a lawful purpose for entry had not been made. 19 The uncontested evidence established that the defendants were provided with the following information: first, when they came to the front door Constable Howell stated that he had caught your son speeding and that he wished to see his license. Secondly, Howell stated that the driver had been locked on radar and invited the first defendant to have a look at the equipment, which he did. Third, Howell referred to a warrant saying: I am in immediate pursuit of your brother. I dont need one whereupon the defendants remained at the gate and refused to move and Howell, fourthly, said: You are hindering us from arresting him. If you dont move you will be arrested and charged. 20 It is submitted that the learned Magistrates conclusion that the second defendant appeared not to fully appreciate what was being said was not open on the evidence. She had a limited grasp of English and the evidence patently shows that she sufficiently understood that the police wished to enter the property and she did not consent. Further, it is submitted, that there is no requirement that the person in the position of the second defendant be fully aware of why the police are on the premises. None of the authorities to which I have been referred articulate any applicable test as requiring the police to make a person fully aware. They have to be made aware by a proper announcement. Further, it is submitted, that the occasions for forcible entry usually do involve elements of urgency and stress. In these circumstances police are required to act reasonably and in the circumstances as they find them. In the instant case the second defendant had evidenced a limited grasp of English, was in the company of the first defendant who suffered no disadvantage, and made a statement from which it can only be inferred that she knew what the police wanted to do. In any event, what Howell said was uncomplicated in its expression and wording and persons with a rudimentary grasp of English in those circumstances could be expected reasonably to understand then. 21 All that was announced in the present case complied with there being no requirement for precise words, ... . Constable Howells stated intention to arrest the defendants for hindering the

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police was also not dissimilar to the announcement in ONeill which Mason P held amounted to a sufficient announcement. 23 Her Worship I find had erred in law in holding that the announcement did not constitute a sufficient announcement. 24 The defendants to the summons sought some comfort from the statement made by Mason P in Fleet v District Court of New South Wales & Ors [1999] NSWCCA 363 at paragraph 73: [73] Lawfulness of arrest is one thing, appropriateness is another. Nevertheless, it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances, where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing. Deane J pointed out in Donaldson v Broomby [1982] FCA 58; (1982) 60 FLR 124 at 126 that: Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. 25 I would not for one moment dissent from what his Honour there said. The circumstances of the case giving rise to it are quite different from that here. Further, as I have already remarked, whilst it may be an appropriate subject for comment that a speeding charge by itself is not usually sufficient to warrant arrest or forcible entry, at the very least it has to be borne in mind that the breach of the traffic regulations in relation to speeding had been aggravated by the patent refusal of the driver to give his name and address. 26 The question of the lawfulness of the police officers conduct cannot, trite though it is to say, be judged merely against any notion that may be formed as to the triviality of the offence. 27 The defendants sought to persuade me that in some way the series of statements made by Constable Howell could not amount to a proper announcement. 28 I am of the opinion that there was evidence in the prosecution case at its highest that the cause or purpose was sufficiently announced by the officer and rejected by the residents thus constituting a basis for entry without consent. The language of the second defendant, as part of all the circumstances going to the determination of the correctness of the announcement, should not have been overlooked in the way that it appears to have been by the learned Magistrate. This, in my view, is a critical piece of evidence and goes against the proposition that there was nothing suggested that the second defendant would have been made aware of anything that Howell said by reason of the presence of the first defendant. There was evidence from Constable Howell as to the conduct of the second defendant that did not provide a basis for the conclusion to which her Worship apparently came. 29 The submissions for the plaintiff are compelling. 30 I make the following orders: I order the proceedings against both the first and second defendants to be remitted to the learned Magistrate to be dealt with according to law.

2. Scope of s10(3), LEPRA

Once a police officer has gained lawful entry under s10, s/he is permitted to search the premises for the person. What exactly is the scope of the search permitted under s10(3)?

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Unlike the situation in R (Rottman v Commissioner of Police [2002] 2 All ER 86519 in which the House of Lords held that police officers had a common law power to conduct a wide search of a persons house after he was arrested on an arrest warrant, s10 is limited to searching premises for the person to be arrested. It does not give police the power to search for any evidence connected with an offence, nor does it give the police the power to seize any goods found. Presumably, a search for the person would be confined to places where a person might be found. This means a search of drawers and cupboards would not be permitted under s10 unless they were large enough to hide a person.

3. Can the police seize goods found on premises?

If a police officer is lawfully on premises, s/he may seize and detain any dangerous article that the police officer finds on the premises. Premises include vessels, vehicles, aircraft and other places. For example, if police are lawfully in someones house to arrest a person under s10, they can seize any dangerous article, such as a gun, knife or bomb making equipment, if they suspect on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence. Under s36, the police may search a vehicle and seize things in the vehicle without warrant, if they suspect on reasonable grounds that one of six circumstances exist. These include the suspicion that the vehicle contains stolen goods, a dangerous article, or drugs. Under s36(2), the police may also stop, search and detain a class of vehicles on the road or other public place (here a class of vehicles would include motor bikes) if they suspect on reasonable grounds that the vehicles have been used or are being used in relation to the commission of an indictable offence, or, they suspect on reasonable grounds that there is serious risk to public safety.

4. Common law search and seizure powers without arrest

Sometimes a search of a person or search of property may be conducted that does not come within the terms of either s21 or s22. In such a situation, it may be necessary to consider whether the power to search was available under the common law, as discussed in Laurens v Willers.20

Laurens & Anor v Willers [2002] WASCA 183

Supreme Court of WA
1 EM HEENAN J: After a joint trial before his Worship Mr D N Jones SM in the Court of Petty Sessions at Geraldton on 2 May 2000, the appellants were each convicted of the crime of stealing. 8 In mid-July 1999 the Morton family had been holidaying at Exmouth and were returning in stages by road to Perth. The group comprised Mr G J Morton, a police officer usually stationed in Perth, his wife and their three young sons. They were travelling in the family four-wheel drive vehicle to which was connected a towed trailer containing camping equipment, clothes, bedding,
19 20

Cited in J Hunter, C Cameron and T Henning (2005) Litigation II: Evidence and Criminal Process (7th ed) LexisNexis Butterworths, p.513-514. Cited in J Hunter, C Cameron and T Henning (2005) Litigation II: Evidence and Criminal Process (7th ed) LexisNexis Butterworths, p.517.

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stores and equipment. On their return journey they made several overnight stops . The Mortons arrived at the Dongara-Denison Caravan Park at about 7.30 pm and left their vehicle and trailer parked inside the caravan park and close by a fence and gate to the owners' house [where Mr Mortons uncle lived]. The family went inside for dinner and to watch television. 9 [At about 11.30pm] Mr Morton and his uncle went back out of the house to get overnight gear, toiletries and bedding from the trailer for the family for the night. ... He found that the trailer had been disturbed and its contents rifled. . The contents of the trailer had been strewn about. A number of items were found on the ground nearby. Other items, including three jerry cans of diesel fuel, a toolbox with a collection of family tools and appliances, and a fishing tackle box containing various items including a variety of sinkers and lures were missing. ... The Dongara police were called . 10 While they were awaiting the arrival of the police, Mr Morton and his uncle decided to make a wider search within the area of the caravan park and to inquire of persons using the park whether they had seen or heard anything unusual during the course of that evening. ... 11 [I]in the course of these investigations and while near the southern boundary of the caravan park, Mr Morton saw an unlit vehicle parked on the other side of the fence in the darkness. There was a person putting something on to the tray-back of this vehicle which was a utility . [It] quickly drove off. Mr Morton ran to the caravan park gate but all that he was able to discern was that it was a white Hilux utility with a tray-back and dropsides . 13 [The police] were told of the suspicious white four-wheel drive Hilux utility later that evening spent some time unsuccessfully searching for such a vehicle in the vicinity. 16 The next morning, Mr Morton drove in alone to the shopping centre at Dongara for supplies. [H]e decided to drive around the area to search for a vehicle which matched the description of the four-wheel drive white Toyota Hilux seen the night before. He drove to another caravan park, and drove around the campsite to inspect the vehicles present. At the end of the caravan park, he found a campsite with a tent pitched, and parked close by, a white tray-back, Hilux utility with an aluminium dinghy on the back. Having located this vehicle, [he] telephoned the Dongara police to report his discovery. ... 17 ... Before leaving Dongara [to return to Perth], Mr Morton decided to make a second and last visit to the Dongara-Denison Tourist Caravan Park in the hope of coming across the owner or owners of the while utility. Both the vehicle and the aluminium dinghy had gone and there was no-one in attendance near the tent site. Mr Morton saw an open toolbox at the site which contained some of his own missing tools including a set of blue Allen keys. Looking further, he found three jerry cans of fuel under a canvas cover which were the same colour as the items taken from his trailer. Furthermore, one of the jerry cans had an identifiable blue sticker and they bore other markings which enabled him to identify them as part of his missing property. He also found a small red Sidchrome set of tools which he also identified as his own . 18 Without moving any of this property, Mr Morton went to the manager's office of this caravan park and from there telephoned the Dongara police . Constable Willers arrived shortly afterwards in a police vehicle. [The white utility later returned and the driver and passenger were questioned but denied having stolen any property.] 24 At this point the police officer said they were going to have a look around the camp. 25 The police officers and [Mr] Morton then located the three jerry cans of fuel, and the toolbox with sundry tools, and examined them. Gavin Morton confirmed that those items were his property although there were other tools in the toolbox which were not his. Photographs were taken. At this stage, Constable Willers cautioned both defendants 36 The first task is to ascertain the admissible evidence which could be considered in support of the prosecution case, in the light of the objection which had been taken to the evidence led from PC Willers and PC Fishwick about the results of the search for the stolen property at the defendants' camp site.

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37 It is clear that neither of the police officers had obtained any search warrant to search the defendants' camp site or the Dongara-Denison Tourist Caravan Park itself. In the course of the no case submission, the prosecuting sergeant accepted that the only power to search available was the common law power of search for the police officers. Equally, it is clear that the search was conducted before the defendants were arrested and that it was the discovery of property in the vicinity of the camp site identified by Mr Morton as having been stolen which led to their arrests. 38 No close examination of the rights of occupancy or use of the camp site by the defendants was undertaken . It seems unmistakably clear, however, that neither of the defendants owned or had any right of exclusive possession of any part of the Dongara-Denison Tourist Caravan Park. They were, at the most, contractual licensees who were permitted by the owner-operator to use the area at bay 3 of the caravan park to pitch a tent and store their belongings for a short-term stay. ... However, a mere contractual licensee, such as a person using a bay in a caravan park, is not normally regarded as having an exclusive right to possession so as to be able to maintain an action in trespass see for example the position of a lodger, or a hotel guest . [T]here is nothing in this case to demonstrate that the appellants had any right of exclusive occupation of bay 3F at the camp site. Consequently, persons entering the camp site with the leave or licence of the owner, or the person entitled to possession of the camp site as a whole, such as these police officers, were entitled to examine the whole of the area including bay 3F so long as, in the process, they caused no damage or interference to the goods or chattels of the defendants. 39 A licence for the police to enter the general areas of the caravan park is to be implied in the circumstances unless revoked by the owner or person in lawful possession, Halliday v Nevill . In this case there is the direct evidence of the manager of this caravan park, Mr Peter Escott, that the police officers had his approval to come onto the caravan park. This is of vital significance in the present case because, without it, and without any implied licence to go on the premises, they would have been acting unlawfully in going onto that property without authority. 40 In a case dealing with attempts by police officers to effect service of a summons on private property where the owners had ordered them off, it was held that the police officers were liable in damages for trespass Plenty v Dillon 41 The question which next arises is whether, although permitted to be in the caravan park at bay 3F, by the leave of licence of Mr Escott on behalf of the owner, the police officers had a right to search among the private property of the defendants, including the white Hilux utility, for what were suspected to be stolen goods. 42 At common law, it has generally been regarded that a police officer has no power to search for or seize property, except pursuant to a valid warrant. However, goods may be seized without warrant if they are in possession of a person at the time of his or her arrest Field v Sullivan [1923] VLR 70. Such goods must be in the possession of the arrested person, and be the subject of, or evidence of, an offence Levine v O'Keefe [1930] VLR 70 (FCt) and Challenge Plastics Pty Ltd v Collector of Customs [1993] FCA 247; (1993) 42 FCR 397 per Heerey J at 405. It is also the case that, at common law, a police officer may seize goods which have allegedly been stolen if the officer can do so without force or violence Dalton v McNaughton (1903) 29 VLR 144. 43 However, there is authority in support of wider common law powers for seizure of goods without warrant by police officers even in circumstances when no arrest is made. This view is based on the decision of Ghani v Jones [1970] 1 QB 693 where, in addition to confirming the above propositions, Lord Denning observed that seizure without warrant by police officers is permissible when they have reasonable grounds for believing that a serious offence had been committed; that the article in question is either the result of the crime, the instrument by which the crime was committed or would provide material evidence for proof of the crime and where the police officers have reasonable grounds to believe that the person in possession of the item

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has committed the crime or was associated with it. Ghani v Jones (supra) has been much criticised . It has been held that what has been considered to be an extension of the common law made by Ghani v Jones (supra) is inconsistent with Australian law - see Heerey J in Challenge Plastics Pty Ltd v Collector of Customs [1993] FCA 247; (1993) 42 FCR 397. But Ghani v Jones (supra) has been followed in Australia in R v Davidson (1991) 54 SASR 580; GH Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 and Tye v Commissioner of Police (1995) 84 A Crim R 147. The topic has also recently been re-examined, to a limited extent, by the House of Lords in R (Rottman) v Commissioner of Police [2002] UKHL 20; [2002] 2 All ER 865. 44 If it was necessary for me to choose, I would be inclined to follow the approach taken by Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (supra), apply Levine v O'Keefe (supra) and so confine any recognition of a power of search and seizure, without warrant, to articles in the possession of the accused person at the time of his arrest or in the immediate vicinity which were, or were likely to provide evidence of, associations with the offence under investigation. However, it is unnecessary in the present case to make any such choice because established authority also recognises the right of a police officer, without warrant, to seize property alleged to have been stolen if this can be done without force and violence (see Dalton v McNaughton (supra)). 45 In the present case, PC Willers and PC Fishwick were in a situation where Mr Morton positively identified items of personal property in the possession of the defendants or in the vicinity of their camp as being his own property which had recently been stolen. They were, accordingly, well within their powers on any view to seize those items because there was no suggestion of any violence or damage occurring from such action. It follows that there was no trespass or other unlawful conduct by the police officers in conducting this search and in seizing the items and, consequently, no impediment to the admissibility of the evidence which they gave in that regard. 46 Even if there had been a search or seizure of property which had not been strictly authorised, the circumstances are not such as would lead to the exclusion of evidence gained by that search or seizure in the exercise of the Court's discretion because there could be no suggestion of deception, oppression or other unacceptable conduct by the investigating police officers which would lead to the exercise of a discretion to exclude such evidence as being unfair to the accused defendants

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CLASSES 18 & 20: SEARCH AND SEIZURE POWERS WITH WARRANT

In the next two classes on the topic of search warrants, we only deal with search warrants that are issued under LEPRA. Many other pieces of legislation authorize the issuing of warrants but they are not discussed here. LEPRA provides for ordinary search warrants and covert search warrants. You will need to know the differences between these two types of warrants and the different powers that police have under each. Covert search warrants were introduced into LEPRA in 2009. They differ from ordinary search warrants because they allow the police to enter and search the premises specified in the warrant without the knowledge of the owner or occupier of the premises.

1.

What is a warrant?

George v Rockett (1990) 170 CLR 104

4 MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ: A search warrant authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s.679, [the Qld provision in the Criminal Code] the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol.10, (1938), pp 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier . Historically, the justification for these limitations on the power of entry and search was based on the rights of private property . [However, in] modern times, the justification has shifted increasingly to the protection of privacy .
A warrant is a form of executive power that dates back at least to the Middle Ages and represents the primacy of the interests of the state over that of the individual. However, in Australia it was recognized in George v Rockett (1990) 170 CLR 204 at [5] that if such power is to be exercised by the State, the courts would only sanction that power if there is strict compliance with the legislative requirements:

State and Commonwealth statutes have made many exceptions to the common law position . Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

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This means that a person can challenge the validity of a warrant based on noncompliance with any of the statutory requirements that the police or other authorities are required to meet. Such a challenge serves to uphold societys interest in preserving individual privacy and property but it also serves, one hopes, as a reminder to police against sloppy or unlawful practices on their part. Unless the entry and search of a persons property is authorized under a valid warrant, the police will have committed a trespass (Coco v The Queen (1994) 179 CLR 427). In addition, any seizure of evidence will be unlawful and its admissibility in a subsequent trial involving the occupier of the premises can be challenged under s138, Evidence Act 1995 (NSW) (discussed in detail below). This class sets out the provisions which govern search warrants under LEPRA, interspersed by the relevant case law that has considered the scope of these provisions.

2.
1.

The scheme under LEPRA in relation to search warrants

ORDINARY SEARCH WARRANTS:

Searchable offence: At the outset, there must be a searchable offence in relation to which the search warrant is sought. This applies to both ordinary and covert search warrants. For ordinary search warrants, searchable offences, under s46A, include:

an indictable offence a firearms or prohibited weapons offence a narcotics offence a child abuse material offence an offence involving stolen goods or goods obtained unlawfully

Section 46A means that a warrant can only be applied for in relation to a searchable offence. Pre-conditions for a search warrant: The power to apply for an ordinary search warrant of any premises comes from s47. But the following pre-conditions must be met:

the police officer must believe on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence.

Belief on reasonable grounds and description of thing: The fact that s47 forces the police to focus on a thing connected with a searchable offcence when seeking a warrant means that general warrants (to enable the police to search for anything) are not authorized under LEPRA. In fact, general warrants were struck down by the common law courts in the mid eighteenth century. Belief on reasonable grounds is different from suspects on reasonable grounds (see Rondo), as the High Court discussed in George v Rockett, below. George v Rockett also discussed the description that is necessary of the thing sought.

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George v. Rockett (1990) 170 CLR 104

1 MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. On 22 August 1989 the first respondent, Detective Sergeant Rockett applied for the issue of a search warrant under the provisions of s.679(b) of The Criminal Code (Q.). 2. Detective Sergeant Rockett placed before the magistrate a statutory declaration relating to the existence of some documents allegedly in the handwriting of Sir Terence Lewis, a former Commissioner of Police, against whom two charges of perjury were pending. In addition to the statutory declaration, a form of complaint to ground the issue of a search warrant and a pro forma of a search warrant were produced to the magistrate. The magistrate asked Rockett some questions about the matter and these questions were answered. Then Rockett swore the complaint before the magistrate. [Part of the] sworn complaint read as follows: (1) that there are reasonable grounds for suspecting that there is in the rooms of Q.D. George, Hillhouse and Company, Solicitors certain property, to wit a bundle of A4 pages in the handwriting of Sir Terence LEWIS containing his comments on the evidence taken before the Commission of Inquiry conducted by Mr. G.E. Fitzgerald, Q.C. and part of the transcript of the evidence taken before the aforesaid Commission of Inquiry and annotated in the handwriting of the said Sir Terence LEWIS (b) as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of offences, namely 1. that on the 11th day of October, 1988 at Brisbane in the State of Queensland, the said Terence Murray LEWIS, in a judicial proceeding, namely an inquiry by a Commission within the meaning of the Commissions of Inquiry Act 19501988, whilst giving evidence before the said Commission, knowingly falsely swore to the effect that he had never met in a private room at the Crest Hotel with Jack ROOKLYN, and that the said false evidence was material to a question then depending in the said proceedings. (2) and that the grounds of his suspicion and belief are as follows: There is evidence that the bundle of A4 pages was in the handwriting of the said Sir Terence LEWIS and consisted of approximately thirty to forty pages of comments on the evidence by the said Sir Terence LEWIS under specific headings . The magistrate issued a search warrant which stated that it appeared to the magistrate that there were "reasonable grounds for so suspecting and so believing". 3. The search warrant was executed and certain documents were seized at the office of Lewis's solicitor who is the appellant in the present proceedings. ... 4. This appeal from the Full Court turns on the construction of s.679 of the Code. 5. State and Commonwealth statutes have made many exceptions to the common law position, and s.679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. ... 1. The justice's function. 6. The opening words of s.679 - "If it appears to a justice" - impose on a justice to whom an application for a search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled. In T.V.W. Ltd. v. Robinson (1964) WAR 33, Negus J. said: " It is the duty of a justice before issuing ... a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in s. 711 of the Criminal Code and that those grounds are reasonable."

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When the justice is so satisfied and a warrant is issued, the warrant should express the justice's satisfaction that there are reasonable grounds for the suspicion and belief . In Parker v. Churchill (1985) 9 FCR 316; 63 ALR 326, Burchett J. said (at p 322; p 333): "The duty, which the justice of the peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs." 7. These observations accord with the language of the statute. Although it is implicit in s.679 that the applicant for the search warrant should entertain the suspicion and belief to which that section refers, it must "appear" to the issuing justice that there are reasonable grounds for entertaining the relevant suspicion and belief . In Hedges v. Grundmann; Ex parte Grundmann (1985) 2 Qd R.263 the Full Court of the Supreme Court of Queensland held that the justice must not only be satisfied that there are reasonable grounds for suspicion and belief but the justice must also entertain the relevant suspicion and belief. The latter requirement is excessive, for the language of s.679 does not import it. 8. When a statute prescribes that there must be "reasonable grounds" for a state of mind including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v. Anderson [1941] UKHL 1; (1942) AC 206 .That requirement precludes the arbitrary exercise of many statutory powers . Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist. The principle was stated by Fox J. in Reg. v. Tillett; Ex parte Newton (1969) 14 FLR 101, at p 106: "Section 10 requires that the justice himself be satisfied 'that there is reasonable ground for suspecting ...'. It is well established that on language such as this it is for the justice to come to his own conclusion on materials presented to him . In Bowden v. Box at p 444 Edwards J. said: 'It is impossible to construe this enactment as an authority to a justice to issue a search warrant upon the oath alone of a constable or of any other person that "there is reasonable ground to believe that liquor is sold", etc. So to hold would be to hold that the justice may discharge the judicial duty cast upon him by acting, parrot-like, upon the bald assertion of the informant." It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind. 2. The material to ground the issue of a warrant. 9. The matters which must be made to appear to a justice must appear, as s.679 prescribes, "on complaint made on oath". This requirement reflects the ancient view of the common law that a magistrate who issues a warrant otherwise than on an information on oath is liable to an action for false imprisonment or trespass . That is not to say that a justice before whom a complaint is sworn should abstain from questioning the complainant if the justice wishes to obtain some confirmation of what appears in the complaint. The requirement is that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s.679. If that requirement is not satisfied, the information otherwise conveyed to the issuing justice is immaterial but, if that requirement is satisfied, the justice may seek confirmation by inquiry of the complainant. 11. In this case, the only material laid before the magistrate which answered the description of a sworn complaint was the document headed "COMPLAINT TO GROUND SEARCH WARRANT". The other material placed before the magistrate was neither in affidavit form nor

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verified by oath or affirmation. The statutory declaration was not sworn . If the sworn complaint did not contain sufficient information to satisfy the magistrate that there were reasonable grounds for suspicion and belief, the magistrate exceeded his power in issuing the warrant. ... 12. It [is] therefore necessary to consider whether, on the material contained in the sworn complaint, the magistrate could have been satisfied that there were reasonable grounds for Rockett's suspicion and belief. If, on the material contained in the sworn complaint, the magistrate could not have been so satisfied, it is immaterial that he might have been satisfied on the material contained in the statutory declaration or in the answers which Rockett gave to his questioning. 3. The facts to be established. 13. In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s.679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there there are reasonable grounds for suspecting that "there is in any house, vessel, vehicle, aircraft, or place - Anything" and that there are reasonable grounds for believing that the thing "will ... afford evidence as to the commission of any offence". 14. Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (1970) AC 942, at p 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees [1966] HCA 21; (1966) 115 CLR 266 Kitto J. said : "A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', . The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. 16. [In relation to the words] "reasonable grounds for believing" [one must look at] the manner in which a complaint which grounds a search warrant and the warrant itself identify the object of the search. A thing must be identified either as a specific object or as an object which answers a particular description. It is by reference to the means of identification of the object of the search that the sufficiency of both reasonable grounds for suspecting and reasonable grounds for believing must be judged. Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will afford evidence of the commission of an offence. Conversely, the narrower and more specific the description, the more difficult it may be to satisfy the requirement of reasonable grounds for suspecting that the designated object is in the particular location. The point is probably best made by illustration. 17. Suppose that a person has been killed by a revolver bullet and that A, who is believed on reasonable grounds to be the killer, was seen burying an object wrapped in cloth in the backyard of his house. If application were made to a justice for a warrant to search for "an object wrapped in cloth" in A's backyard, the fact that A had been seen burying something wrapped in cloth

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would obviously provide compelling grounds for suspecting that an object of that description was in that place. On the other hand, there may, depending on the circumstances, be difficulty in sustaining a conclusion that there were reasonable grounds for believing that any object which answered that general description (i.e. "an object wrapped in cloth") "will", if found, afford evidence as to the commission of an offence. Conversely, if the object of the proposed search was described as a revolver, the grounds for suspecting that it was hidden in A's backyard would be much less compelling. There would, however, be little difficulty in satisfying the requirement of reasonable grounds for believing that the object so described would, if it was found in that place, afford evidence as to the commission of the particular offence. 18. It may be suggested that this emphasis upon description of the object of the search proposed to be conducted pursuant to a search warrant constitutes little more than a play on words. But that is not the case. The warrant, if issued, authorizes entry to search for the described object and authorizes the seizure of any object which comes within the particular description. In other words, the description of the object of the search is a reference point for delimiting the scope of the warrant. The wider and less specific the description of the object, the wider will be the powers of seizure which the warrant confers. On the other hand, as has been seen, the wider and less specific the description of the designated object, the more difficult will be the task of persuading the justice that there are reasonable grounds for belief that the object so described will, if found, afford evidence of the commission of the particular offence. Thus, the requirement of "reasonable grounds for believing" performs the important function of preventing the authority to search and seize which a warrant confers from being worded in unjustifiably wide terms. Again, the point is best made by illustration. 19. Suppose the sworn complaint placed before a justice establishes reasonable grounds for suspecting that the books and records of a listed public company contain an entry which will afford evidence that an executive of the company has appropriated a sum of money to the credit of his personal account with a particular bank and the complaint shows that there is evidence that the executive had no authority so to apply the money. In such a case, the complaint would establish reasonable grounds for suspecting that the particular entry existed and reasonable grounds for believing that, if it did exist, it would (i.e. "will") afford evidence of the commission of an offence. The complaint before the justice would, in those circumstances, be adequate to justify the issue of a warrant to search for and seize any written entry to the designated effect in the company's books and records for the relevant year. It would, of course, be necessary that the suspected entry be identified with sufficient precision. On the other hand, the material before the justice could not justify the issue of a warrant authorizing search for or seizure of all the books and records of the company for the particular year. First, if the object of the authorized search and seizure were described in terms of "all those books and records", the material before the justice would not establish that the object so described would afford evidence of the commission of an offence. That material would only have established reasonable grounds for suspecting that the object (i.e. the books and records for the relevant year) contained an entry that would afford such evidence. Secondly, even if the material before the magistrate had gone so far as to establish reasonable grounds for believing that such an entry existed somewhere in those books and records, the description of the object of the authorized search and seizure would be unjustifiably wide. It would extend to authorizing search for, and seizure of, records which were unrelated to the particular entry and which were not suggested to afford evidence of the relevant kind. 20. In the present case, Rockett identified the things for which he was seeking a search warrant as a bundle of A4 pages in Lewis's writing and part of the transcript of the Commission hearings bearing Lewis's handwritten annotations. It was not disputed that the sworn complaint contained sufficient material to satisfy the magistrate that there were reasonable grounds for suspecting that such documents were in the solicitor's office. The critical question is whether there was sufficient material in the sworn complaint to satisfy the magistrate that there were reasonable grounds for believing that those documents "will ... afford evidence as to the

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commission of" the two offences set out in the sworn complaint with which Lewis had been charged. 22. If, in the present case, the first of the two objects of the search warrant had been identified in the complaint as a bundle of A4 pages in the handwriting of Sir Terence Lewis containing either a statement or statements about the meaning of the notations in Sir Terence Lewis's 19801981 notebooks or a statement or statements to the effect that Sir Terence Lewis had met the person called Jack Rooklyn at the Crest Hotel, a question would have arisen as to whether a warrant to search for the whole bundle of A4 pages, as distinct from a page or pages containing the relevant statement or statements, was wider than could be justified. The answer to that question would, no doubt, depend upon whether the complaint justified a conclusion that the bundle of pages should, in the circumstances, be seen as a single thing or upon whether pages in the bundle other than those containing relevant statements should be seen as part of the evidentiary context within which the relevant statements should be read. 23. In fact, neither of the objects of search (that is, the bundle of A4 pages and the part of the transcript of evidence) was identified in the complaint or the purported search warrant by a description which required that it contain some statement or statements relevant to the commission of one or other of the alleged offences. The sworn complaint was inadequate to found a conclusion that the identified bundle of documents would, if found, actually contain such a statement or statements. Consequently, the complaint was inadequate to found the magistrate's conclusion that there were reasonable grounds for "believing" that the designated objects of the search would, if found, afford evidence as to the commission of an offence. It follows that the terms of the search warrant were not supported by the sworn material placed before the magistrate. 24. However, the sworn complaint itself must be sufficient to satisfy the court on the return of an order to review that the warrant was properly issued. The sworn complaint in this case contains no facts which might have satisfied the magistrate that there were reasonable grounds for believing that the documents for which the search warrant was sought would afford evidence as to the commission of the offences set out in the complaint. It contains nothing save the assertion by Rockett that there are reasonable grounds for his own belief. 25. In the absence of information in the sworn complaint which might have satisfied the magistrate as to the existence of reasonable grounds for Rockett's belief, the magistrate had no power to issue the warrant. The warrant was invalid. It follows that the appeal must be allowed, .
In State of NSW v Corbett [2007] HCA 32 at [59], Callinan and Crennan JJ noted that while each statutory requirement or condition needs to be construed on its own terms and by reference to the statute in which it is to be found common requirements for reasonable grounds for believing (or suspecting) imposed on an applicant or upon an issuing justice have a common derivation. The concern of the common law courts to avoid general warrants and to strictly confine any exception to the principle that a persons home was inviolable is the original source of the common, although differently expressed, statutory requirements. Kirby J provided the background for the rule of strictness in relation to search warrants (State of NSW v Corbett [2007] HCA 32 at [16]-[22]):

A tension in the law: From its earliest days, this Court has insisted on a rule of strictness in expressing the law governing search warrants. It has done so, despite a recognition that, as Brennan J observed, in Halliday v Nevill: "There is ... a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement."

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In intermediate courts, opinions are sometimes expressed reflecting a perceived need to moderate the rule of strictness. This has followed the inconvenience that the application of the rule can sometimes occasion and a sympathy for those who seek and execute search warrants (generally police officers) who are accountable in law for defaults when the rule of strictness is rigorously applied. ... Notwithstanding such differences, intermediate courts in Australia have normally adhered to the rule of strictness. They have correctly interpreted that to be their duty, conforming to the unanimous reasons of seven Justices of this Court in George v Rockett. Those reasons, in turn, constituted a strong reaffirmation of a line of federal cases such as R v Tillett; Ex parte Newton and Parker v Churchill, extracted and cited with approval in Rockett. The rule of strictness in this area of the law can only be fully understood against the background of its history in common law countries; the basic principles expressed in that history commonly reflected in the constitutions of most such countries; and the development of instruments expressing relevant norms of the international law of human rights to which Australia is a party. History of search warrant law: In the 18th century, departures from the rule of strictness became common in England and, even more so, its colonies. Such departures constituted one of the causes of the American War of Independence against Britain. They helped to explain the language of the Fourth Amendment to the Constitution of the United States of America. Concurrently, the departures eventually led in Britain itself to judicial and parliamentary reaffirmation of the rule of strictness. The law of search warrants, so expressed in Britain, became part of the law inherited by the Australian colonies as they were established. Although Australia has not adopted a constitutional rule similar to the Fourth Amendment to the United States Constitution and its equivalents in other countries and has not expressly incorporated the relevant rules of international law in its domestic legislation, the rule of strictness is reflected both in legislative provisions governing search warrants and in judicial expositions of their requirements[19]. Reasons for strictness: What are the reasons that lie behind this rule of strictness? They include: (1) The protection of the ordinary quiet and tranquillity of the places in which people live and work and of their possessions as a precious feature of our type of society and the happiness of its people; (2) The avoidance of disruption and the occasional violence that can arise in the case of unwarranted or excessive searches and seizures; (3) The beneficial control of the agents of the State exerted because of their awareness that they will be held to conformity with strict rules whenever they conduct a search and will require statutory or common law that clearly supports their searches and seizures; (4) The incentive that strict rules afford for the maintenance of respect for the basic rights of individuals who become subject to, or affected by, the processes of compulsory search and seizure; and (5) The provision in advance to those persons of a warrant signifying, with a high degree of clarity, both the lawful ambit of the search and seizure that may take place and the assurance that an independent office-holder has been persuaded that a search and seizure, within that ambit, would be lawful and has been justified on reasonable grounds.
In light of the discussion in George v Rockett above, consider whether there were reasonable grounds for a belief in Microwave Safety Systems, below.

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Microwave Safety Systems Pty Ltd v Commissioner for Fair Trading, Department of Commerce [2008] NSWSC 37
1 HARRISON J: On 17 April 2007 Robert Leslie Laughton, a Senior Investigator with the New South Wales Office of Fair Trading, applied for a search warrant to enter premises at 2 Cromwell St Croydon ("the premises"). Mr Laughton said that he had reasonable grounds for believing that certain matters justified the application. These matters were then set out under the heading "DESCRIPTION OF OFFENCES". That material included the following paragraphs: 3.3 During the period 12 January 2007 to 17 April 2007 there appeared statements on www.microwavesafe.net that claim that employers, in order to meet their duty of care towards employees, needed to have microwave ovens in the workplace tested regularly for radiation leakage. Such representation constitutes a contravention of section 44(j) of the Fair Trading Act, 1987 3.5 During the period 12 January 2007 to 17 April 2007 there appeared statements on www.microwavesafe.net that claimed that Australian Standards relating to microwave ovens (being AS/NZ 60335.2.25) required such ovens used in the workplace to be tested for radiation leakage beyond the testing required for the approval of such items for sale by retail. Such representation constitutes a contravention of section 44(j) of the Fair Trading Act, 1987. . . 2 Mr Laughton's application also indicated that he sought to be able to perform the following specific functions on entry: "To search for, examine and seize documents and things including: Business records including letters, memoranda, reports, facsimiles, customer files, advertising copy, sales and purchase records, correspondence to or from any person in relation to advertising or publishing, contracts, agreements or offers related in any way to advertising or publishing, internal correspondence, training manuals and information sheets, including "scripts" and other instructions to staff, business cards, records of meetings, invoices, receipts, accounting, diaries, telephone message pads, banking and financial records, contractor contracts and employment records. Electronic data and storage equipment including, emails, computer software, computer records, computer systems, peripherals, electronic devices and electronic and storage media containing information or used (or intended to be used) and documents and information on the use and operation of computer systems, peripherals, electronic devices, and electronic and storage media. Correspondence to and from ARPANSA, Standards Australia, Worksafe Victoria and the National Health and Medical Research Council with respect to radiation safety and any publication produced by such organisations. Test reports including those relating to the testing of clients microwave ovens and the verification of test equipment used by Microwave Safety Systems Pty Ltd." 4 The plaintiff contends that the issue of the warrant was flawed by jurisdictional error and/or error of law on the face of the record and is liable to be quashed or declared invalid. The basis of that contention was the alleged failure by Mr Laughton to comply with the requirements of s 19A of the Fair Trading Act, 1987 ("the Act") and the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA 2002"). In particular, the plaintiff alleged that Mr Laughton: 4.1 failed to comply with s 19A (2) of the Act; 4.2 repeatedly relied upon asserted contraventions of offences in the application without including any material that could support the existence of reasonable grounds for believing there to be a contravention of the Act; 4.3 acted unreasonably in making the application and in a manner that no reasonable investigator would have acted in the circumstances;

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4.4 failed to state explicitly or implicitly in the application that he believed on reasonable grounds that evidence of the asserted contraventions of the Act upon which he relied was on the premises to be searched. 5 At the heart both of the matters giving rise to Mr Laughton's application for the issue of the warrant in the first place, and the matters that form the basis for the plaintiff's contention that the issue of the warrant was invalid in the second place, is a significant dispute about whether or not what is known as "the MORLL document", and which became exhibit B, appeared on the plaintiff's website between 12 January 2007 and 17 April 2007. The first defendant asserted that it had. The plaintiff maintained that it had not. That dispute needs to be resolved as a preliminary issue. The factual basis for each of the other descriptions of offences in the application for the warrant will be examined after that. 41 [After reviewing the evidence, the court concluded:] I find, that a copy of exhibit B never appeared on the plaintiff's website. ... Relevant legislation 62 Section 19A of the Fair Trading Act, 1987 is in the following relevant terms [this provision is similar to s47, LEPRA]: "19A Powers of search and seizure under search warrant (1) In this section: "authorised officer" has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002. (2) An investigator may apply to an authorised officer for the issue of a search warrant if the investigator believes on reasonable grounds that there is evidence of a contravention of a provision of this Act on any place or land. (3) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any investigator: (a) to enter the place or land specified in the warrant, and (b) to search for evidence of a contravention of a provision of this Act, and (c) to exercise the powers of an investigator under subsection (4). (7) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. 63 Sections 44 (f) and (j) of the Act as follows: "44 False representations A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (f) represent that the person has a sponsorship, approval or affiliation the person does not have, (j) make a false or misleading representation concerning the need for any goods or services. Applicable law 64 The plaintiff relied upon the following principles: 64.1 First, the courts have, from the earliest days, insisted upon a rule of strict construction of the law governing search warrants given the intrusion into privacy thereby authorised see most recently Kirby J in State of New South Wales v Corbett [2007] HCA 32 at [15]. 64.2 Secondly, strict compliance with the statutory conditions governing the issue of search warrants is insisted upon George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110-111. 64.3 Thirdly, a warrant issued by a subordinate authority should disclose jurisdiction on its face R v Tillett (1969) 14 FLR 101 at 106. 64.4 Fourthly, the information upon which the warrant is issued must set out the matters upon which the application, and warrant, relies. It will not be sufficient merely to set out a summary or set of conclusions from such material - R v Tillett (supra) at 108.

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64.5 Fifthly, it is a condition precedent to the exercise of the power to issue a warrant that the statutory conditions are satisfied R v Tillett (supra) at 108. In this case, s 19A(3) requires that the issuing officer is satisfied that there are reasonable grounds for issuing the warrant, which in turn requires satisfaction that the investigator believes on reasonable grounds that there is evidence of a contravention of a provision of the Act on the place to be searched. 64.6 Sixthly, in order to be valid, a warrant must refer to a particular offence and authorise seizure by reference to that offence. Seizure cannot relate to offences in general, or even offences under a particular provision, in general - R v Tillett (supra) at 113. 64.7 Seventhly, it is by reference to the means of identification of the object of the search that the sufficiency of reasonable grounds for believing must be judged - the broader and less specific the description of things to be searched for, the more difficult it is likely to be to satisfy the requirement of reasonable grounds for believing that a thing answering the description will provide evidence of commission of an offence George v Rockett (supra) at 117-118. 64.8 Eighthly, the purpose of the statement of the offence in the warrant is to set the bounds to the area of search that the warrant authorises Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 at 533-534. 64.9 Ninthly, the issuing officer must reach her own conclusion on the material before her R v Tillett (supra) at 106. 64.10 Finally, a search warrant may be set aside on the basis of misrepresentation, which would include a half-truth Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542 at 555F-G. 65 The first defendant submitted that the following principles were also relevant. First, an applicant for a search warrant must disclose to the issuing officer all facts that are material to the decision to issue or decline to issue a search warrant: Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473 at 481. 66 Secondly, the application should summarise the relevant facts concisely, consistently with the need to satisfy the issuing officer that there are reasonable grounds for believing that a contravention of the relevant legislation has occurred: George v Rocket (supra) at 114-115. The notion of "reasonable" grounds for believing imports an objective test, but "reasonable" involves a value or normative judgment. The court is not entitled to substitute its own opinion as to what comes within the term "reasonable" for the opinion of the issuing officer, unless the decision of the issuing officer could not lawfully have been reached on the materials presented: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 at 213. 67 Thirdly, a search warrant should describe the offence with reasonable particularity, so as to enable persons to know the exact object of the search: Bradrose Pty Ltd v Commissioner of Police; Ex parte Bradrose Pty Ltd [1989] Qd R 304 at 307, 314. The offence, however, need not be described with the particularity of an indictment: Chong v Schultz [2000] FCA 582; (2000) 112 A Crim R 59 at 60. What is necessary is sufficient precision to enable the executing officer to know what to look for, and for persons in the subject premises to know what is required of them: Coward v Allen [1984] FCA 53; (1984) 52 ALR 320. 68 Fourthly, an incorrect citation of a section does not invalidate a search warrant that otherwise clearly sets out the substance of the alleged offence: Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334 at 335, 350. Nor does an incorrect description of the statute necessarily invalidate a search warrant: State of New South Wales v Corbett [2007] HCA 32. 69 Fifthly, subject to compliance with statutory conditions, it is not impermissible to describe the object of the search in a broad and non-specific fashion: Dunesky v Elder [1994] FCA 1006; (1994) 54 FCR 540 at 555. ... 70 Sixthly, before issuing a search warrant, the issuing officer must be satisfied that the application provides reasonable grounds for the belief held by the applicant that an offence has been committed: Bartlett v Weir [1994] FCA 1143; (1994) 72 A Crim R 511. The validity of a search warrant is to be determined as at the date of its issue and the manner of its execution

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cannot influence its initial validity: Ballis v Randall [2007] NSWSC 422; Williams v Keelty (supra) at 211. 71 Finally, there is a need, in the interest of public security and protection, to ensure that powers of investigation are not unduly impeded by an excessive insistence on correctness in every detail, however minor: Wright v Queensland Police Service [2002] QSC 46; [2002] 2 Qd R 667 at 678. An "hypercritical" approach to warrants should not be adopted: Commissioner of Police v Barbaro [2001] NSWCA 57; (2001) 51 NSWLR 419 at 422. Findings and conclusions 72 With respect to paragraph 3.1 of the application for the warrant, I have already found that the MORLL document was never present on the plaintiffs website. Reference to it in the description of offences was therefore erroneous and it inappropriately formed part of the application for the warrant. 75 It is simply inaccurate to say that a quoted recommendation "that employers comply with the relevant standards . . . in order to demonstrate that they have met their general duty of care under the Act" is a statement that "in order to meet their duty of care towards employees, [employers] needed to have microwave ovens in the workplace tested regularly for radiation leakage". Moreover, and in my opinion not insignificantly, paragraph 3.3 of the application refers to "statements" on the website, indicating more than one and, without the provision of any details one way or the other, potentially many more than one. This was inaccurate and misleading. 76 With respect to paragraph 3.4 of the application for the warrant, paragraph 19 of Mr Laughton's affidavit indicates that on 13 March 2007 he examined www.microwavesafe.net and found a document entitled "Fact Sheet" which he accessed through a link called "Standards". 80 The plaintiff submitted that, on its face, paragraph 3.4 of the application for the warrant failed to disclose any grounds for believing that any evidence of a breach of s 44(f) of the Act existed, as there was nothing that the application described that might comprise such a breach. The plaintiff submitted that as with paragraphs 3.1 and 3.3, it set out a conclusion as if it were reasonable grounds for belief. The plaintiff submitted that the application was invalid on this ground also. 81 I must confess to having some difficulty understanding how or in what way the Fact Sheet could be understood to be a representation that the plaintiff had a sponsorship, approval or affiliation that it did not have. The document appears to be no more than a series of quotations attributed to a various range of sources. ... I cannot accept that paragraph 3.4 of the application discloses any grounds for a reasonable belief that the plaintiff may have breached s 44(j) of the Act. Nor, in my opinion, is there any material upon the basis of which Mr Laughton could have held such a view. 84 With respect to paragraph 3.11 [and 3.12]of the application for the warrant the plaintiff submitted that nothing is described that could constitute a breach of s 44(j) of the Act. According to the plaintiff, Mr Laughton merely asserted a contravention rather than setting out any reasonable grounds for a belief that a contravention had occurred. 91 It is reasonably clear from [Mr Laughtons evidence] that Mr Laughton was intimately involved in the earlier proceedings against the plaintiff's predecessor [a company called MSA]. It also seems reasonably clear that Mr Laughton harboured certain concerns about the relationship between the plaintiff and MSA, and about the identity of the controlling personnel behind each organisation. However, in my opinion, this led him into error in the way that he formulated the material that he included in the application for the issue of the warrant. For example, statements such as, "my experience with MSA . . . indicated to me that MSS had been actively soliciting business" cannot, or should not, be promoted to the level of reasonable belief about the plaintiff. The same can be said of statements such as "I recall MSA conducting business in a similar manner". Similarly, statements such as "I presented the meeting with background related to the matter [sic], including the history of the business [sic], MSA and MSS's attitudes" suggest either a conscious or unconscious failure by Mr Laughton to separate, or to distinguish, what he knew

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about MSA on the one hand from what he might reasonably have believed or suspected about the plaintiff on the other hand. ... 92 The requirement that Mr Laughton believed on reasonable grounds that there was evidence of a contravention of a provision of the Act on any place or land carries with it the logically anterior requirement of a belief on reasonable grounds that there has been a contravention of a provision of the Act. A belief on reasonable grounds about the location of evidence of a contravention could hardly exist in the absence of some belief about the existence of the contravention itself. In my opinion, no person in the position of Mr Laughton could have held a belief on reasonable grounds that evidence of a contravention of a provision of the Act could have been found at the premises. According to my finding, the MORLL document had never been on the plaintiff's website. There were no statements on the plaintiff's website that employers needed to have microwave ovens in the workplace tested regularly for radiation leakage in order to meet their duty of care towards employees. The Fact Sheet could not reasonably have been construed as a document containing a representation that the plaintiff had a sponsorship, approval or affiliation that it did not have. The plaintiff's website did not contain statements claiming that Australian Standards relating to microwave ovens required such ovens used in the workplace to be tested for radiation leakage beyond the testing required for the approval of such items for sale by retail. The plaintiff's letters to the New South Wales Medical Board and to the Fair Trading Renting Service did not make false or misleading representations concerning the need for any goods or services. 93 The plaintiff also complains that the range of documents and things to be searched for was too wide. As discussed in George v Rockett, this is critical to a determination of whether or not Mr Laughton held the requisite belief on reasonable grounds - that is to say, that all of the material was evidence of a contravention of the Act. No particular items referred to are listed, only classes, and the items are not limited to those that could provide evidence of any specific identified offence. There is nothing in the application for the issue of the warrant that could have satisfied the second defendant that there were reasonable grounds for the issue of a warrant of that breadth. 94 The warrant is defective for similar reasons. The non-specific hand written reference to "false representations s 44F [sic] Fair Trading Act 1987" is wholly inadequate as a means of limiting the breadth of the search, contrary to Beneficial Finance Corporation v Federal Police (supra) at 533-534. It amounted in effect to the issue of a general warrant, contrary to R v Tillett (supra) at 113. It did not enable any person receiving the warrant to understand or ascertain the scope of the search that it authorised. 113 It did not enable any person receiving the warrant to understand or ascertain the scope of the search that it authorized. [The warrant was held to be invalid].
Description of offences: The High Court in George v Rockett was very clear about the need to make a connection, in the warrant, between the thing sought and the offence. See Majzoub v Kepreokis below for the principles concerning the description of the offence.

Majzoub v Kepreokis & Ors [2009] NSWSC 314

1 HALL J: The plaintiff claims relief in respect of a search warrant issued on 14 November 2008. The warrant was issued on the application of the second defendant, New South Wales police officer Constable Scott McKinley. The subject premises in Busby, were the residential premises of the plaintiff. The warrant was issued under LEPR Act. 2 The plaintiff claims a declaration that the warrant is invalid and a declaration that the execution of the warrant was contrary to law.

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3 A further order is sought in the nature of prohibition preventing the defendants from relying on the validity of the warrant. 4 The plaintiff additionally claims an order in the nature of mandamus or an injunction against the defendants, their servants or agents, requiring them to deliver up to the plaintiff any property seized and any audio, video, digital or computer recordings and/or transcripts or copies or notes made from the recordings. An order is also sought for the destruction or disposal of property identified in specified Exhibit Books. 10 A central contention in the plaintiffs case considered in this judgment is to the effect that the warrant is invalid on its face as it failed to recite, or sufficiently recite, an offence in accordance with the requirements prescribed by the LEPR Act . In support it was claimed that the warrant failed to provide reasonable particularity of any alleged offence, including a failure to specify the date/s of the alleged offence. As a result, it was contended the occupiers notice suffered from the same deficiencies. 11 Accordingly it was argued, the warrant is invalid and its execution unlawful and the relief claimed should be granted. 12 [O]n 14 November 2007, it was alleged that police observed the plaintiff and searched his vehicle. The plaintiff was then arrested. Chamber Magistrate Kepreotis, the first defendant, issued the warrant on 14 November 2007. It was executed on the same date. 14 The authority purportedly conferred by the warrant was in the following terms:2 To search those premises for any of the following things:Drugs in the form of (ice) Crystal Methamphetamine, (speed) Amphetamine. Money associated with the sale of prohibited drugs. Drug ledgers and things connected with the sale of prohibited drugs. The police officer has reasonable grounds for believing that those things:(a) are connected with the offence(s) of:Supply Prohibited Drug Section 25 Drug Misuse and Trafficking Act 1985 Possess Prohibited Drug Section 10 Drug Misuse and Trafficking Act 1985. 15 It is submitted on behalf of the plaintiff that as a matter of statutory interpretation, the LEPR Act and Regulation mandate that particular and relevant offences must be specified on the face of the warrant. 16 The contention was that the legislative regime instituted by the LEPR Act and the LEPR Regulation require a particularity by way of a more detailed statement of offences than was previously required by the Search Warrants Act 1985 and the statutory scheme the subject of the High Courts consideration in State of New South Wales v Corbett . Particular attention was drawn to the terms of s 66 of the LEPR Act, which states, A warrant is to be in the form prescribed by the regulations. Whereas, section 14 of the Search Warrants Act 1985 provided that a search warrant shall be in or to the effect of the prescribed form. It was submitted that the different wording in the LEPR Act imposed a mandatory legislative requirement. 17 On the latter point, I do not consider that there is any substantive difference in the effect of sections 66 and 14 of the last mentioned Act. They both impose mandatory requirements. 18 It was argued that the warrant in this case does not satisfy this requirement in the LEPR Act and Regulation in that the warrant:(a) merely refers to sections of the Drug Misuse and Trafficking Act 1985; (b) does not include dates or ranges of dates of the offences alleged; (c) does not refer to any alleged importation; and, (d) does not particularise the alleged offences. 19 As a result the warrant, and the resulting occupiers notice, were said to be invalid. Accordingly, the plaintiffs case is that the warrant , as issued, was not authorised under the LEPR Act and an order in the nature of certiorari should issue.

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22 Mr Babb SC submitted that the plaintiffs case as to the validity of the warrant should be rejected as the warrant specifies the relevant offences by describing them in words and by identifying by specific provisions of the Drug Misuse and Trafficking Act. 23 The defendants submitted that this case was quite unlike the position in Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151 where the structure of the particular section was such as to create a number of different offences. Mr Babb SC also submitted that the question of sufficient particularity in this case should be resolved by looking at the warrant as a whole. In that respect, the specificity of the items to be searched for as stated in the warrant was instructive as to the objects of the authorised search. 24 On the question of the order sought for delivery up of items seized, Mr Babb SC submitted that the Court has a discretion as to whether to return seized items under an invalid warrant. Where criminal proceedings are on foot, he submitted that discretion will normally be refused. Reference was made to the decisions of Tye v Commissioner of Police (1995) 84 A Crim R 147 and Wright v Queensland Police Service [2002] QSC 46; (2002) 2 Qd R 667. In the circumstances, it was submitted no delivery up orders should be made. 38 Under s 76 of the LEPR Act (cf Search Warrants Act, s 23), a warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular. 39 As noted earlier, s 66 of the LEPR Act provides that a warrant is to be in the form prescribed by the regulations, in contrast to the former s 14 of the Search Warrants Act which required that a search warrant shall be in or to the effect of the prescribed form. 40 Regulation 6(1)(a) of the LEPR Regulation states Form 9 is the form for a Part 5 search warrant. Accordingly, for the purposes of s 66, the terms of Form 9 forms part of the statutory prescription. Validity of the search warrant 45 The inviolability of a persons home has been recognised in English law since the 18th century. The grant of search warrants in respect of stolen goods was the first exception to this principle. General warrants, which did not particularise the person affected or the object of the search, were struck down by the common law courts in the mid-18th century for being totally subversive of the liberty of the subject (Wilkes v Wood [1763] EngR 103; (1763) Lofft 1 at [18]; see also Entick v Carrington (1765) 2 Wils KB 275 and Money v Leach [1746] EngR 362; (1765) 1 Black W 555). Consequently, the House of Commons condemned general warrants. 46 The law of entry, search and seizure in Australia is of course, now governed by statute. However, the notion of the sanctity of a citizens home, free from unlawful interference, remains a fundamental concept which is inherent in the protections afforded by the LEPR Act. Whilst the issue of search warrants is properly to be considered to be a means for securing the public interest in preventing and prosecuting crime, the execution of a search warrant nonetheless necessarily results in interference with individual rights. The law accordingly strives to balance public and individual interests so that whilst the State may obtain evidence relating to the commission of crime in the administration of justice, citizens are also protected from illegal or improper invasions of their civil rights by law enforcement authorities The need to specify an offence with particularity 47 I will record below general matters from the case law concerning the requirements for specificity of offences. In this context, to safeguard the individuals rights, it has been held that a warrant should refer to a particular offence and authorize seizure by reference to that offence (R v Tillett; Ex parte Newton (1969) 14 FLR 101 at [113]). 48 One test which has been formulated in this regard is whether the description of the offence in the warrant is sufficiently clear to enable the person where premises are being searched to know the exact object of the search: R v Tillett; Ex parte Newton (supra) at 113; Australian Broadcasting Corporation and Masters v Cloran (supra).

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49 However, as the High Court explained in George v Rockett, the description of the object of the search is a reference point for delimiting the scope of the warrant at 118. Particulars of an offence(s) establishes a nucleus for the search by which both the citizen whose premises are subject to the warrant and the officer executing the warrant: Parker v Churchill (1985) 9 FCR 316 at 319. 50 In light of the legislatures concern to protect individual interests, strict compliance with statutory conditions governing the issue of search warrants is necessary: George v Rockett (supra) at 110-111. However, that said, a warrant should, like other documents, be read fairly and not perversely: Different Solutions Pty Limited v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686 at [108]. 51 There is a degree of variance in the authorities as to the degree of particularity required in a search warrant: Optical Prescription Spectacle Makes Pty Ltd v Withers (1987) 13 FCR 594 at 596. This may be attributed, at least to some extent, to differently expressed statutory requirements and the particular wording of the warrant in those cases. However, a commonality of approach can be discerned in relation to the continuing concern of the legislature and common law courts to strictly confine the exception to the inviolability of an individuals right to property and privacy arising from a validly issued search warrant. 52 The following principles may be distilled from the cases: (a) The requirement to identify the offence in a search warrant has been held to apply regardless of whether the legislation states a specific requirement to do so: Douglas v Blackler [2001] NSWSC 901 at [12]. (b) The question of whether a warrant meets the statutory requirements must be viewed objectively by reference to its contents: Wright v Queensland Police Service [2002] QSC 46; (2002) 2 Qd R 667 at [32]. (c) Where the warrant fails to specify any offence, such a failure will invalidate the warrant: Warner v Elder (NSWSC, 23 April 1997, unreported); Carver v Clerk of the Court, Local Court at Blacktown (NSWSC, as per Black AJ 13 March 1998, unreported). (d) The question whether there is sufficient particularity is a question to be resolved by looking at the warrant in its entirety: Ryder v Morley (1986) 12 FCR 438 at 444. This includes the items to be searched for: Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523 at 525. (e) In Brewer v Castles (No 2) [1984] FCA 48; 1 FCR 55; 52 ALR 577, it was held to be sufficient to specify the offences quite generally, one being s 86(1)(e) of the Crimes Act, to wit, conspiracy and defraud the Commonwealth. Despite the generality of such a description, Beaumont J found that it was sufficiently definite to indicate the nature of the documents to be seized. (f) The practical application of the test may vary from instance to instance: Arno v Forsyth (1986) 9 FCR 576 at 595. In Arno v Forsyth, the warrant authorised the seizure of an extremely wide range of documents over a period of six years. The Federal Court rejected the argument that the statement of the offences reduced the generality of the warrant. The warrant referred to specified sections in various enactments with a short description. The first three groups of offences simply referred to conspiracies to defraud the Commonwealth, whilst the group of fourth and fifth offences provided no detail which indicated the nature of the acts alleged. The description in relation to the conspiracy charges did not identify the persons, times, places or manner of the offences committed. In looking at the warrant as a whole, the Federal Court found that in the circumstances, the warrant was bad for generality. There is some difficulty in reconciling the outcome in Brewer v Castles (No 2) with Arno v Forsyth, at least in so far as the conspiracy offences are concerned. In this respect, however, to be noted is that the warrant in Arno v Forsyth covered a very wide period (six years) in relation to a complex matter said to involve tax avoidance schemes. It was said in this context that the warrant

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failed to identify relevant persons and it was the combination of circumstances that were held to be relevant, Lockhart J stating at 591 as follows:...These are all matters which must be considered in deciding whether a warrant is bad for generality. Of course, the existence of any of those matters taken in isolation, does not necessarily lead to the conclusion that the warrant is defective. In each case the warrant must be looked at as a whole and all of its provisions taken into account. (g) The nature of the offence has to be stated sufficiently: New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 at [106] as per Callinan and Crennan JJ. Their Honours there indicated that the nature of the offence had to be identified so as to enable the issuing justice to understand the objects of the search to appreciate the boundaries of the authorisation to enter, search and seize. See also Gleeson CJ at [1] and Gummow J at [3]. Corbett concerned an application for warrant made pursuant to s 5(1)(b) of the Search Warrants Act (now repealed), which required an applicant for a search warrant to have reasonable ground for a belief in respect of a thing connected with a particular firearms offence. The application for the warrant in Corbett did contain a reference to a section in the Firearms Act No 25/1989 Sect 5(a). However, that legislation had been repealed and replaced by the Firearms Act 1996. The provision in question appears in s 7(1) of the latter Act in materially identical terms. Callinan and Crennan JJ found that the application stated an intelligible offence, namely possession of a firearm (at [106]). It was the nature of the offence which was crucial, not the reference to repealed legislation. The reference did not detract from the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Therefore, the application and warrant were not invalid. (h) The description of the offence in a search warrant need not be made with the precision of an indictment: Beneficial Finance Corporation v Commissioner of Australian Federal Police . In determining whether a warrant describes an offence with sufficient particularity, it is, of course, to be appreciated that at the time the warrant is issued, the matter is at an investigatory stage and there often will not be evidence capable of satisfying a court at trial: Arno v Forsyth (supra) at 590. It is the function of the warrant to obtain such evidence. (i) This is particularly evident in complex crimes, such as taxation frauds, which often involve numerous persons and entities, and therefore difficulties associated with the gathering of documentary evidence to support the laying of charges: Arno v Forsyth (supra) at 491 per Lockhart J. (j) Where a section in a criminal statute provides for the commission of a somewhat indeterminate number of offences, the mere reference in a warrant to the section may be held to one which fails to describe the particular offences in relation to which the seizure is authorised: Australian Broadcasting Corporation and Masters v Cloran (supra) per Lockhart J at 153-154. In Cloran, the warrant was issued pursuant to s 10 of the Crimes Act 1914 (Cth). The recital of the warrant referred to commission of offences against s 70 of the Crimes Act. However, the operative part of the warrant was silent as to the particular offence and did not refer to the description given in the recital. The warrant, accordingly, was held to be bad for failing to describe the particular offences. Lockhart J held that even if the operative part of the warrant did incorporate the description of the offence in the recital, it would still be invalid for failing to specify the offence. This was based on the nature and structure of the provisions of s 70 of the Crimes Act, which provides for the commission of a somewhat indeterminate number of offences (as per Lockhart J at 154). Accordingly, it was observed in that case that it would be impossible to know what the offences alleged to be committed against s 70 were with any degree of particularity or precision. (k) Where warrant legislation requires that a search warrant state brief particulars of the offence, it has been held that the bare specification of the offence is insufficient: Wright v Queensland Police Service .

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In Wright v Queensland Police Service, it was contended that a warrant issued under the Police Powers and Responsibilities Act 2000 (Qld) was defective. The warrant stated the offence as follows, Section 123 Criminal Code Perjury. Section 73 of the Police Powers and Responsibilities Act 2000 sets out the matters which a search warrant must specify, including at s 73(1)(b)(i), brief particulars of the offence for which the warrant is issued. Holmes J held that although it would be unwise to formulate what brief particulars should comprise, merely naming the offence could not constitute particulars for the purposes of the section ... However, at a minimum, his Honour observed that the warrant should state the name of the alleged offender, and where the identity of the offender is unknown, some details of the offence . (l) A wrong citation of a section of legislation does not invalidate a warrant which clearly sets out in terms the substance of the offence: Parker v Churchill (1985) 9 FCR 316 at 320. That decision was approved on appeal: Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334 at 335. Jackson J said that such an error would only invalidate the warrant if it had the result that the warrant did not specify the offence or made the warrant ambiguous so that it was not possible to tell what offence was referred to: Parker v Churchill (supra) at 340. The warrants in Parker v Churchill (supra) were made pursuant to s 10 of the Crimes Act 1914 (Cth). They referred to a section of the Taxation Administration Act rather than a section of the Sales Tax Assessment Act. However, the description in the warrant stated in otherwise intelligible terms an existing offence and the warrant was accordingly held not to be invalid on this basis. The warrants also alleged that certain named individuals were in breach of s 231 of the Income Tax Assessment Act 1936 in that they at various times over a period of six years evaded payment of income tax. Jackson J held that this description of the offence was in the broadest terms and therefore the warrant failed to state the offence with sufficient particularity: Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334 at 249. (m) Where the warrant describes an offence which does not exist, or which is not known as the words used, it has been held that the description is not adequate: Bradrose v Commissioner of Police, ex parte Bradrose (1989) 2 Qd R 304. In Bradrose, the warrant under consideration referred to the offence of false pretences as opposed to Obtaining property by false pretences; Cheating. Although often identified by a shorthand description, it was held that it was not an offence described under the Criminal Code (Qld). Such a description of the offence, it was observed, would prevent the persons affected by the warrant from knowing the exact object of the search. (n) A warrant may be sufficiently particular if it specifies the substance of the offences in question, even if the name of the Act by which the offence is created is not disclosed: Williams v Keelty [2001] FCA 1301; (2001) 184 ALR 411 at [143]. In Williams v Keelty, the warrants were issued pursuant to s 3E of the Crimes Act 1914 (Cth). The warrants recorded the section numbers of the offences without reference to the relevant Act, the Corporations Act. However, the warrant did specify the substance of the offence. (3) The search warrant in the present case 53 The requirement specify relevant offences in the form prescribed by the LEPR Regulation is a more limited one than a requirement to provide brief particulars of the offence, the latter being the requirement under the legislation considered in Wright. Particulars of an offence when specially required go beyond identifying or naming an offence and require information about an offence, such as where and when an offence had been committed. See the discussion in Wright . 54 A requirement to specify a relevant offence carries the meaning of a requirement to name or identify an offence. 55 For that purpose, subject to the specific terms of a statutory provision, an offence may be named or identified by a reference to the provisions of an Act that creates a particular offence. In

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the present case, reference was made to sections 10 and 25 of the Drug Misuse and Trafficking Act accompanied by a short description of possess prohibited drug and supply prohibited drug respectively. 56 No argument has been raised in these proceedings that those particulars in the warrant were ambiguous, vague or obscure. 57 The offence stated in s 10 of the Drug Misuse and Trafficking Act is that a person who has a prohibited drug in his or her possession is guilty of an offence. Possession of a prohibited drug is the only offence created by that provision. 58 Section 25 of the Drug Misuse and Trafficking Act provides for variations of the offence of supply of prohibited drugs. The primary offence can be found in subsection (1), a person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence. The remaining subsections of the provision deal with offences of supply of a prohibited drug according to the age of the person supplying the drug, the age of the person to whom it is supplied and the quantity of the drug supplied. Sections 32, 33 and 33A of the Drug Misuse and Trafficking Act stipulate the penalties for these offences. The Crown Advocate submitted that the effect of s 25 is to create one offence, supply of prohibited drug, with aggravating features rather than several discrete or separate offences. This is to be contrasted with the provisions considered in Cloran, which contained a somewhat indeterminate number of offences (at 154). Not only did each subsection give rise to four separate offences based on the words publish and communicate, there also existed numerous possible combinations of people involved in the offence. In the present case, it was possible to know with a high degree of accuracy that the offence referred to in the warrant concerned or involved the supply of prohibited drug, even though the offence may have been aggravated by the presence of more specified features. 59 As noted above, the issue of specifying the offence with sufficient particularity must be considered by looking at the warrant as a whole . This includes the specified items to be searched for. The warrant in this case identified the things to be searched for with a high degree of particularity, including the type of drug ((ice) Crystal Methamphetamine and (speed) Amphetamine), money associated with the sale of prohibited drugs, drug ledgers and things connected with the sale of prohibited drugs. 60 Having regard to the LEPR Act, the short description of the offences, together with the references to the relevant provisions of the Drug Misuse and Trafficking Act, leads to the conclusion that the particulars furnished satisfied the statutory requirement to specify relevant offences, and were free of any ambiguity or uncertainty. 62 For the reasons discussed above, I am of the opinion that the warrant was valid.
The issue of a search warrant: Application must be made to an eligible issuing officer (s47) (usually a magistrate). However, just because an application is made doesnt mean the search warrant will be issued. The magistrate has to be satisfied, him- or herself, that there are reasonable grounds for issuing the warrant (s48), that is, that there are reasonable grounds for the applicants belief on reasonable grounds. See George v Rockett above on the importance of the magistrate being satisfied that there are reasonable grounds. A magistrate is not meant to be a mere rubber-stamp of a police officers application and his/her justifications for the warrant. In fact, under s62, a magistrate must not issue a warrant unless the application for the warrant includes the information set out in s62(1): (a) name of the applicant and the applicants authority to apply for a warrant

(b) the grounds on which the application is based, including the nature of the
searchable offence

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(c) the address or other description of the premises

(d) if the warrant is for the search of a particular thinga full description of the
thing and, if known, its location (e) if the warrant is for the search of a kind of thinga description of the kind of thing (f) if a previous application was refused, details of the refusal and compliance with s64 (g) any other information required by the regulations. When the magistrate is determining whether there are reasonable grounds to issue a warrant s/he must consider the following matters (although these are not exhaustive) under s62(3):

(a) the reliability of the information on which the application is based, including
the nature of the source of the information (e.g. how reliable is a police informant?); and

(b) if the warrant is to search for a thing in relation to an offencewhether there

is sufficient connection between the thing sought and the offence (e.g. if the searchable offence is a drug offence and the thing sought is a firearm, is there a sufficient connection between the two?). The applicant must verify the information given to the magistrate on oath or by affidavit (s60(2)). It is an offence under s63 for an applicant to give false or misleading information to the magistrate. A magistrate must not authorize the execution of a warrant by night unless satisfied that there are reasonable grounds for doings so (see s72(2)). In the following case, consider whether there was strict compliance with the statutory requirements.

Way Out West Adult Shop Pty Limited v Kraus [2008] NSWSC 87
1 By summons filed on 2 April 2007, the plaintiff, Way Out West Adult Shop Pty Ltd, seeks declaratory relief with respect to a search warrant executed on 20 July 2005 over commercial premises leased to it and situated at 438 High Street, Penrith. The particular premises to which the lease is referable are suites 3D and 3E at 438 High Street, Penrith. 2 From at least 1 August 2002, the plaintiff operated a business from the leased premises which included the sale and hire of adult sex products of various kinds including pornographic DVD and VHS films. 3 On 19 July 2005, Senior Constable David Owen and Senior Constable Kraus, the first defendant, applied for a search warrant pursuant to s 55 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (the Classification Act) to enter and search premises described in the application as Way Out West 4/438 High Street Penrith and to seize items reasonably believed to be connected with an offence under the Act. Section 55(3) of the Classification Act invoked the provisions of Part 3 of the Search Warrants Act 1985 (since repealed). The Law Enforcement (Powers and Responsibilities) Act 2002, which repealed the Search Warrants Act, has enacted similar provisions but did not come into operation until 1 December 2005. Part 3 of the Search Warrants Act provided a statutory scheme for the issue and execution of search warrants. While a search warrant under the Classification Act can only be issued where an officer has reasonable grounds for believing that an offence has been or is about to be committed in or on any premises and that there is or on any premises anything connected with an offence under the Act, the Search Warrants Act does not stipulate the means

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by which premises must be described so as to identify them for the purposes of the issue or execution of a warrant. 4 On 20 July 2005, many thousands of pornographic DVD and VHS films were seized under warrant from the plaintiffs premises on the basis that they appeared to police to be offered for sale or kept for the purposes of sale contrary to various provisions within Part 2 of the Classification Act in that they either did not display any classification markings or were classified X18+ or RC (refused classification). Save only for six films that have been forfeited as a consequence of related criminal proceedings under Part 2 of the Classification Act against the directors of the plaintiff company, the balance of the material seized under warrant remains in the possession of police. Relief sought 5 In summary, the plaintiff sought a declaration that the search warrant was invalid at the point of issue and an order that it be quashed or set aside on the basis that it failed to sufficiently or adequately describe the premises which were to be entered and searched and/or that it materially misdescribed the premises. In the alternative, the plaintiff sought a declaration that police had failed to comply with their statutory reporting obligations under Part 7 of the Classification Act in that they did not report the seizure to a Magistrate within the meaning of s 56(1)(b) of the Classification Act and it was therefore entitled to an order that the items seized (other than the six items the subject of charges brought under the Act as provided for in s 55(1) (a)) be returned as provided for in s 56(1). 9 On 30 June 2005, Senior Constable Philip Kraus went to premises at 438 High Street, Penrith in plain clothes. He described the premises as a long, large building with a number of shops at ground level, and a number of shops and professional/commercial suites on the first floor. He entered what he described as a shop at that street address (although not at street level) known as Way Out West Adult Shop. It was on the first floor of the building. At the entrance to the building on street level was a sign which read Way Out West. A large sign also reading Way Out West was also displayed across the top of the building. Halfway up the stairs leading from the entrance to the first floor was another sign reading Way Out West with an arrow pointing generally upstairs. At the top of the stairs to the left was a door displaying a sign which read Way Out West Adult Bookshop. The sign also nominated various opening hours and provided that persons under the age of 18 years of age would not be permitted on the premises. There was no suite number or suite letter and number on the door. 10 Upon opening the door Senior Constable Kraus observed pornographic VHS and DVD films displayed on shelves aligning the walls of each of the two rooms. There were also stands on the shop floor containing similar material. At that time Senior Constable Kraus estimated there were about 2700 films. He also observed that the films appeared to be for sale, hire or exchange. While a few films showed an official X or X18+ sticker or other marking from the Office of Film and Literature Classification (OFLC), most did not have markings of that kind. Some films showed an unofficial X or XXX. 11 After returning to Penrith police station that day, Senior Constable Kraus obtained a telephone service record from Telstra for the telephone number associated with the Way Out West Adult Shop as advertised in the yellow pages. The service record he obtained nominated the address for premises associated with Way Out West Adult Shop Pty Ltd and utilising telephone number (02) 47313094 as building number 4 at 438 High Street, Penrith. ... 13 On 19 July 2005, Senior Constable Kraus prepared an application for a search warrant, a draft search warrant and an occupiers notice in respect of what he understood, from his enquires, to be the nominated or designated address of the plaintiffs premises, namely 4/438 High Street Penrith. Later that day, together with Senior Constable Owen, he attended the registry of the Penrith Local Court where an application for the issue of a search warrant was made in accordance with Part 3 of the Search Warrants Act and in the form provided for in the Search Warrants Regulations. He sought power under warrant to enter and search premises known as

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Way Out West 4/438 High Street Penrith in the State of New South Wales being a retail premises Adult/Sex type shop, the upper part of a larger building with entry to shop by stairs leading up at the front and to seize from the premises and retain any films in any format that appeared to be classified X18+, RC or unclassified (and their packaging), or submittable publications which appeared to be classified Category 1 restricted or Category 2 restricted that are not marked, whether the films or magazines were exhibited on display or appeared to be kept for the purposes of sale on stands behind the counter or in any other storage area, receptacle or room on the premises. 14 The warrant was granted in the terms sought in the application. In particular, so far as the plaintiffs case is concerned, it specifically authorised nominated police officers to enter the premises known as Way Out West 4/438 High Street Penrith which were fully described and particularised in the same terms as used by Senior Constable Kraus in the application. 15 The warrant was executed on 20 July 2005. The occupiers notice was served on Mr Rams who was present inside the retail premises when police entered at 9:45 am. He identified himself as a co-owner. The items seized were numerous as reflected in the more than 100 pages comprising the New South Wales Police Property Seizure/Exhibit Form. Was the warrant validly issued? 22 The plaintiffs challenge to the validity of the warrant is dependent upon me being satisfied that the plaintiffs premises were not simply erroneously or ambiguously described in the warrant as building/suite/shop 4 at 438 High Street Penrith, as distinct from being properly described as suites 3D and 3E at 438 High Street Penrith, but that the misdescription was a defect of such a kind that it invalidated the warrant at the point of issue since it did not authorise a search of the plaintiffs premises. 23 The necessity that a search warrant comply strictly with the statutory preconditions governing its issue is well established: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 111. It is both a reflection and an endorsement of the protection that the common law affords the citizen against unwarranted invasions of privacy or property and operates in recognition of what has been described as the great power of entry and search (see Carroll v Mijovich (1991) 25 NSWLR 441 at 451). 24 Consistent with the fundamental principles underpinning the statutory power to enter and search, and the strictness with which that power is to be exercised, principles reviewed by Kirby J in New South Wales v Corbett [2007] HCA 32; (2007) 237 ALR 39, I note the views of Hill J in Carbone v National Crime Authority (1994) 52 FCR 516 at 521: In my opinion ... a warrant must be strictly construed. If the NCA, albeit inadvertently and through typing error, describes documents in a way which is ambiguous in the sense that the person to whom the warrant is addressed could read it either in one way or another, then if the warrant is capable of being read in a way adverse to the NCA, the NCA must bear the consequences. 25 While his Honour was referring to ambiguity in the description given to documents to which a search warrant might be directed, the same consequences will obtain where ambiguity or imprecision in the description of the premises to be entered and searched, and from which property might be seized, is of such a kind that the person to whom the warrant is directed either cannot resolve the ambiguity at all . 26 This was the approach taken in R v Gassy (No 3) [2005] SASC 496; (2005) 93 SASR 454. In that case however Debelle J emphasised, correctly in my view, that it will often be a question of fact and degree whether or not premises have been sufficiently described such that they can be identified with reasonable certainty by the authorised officer asked to issue the warrant and the police executing it, and additionally, identified with reasonable certainty so that the occupier may know that it is entry and search of his or her premises which is authorised by the warrant (par [99] and par [100]). It is for this reason that minor errors in the description or nomination of premises will not invalidate a warrant .

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27 In Gassy police sought authority under warrant to search the residential premises of Mr Gassy, a person suspected of being involved in a murder. Mr Gassy lived at 23 Georges River Crescent, Oyster Bay New South Wales, premises known to police by their physical appearance and location to be the home of the suspect. The premises were however wrongly nominated in the search warrant as being 23 St Georges Crescent, Oyster Bay. These premises were in fact nonexistent. The Court held that while the police may have intended to obtain a warrant permitting them to search Mr Gassys premises, the warrant that issued did not have this effect. What was fatal to the validity of the warrant was that those premises could not be reasonably ascertained from the face of the warrant in circumstances where premises at another address altogether were nominated. While it is sufficient if the warrant is capable of enabling police to identify with reasonable certainty the premises to be searched, the Court made it plain that this is not to import discretion or choice in the selection of the subject premises such that a warrant could be executed at an address similar to that nominated in the warrant at which police believed rightly or wrongly a person to reside. It was held to be irrelevant that police who executed the warrant knew that Mr Gassy in fact lived at 23 Georges River Crescent, Oyster Bay. 28 The plaintiff in the instant proceedings submitted that a strict construction of the warrant on its face would only permit the objective reader to conclude that the premises to be searched were those at 4/438 High Street and, that since the plaintiffs premises were at another suite or building at that street address altogether, the warrant was invalidly issued. Were the warrant to have identified the premises only by reference to a suite/building number at the street address, it may be that by parity of reasoning with the decision in Gassy, the error in nomination of the suite/building would have been fatal. In this case, however, the warrant did not describe the premises merely by that limited means. Consistent with the fact that the Search Warrants Act provided no formula by which the premises to be searched must be described, (save only for the prescribed form making provision for an address being a description of the premises) the plaintiffs premises were further described as retail premises by the name of the retail business, namely, Way Out West an Adult/Sex type shop; and by the location of the premises in the complex at 438 High Street namely the upper part of a larger building with entry to shop by stairs leading up at the front. I am satisfied that when read in combination, these additional details more than sufficiently describe the premises to be searched and resolve what the plaintiff contends is an internal inconsistency in the address of the premises. I am also satisfied that the description was capable of enabling the authorised officer to validly issue the warrant and for police to validly execute it and that this is so irrespective of the error in nomination of the suite/building number and without the need for recourse to Senior Constable Krauss own knowledge of the premises and their location. 29 For these reasons the plaintiffs claim as to invalidity must fail.
Form of the warrant: A warrant is to be in the form prescribed by the regulations: see Forms 9 to 9B of the regulations. Clause 6 of the regulations describes which forms are necessary for which search warrants. Occupiers notice: Before the execution of the warrant by police, the magistrate must prepare and give an occupiers notice to the applicant police officer (s67(1)). The occupiers notice is to be served personally by the applicant (s67(3)) or in such other way as the magistrate directs. Section 67(4) sets out the time for service (either at the time of entry, as soon as practicable after entry, or within 48 hours of the execution of the warrant), depending on the circumstances. The notice must contain the following information:

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(a) the name of the officer who applied for the warrant (b) the date and time the warrant was issued (c) the address or other description of the subject premises (d) a summary of the nature of the warrant and the powers conferred by the warrant. Execution of the warrant: There are various requirements the police must meet when executing an ordinary search warrant. First, one of the executing officers must make an announcement before they enter the subject premises (s68). This announcement must inform the occupiers that the police are authorized by the warrant to enter the premises and then give the occupiers an opportunity to allow the police to enter. The police have a duty to show the warrant to the occupier if requested. Although the police officer who applied for the warrant has the authority to execute the warrant, s/he may do so with the use of assistants (s71). An ordinary search warrant must only be executed by day, unless the magistrate authorizes its execution by night (s72). By day means 6am to 9pm. By night means 9pm to 6am the following day. A warrant cannot be executed if it has expired (s73). Usually a warrant will stipulate its expiry date (see s73(2), (3), (5)). A warrant that has been executed is considered to have expired which means the police cannot go back to the subject premises for a second search unless they get another warrant. A warrant may be extended under s73A by the magistrate who first issued it, although this can only occur once. Use of force: Force that is reasonably necessary can be used to enter the subject premises (s70). The police may also disable any alarm, camera or surveillance device, or pacify any guard dog, if it is reasonably necessary to do so for the purposes of entering the subject premises. Once on the premises, they can, if it is reasonably necessary to do so, break open any receptacle in or on the premises to carry out their search. What does a search warrant authorize a police officer to do? Once a warrant is issued by the magistrate, who has to be satisfied on reasonable grounds that the warrant should be issued (see above), the warrant authorizes any executing officer to enter the subject premises and to search for things connected with a particular searchable offence in relation to the warrant (s47A). Seizure of things under an ordinary warrant: Section 49 gives the executing officer the power to seize and detain a thing, or kind of thing, described in the warrant. In addition, the executing officer may seize and detain any other thing that s/he finds in the course of executing the warrant as long as s/he has reasonable grounds to believe the thing is connected with any offence. Seize and detain means the power to remove the thing from the subject premises and the power to guard the thing in or on those premises. Search of persons pursuant to an ordinary warrant:

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When the warrant is executed, the police officers may search any person on the subject premises if they reasonably suspect the person to have a thing on them that is described in the warrant (such as drugs or a firearm) (s50). Note that this power to search may then trigger the power to arrest under s99. It is an offence for anyone to obstruct or hinder an officer when executing a warrant (s52). Report to magistrate The applicant for a search warrant must make a report to the magistrate in writing setting out all the requirements listed in s74. Defects in the warrant: Section 76 has been drafted in order to save warrants from being declared invalid on the grounds of a technical defect. However, as s76 states, a defect that affects the substance of the warrant in a material particular will not be saved by s76. See Way Out West, above, for a discussion of what a defect affecting the substance of the warrant would be. Revision question In State of NSW v Corbett [2007] HCA 32, at [67], the application for the search warrant, which had been generated as a pro forma form on a computer by an Inspector, stated: "I say on oath that: (1) I have reasonable grounds for believing that there is, or within 72 hours there will be, on or in these premises, the following things: Unspecified firearms (2) I have reasonable grounds for believing that: (a) the things are connected with the following indictable offence/firearms offence/narcotics offence within the meaning of the [Act] (s 5(2)) Possession of Firearm Firearms Act No 25/1989 Sect 5(a); (4) The grounds which I rely on are: Police are in possession of documents written by the offender, where threats are made against other persons, including serving police officers. He was in possession of a number of firearms during the recent 'amnesty', however a search of records failed to locate them as having been surrendered. Two recent attempts at self harm have been made by the offender, which included the ingestion of medication and then leaving the residence and wandering into bushland. The most recent attempt being last weekend, which caused him to be admitted to hospital at Port Kembla for treatment. He has made threats against Senior Officers within the Police Service and as a result concerns are held for the personal safety of the offender and other persons." The offender was a police officer on sick leave in hospital. When the application for the search warrant was made the 1989 Firearms Act had been repealed and replaced by the 1996 Firearms Act. Did the reference to the repealed 1989 Act in the application and in the warrant amount to a defect in the warrant that affected the substance of the warrant? In other words, how precise does the description of the offence have to be?

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CLASS 20: SEARCH AND SEIZURE POWERS WITH WARRANT

1. SEARCH WARRANTS EXECUTED COVERTLY
In Ballis v Randall, Hall J had to consider not only whether the search warrants, on their face, were valid but whether they had been executed lawfully. Note that this case was heard before the 2009 amendments to LEPRA which introduced a scheme for the granting of covert search warrants. In Ballis, the plaintiff argued that the three warrants executed in relation to his premises were actually designed to be executed covertly, indicating that the police, who were investigating Ballis in relation to drug importation, already had, in practice, a way of using ordinary search warrants for a covert purpose.

Ballis v Randall [2007] NSWSC 422

1 HALL J: The central questions in these proceedings are, firstly, whether three search warrants, issued respectively by the first and second defendants, were invalid, and, secondly, assuming the warrants were validly issued, whether they were executed unlawfully. 3 The three warrants (referred to in this judgment as the warrants) were issued on the application of members of the New South Wales Police. The premises at Waverley Street, Bondi Junction at the relevant times, was the residential premises of the plaintiff. The warrants were issued under the Search Warrants Act 1985 (NSW) (since repealed and referred to in this judgment as the Act) which enacted a statutory scheme for the issue and execution of search warrants. The equivalent provisions in respect of search and seizure powers are now to be found in Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). 9 The plaintiffs challenge in the present proceedings had a two-fold aspect. The first challenged the validity of the warrants. The second asserted that the execution of the warrants was contrary to law. 10 In relation to the first of these two aspects, the central contention on behalf of the plaintiff is that the three covert warrants were not contemplated or authorised by the Search Warrants Act 1985 (NSW) or, alternatively, they were not warrants contemplated by the Act and are, accordingly, invalid. 11 The primary submission made on behalf of the plaintiff was that in each case authorisation was sought that the warrants be executed covertly and, as such, involved ... an application ... to do something which we say is unlawful and the magistrate acceded to it and ... that makes what might be a plainly valid warrant on the face of it invalid in reality in light of the evidence (transcript, p.124). 12 It was contended that there was a purported exercise of a power authorising the covert execution of the warrants and that such was ultra vires the Act ... there is no power for a magistrate to issue a warrant that he or she knows is going to be executed covertly (transcript, p.130). 13 The plaintiff also submitted that s.19 of the Act by which an authorised justice may authorise the execution of a warrant by night, was of no assistance in providing authority for the covert execution of a warrant. Section 19(1A) of the Act provided that an authorised justice is not to authorise the execution of a search warrant by night ... unless satisfied there are reasonable grounds for doing so .... The submission on behalf of the plaintiff was that the authorised justice in relation to each warrant purported to improperly exercise the power under s.19(1A) by relying upon the fact that such manner of execution would facilitate the surreptitious execution of the warrants.

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14 At the forefront of the plaintiffs submissions was the proposition that in each case the execution was intended to be undertaken in his absence as occupier of the premises and without notice or information to him as contemplated by the Act. As such, the submission proceeded, each warrant was invalid. 15 In ground 3 of the amended summons it was stated:... The Act contemplates the postponement of the service of the Occupiers Notice only after the occupier is not found at the premises (s.15(3)(b) and s.15(4)). The warrants here were issued on the basis that the Occupiers Notice would not be served. At the time of the issue of the warrants, the authorised justice was aware that the occupant was to have the execution of the warrant kept secret from him. Such a process is not contemplated or authorised by the Act. Accordingly, the warrants were invalidly issued and/or executed. 17 It was submitted on behalf of the third, fourth and fifth defendants (the police officers who made the applications for the issue of the three warrants) that in each case there was disclosure of the intention to execute each of the warrants covertly and that, as a matter of statutory construction, power existed under the Act for the issue and execution of the warrants upon that basis. Background to the charges 18 The applications for the warrants reveal that a number of persons were suspected by the Australian Federal Police of involvement in the importation of a large quantity of MDMA (ecstasy). The plaintiffs activities in the latter part of 2002 had been the subject of physical and electronic surveillance. On 25 December 2002, he was arrested and charged in respect of his alleged involvement in the importation. The search warrants 21 Information concerning each of the search warrants may be summarised as follows:(a) The first search warrant (i) The first application was made on 24 September [2002]. The application expressly recorded that the third defendant sought to have this search warrant executed covertly and would be applying for an extension of time regarding the service of the Occupiers Notice. (ii) The application made it clear that night time execution of the warrant was required so that it would coincide with the absence of the plaintiff as occupier. (iii) The application also sought to prevent access under Clause 10 of the Search Warrants Regulation 1999 (NSW). The reason provided was stated to be the information contained is sensitive in nature and is part of a long term, ongoing investigation into organised crime on the East Coast of Australia. 22 The first defendant, as the issuing justice, granted the warrant on 24 September 2002 at 10.45 am and purported to permit it to be executed at night on the grounds of, inter alia:- (d) Ongoing investigation to be executed covertly. 23 The warrant authorised a search for things of the kind referred to in s.5(1) of the Act with appropriate particulars of those things. 24 It was the plaintiffs case that the police officers who executed the warrant at night were confident that he would not return during the search and they intended that the fact that the search has been carried out would not be detected upon his return. The plaintiffs case was that from the outset, there was an intention in those applying for the warrant not to give him any notice of the search until the law enforcement agencies determined it to be appropriate. 25 The warrant was executed at 9.00 pm on 24 September 2002. It is sufficient to record the contentions made on behalf of the plaintiff to the effect that the execution of the warrants was essentially an intelligence-gathering exercise marked by a selectivity in the approach taken during the search with care being taken to avoid creating any visible signs of disturbance of the premises and its contents so as to maintain the covert nature of the execution of the warrants. I will return to the question as to whether there is substance to the proposition that the manner of execution

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supports the contention in effect that the warrants were sought for extraneous or improper purposes. 26 On 24 October 2002, a report pursuant to the Act was made reporting upon the execution of the first warrant . The document contained a request to extend the time for service of the Occupiers Notice for a period of six months as service of the Occupiers Notice would alert the occupant and their associates of police interest and therefore compromise the current operation. [This extension was granted.] (b) The second search warrant 30 On 11 November 2002 at 3.45 pm, the first defendant issued a search warrant for specified premises at Bondi Junction. In the application for the warrant appeared the following statement:Application for caveat on warrant grounds Furthermore, police are seeking that a Clause 10 provision be granted for this search warrant application. Information contained in this application is sensitive in nature and is part of a long term, ongoing investigation into organised crime on the East Coast of Australia. Release of any of this information would jeopardise this ongoing investigation. Furthermore, police hold grave fears for the identity and subsequent safety of the informants mentioned herein, should the details of the information they are supply (sic) to police become public. 31 The authorised justice referred in his record of the application to the alleged facts arising from police investigations and to the fact that on 24 September 2002, police had executed a warrant covertly at the plaintiffs premises and located certain items:4. ... the grounds on which I relied to justify the execution of the warrant by night are as follows:- (b) there is likely to be less risk to the safety of any person; (d) ongoing investigation covert execution. 32 An Occupiers Notice for the warrant was made and was dated 11 November 2002. 33 An extension was sought for service of the [occupiers] notice for a period of six months [which was granted.] 35 In the summary of the results of the execution of the warrant it is noted Covert search at ... Bondi Junction and records items of interest as being located rather than seized. [A third search warrant was also executed by night in order to preserve the integrity of the investigation against Ballis. Service of the occupiers notice was also delayed.] 41 The independent observer field report in respect of the third warrant (dated 19 December 2002) recorded in respect of Occupiers Notice N/A. Covert warrant. 49 The evidence establishes, and I find accordingly, that, in the case of each search warrant, each application to the relevant authorised justice (the first and second defendants) disclosed that it was the intention that police officers who were to execute each warrant would do so covertly and that, accordingly, the Occupiers Notice would not be served on entry into the premises. 50 The evidence further establishes, and I so find, that each application disclosed that it was likely that, following execution of each warrant, an application for postponement of service of the Occupiers Notice given in each case would be made. 51 Subsequent to the execution of each warrant, each authorised justice purported to authorise the postponement of service of the Occupiers Notices in respect of each warrant. 52 The parties reached agreement (recorded in Exhibit B) in terms as follows:The three search warrants were executed in such a manner as to conceal the occurrence of their execution from Mr. Ballis, the occupier, until such time as service of the occupiers notices were affected. 53 The plaintiff contended that the three warrants were invalid as they did not constitute search warrants authorised by the Search Warrants Act 1985 (NSW) [because the warrants were designed to be executed in the absence of the occupier without notice to the occupier and to authorize a covert investigative procedure.]

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55 [T]he applicant relied upon an interpretation of the Search Warrants Act 1985 (NSW) to the effect that it did not authorise postponement of the service of an Occupiers Notice by reason of or on the basis of the concurrent undertaking of a covert operation. 57 [The plaintiff argued] that the Search Warrants Act 1985 (NSW) established a scheme for the issue and execution of search warrants, and that that scheme contemplated (in particular by reference to s.15) that upon execution of a warrant or as soon as practicable thereafter, the person executing it shall serve an Occupiers Notice on the occupier of the premises. ... 63 It was further submitted that the Act contemplated that a decision for postponement of service of an Occupiers Notice could only validly be made by an authorised justice after the warrant had been executed and when no occupier is then present or in or on the premises (s.15(3)(b) and s.15(4)). In other words, it was contended that s.15(4) only permitted the postponement of an Occupiers Notice in the limited circumstances specified in s.15(3)(b). 64 There is, in my opinion, some substance to the proposition that if s.15(4) were intended to be construed as making available a covert search warrant procedure in order to enhance the effectiveness of an investigation, one would expect that such a procedure would be expressed in clear terms and not appear in a subsection to a section of the Act concerned with the service of occupiers notices. 65 It is clear that a covert search warrant procedure plainly would represent a significant departure from the balance struck in the Act as discussed by Kirby P in Carroll v Mijovich (1991) 25 NSWLR 441. The covert execution of search warrants would clearly tilt the balance in favour of law enforcement authorities. 66 It was submitted in this case, that the warrants were issued on the basis that the Occupiers Notice in each instance would not be served, in that the entire operation was to be covert as an integral part of an overall investigation. In other words, it was submitted, at the time the warrants were issued, the authorised justice was aware that the execution of the warrant was to be kept secret from the plaintiff and that following execution of each warrant an application for postponement of service of the respective Occupiers Notice would follow. This was based upon the assumption that s.15 permitted postponement of service in such circumstances. 68 Mr. Robinson supported the plaintiffs argument by specific reference to the requirements of the statutory scheme described as one ... for the open and reviewable conduct of warrants ... ... The elements in the statutory scheme were identified as including: the requirement upon entry of premises to announce that a search warrant is to be executed (s.15A); the duty to show the warrant (s.16); execution by day (s.19) (absent a specific order permitting execution by night); the necessity for record keeping (s.13); the obligation to inform the occupant of rights of review (the prescribed Occupiers Notice); and the right of an occupier to inspect the grounds for issue etc. 69 These were said to point to the absence of a power to authorise the covert execution of warrants issued under the Act and to the absence of a power to withhold service of an Occupiers Notice by reason of police operational requirements. Analysis 81 The specific issues that arise for consideration concerning the validity of the warrants themselves and the lawfulness of the execution of the warrants are as follows:(1) The validity of the warrants require an examination of the following four matters:(a) The general principles relating to the issue of search warrants. (b) The provisions of the Act. (c) The terms of the applications for the warrants. (d) The authority or purported authority granted by the authorised justices as expressed in the warrants.

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(2) The lawfulness of the execution of the warrants requires consideration of the following three matters:(a) The statutory safeguards which the Act afforded occupiers whose premises are to be searched under the authority of a search warrant. (b) The provisions concerning Occupiers Notices. (c) The question as to whether there was valid postponement of service of the Occupiers Notices in accordance with the Act. Validity of the search warrants 82 The validity of a warrant turns on the fulfilment of the conditions for its issue: see George v Rockett , that is, upon whether the authorised justice issuing it has complied strictly with the statutory requirements governing its issue . [T]hese include the limitations, express or implied, upon the power to issue the warrant. If the statutory pre-conditions are not met, it is very likely that the warrant will be at least seriously defective . 83 The duty of an authorised justice issuing a statutory search warrant requires the issuing justice to ... stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and inviolate security of his personal and business affairs (per Burchett J in Parker v Churchill (1985) 9 FCR 316 at 322). In Carroll v Mijovich, Kirby P emphasised that a central question is the protection of privacy of individuals against the arbitrary use ... of the great power of entry and search .... Accordingly, in determining an application for a search warrant and an application for postponement of service of an Occupiers Notice upon entry into or onto premises, an authorised justice must adopt an impartial role between police and the citizen. In other words, he or she is not permitted to exercise the statutory powers under the Act in a partial manner such that the interests of law enforcement agencies impermissibly trump the statutory safeguards that Parliament has put in place for the protection of occupiers. 84 In applying the principle that the validity of a search warrant, essentially, turns upon whether or not it has been issued in accordance with the prescribed statutory pre-conditions, it is necessary to identify those conditions. These include a requirement under the Act for a verified written application (except for cases of urgency - see s.12, telephone search warrant), that the application contains specified information (s.12A), and the requirement that the authorised justice be satisfied that there are reasonable grounds to issue a search warrant. Additionally, a warrant should be in the prescribed statutory form (s.14). 85 Accordingly, for a search warrant to be valid under the Act, it was essential that there be compliance with the statutory provisions in ss.5, 6, 11 and 12A. If such requirements were met and the warrant was in the prescribed form in accordance with s.14 of the Act, then it met the conditions essential for its validity. In these proceedings, it has not been suggested that the three warrants did not each satisfy all such statutory pre-conditions or otherwise meet the prescribed statutory requirements. 86 The fact that the applicants for the warrants disclosed that it was their intention that they be executed covertly, did not, of itself, in my opinion, invalidate the process leading to the issue of the warrants themselves. Their initial validity is dependent, not upon the provisions concerned with the ancillary or separate power in an authorised justice to authorise the execution of a warrant by night (ie, s.19). Validity depends, as stated above, upon fulfilment of the statutory preconditions. The applications for the warrants complied with the Act. 87 Notwithstanding the disclosed intention as to the manner by which the warrants were to be executed and whether or not the specific power to authorise execution of a search warrant by night under s.19 was properly exercised on the ground, inter alia, that to do so would facilitate a covert execution of it, are not matters that detract from the fact that the pre-conditions for the warrants issue were satisfied.

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88 Mr Saidi of counsel, in emphasising that the necessary pre-conditions for the issue and the execution of the warrants were satisfied, observed that this included the fact that the Occupiers Notices were served within the six month period. 89 On behalf of the third, fourth and fifth defendants, he sought to argue in support of a power for a warrant to be executed covertly: One should not confuse the concepts of a covert search warrant with that of a search warrant which may be executed covertly. The latter is permissible, though the former arguably is not. It is submitted that the plaintiff is confusing these concepts in these proceedings. The provisions of Clause 10 of the Regulations recognises the need to protect informants, address safety issues and protect the integrity of investigations. This is consistent with the policy of the legislation. There is recognition that the interests of the occupier can be clearly over-ridden by the terms of the legislation. 90 An alternative submission was that there had been substantial compliance with the relevant statutory requirements within the meaning of s.23 of the Act. 91 The grant of the warrant did not, in its terms, authorise it to be executed covertly. The warrant did not authorise its execution otherwise contrary to law. At most, at least in the case of the first and second warrants, the intended covert execution of them was, as indicated above, only relied upon as one of two grounds to justify their execution by night and for that to be permitted. 92 In these proceedings, the fact that ongoing investigation covert investigation was stated as one of two grounds for authorising the execution of the first warrant by night and ongoing investigation covert execution recorded as a ground for the execution of the second warrant by night could not, even if not valid or proper ground for the exercise of the discrete discretion under s.19 of the Act, in my opinion, lead to the conclusion that that of itself rendered the warrants themselves, otherwise lawfully issued, invalid. An authorised justice impermissibly taking into account a matter for the limited purpose of authorising execution by night would not, in other words, infect the antecedent or primary exercise of power to issue the warrant with vitiating error. 97 The information that was provided to the authorising justices in the case of each application under the Act for a warrant relevantly addressed the matters to be satisfied under the Act. The intended surreptitious execution of the warrants as disclosed by the applicants, in other words, was a matter separate and indeed extraneous to the statutory pre-conditions required to be fulfilled. 98 Accordingly, the intended execution of the covert execution of the warrants was not a matter, in my opinion, which in any way influenced or related to the antecedent or primary decisions to actually grant the warrants. The authorised justices did not, in the terms of the warrants, authorise or purport to authorise the covert execution of the warrants. I am of the opinion that the warrants were properly issued in accordance with the Act. 99 On the same basis, I do not consider that it can be said that the power to grant a search warrant under the Act was exercised for an improper purpose, namely, for the purpose of granting a covert search warrant. Whilst the disclosures were made to the authorised justices as to the intended covert method of executing the warrants, the warrants were, as I have stated, correctly issued upon the basis that the statutory preconditions were satisfied. Those conditions formed the basis upon which the authorised justices power to grant the warrants depended. Whether there was valid execution of the warrants 100 The procedures prescribed by the Act on the execution of a search warrant are fundamental to the second question referred to in paragraph [1]. In Ousley v The Queen, Toohey J, at 82, emphasised the importance of the statutory procedural safeguards attending the execution of such a warrant: In particular, while both search warrants and listening devices involve an invasion of privacy, an analogy between the two cannot be pressed too far. A search warrant will ordinarily be produced to the person whose premises are to be searched whereas the

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authority for a listening device will necessarily not be known to the person whose communications are to be recorded. It follows that in the case of a listening device, no opportunity is provided for an assessment of its lawfulness at the time of its installation. 101 These observations reflect the accepted rationale that underpins statutory schemes that provide for the giving of authority for the execution of search warrants and associated procedural safeguards. 102 Similarly, in Ousley (supra), McHugh J (at 111-112) stated:A listening device warrant differs from a search warrant because the execution of the former is by way of covert installation of the listening device. Its installation is intended to go undetected by the person against whom or against whose interests the warrant is executed ... In contrast, a search warrant is ordinarily presented to the person whose rights and liability stand to be affected. At common law, the requirement for the officer executing a search warrant to produce the warrant to the occupier of the premises to be searched was restricted to circumstances where the occupier requested to see the warrant and this position is maintained in legislation such as the Search Warrants Act 1985 (NSW), s.16. However, provisions such as s.3H of the Crimes Act 1914 (Cth) make it mandatory for the executing officer to make a copy of any search warrant issued under that Act available to the occupier of the premises. Such provisions reflect the desire to achieve an appropriate balance between a persons rights of privacy and the need to facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. Recognition is given to the importance of enabling persons whose rights of privacy stand to be affected to satisfy themselves of the authority for such action, as emphasised by Lord Wilberforce in Rossminster:The person affected, of course, has the right to be satisfied that the power to issue [the warrant] exists: therefore the warrant should ... contain a reference to that power. Thus, although a requirement for disclosure of jurisdiction is easily understood in relation to search warrants, the need for such a requirement is less clear in the case of listening device warrants, which are not presented to affected persons prior to execution ... 103 As McHugh J in Ousley (supra) observed, underlying the statutory procedures prescribed for the execution of a search warrant is the fact that, absent statutory authority, the search of a persons premises and the seizure of items contained therein without the permission of the occupier clearly involves tortious conduct. Accordingly, any statutory authority for such conduct must be strictly construed (at 112). 104 Service of an Occupiers Notice referred to in s.15 of the Act is a central provision in the statutory scheme prescribed by the Act. It is plainly an important procedural safeguard in relation to a warrants execution. As discussed below, this is of central importance in determining the lawfulness of the execution of the particular warrants in this case. 105 Section 15 provides that an authorised justice, in addition to issuing a warrant, is also to prepare and furnish an Occupiers Notice to the person to whom the authorised justice issues a warrant (s.15(1)). The word shall in that provision imports an obligation upon the authorised justice to act in accordance with that section as does s.15(3) insofar as it also imposes an obligation upon the person or persons authorised to execute the search warrant. 107 Section 15 is [in very similar terms to s67, LEPRA]. 108 In Black v Breen [2000] NSWSC 987, Ireland AJ, as his Honour then was, considered a contention that the execution of the warrant in that case was contrary to law. An incomplete copy of the Occupiers Notice had been served [although this was an oversight by the officers.] 109 Ireland AJ referred to the judgment of Kirby P in Carroll v Mijovich and to the Second Reading Speech and reference therein to the major reforms introduced by the 1985 Act. He then added at [36]:It is not to the point that the plaintiff may have said that he did not wish to read the warrant or even the Occupiers Notice. The integrity of the execution of the warrant depends upon the

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performance of the various duties including that of furnishing the occupier with the Occupiers Notice which on the face of it recognises that it contains important information for occupiers concerning a search warrant. 110 It was held that the failure to hand the plaintiff a complete Occupiers Notice meant that the execution of the warrant was contrary to law and a declaration to that effect was made. 111 The requirement for service of an Occupiers Notice under s.15(3)(a) arises upon entry. It is in light of that provision that the proper construction of s.15(3)(b) may be derived. 112 The latter provision essentially provides for service of an Occupiers Notice other than on entry of the premises searched. Section 15(3)(b), insofar as it provides that if no such person is then present in or on the premises ... (emphasis added), is a reference to the time of entry, as referred to in s.15(3)(a). If the occupier is not present at the time of entry into or onto the premises, then s.15(3)(b) provides two alternatives for the service of an Occupiers Notice:(a) Personal service of the notice on the occupier. (b) Service in such other manner as the authorised justice who issued the warrant may direct. 113 These alternatives, it is to be noted, are both subject to the requirement to effect service as soon as practicable after executing the warrant. 114 The evident purpose of s.15(3) was to ensure that an Occupiers Notice was brought to the attention of the occupier either at the point of entry or as soon as practicable after the warrants execution. The importance and purpose which the legislature attached to the Occupiers Notice and its service contemporaneously with the execution of the warrant or promptly thereafter is clear. 115 Similarly, s.15(4) is also an important provision. It provides for the postponement of the service of an Occupiers Notice. However, it is not unlimited in its operation, for it specifically is concerned with and limited in its operation to Service of an Occupiers Notice pursuant to subsection (3)(b) .... 116 It has been contended on behalf of the plaintiff that the power to postpone service only arises following, and not before, the issue of a search warrant and, in particular, after execution of it. That conclusion, it is said, is inescapable from the terms of s.15(3) read with s.15(4). 117 In Carroll v Mijovich (supra), Kirby P examined the historical background and statutory context within which the Act is to be construed. His Honour referred to the obligation to provide an occupier with a notice of rights as one of ... the major reforms introduced ... (by the Act). He quoted the Minister in the Second Reading Speech to the following effect (at 3860):... this Notice will be given to every occupier of premises subject to search under a valid warrant. The Notice will contain details concerning the reason for the search and the nature of the powers conferred by the warrant. The language of the Notice will be plain so as to enable the occupier to check that the warrant has been properly issued. The Notice will contain advice in relation to seeking legal assistance should the occupier be dissatisfied with any aspect of the search. The occupier will keep this Notice. While introducing the idea of an Occupiers Notice, the Bills preserve the requirement to show the original warrant. 118 Parliament did not expressly provide in the Act for the consequence of a failure to comply with s.15. In those circumstances, as in Carroll, it is necessary to identify, if possible, any presumed legislative intent from the words of the provision in question. As Kirby P there stated (at 449), the relevant words are to be construed in the context of the Act as a whole and for the purpose of achieving the objects which may be imputed to Parliament in providing as it did in that provision. 119 The execution of a search warrant is a serious matter (Carroll v Mijovich at 449). In the present case, the effect of the approach taken by each applicant and those executing the warrants was to give priority to operational considerations over and at the expense of the procedural safeguards in s.15 of the Act. 120 The operational requirements of law enforcement agencies may be such, in a particular case, that a covert search warrant procedure is considered by those involved in an investigation as

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being desirable or even necessary. Inconvenience without such a procedure may result. However, it is the terms of the statutory scheme that determine where the balance lies between the interests of such agencies and the interests of the occupiers of premises. Accordingly, it has been observed:[I]nconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights: Plenty v Dillon (1991) 171 CLR at 654 referred to by the Full Court of the High Court in Coco v The Queen . 121 Kirby J in Ousley stated (at 144) that occasionally there is a need for the enlargement of police powers beyond those traditionally enjoyed. His Honour noted the accepted approach that courts properly tend to adopt a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them. However, his Honour also observed that when a real defect is demonstrated courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected (at 144). 122 The Search Warrants Act provides occupiers of premises with procedural safeguards. Provisions by way of exception or qualification would be required to limit their application in particular cases. In Morris v. Beardmore [1981] AC 446, Lord Scarman (at 463) stated:When, for the detection, prevention or prosecution of crime, Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation. 123 In Regina v Inland Revenue Commissioners [1979] UKHL 5; (1980) AC 952, Lord Wilberforce, at 997-998, stated:The Courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens right to privacy. But they must do this in the context of the times, ie., of increasing Parliamentary intervention, and of the modern power of judicial review. [W]hile the Courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process. 124 However, in this case, whilst particular provisions of the Act curtail occupiers rights, they only do so to the extent that the Act authorises. Whilst the presumption against statutory interference with fundamental rights may be displaced by necessary implication, that test is a very stringent one . The presumption may be displaced if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. That principle, however, has not been contended as having application in the present proceedings. 125 In the written submissions on behalf of the third, fourth and fifth defendants (paragraph 13), examples are provided of what are said to be reasonable grounds for searching the premises in the absence of an occupier and/or postponement of the warrant .... The examples provided were as follows:(a) Safety concerns if the warrant were to be executed in the presence of the occupier or other persons on the premises. (b) To prevent the risk of the search being frustrated upon police attendance (eg., disposal of drugs before police entry). (c) The occupier being a known violent offender or having known mental instability rendering it unsafe for police to conduct a search in his/her presence. (d) Public interest immunity concerns insofar as the search may be part of a wider operation and any search may tip other suspected officers off when searches may be proposed with respect to other premises. (e) To prevent any compromise or frustration of any ongoing investigation. 126 However, be that as it may, there is not to be found in the Acts detailed regime governing the issue and execution of search warrants authorisation for their execution covertly. The

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provisions of the Act, in fact, point in the opposite direction. The regulatory regime is clearly intended to protect persons as occupiers of premises that are the subject of a warrant, by requiring, inter alia, that they be given a notice of rights. 127 The covert execution of each of the warrants was, in my opinion, clearly contrary to the provisions of the Act. It is plain that the planned covert nature of the execution in each case had the effect of negating the procedural safeguards provided for by the Act. The result is that the execution of each warrant was, in my opinion, unlawful. 128 It is clear from what has been earlier stated that there is support for the contention that a decision by an authorised justice to postpone service of an Occupiers Notice solely for the purpose of enhancing the effectiveness of police investigations was not an available ground for a decision to postpone serve under s.15(4) of the Act. 129 However, given the conclusion expressed above, namely, that the execution of each warrant was unlawful, it is unnecessary to express any concluded view on this aspect. 130 A number of procedural issues were raised concerning the Occupiers Notices. These were:(a) whether an Occupiers Notice in each case had been served; (b) if such a notice had been served, the date upon which they were served; (c) in the case of the third warrant, whether service of the notice upon the plaintiffs solicitor was service for the purposes of the Act. 131 In light of the conclusion reached and expressed above, namely, that the execution of each warrant was unlawful, it is not necessary to deal with and resolve each of these procedural issues. They each relate to matters that post-dated the execution of the warrants and would only have required determination had the execution of the warrants otherwise been lawful. 132 It is also unnecessary, given the conclusion which I have expressed as to the lawfulness of the execution of each warrant, to resolve on a final basis the contention that the search was conducted on a selected basis as an intelligence-gathering exercise . There may in particular circumstances be a strategic reason for not seizing all such things. Further, a search of premises under a warrant will result in police executing a warrant making observations. The fact that a note may be made of such observations during the course of a lawful execution of a warrant does not, to my mind, render the execution of a warrant unlawful. 133 Mr Robinson referred to legislation that expressly addresses the subject of covert search warrants. Ms Richardson, on behalf of the defendants, correctly submitted that references to other legislation, in particular, the provisions of the Terrorism (Police Powers) Act 2002 (NSW), Part 3 Covert search warrants, does not assist in the construction of the Acts provisions. In deference to the submissions made, I will deal briefly with some of the matters raised. 134 Reference to such legislation does, at least, demonstrate, as one might expect, that the legislature has marked such covert investigative procedures as calling for specific provision, given the obvious implications such procedures have for the civil rights of occupiers of premises. This may be seen as reflected in the provisions governing the authorisation of applications for a covert search warrant under the Terrorism (Police Powers) Act. Section 27C requires, inter alia, that the person giving authorisation for a covert search warrant to issue must suspect or believe on reasonable grounds, inter alia:(c) that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises. 135 In this provision, the test of necessity rather than that of desirability or mere convenience has been selected by the legislature and sets the bar at a high level before authorisation may be given for such a warrant to issue. Conclusions 139 In relation to the three warrants, I am of the opinion that each warrant was validly granted under the Act.

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140 I have also concluded that the execution of each warrant was contrary to the Act and was, accordingly, in each case unlawful.
In light of the provisions that now exist under LEPRA for the grant of a covert search warrant, re-consider the fact in Ballis v Randall and the Hall Js decision that the warrants were validly granted. 2. COVERT SEARCH WARRANTS Under s46C, only a police officer holding the rank of Superintendent or above, or a Commissioner or Assistant Commissioner of the Police Integrity Commission (or the NSW Crime Commission) may apply for a covert search warrant. A searchable offence for a covert search warrant means a serious offence which is defined under s46A. Application must be made to an eligible judge (defined under s46B). The applicant may apply for a cover search warrant to authorize the covert entry and search of particular premises if the applicant:

suspects on reasonable grounds that there is, or within 10 days will be, in or on the premises a thing of a kind connected with a search offence in relation to the warrant; and considers that it is necessary for the entry and search of those premises to be conducted without the knowledge of the occupier.

The applicant must verify the information given to the judge on oath or by affidavit (s60(2)). It is an offence under s63 for an applicant to give false or misleading information to the judge. Form of the warrant: A warrant is to be in the form prescribed by the regulations: see Forms 9 to 9B of the regulations. Clause 6 of the regulations describes which forms are necessary for which search warrants. Occupiers notice: Before the execution of a covert search warrant, the judge must prepare and give an occupiers notice to the applicant (s67(1)). Unlike ordinary search warrants, the occupiers notice is not served at the time of execution of the warrant, but as soon as practicable after the warrant is executed (s67(8)), unless the service of the notice is postponed under s67A. Service may be postponed for up to 6 months under s67A, if the judge who issued the covert search warrant is satisfied there are reasonable grounds for the postponement. Postponement can be occur for up to 3 three years. Notice to adjoining occupiers: The applicant must prepare an adjoining occupiers notice (s67B) if the execution of the warrant involves entering adjoining premises to gain access to the subject premises. The judge must approve the notice before execution of the warrant. The adjoining occupiers notice must specify: (a) the name of the person who applied for the warrant (b) the date when the warrant was issued (c) the address or other description of the subject premises (d) any other matters required by the regulations.

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The adjoining occupiers notice must be served on the occupier at the time the covert search warrant was executed, on (or as soon as practicable after) service of the occupiers notice on the occupier of the subject premises. It is to be served personally or in such other manner as the judge directs. The issue of a covert search warrant: Application must be made to an eligible judge, that is a judge of the Supreme Court (s46B). The judge has to be satisfied, him- or herself, that there are reasonable grounds for issuing the warrant (s48). In fact, under s62, a judge must not issue a warrant unless the application for the warrant includes the information set out in s62(1) (see above). In addition to these matters, a judge must not issue a covert search warrant unless the application contains the additional information (s62(2)): (a) the name of the occupier of the premises (b) the name of any person believed to have committed or to be intending to commit the searchable offence

(c) whether the occupier is believed to be knowingly concerned with the

commission of the searchable offence (d) whether it is necessary to enter adjoining premises in order to gain access to the subject premises (e) the address or other description of those adjoining premises and the particulars of the grounds on which entry to those adjoining premises is required

(f) the powers that will be exercised on entry to the subject premises that are
sought to be authorized by the warrant under s47A(2)(d) (g) details of any previous covert search warrants issued in relation to the subject premises. When the judge is determining whether there are reasonable grounds to issue a warrant s/he must consider the following matters (although these are not exhaustive) under s62(3) and (4):

(a) the reliability of the information on which the application is based, including
the nature of the source of the information (b) if the warrant is to search for a thing in relation to an offencewhether there is sufficient connection between the thing sought and the offence (c) the extent to which it is necessary for the entry and search of the premises to be covert (d) the nature and gravity of the searchable offence (e) the extent to which the privacy of a person (who is not believed to be involved in the commission of the searchable offence) would be affected (f) whether any conditions should be imposed in relation to the execution of the warrant (g) whether it is reasonably necessary to enter adjoining premises to gain access to the subject premises

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(h) whether this is reasonably necessary in order to avoid compromising the

investigation of the searchable offence. A judge who is not satisfied that there are reasonable grounds for issuing a covert search warrant, may if requested, instead issue an ordinary search warrant, but only if satisfied there are reasonable grounds for doing so (s48(2)). It is an offence under s63 for an applicant to give false or misleading information to the judge. Execution of the warrant: When executing a covert search warrant, the police are not required to comply with s68 (announcement before entry) if they believe on reasonable grounds that immediate entry is required to ensure the safety of any person, or to ensure that the effective execution of the warrant will not be frustrated. Indeed, the covert nature of the warrant would disappear if an announcement were made. The police are also not required to comply with s69 (duty to show warrant) when executing a covert search warrant. Although the police officer who applied for the warrant has the authority to execute the warrant, s/he may do so with the use of assistants (s71). A covert search warrant may be executed by day or by night, unlike an ordinary search warrant. A covert search warrant expires: when it has been executed or when its specified expiry date has past (s73(1), (2A), (6)). What does a covert search warrant authorize a police officer to do? Once a covert search warrant is issued by the judge, who has to be satisfied on reasonable grounds that the warrant should be issued (see above), the warrant authorizes any executing officer to enter the subject premises and to search for things connected with a particular searchable offence in relation to the warrant (s47A). In addition, the executing officer is also authorized to conduct the entry and search without the knowledge of the occupier of the subject premises; to enter adjoining premises (if the warrant authorizes this) without the knowledge of the occupier of the adjoining premises; impersonate another person for the purpose of executing the warrant; and to do anything else that is reasonable for the purpose of concealing the execution of the warrant from the occupier of the subject premises (s47A(2)). Seizure of things under a covert search warrant Section 49 gives the executing officer the power to seize and detain a thing, or kind of thing, described in the warrant. In addition, the executing officer may seize and detain any other thing that s/he finds in the course of executing the warrant as long as s/he has reasonable grounds to believe the thing is connected with any offence. Seize and detain means the power to remove the thing from the subject premises and the power to guard the thing in or on those premises. It also means the power to place of a kind of thing in substitution for a seized thing (s49(2)). A covert search warrant may also authorize the return of any things seized or the retrieval of any things placed on the subject premises (s49A). This means the subject premises may be re-entered in order to do so. Search of persons pursuant to a covert warrant:

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When the warrant is executed, the police officers may search any person on the subject premises if they reasonably suspect the person to have a thing on them that is described in the warrant (such as drugs or a firearm) (s50). Note that this power to search may then trigger the power to arrest under s99. It is an offence for anyone to obstruct or hinder an officer when executing a warrant (s52). Report to judge: The applicant for a covert search warrant must make a report in writing to the judge who issued the warrant setting out all the requirements listed in s74A. Consider the extract from the following article which discusses the scope of the covert search warrant provisions under LEPRA.

D. Boniface, (2009) Choose Your Neighbours Carefully! New NSW Covert Search Warrants and Section 138 (published in Issue 93 Precedent July/August 2009 at 4) Covert search powers are not unique or new. They were included in the Terrorism (Police Powers) Act 2002 (the NSW terrorism legislation) by amendments made in June 2005. The NSW terrorism legislation gave police powers to prevent imminent terrorist acts and to investigate terrorist acts after they occurred. These covert search powers were said to be extraordinary and not designed or intended to be used for general policing.21 However, covert searches facilitated by an informal practice had been used for general policing for some time.22 This involved obtaining standard search warrants23 and being granted permission by the issuing officer to postpone service of the occupiers notice. Postponement of the occupiers notice was granted solely for the purpose of enhancing the effectiveness of police investigations, and the covert execution of warrants using this practice was held to be invalid in 2007.24 The debate and passing of the legislation occurred in an environment of moral panic about alleged bikie gang violence and a government desperate to be seen to be doing something. Reverend the Hon Fred Nile summarised the context: As other speakers have said, bikie gangs have been involved in violent activities and drug dealing for some time, but there has been an elevation in their sophistication and organisation ..., particularly in NSW. If we wish the police to deal with violent bikie gangs we have to increase their powers to do so. ...[O]ver the past few months there has been a dramatic increase in violent activity by bikie gangs. ... We have seen many
21 22

The Hon Bob Debus, Legislative Assembly Hansard, 9 June 2005. Phillip Bradley, NSW Crime Commissioner, evidence given before the NSW Parliamentary Joint Committee on the Office of the Ombudsman and the Police Integrity Commission Inquiry into scrutiny of NSW Police counter-terrorism and other powers, 20 September 2006; Greg Smith, Legislative Assembly Hansard, 4 March 2009; Parliamentary debate concerning the Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Act 2009 (NSW): The Hon Tony Kelly (Minister for Police, Minister for Lands, and Minister for Rural Affairs), Reverend the Hon Fred Nile and the Hon. John Hatzistergos (attorney-general, and minister for industrial relations), Legislative Council Hansard, 24 March 2009. 23 Under Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), formerly the Search Warrants Act 1985 (NSW). 24 Ballis v Randall [2007] NSWSC 422 (7 May 2007).

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shootings in different suburbs ... I am sure that speakers critical of the Bill will admit that such events did not occur in previous decades.25 Reference was also made to the possibility that [A]n overlap might be developing between potential terrorist groups and bikie gangs a serious issue that should not be ignored. ... These incidents, which have drastically altered the face of law and order in this state, warrant the enactment of covert search warrant legislation.26 Lip-service was paid to the detrimental affect on basic civil rights. The Hon Trevor Khan summarised the pragmatic position of the opposition in the following way: This is bad legislation in its current form that will achieve outcomes that many do not properly understand. I fear, and I will be happy to be proven wrong, that once legislation such as this is introduced that takes away basic civil rights from all citizens of this state, we will in truth never see those liberties returned. This government would do better to spend the time of this Parliament in developing proper laws to deal with the violence on our streets caused by organised gangs, including outlaw motorcycle gangs, rather than pursuing this legislation in its current form. I find this legislation a bitter pill and do not hide the fact that I find it difficult to swallow, but swallow it I will.27 Pragmatism and reassurance by the safeguards said to be contained in the legislation were considered to be sufficient to pass the Bill, with no small comfort attributed to faith in the police. [B]y affecting such a great expansion of powers, just as we place our everyday safety in the hands of the police, so here we entrust police with the weighty responsibility of protecting the innocent from undue incursions into their privacy and property, and with the task of using these new tools with only the highest level of integrity.28 Occupiers of adjoining premises If it is proposed that premises adjoining or providing access to the subject premises, be entered for the purposes of entering the premises (the subject of the covert search warrant), the address or other description of the premises that adjoin or provide such access, and particulars of the grounds on which entry to those premises, is required.29 The eligible issuing officer is to take into account whether entering adjoining premises is reasonably necessary in order to enable access to the subject premises, or whether this is reasonably necessary in order to avoid compromising the investigation of the searchable offence or other offence.30 Though these two factors are concerned with the effectiveness of police investigations, and the rights of the occupiers of the adjoining premises is not a specific matter to be considered within the context of allowing entry, a consideration to be taken into account when determining whether a covert search warrant is to be issued is the extent to which the privacy of a person who is not believed to be knowingly concerned in the commission of the searchable offence is likely to be affected if the warrant is issued.31 Such legislative preconditions on their face provide some confidence that a reasonable balance will be maintained between invading the privacy of persons unconnected to the investigation, and the effectiveness of that investigation. Some insight into the effectiveness in practice of the same legislative preconditions safeguarding the privacy of occupants of adjoining premises is provided by the NSW ombudsman in an Issues

25
26

Legislative Council Hansard, 24 March 2009. Ibid. 27 Op cit. 28 The Hon John Ajaka Legislative Council Hansard, 24 March 2009 29 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s62(2)(c). 30 Ibid, s62(4)(e). 31 Ibid, s62(4)(c).

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Paper32 reviewing the exercise of covert search warrant powers under the NSW terrorism legislation.33 The covert search warrant powers of the NSW terrorism legislation have been in operation since June 2005. By April 2007, NSW Police had applied for five covert search warrants and all five were issued.34 Two of the five warrants were not executed. One warrant was not executed because there was no opportunity to execute it covertly. Another warrant was not executed because the address on the application was incorrect. Eligible issuing officers (Supreme Court judges) who issued the warrants, commented to the ombudsmans office staff that warrant applications had conformed to a high standard. A proforma document was used for those covert search warrants. It sets out a standard list of powers available under the legislation. The ombudsman reported that it appears these powers are granted, unless the judge crosses any of them out.35 Entry to adjoining premises was authorised in four out of five warrants. 36 The Ombudsman reported:37 In three warrants authority to enter adjoining premises was provided. NSW Police subsequently advised that the applicants did not intend to apply for entry to adjoining premises, but did so by default because entry to adjoining premises was included in the proforma warrant document. In each case, the judge signed the warrant without crossing out the reference to entry to adjoining premises. In one warrant, authority to enter adjoining premises was provided. NSW Police subsequently advised that the application did not in fact provide any grounds upon which entry was required, or provide the address or other description of the adjoining premises, and that the request in the affidavit to exercise this particular power was erroneous. In one warrant, no request to enter adjoining premises was made. The judge crossed out the reference to entry to adjoining premises and so the power was not authorised. ... entry to adjoining premises is still included in the proforma warrant document. This means that, unless the applicant or the judge crosses out the relevant part of the document, the default position will still be that the power to enter adjoining premises will be granted. Although this data is a small sample, there is no opportunity to examine a larger sample because the ombudsmans oversight of the exercise of these powers under NSW terrorism legislation finished in September 2007. The fact remains that of the five warrants issued, on one occasion only did the eligible issuing officer delete the proforma reference to authorisation to enter adjoining premises. In practice, the legislative preconditions for issuing a covert search warrant under the NSW terrorism legislation have not safeguarded the privacy of occupants of adjoining premise. This provides a timely warning for issuing covert search warrants under the NSW covert search warrant legislation more vigilant compliance with the preconditions for issuing a covert search warrant, and less proforma documentation. Law enforcement conduct
32

NSW Ombudsman, Issues Paper Review of Parts 2A and 3 of the Terrorism (Police Powers) Act 2002, April 2007, Preventative Detention and Covert Search Warrants, Chapter 3. 33 The NSW Ombudsmans oversight of the exercise of the powers in the NSW terrorism legislation finished in September 2007. Ibid, p42. 34 See note 35 at p35 35 See note 35 at p38 36 No adjoining premises were entered during the execution of the warrants issued, see note 35 at p39 37 See note 35 at pp39-40

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The covert search warrant does not authorise search of adjoining premises. Seizing things reasonably believed to be connected to any offence following a search would be unlawful. This makes evidence of the conduct of law enforcement officers while executing the warrant central to proving an illegality or impropriety. The Australian Human Rights Commission38 has expressed a concern that: the delayed notification will mean individuals whose houses have been searched will not be able to challenge searches that are unreasonable, not based on proper grounds, or are excessive because, in some cases, they will not know that a search has occurred for three years. This is particularly important given some or all of the individuals residing in the premises may not be involved in any criminal activity.39 Proving an illegality or impropriety will be very difficult without some independent scrutiny of the conduct resulting in the seizure. Without such evidence, it is difficult even to know whether a search took place. Independent evidence corroborating the conduct of law enforcement officials would solve this problem. However, the NSW covert search warrant legislation makes no provision for this. By contrast, the comparable Queensland legislation specifically provides for covert searches to be videotaped if practicable.40 The NSW covert search warrant legislation should also have such a provision. The NSW Police Standard Operating Procedures (SOPs) apply when exercising powers under the NSW terrorism legislation. Some SOPs relate to the execution of covert search warrants, and in those procedures there is a reference to the presence of an independent officer and videorecording of the execution of the warrant where practicable. The ombudsmans Issues Paper 41 reported that, of the five covert search warrants issued, three were executed and, in one of those, video-recording of the search took place. So much more could have been done to create a little balance. The Queensland legislation, for example, employs the advocacy of a Public Interest Monitor, who must be advised of a covert search warrant application,42 and any submission it makes must be taken into account by the eligible issuing officer.43 This, in itself, could draw specific attention to the necessity (or not) of allowing entry to adjoining premises. When issuing a warrant under the Queensland legislation, the eligible issuing officer may also impose any conditions necessary in the public interest.44 The NSW covert search warrant legislation has a legitimacy deficit. Its enactment provided very limited time to review the balancing mechanisms in other states. The Ombudsmans Final Report concerning covert search warrants under the NSW terrorism legislation was also not publicly available. This is very regrettable, since the attorney-general had the Final Report but did not table it.45 That report could have provided an assessment of the balance that had been struck between police and private interests in legislation with an identical scheme for covert search warrants. It could have provided input for submissions by concerned community and professional groups and parliamentary debate. It could have made a significant contribution to rationally
38

Previously known as the Human Rights and Equal Opportunity Commission. Letter dated 18 March 2009 to the Hon John Hatzistergos MP, attorney-general and the Hon Greg Smith MP, shadow attorney-general footnotes omitted.
39
40

Police Powers and Responsibilities Act 2000 (Qld) s216(e). See note 35 at p39 42 Police Powers and Responsibilities Act 2000 (Qld) s212(4). 43 Ibid, s214(g). 44 Ibid, s215(2). 45 The NSW Ombudsmans Final Report reviewing Part 3 (Covert Search Warrants) of the Terrorism (Police Powers) Act 2002 was completed in September 2008. It was sent to the attorney-general, but it has not been tabled in Parliament at the time of writing.
41

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assessing the relative balance between intrusion into peoples privacy and police operational effectiveness for the NSW covert search warrant legislation. Case Law: The secretive nature of covert search warrants means that reported decisions are limited. An example of where a covert search warrant was employed along with other surveillance techniques is provided by R v Goncalves [2011] NSWSC 147.

R v Goncalves [2011] NSWSC 147

Kirby J. [1] This is an application for bail by Victor Manuel Goncalves, a man aged 34 years, who is charged with a number of drug offences. The most serious is an offence under s 25(2) of the Drug Misuse and Trafficking Act relating to the supply of the drug cocaine. The amount of the drug in relation to that charge is said to be 380 grams, which is more than a commercial quantity, that being defined as more than 250 grams. It carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 10 years. [2] In addition, there are other drug charges. They relate to drugs found in the home of the applicant; namely, 1.6 grams of cocaine, 3.4 grams of amphetamine, and 23.1 grams of methyl amphetamine, the last being found in the freezer at his home address. [3] The charges relating to the smaller quantity of cocaine and amphetamine are brought under s 10(1) of the Drug Misuse and Trafficking Act where the penalty is 2 years imprisonment. The larger amount of methyl amphetamine, 23.1 grams, is a charge brought under s 25(1), an indictable quantity being 5 grams for that particular drug. On the Crown case, on that particular charge, the amount said to be in the possession of the applicant amounts to 230 doses of that drug, according to ordinary street usage. [4] In addition, the applicant is charged with knowingly dealing with the proceeds of crime; namely, almost $257,000. [5] The circumstances giving rise to the charges are set out in the Crown papers, Ex A. Mr Goncalves was born in Portugal. He came to this country at the age of 11. He was educated in Australia and has lived in Australia since that time. As mentioned, he is now 34 years old. Nonetheless, he has dual citizenship. He is said to have recently renewed his Australian Visa. [6] On the Crown case, he was a close companion of his co-accused, Menzie Sefian. That much is not in contest. As will shortly be described, Mr Sefian was to be the best man of the applicant at his wedding, which was scheduled for Saturday next, 12 March. [7] In November 2010 a task force was formed by the police to investigate the trafficking of drugs in the Sutherland Shire. In the course of an investigation the police identified Mr Sefian and the applicant as persons involved in the trafficking of drugs. It was clear that they had a close association. On the Crown case, Mr Sefian is the major player and Mr Goncalves may be described as his lieutenant. Mr Sefian is said to have close ties with Thailand and has lived in Thailand from time to time. There is some suggestion that he had intended to return to Thailand. [8] On 9 January 2011, according to the Crown papers, there were conversations between Mr Sefian and others, including someone associated with an outlaw motorcycle gang, relating to drugs, specifically cocaine. These conversations were lawfully recorded by listening device. [9] On 19 January 2011 Mr Goncalves attended Mr Sefians unit at Cronulla. Their conversation was intercepted. In the course of the conversation, one gathers from the description given in Ex A, Mr Sefian instructed the applicant in the use of a firearm. He made reference to a 22 calibre and 8 gauge. He said that he should keep this with you just in case for protection. After the conversation, the applicant was seen to drive Mr Sefian to the airport where he boarded an international flight to Bangkok.

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[10] Thereafter the police, under a covert search warrant, searched Mr Sefians unit at Cronulla. They located various quantities of drugs, including 300 pills and identified what might be described as paraphernalia of a person involved in drug dealing. They also located a .22 calibre pistol with five rounds of ammunition in the ceiling of the main bedroom. Under the same warrant the police returned to the unit on 10 February and found additional drugs in a small quantity. [11] On 1 March 2011 Mr Sefian returned to Australia. At 6.30 that day Mr Goncalves was seen to attend Mr Sefians unit carrying a sports bag. Their conversation within the unit was then lawfully recorded. It was a conversation in which the applicant accounted to Mr Sefian for what one would infer were drugs sold during Mr Sefians two-week absence. Various names, which I infer were the argot names given to drugs, were referred to and specific amounts of cash identified in the context of each, suggesting quantities of prohibited drugs obtained or sold whilst Mr Sefian was in Thailand. The cash, which was, one gathers, counted out, amounted to almost $257,000. There was also reference to moneys that were owing by persons who had apparently been given credit. The sums were not small. They included reference to $80,000 and $3500. [12] The Crown papers suggest that the inference should be drawn that the applicant was reading from some form of ledger, accounting to his superior. [13] There was then a discussion before they left about the purchase of other drugs and whether or not Mr Goncalves could vouch for them, which he said he could. He was asked by Mr Sefian to get a price. This appears to be a conversation between people who were heavily involved in drug trafficking. [14] On 5 March 2011 there was a further conversation, according to the Crown papers, between Mr Sefian and the applicant that was lawfully intercepted. They discussed washing of money, they referred to a construction company and $68,000. Again the amounts identified were large. This was not, one would infer, a small enterprise. [15] One then comes to the facts relating to the most significant charge against the applicant, that under s 25(2) of the Drug Misuse and Trafficking Act . On 5 March 2011 Mr Sefian hired a red Ford Falcon sedan from Avis Rent A Car. Thereafter there was a conversation between the applicant and Mr Sefian where they discussed flattening out bags, so it can fit. Sefian said there was one with a 8 on it. [16] The Crown invites an inference, based upon the search which I am about to describe, that this was a reference to the concealment of drugs under the vehicle. [17] Later the same evening Mr Goncalves returned to Mr Sefians unit. They had a further conversation about fitting something to the vehicle. Their conversation suggested that the two of them, or at least one of them, would travel to Melbourne to deliver what was about to be concealed. [18] Mr Goncalves was captured on security CCTV footage driving the red Ford Falcon sedan underground to the car park. He was also seen with Mr Sefian approaching the hire car carrying a plastic Myer shopping bag. He and Mr Sefian remained with the vehicle for a period of time before he, Mr Goncalves, was seen driving the vehicle out of the car park. The vehicle was then parked on the street. [19] At 6.15 the next morning, 6 March 2011, investigators conducted surveillance outside the unit of Mr Sefian. They saw him walk out of that unit carrying two bags of luggage towards the red hire car. He was then approached by police and placed under arrest. The vehicle was examined. Located under the vehicle was a plastic container secured on the underside of the drivers compartment. It was held both by industrial strength magnets and tied shut using black cable ties. [20] Within the black plastic container there was two clear plastic bags containing white powder. They were later weighed and found to be 380 grams. In one there was a quantity of 5 ounces and in the other 8 ounces. When asked, Mr Sefian denied any knowledge of the container or its contents.

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[21] The police then conducted a search of his unit. They found both drugs and the .22 pistol together with the five rounds of ammunition. In addition they found $41,350 and a heat sealing machine. On the plastic strips of two plastic bags within the kitchen they found the numerals written on them of 8 and 5, which the Crown suggests was a reference to the quantity of drugs in the two bags, and a reference to the 8 referred to by Mr Sefian in his conversation with Mr Goncalves.

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CLASS 21: INTERROGATION OF SUSPECTS: RIGHT TO SILENCE AND TAPING OF INTERVIEWS

1. Can an accuseds silence amount to an admission?

Section 89: Evidence of silence (1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused: (a) to answer one or more questions, or (b) to respond to a representation, put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence. (2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding. (4) In this section: "inference" includes: (a) an inference of consciousness of guilt, or (b) an inference relevant to a partys credibility.
Investigating officials can be frustrated by an accuseds refusal to answer some or all of their questions during an investigative interview. However, the right to silence has been enshrined within our laws for centuries and is protected in a number of ways. Under s89, the failure to answer questions put by the police, for example, cannot be used against the accused in any subsequent proceedings against him or her, such as drawing the conclusion that the accused is guilty. During the trial judges summing-up, the jury will be told by the trial judge that the accused has a right to silence and that s/he was entitled to exercise that right on the occasion in question. In fact, the caution that the police are required to give a suspect before interrogation explicitly states that the suspect does not have to say anything. Therefore, an accused who chooses to exercise that right cannot be disadvantaged at a subsequent trial. The jury must, therefore, be directed by the trial judge not to draw any adverse inference from the accuseds silence during police or other questioning. This is similar to the instruction the trial judge must give when an accused person chooses not to give evidence in court (see s20, Evidence Act 1995 (NSW); R v Azzopardi). Note that it is also advisable for a trial judge to instruct the jury when the issue of the accuseds silence during an investigative interview is first raised in the trial, as was the case in Sanchez v R (extracted below). When an investigative official gave evidence of Sanchezs silence during his trial, the judge turned to the jury and said: Ladies and gentlemen, any person who is spoken to by the police and asked whether he or she wishes to make a statement is quite within his or her rights to decline to make such a statement and no adverse inference should be brought against the accused because he exercised those rights. In Sanchez, Campbell JA stated at [58]: at the time evidence is given that an accused has exercised a right of silence, a judge should give a direction to the jury that they are not to draw an adverse

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inference from the accused having done so. On both formulations, there is no rule to the effect that that warning must be repeated in the summing up. It may well often be desirable, and prudent to do so, but whether failure to do so involves appellable error will depend on the circumstances of the individual case. The scope of s89, compared to the common law right to silence, is examined below.

Sanchez v R [2009] NSWCCA 171

2 CAMPBELL JA [with whom Latham and Harrison JJ agreed]: The Appellant has been convicted in the District Court of New South Wales on a charge of importing a commercial quantity of a border-controlled drug, namely cocaine. There was no dispute at the trial that the Appellant had arrived at Sydney Airport on 19 October 2006 on a flight from Argentina, and that a quantity of cocaine, estimated to be 2.369 kgs, was found concealed in his luggage. The issue at the trial concerned whether he had knowledge of the presence of the cocaine or was reckless as to its presence. 3 The grounds of appeal relate to the adequacy of the trial judges directions to the jury. 4 One ground of appeal alleges that a miscarriage of justice arose from two omissions on the part of the trial judge, namely: (a) to give adequate directions on the right of silence, and (b) to give adequate directions on the inference that could be drawn from the Appellants exercise of his right of silence during official questioning (section 89 Evidence Act 1995 (Cth)). 5 The second ground of appeal is that a miscarriage of justice arose from a positive error of the trial judge, namely directing the jury that they could draw an adverse inference from the Appellants failure to raise a defence during his questioning by Customs and Federal Police. 7 Though at the time of his arrival in Sydney the Appellants home was in Colombia, he is a citizen of the United States of America and was travelling on a United States passport. There was evidence that when the Appellant arrived at Sydney Airport he was carrying as hand luggage a black laptop computer bag, a black backpack and a camera and related equipment. The laptop computer bag was sometimes referred to in evidence as a briefcase. 9 On arrival the Appellant collected a suitcase that was wrapped in plastic from the luggage carousel. A Customs officer, Mr Tammareddi approached him, asked for his travel documents, and asked him some questions. Mr Tammareddis evidence included: And then I pointed to the, to his luggage and said, Is this your luggage? He said, Yes. And I said, Did you pack the bags yourself? He said, Yes. And I said, Are you fully aware of the contents? He said, Yes. 13 [After his computer bag was x-rayed and cocaine was detected in the lining of that bag and another traveling bag] Mr Tammareddi took the Appellant to an interview room. Another Customs officer, Mr Koustoubardis came into that room soon after. The rest of the Appellants conversation with Customs officers was videorecorded. That videorecording and a transcript of it were admitted into evidence without objection. [Sanchez was cautioned by the customs officers and he was informed of his rights, including the right to remain silent. Australian Federal Police officers then arrived. Sanchez was cautioned by them, arrested and taken to an AFP interview room. During his trial, Sanchez gave evidence and said that he had been given the computer bag by two acquaintances for whom he was doing some research about setting up an internet caf in Sydney.] 37 The Crown prosecutor submitted that the Appellants version of how he came to bring the two bags into Australia was unbelievable. 38 The Crown also said: When alerted to the positive tests for cocaine in his laptop bag he did not advise that the brown bag was not his, even though he was given the opportunity. 39 In the course of summing up the judge said: When it became apparent that the customs officer or officers had detected what they believed to be drugs, at no stage did he protest that he was carrying the brown bag for

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somebody else, or that his computer bag had been packed by another who had just given it to him. Nowhere in his discussions with the customs officers, nor with Agent Santamaria did he ever raise these matters. In the crown case as a matter of sheer commonsense you would expect some protest, some explanation, some effort to distance himself by telling the customs agents or the federal agents what he claims to be the truth, that is[,] how he came to be in the possession of those two bags. As to why he would not have raised that matter then and there, on the crown case is simply incredible. 40 It is this portion of the summing up that the Appellant submits is a misdirection. 42 There was no dispute at the trial about the applicable legal principles [as] stated by Mason CJ, Deane, Toohey and McHugh JJ in Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95 at 99: A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law . An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. ... That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. (emphasis added) 43 Their Honours went on to recognise that some cases had recognised a distinction between reliance on silence as evidence against the accused, and reliance on it by way of answer to or comment upon a defence raised for the first time ... at the trial. Their Honours said, at 101: ... the denial of the credibility of that late defence or explanation by reason of the accused's earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound. 45 [Section 89 was then referred to.] The Dictionary to the Evidence Act defined official questioning as meaning questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. Investigating official was defined as: (a)a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences. 46 The argument proceeded on the assumption that the Customs officers were investigating officials within the meaning of this provision. Members of the Australian Federal Police are included in the definition of police officer in the Evidence Act.

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48 [I]n R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 Lord Mustill stated that the right of silence covered at least six different types of immunity 50 In the present case, the third type of right of silence [specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind] applied concerning questioning of the Appellant from at least the time that Ms Purcell warned him immediately after testing of [the computer bag for cocaine]. The Appellant chose to exercise the third type of right of silence during his time with Mr Santamaria after his conversation with Legal Aid, but did not exercise it during his conversations with the Customs officers, or when he answered a question from Mr Santamaria before the Appellant spoke to Legal Aid. 52 The prohibition on suggesting that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable applies even if a person in authority has not asked an accused person a question in response to which one would expect, if the account the accused gave at his trial were true, that he would have given that account. Indeed, the prohibition applies even if a person in authority has not asked the accused person any questions at all. The prohibition applies to any suggestion that a defence might be rejected because the accused failed to say anything before the trial about the substance of the defence, whatever might have been the circumstances in which that failure to say anything might have occurred. [I]t does not need to be specifically claimed or exercised by an accused person, but is rather an entitlement about the manner in which his or her trial is conducted. Even a very talkative person can be considered silent within the meaning of this principle, if such conversation as he or she has before the trial does not include an account of the substance of the story that the accused tells in evidence at the trial, or has his or her counsel raise through cross-examination of other witnesses at the trial. 53 The operation of this type of right of silence is illustrated in Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1, where the trial judge had given a direction (recorded at 5): In testing the veracity of that defence brought before you in this court you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves, if this explanation is true, surely the sensible thing was to tell the police about it as soon as possible. Such a test of the veracity of the story does not depend on drawing any inferences from the exercise by the accused of his right to decline to answer questions but from producing here a story which if true he could have produced to the police but didnt. That direction was held to be clearly erroneous. 54 An important qualification of the extent to which the right of silence prohibits comment at a trial upon failure of an accused to give his account of the facts at an earlier time is stated by McClellan CJ at CL in Jones at: Of course, if the accused chooses to break his or her silence and give an explanation before trial which is inconsistent with an account given in evidence, the inconsistency may be used by the prosecution, both to attack the accuseds credit, and as consciousness of guilt. 55 What is meant by break his or her silence is that the accused, [while questioned], chooses not to exercise the third type of right of silence, and in the course of answering the question gives an account that is inconsistent with his or her evidence at the trial. 67 [C]ounsel for the Appellant on the appeal, submits that there has been a fundamental error in the directions to the jury that has led to a miscarriage of justice. That miscarriage arises, in his submission, because there is a real risk that as a result of incorrect directions and in the absence of correct directions the jury misused the evidence of the silence of the appellant. 69 The two paragraphs of the summing up concerning which the Appellant complains performed different functions in the structure of the summing up. The first paragraph is an accurate statement of the undisputed evidence in the case. The second paragraph purports to summarise an aspect of the Crown case concerning that evidence. The factual accuracy of the first

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paragraph does not necessarily mean that the judge made no error in stating those facts to the jury. 70 When the two paragraphs are taken together the jury could very well take from them that the Crown was suggesting that the failure of the Appellant to tell the Customs officers or the Federal agents the story that he had told in evidence was a reason why his account of how he came to be in possession of the two bags should not be accepted. Even though the judge was purporting to summarise the Crown submission (albeit inaccurately, as the Crown had said nothing about the failure of the Appellant to tell the substance of his defence to Agent Santamaria, or the federal agents) the judge said nothing about that being an illegitimate way for the jury to reason. [T]hat is a clear contravention of the Appellants right of silence, as expounded by the High Court majority in Petty, and as illustrated by the decision in Glennon. 71 I am not persuaded that there has been any separate contravention of section 89 Evidence Act. Section 89 is narrower in its scope than the common law concerning the right of silence. There was neither failure nor refusal by the Appellant to answer one or more questions put or made by an investigating official. Nor did he fail or refuse to respond to a representation from an investigating official. The Appellant made clear to Mr Santamaria that, if Mr Santamaria were to ask any question he would not answer it, but the interview after that point never got to the stage of any question actually being put or made, or any representation being put or made, to him. Thus the occasion for operation of section 89 has not arisen. 74 The passage in the summing up that is the basis of the appeal occupies approximately half a page of text, in a summing up that occupies in total just over 19 pages of text. It is quite plausible that counsel at the trial did not regard it as, overall in the context of the trial, creating any injustice. 75 As well, in seeking to understand how it happened that counsel did not seek to correct the error, one can consider what may have happened if the judge was asked to correct the direction. 76 Consistently with Jones and Reeves it would have been open to the trial judge to tell the jury that, while they could not draw any inferences from the Appellants failure to tell the Customs officers and Federal agents the account he gave in the witness box, they could take into consideration any inconsistency between matters that the Appellant had told the Customs officers and his evidence at the trial. The judge could tell them that the way they could take any such inconsistency into account was in deciding whether to regard the Appellants evidence at the trial as a reason for not finding the Crown case proved beyond reasonable doubt. 77 A very significant inconsistency between what he said to the Customs officers and his evidence at the trial was his affirmative response to a question about whether the brown bag was yours. The context in which he made that statement was significant; namely, after Ms Purcell had told him that she suspected his bag contained cocaine and that he had a right to remain silent. He was specifically told that his other baggage would be searched to make sure you dont have any more of this sort of thing with you today, and that the Customs officers would be contacting the Australian Federal Police. It was in that context that, when specifically asked, the Appellant said that the brown bag was his, and did not say that it was the property of someone else. 78 As well, there are some other matters in his conversations with the Customs officers that a jury might regard as falling short of actual inconsistency with his evidence at the trial, but that a jury would need to take into account in evaluating his evidence at the trial. These include his statement to Mr Tammareddi that he had packed his bags himself and was fully aware of the contents of his luggage, and his explanation for why the lining of the computer bag was thick and heavy. 79 It is quite plausible that counsel may have taken the view that, overall, it would not be helpful to his client to have the misdirection corrected at the price of the jury having pointed out to them the use that they were entitled to make of the Appellants discussions with the customs agents.

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80 A very important circumstance in deciding whether to grant leave is whether the accused lost a real chance of acquittal by reason of the error in the summing up. In the present case I am not persuaded that he did. In essence, his account had the following elements: - He had been asked, by two strangers that he had met comparatively briefly, and by chance, to go to a country that he had never been to before to perform an important business task for them. - The strangers offered to engage him on the strength of his own account of himself and his experience. - The information that he had about the two strangers was extremely scanty. - He was prepared to spend a significant amount of his time, and pay a significant amount of his own money for accommodation and incidental expenses, in the expectation that the strangers would pay him a fee, and reimburse his expenses, upon his completion of the task. - He set off to perform that task within days of them first asking him, and without doing any research or preparation to enable him to perform the task. - So far as his evidence goes, he had only the most general idea of the type of business for which he was to prepare a feasibility study, and there is no mention of any budget or other financial constraints within which the proposed business would operate. - While it was he who purchased his airline ticket to Australia, he did so partly with cash that the strangers had provided, and partly with money that the strangers had arranged to be sent to his wife so she could forward it to him. - The strangers gave him the two bags that contained the cocaine on the morning he departed, and he thought nothing unusual about that. - He did not notice that the computer bag was any heavier than his old computer bag. 82 The account he gave of the circumstances in which he came to Australia was so bizarre that I do not accept that there is a real chance that a jury would regard it as a reason for not drawing the inferences that would otherwise arise from the presence of the cocaine in his luggage. 83 I do not regard the misdirection concerning the right of silence as being such a departure from the essential requirements of the law that it goes to the root of the proceedings. The reasons given by the High Court in Glennon as to why a misdirection on the appellants right of silence was not a fundamental irregularity of the kind discussed in Wilde apply equally, in my view, to the misdirection involved in the present case. 84 In circumstances where the judge had told the jury, when Mr Santamaria was giving his evidence, that no inference unfavourable to the accused could be drawn from his exercising his right to decline to talk to the police, I would incline to the view that there was no error involved in failing to repeat that direction in the summing up. However, even if I were wrong in that view, a deficiency in the summing up arising from failure to repeat that direction would not be a departure from the essential requirements of the law going to the root of the proceedings, and in the circumstances that I have considered concerning the error in the summing up there would be no reason to grant leave under rule 4 concerning it. [Appeal dismissed.] 2. Section 281, Criminal Procedure Act: The mandatory taping provision

It is now accepted practice in Australia for interviews of suspects to be taperecorded, either by way of audio or video. Generally speaking, in NSW, if a suspect makes an admission to the police or other investigating official, it will only be admissible if it was taped according to the requirements of s281. These requirements mean there are a number of threshold issues that have to be satisfied before a court will admit an accused personss admission:

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a)
b)

c) d)

was the accused suspected of having committed an offence, at the time the admission was made, by an investigating official? (Or could reasonably be suspected?) was the admission made in the course of official questioning? does the admission relate to an indictable offence? was there a reasonable excuse for not taping the admission?

You must consider the meaning of investigating official, official questioning, reasonable excuse and tape recording. Section 281, CPA is the first legal requirement to consider in relation to the admissibility of an admission, since if the terms of s281 have not been met, the prosecution will be prevented from giving evidence of the admission at the accused persons trial.

1. The problem of confessions to the police

In Kelly v R, the High Court explains some of the historical problems associated with police interrogation.

Kelly v R [2004] HCA 12; (2004) 218 CLR 216

22 GLEESON CJ, HAYNE AND HEYDON JJ. Though for many years before the 1960s legal rules had been developed in some detail to regulate the proof of confessions to police officers, from the 1960s on concern about that topic increased. The key questions, from case to case, were whether a confession was made; if so, in what terms; whether it was to be excluded as involuntary; whether it was to be excluded in the court's discretion either as having been obtained unfairly, or as having been obtained illegally or improperly; and whether it was reliable. All these issues were capable of being affected by the means by which the confession was perceived, recorded or recollected, and then transmitted to the court. 23 Particular concern was directed to allegedly fabricated confessions. Thus in Driscoll v The Queen, Gibbs J said: "It is very common for an accused person to deny that he made an oral confession which police witnesses swear that he made. The accused has an obvious motive to claim that police testimony of this kind is false. On the other hand it would be unreal to imagine that every police officer in every case is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty by saying that he has confessed to the crime with which he is charged when in fact he has not done so." But the problem went well beyond possible fabrication. 24 Disputes could arise in circumstances including the following: (a) where an oral confession was not noted down; (b) where an oral confession was noted down, whether contemporaneously (for example, by a police typist laboriously recording each question and answer) or otherwise, and whether by a single police officer, or by two or more police officers acting separately or collaboratively; (c) where an oral confession was reduced to writing but not signed by its maker; (d) where an oral confession was reduced to writing by police officers before being signed by its maker; and (e) where a confession was written out by its maker. 25 The disputes could turn on questions not only of fabrication, but also of misunderstanding, misrecollection, coercion, or oppression in a broad sense. Considerable amounts of court time were taken up, generally in the absence of the jury, in resolving disputes about confessions.

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Considerable amounts of police time, too, were taken up in interviews slowly recorded by officers operating typewriters or writing in notebooks. Grave allegations were commonly made suggesting police perjury, brutality and pressure. Unfounded though many of these allegations may have been, they were damaging to public confidence in the criminal justice system. Over time the courts, law reform agencies and legislatures began to respond to this state of affairs. In particular, as audio recording became more common in commercial and social life, and as the necessary equipment became more efficient, easier to operate, and cheaper, it was increasingly suggested that, either as a matter of sensible practice or as a precondition to admissibility, police interviews in criminal investigations should be electronically recorded. Pilot studies were conducted which suggested the utility of this technique. It was hoped that the introduction of a reliable means of recording confessions would not only save police and court time directly, and reduce the need for police officers to spend long periods at court, but also encourage more, and earlier, pleas of guilty. All this would save public money as well as improving the integrity of the trial process and the efficiency of the police. 26 There were suggestions of this kind by members of this Court. Thus in a case in which the police said that they had recorded a confession in a document composed by typing out their questions and the accused's answers, and the accused had refused to sign it, Murphy J observed: "The liberty of the accused, the reputation of the police and the proper administration of justice are jeopardised by the failure, where opportunity permits, to provide a more independent record of police questioning." 27 This Court decided that the following matters were relevant to the question of whether alleged admissions were in fact made: attempts by police officers to prevent a solicitor getting in touch with a client held for questioning, refusals by them to allow a solicitor to be present during questioning, and a failure to serve a copy of a record of interview on an accused person as soon as practicable after it was made (because it gives rise to a suspicion that the record may have been altered). These matters were also relevant to a discretion to exclude the evidence on grounds of unfairness. A written record of interview was held to be admissible if in the accused's handwriting or acknowledged by the accused in the presence of some impartial person or if otherwise adopted by the accused though there was a discretion to exclude it on grounds of unfairness. Where a written record of interview was neither signed nor otherwise adopted, it was held to be not itself admissible, though the officers who prepared it might refresh their memory from it. More recently, in McKinney v The Queen a majority of this Court held that the jury should be instructed to give careful consideration to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confession allegedly made in police custody, unless its making has been reliably corroborated. This conclusion was reached after the practice of recording police interviews had begun to grow, and an audiovisual recording was seen as one type of reliable corroboration. 28 Simultaneously with the judicial development of these principles, law reform agencies and commissions of inquiry began responding to the problem. Thus in 1975 the Australian Law Reform Commission recommended: "Interviews should preferably be (a) recorded by mechanical means or (b) corroborated by a third person and, if these measures are not practicable in the circumstances, (c) checked by a third person after being reduced to writing, or at least (d) reduced to writing and signed by the accused." Both in the United Kingdom and Australia, numerous other bodies recommended that the admissibility of confessions to police should, in general, depend on whether they had been taperecorded. 29 As a result, it came to be viewed as a commonplace, not only in circles favourable to defence interests but also in police circles, that, despite its financial cost, the electronic recording of police interviews, particularly video-recording, would generate real advantages. It would be

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useful in providing a means of establishing exactly what was said; in proving that requirements for cautioning and other formalities had been complied with; in narrowing the time within which it could be alleged that threats had been made; in helping to estimate the fairness and propriety of the questioning; and in helping to evaluate, by assessment of the demeanour and manner of the interviewee in responding, the reliability of what was said. 4. Section 281 checklist: was the accused a suspect?

This is the first issue when considering whether an admission satisfies the requirements of s281. In the following appeal case, Sef Gonzales was at pains to argue that, at the time when the police first arrived at his house where his family was murdered, he was a suspect or could reasonably have been suspected of murdering his family. Why was he so keen to make this argument? What are the consequences of not being a police suspect?

Gonzales v Regina [2007] NSWCCA 321

1 GILES JA: The Gonzales family comprised Teddy, his wife Mary, and their son Sef and daughter Clodine. On 10 July 2001 Teddy Gonzales, Mary and Clodine were murdered at the family home at North Ryde. Each was repeatedly stabbed and Clodine was subjected to strangling and bashing with a blunt instrument. After a trial before James J and a jury commencing on 5 April 2004, on 20 May 2004 Sef (the appellant) was found guilty and convicted of the murders. On 17 September 2004 he was sentenced to life imprisonment for each of the three offences. He appeals against conviction [on nine grounds] and applies for leave to appeal against sentence. 11 [The first ground of appeal related to] a statement made by the appellant to the police early in the morning of 11 July 2001 was inadmissible, and was wrongly admitted, because a tape recording was not available as required by s 281 of the Criminal Procedure Act 1986. 14 The statement included an account of the appellants movements on the afternoon of 10 July 2001 until he arrived at Sam Dacillos house at about 8 pm. He left his fathers office at Blacktown at 4.30 pm to 5.00 pm, going to meet Sam Dacillo. On his way he received a text message from Sam Dacillo that Sam Dacillo had a basketball game that evening and would be unable to meet him as had been arranged. He rang his mother on his mobile, but did not get through to her; he rang his home, but nobody answered the phone. He arrived home at about 6 pm and parked in the carport. He did not enter the house, but received a phone call from Sam Dacillo and they arranged to meet at 8 pm. A light was on in the kitchen area, but the dog was still tied up and he thought no one was home. He tried to telephone again but still got no answer. He drove off. He decided to visit a friend, Raf De Leon, at Kingsgrove. He drove to the Kingsgrove area, but could not find the address in his old street directory. It was past 7 pm so he returned to meet Sam Dacillo at Sam Dacillos house. 15 This account of the appellants movements was maintained for some time after 11 July 2001, including in a walk through interview by the police at 6 Collins Street on 16 July 2001 and in further interviews by the police on 1 August and 3 August 2001. However, it could not stand with the appellants car being in the carport at some time between 4.15 and 4.30 pm as seen by Mariella Pavone and at about 6 pm as seen by Emily Luna, or with information supplied to the police by Sam Dacillo and records of the use of the mobile telephones of the appellant and Sam Dacillo. 16 In January 2002 the police told the appellant that they did not believe he had been truthful, and that they considered him responsible for the murders. The appellant abandoned this account of his movements. He told the police that he had not told the truth about his movements between

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leaving his fathers office and arriving at Sam Dacillos house, amongst other reasons because in fact he had gone to a brothel and was embarrassed at that becoming known to family members present at the interview on 11 July 2001. He said that he had left his fathers office earlier, had parked his car in the carport, but had not gone into the house and had walked to a service station on Wicks Road and had taken a taxi to Chatswood station, from where he went to the brothel, and had taken a taxi back to Wicks Road. 17 The appellant gave evidence at the trial, and agreed that in the statement he told the police a whole series of lies, although he also said to the effect that it was really one lie. Many components of the account were put to him serially, and he agreed that each was a lie. He said that he lied to protect himself from embarrassment, and that he did not believe that the times were important because he assumed his family had been killed after he had left to go to Sam Dacillos house. 18 The account of the appellants movements given in the statement was referred to as the first alibi. The account of going to a brothel was referred to as the second alibi, and was comprehensively controverted by evidence at the trial The second alibi must have been rejected by the jury. ... The appellant submitted, in substance, that leave should be granted because the admission into evidence of the statement provided an important foundation for the prosecution case, and its falsity was used tellingly against him in cross-examination. He said that the admission caused the trial to miscarry. 21 Section 281 refers to admissions. The Crown accepted that the statement contained admissions for the purposes of s 281, being the appellants account of his movements (see R v Horton (1998) 45 NSWLR 426; compare R v GH [2000] FCA 1618; (2000) 105 FCR 419, but there is no occasion to consider the correctness of R v Horton). The admissions were made in the course of official questioning within the meaning of s 281. Subject to a prior question, inadmissibility pursuant to s 281 turns on (a) whether on 11 July 2001 the appellant was or could reasonably have been suspected by an investigating official of having committed the murders (suspicion: s 281(1)(a)); and if so (b) whether there was a reasonable excuse as to why a tape recording could not be made (reasonable excuse: s 281(2)(b)). 28 Detective Inspector Sheehy (then Detective Sergeant) was the officer in charge of the investigation of the murders. He went to 6 Collins Street at about 1 am on 11 July 2001. He spoke to police already at the scene, and spoke to the appellant and at the appellants request called a friend to come and support him. He took the appellant to the Gladesville Police Station, where the appellant was placed in a victim room with relatives; they included his uncle, Joseph Claridades, and his aunt, Emily Luna. A little later he took the appellant to an interview room, where the appellant was accompanied by Joseph Claridades, and there took the statement from him. 29 The statement began that it accurately set out the evidence which the appellant would be prepared, if necessary, to give in court as a witness. It was in the form of a statement of a witness, not that of a cautioned suspect. It included, clearly enough prompted by enquiry from Detective Inspector Sheehy, that the appellant did not know of any person with ill feeling towards his family, or of any threats or violence towards any of the members of his family, save for a description of an incident of road rage the previous night when the appellant was driving and his parents were in the car; a passenger in another vehicle yelled out Bloody Asians and the other vehicle cut the appellants car off and then followed it and stopped behind it. Nothing in the evidence of Detective Inspector Sheehy or in the statement itself suggested that the appellant was suspected of the murders or that there were grounds for such suspicion. Detective Inspector Sheehy gave evidence, and was not asked anything in cross-examination in relation to suspicion of the appellant. 30 The appellant submitted that it should nevertheless be found in this Court that the appellant was a suspect, it seems meaning either was suspected or could reasonably have been suspected, having regard to other of the evidence at the trial plus evidence tendered on appeal.

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31 [Suspicion turns] what was in an investigating officials mind or what was known to an investigating official. ... 32 The evidence at the trial on which the appellant relied was as follows. 33 Constable Luke Mulligan arrived at 6 Collins Street at about midnight on 10/11 July 2001. The appellant was in a distressed state and was crying and shaking. The appellant told him, amongst other things, that when the appellant came home he heard noises, one or two persons rushed past him and went out the front door, and he followed them but could not catch them. (A similar account was given in the statement of 11 July 2001). Constable Mulligan recorded this conversation in his notebook, and also recorded - * The son was very distressed & lying on the floor of the garage. * At times the story he was telling me changed. * Shortly before doing this a [sic] noticed a vehicle parked under a carport separate to the enclosed garage the number plate contained the letter [sic] SEF. * I felt the bonnet of the vehicle & there was no heat on the bonnet. I cannot recall the exact colour of the vehicle or if it was wet due to the inclement weather. 34 Senior Constable Paul Cornale was the dog handler. He arrived at 6 Collins Street at about 12.15 am on 11 July 2001. He spoke to the appellant, who told him that he had heard the side gate close and had run after one or more persons. The appellant told him, in answer to his question, that the persons did not get into a vehicle. Senior Constable Cornale searched in the direction to which the appellant pointed, then everywhere where someone could make an escape route, but his dog did not pick up a scent. He gave evidence to the effect that persons leaving as described by the appellant would definitely have left a scent which the dog would have picked up. He also gave evidence that after he had finished the search he heard the appellant tell another police officer that the persons had got into a white four wheel drive, which he said would have been material to his searching because it would have changed the whole perspective of my job at the scene. 35 Senior Constable Cornale was not asked in cross-examination anything about suspicion falling on the appellant because his account of persons leaving was not borne out by finding a scent, and had changed in relation to the persons getting into a vehicle. Constable Mulligan was cross-examined to the effect that he had made up the conversation with the appellant as recorded in his notebook. The cross-examination included asking why he had not read to the appellant what he had recorded and asked him to initial it, and his response included his understanding that under police instructions that was to be done only if the officer believed that the person was a suspect. Implicitly, Constable Mulligan did not so believe, and the cross-examination did not extend to putting to him that he did. 36 The appellant submitted that the matters emphasised in the extract from the notebook of Constable Mulligan and the evidence of Senior Constable Cornale about lack of a scent and a changed account of the persons getting into a vehicle provided reasonable grounds for the appellant to have been suspected of having committed the murders. He submitted that it was not necessary that the police officer conducting the official questioning in the course of which the admissions were made, here Detective Inspector Sheehy, knew of the grounds. 39 The appellant said that carrying out the forensic procedure supported his contention that he was a suspect. He also said that Detective Sergeant Sheehys statement showed that the forensic procedure was carried out during a break in the taking of the statement, and that the fact that the forensic procedure was recorded showed that the statement could have been recorded: I will return to this. He referred to one line in the notebook of Detective Sergeant Ashwood, who appears to have been at 6 Collins Street from about 1.50 am on 11 July 2001, reading one ambo not going in thought Sef may be POI. It is not clear whether this was part of a report to Detective Sergeant Ashwood by another police officer or whether it was received directly from the ambulance officer, but it appears to have been the former; the appellant said that, POI

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meaning person of interest, this supported that the appellant was a suspect or at least could reasonably have been suspected of having committed the murders. 40 Detective Inspector Sheehy was not asked anything about the forensic procedure (or whether the statement could have been recorded), in chief or in cross-examination. The Crimes (Forensic Procedures) Act 2000 provides for carrying out forensic procedures on suspects, but also on volunteers (s 76); a form of caution is mandatory even in the case of a volunteer, and in the transcript the appellant was assured that he was not a suspect. Detective Sergeant Ashwood did not give evidence. 46 It can not be said that the trial judge made an error of law in relation to the admissibility of the statement, because he was not asked to rule on its admissibility and the circumstances were far distant from requiring that he question its admissibility in the absence of an objection. In the manner the trial was conducted, the judge did not have reason to question whether in the early morning of 11 July 2001 the appellant was suspected of having committed the murders or whether he could reasonably have been suspected. The appellant must show that if objection had been taken to the statement, it would necessarily have been rejected. The actual suspicion or the reasonable grounds for suspicion must go beyond surmise or possibility, and must have a factual basis: R v Taouk [2005] NSWCCA 155; at [73], [161]. 47 The evidence at the trial on which the appellant relied, even if supplemented by the evidence tendered on appeal, does not necessarily establish that the appellant was suspected of having committed the murders or could reasonably have been suspected, no matter who is regarded as an investigating official. If objection had been taken at the trial, the Crown would have had the opportunity to address those matters by evidence, but there was no issue at the trial and no occasion for it to do so; that is an added reason for declining to grant leave under r 4. 48 Since s 281 does not apply to the statement, there is no question of the prosecution establishing that there was a reasonable excuse as to why a tape recording could not be made. If the evidence tendered on appeal were received, it would be reasonably clear that a tape recording could have been made of the interview resulting in the statement, although that does not necessarily preclude a reasonable excuse as to why a tape recording could not be made. Again, the proper occasion for inquiry into admissibility of the statement was at the trial, when objection to the statement would have enabled the Crown to engage with whether there was a reasonable excuse. 49 Leave [to appeal on this ground] should be refused.
In Gonzales, Giles JA mentioned R v Taouk [2005] NSWCCA 155 in relation to what is required for an actual suspicion. In that case, the accused had gone to his local police station and said: I want to report a disturbance at my house. When asked what happened he said: Ive just shot someone at my house. I had an argument with my brother and he had a gun. I took it off him and fired a few shots. In Taouk James J (with whom Hislop J agreed) observed:

71 I accept, as was submitted by counsel for the appellant, that s 281 of the Criminal Procedure Act is in different terms from the interstate legislation considered by the High Court in Kelly and Coates. I also accept that there could be cases in which a person could reasonably have been suspected by a police officer of having committed an offence, even though it could not be said that he ought reasonably to have been suspected by the police officer of having committed an offence. 72 I also accept that s 281 is legislation of the same nature as that considered by the High Court in Kelly and Coates, has the same purpose as that legislation and should, in accordance with the views of the majority in Coates, be given a purposive interpretation. 73 However, in my opinion, even accepting that a purposive interpretation should be given to s 281, it is necessary that some regard be had to the actual language of s 281 and some effect be

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given to the word reasonably in the expression could reasonably have been suspected. A person could not reasonably have been suspected by a police officer of having committed an offence, unless something has been said or done which would provide some grounds for a police officer reasonably suspecting that the person has committed an offence. 74 In my opinion, the attendance by the appellant at a police station, even in the early hours of the morning, and the saying by the appellant to a police officer of words to the effect that the appellant wished to report some untoward occurrence which had happened at his house did not provide any grounds on which the police officer could reasonably have suspected that the person had committed an offence. The police officer could reasonably have formed the view that the appellant was seeking to report an occurrence at his house of which he had been the victim or which he had witnessed but not an occurrence involving the commission by the appellant himself of some offence. It is common for members of the public to report to police crimes of which they have been the victims. It is much less common for members of the public to report to police crimes which they have themselves committed. Hall J also observed: 152 The appellant relies in support of his argument on the interpretation of s.281(1) upon the difference in the phrase could reasonably have been suspected as distinct from the equivalent provision considered in Kelly , namely who ought reasonably to have been suspected. The distinction between s.281 and s.250D of the Criminal Code (WA) considered in Nicholls & Coates was also relied upon to support the construction contended for in this case. 153 It was argued on behalf of the appellant that the phrase could reasonably have been suspected should be construed to mean could have been suspected as a reasonable possibility. The appellant argued for a different interpretation to that which has been applied in relation to statutory powers of arrest or for the issue of search warrants contending that the purpose or object of the legislative provisions in question required a different and broader construction. 160 ... The basis of the suspicion referred to in s.281(1)(a) is the state of mind of an investigating official. That state of mind is more than mere surmise. Applying a similar approach as has been applied with respect to search warrant legislation, it is one arrived at on the basis of material that is capable of supporting the formation of an opinion, even if only a slight opinion, that the person in question (the accused) could have committed an offence. ... 161 In summary, the suspicion must be one which could reasonably have been held by an investigating officer at the relevant point in time, namely, the time when the admission was made. Whether the suspicion satisfies the specified requirement as to reasonableness, is to be determined by the existence of grounds for the suspicion, which grounds must be based on or sourced in facts that do or tend to implicate the accused in possible criminal conduct of the relevant kind, an indictable offence, and that therefore are capable of giving rise to or supporting the requisite state of mind. It follows that a mere possibility that a person referred to in s.281(1) (a) could have committed an offence is insufficient. 164 At the time of the admission, an investigation clearly had not commenced, unless the police officers initial question can be taken as the commencement point of an investigation. That is one interpretation that is open. A competing interpretation is that it was a question in the initial exchange that preceded any investigation. I am prepared to accept that the former is the case on the established facts. 165 I have concluded that it is difficult to see how the appellants statement I want to report a disturbance at my house could in itself, along with surrounding circumstances (which would include the attendance at the police station at the early hours of the morning) reasonably make the appellant a suspect within the meaning of s.281(1)(a).

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5.

Section 281 checklist: was the admission made in the course of official questioning?

Kelly v R [2004] HCA 12; (2004) 218 CLR 216

1 GLEESON CJ, HAYNE AND HEYDON JJ. The appellant was charged with murdering Tony George Tanner on or about 23 November 1990. He was tried with Michael John Marlow ("Marlow"), whom the jury also convicted of murder . 8 The appellant and Marlow appealed to the Court of Criminal Appeal of Tasmania. The appeals were dismissed. Both the appellant and Marlow applied to this Court for special leave to appeal. Only the appellant succeeded, and only on one point: whether a statement by the appellant to police officers on 4 March 2000 ("the impugned statement") was a "confession or admission" which should not have been received by the trial judge in view of its non-compliance with the requirement of video-taping contained in s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) ("the Act"). The impugned statement was made between half an hour to an hour after the video recording of an interview of the appellant by police officers had ceased and no further questions had been asked. 9 Section 8 [contained the wording: 'official questioning' means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence]. 10 On 22 November 1999 the appellant, who had already been interviewed more than once about the victim's death, was interviewed by Detective Sergeant Lopes, Detective Allen and Detective Pretyman about a robbery that took place in 1991. Detective Sergeant Lopes said that Marlow was going to be charged with the murder of the victim and there was a chance that the appellant could be charged also. They then discussed whether the appellant might receive an "indemnity" for cooperating with the police. [T]he appellant was charged with the 1991 robbery and remanded in custody. 11 On 25 November 1999 Detective Sergeant Lopes and Detective Pretyman took the appellant into a police interview room but the appellant said he wanted to talk in the open air. [On the roof of the building,] the appellant admitted that he and Marlow were involved in murdering the victim, and raised the subject of an indemnity and bail. Thereafter the appellant said he did not wish to take part in a video-recorded interview, but he did write out a statement in his own hand describing how he assisted Marlow 12 On 4 March 2000 the appellant was at liberty, having been granted bail on the robbery charge. He was then arrested on a charge of murdering the victim and taken to Launceston, where a video-recorded interview took place. Including breaks, it lasted from 5.57pm to 9.17pm. In that interview Detective Sergeant Lopes and Detective Pretyman reminded the appellant of the statement he had made on 25 November 1999. 13 The appellant contended that he had made the statements only because of police threats that if the statements were not made the appellant would be denied bail and every effort would be made to "stitch him up" on a charge of murdering the victim . 14 [During his interview the appellant continued to deny murdering the victim.] He was charged, fingerprinted and photographed. It was then proposed that he be taken to the Launceston General Hospital for the purpose of obtaining samples of blood and hair. Just before the appellant and accompanying officers got into the car, the appellant made the impugned statement. He said, according to Detective Sergeant Lopes and Detective Pretyman: "Sorry about the interview - no hard feelings, I was just playing the game. I suppose I shouldn't have said that, I suppose you will make notes of that as well". The police officers did not respond to this statement. They made no note of it. They also did not return the appellant to the interview room to mak[e] a video-recording of the appellant repeating what he had said so as to attract s 8(2)(b) of the Act [see s281(2)(a)(ii), CPA].

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Detective Sergeant Lopes thought the appellant's statement was made thirty to forty minutes after the appellant had left the video interview room; Detective Pretyman thought it took place nearly an hour after those events. 15 The reception of the appellant's impugned statement was objected to at trial. The trial judge overruled the objection on the ground that the statement was not made in the course of official questioning. 19 The one material issue in this case was whether the impugned statement was "made in the course of official questioning". The appellant's submissions 41 The appellant submitted that s 8(1)(b) should be construed so as to promote the purpose or object of the Act. . First, what is the purpose or object of the Act? Secondly, what is the construction which promotes that purpose or object? 42 As to the first question, the appellant submitted that the purpose or object was to overcome "perceived problems with the so-called police 'verbal' which was dealt with by the High Court in McKinney's case". The appellant described these "perceived problems" as including the possibility of police fabrication and the ease with which experienced police officers can effectuate it, the frequent lack of reliable corroboration of the making of the statement, and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence. The appellant submitted that those problems were experienced by him in view of the circumstances in which the appellant found himself at the time when the police officers said he made the impugned statement. 43 The "purpose or object" identified does not compel any particular construction of the quite detailed language of s 8 of the Act. What the correct construction is must depend on the particular words used. 44 The appellant accepted that if a police officer arrived at the scene of a crime and asked what had happened, and a person there present at once confessed, s 8 of the Act could not apply, because the person was not, and ought not reasonably to have been, suspected. The same was true where a police officer picked up a telephone and a voice at the other end confessed to a crime. The appellant thus accepted that the point before which video-recording was unnecessary was the period leading up to the time when the police decided, or ought reasonably to have decided, that the maker of the statement was a suspect. But the appellant submitted that after that point, "questioning" extended beyond the posing of interrogative remarks. Its primary meaning included any words spoken between a person who is in custody and who is, or ought reasonably to have been, suspected by a police officer of having committed an offence, and a police officer investigating an offence. The appellant submitted, in the alternative, that if that meaning were too broad, a narrower meaning was available by adding two qualifications: that the words be "spoken within a reasonable period following the conclusion of a period of formal questioning of the suspect by police", and that the words "seek to touch upon or to qualify or modify anything said by the suspect during that period of formal questioning". Hence the narrower meaning applied in this case, where a statement was made close to the time of the video-recorded questioning and where that statement arose out of it in the sense that it modified what had been said during it. It was also submitted that "in the course of" official questioning meant "arising out of" or "as a result of" official questioning. 45 A person may make admissions during a period in which police officers are conducting official questioning without those admissions being responsive to any particular question. This can arise in two ways. First, an answer proffered may simply be quite unresponsive or unrelated to the particular question. Secondly, deliberately or fortuitously, the persons asking the questions may fall silent, and the person who is with them may, whether because of a desire to fill the silence or for some other reason, confess. The legislation does not in terms require that the statement be made "in response to a question put" as s 86 of the Evidence Act 2001 (Tas) does, for example. That language is significant, because it appears in s 86 of the Evidence Act 1995

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(Cth) and s 86 of the Evidence Act 1995 (NSW) as well. The language may be contrasted with the use of the expression "in the course of official questioning" in s 85(1)(a) of the three Acts. "Official questioning" is defined in each of the three Acts as meaning "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". That is in substance the same as the definition appearing in s 8(1) of the Act. The contrast between the language of s 86 of the three Acts and the language of s 8 of the Act suggests that a confession which is entirely non-responsive to any question, or is uttered during a pause in the flow of the questions without being stimulated by any particular question, is one which falls within s 8 of the Act. The words "in the course of" do not require that there be any causal connection between the admission and the official questioning. Thus "a monologue in response to a general enquiry about what happened" has been held to be in the course of official questioning for the purposes of s 85 of the Evidence Act 1995 (NSW) and an answer volunteered by the person being questioned is in the course of questioning even though it is not directly responsive to any question. 46 However, that does not help the appellant. His case depends on the correctness of either the broad or the narrow constructions he has propounded and there are various difficulties in each of them. 47 First, the constructions are too restrictive. To require "custody" is to take a limiting step which the legislative language did not take. Some police questioning of suspects takes place even though the suspects are not in custody. To require that the suspect be in custody cannot be supported on any available approach to construction, whether purposive or otherwise. 48 Secondly, a major difficulty with the appellant's narrower constructions is that they involve inserting ideas which have no foothold in the language of s 8 of the Act. Section 8 requires that the confession or admission be made "in the course of official questioning" - not "within a reasonable period following the conclusion of a period of formal questioning", and not "as a result of" official questioning. 49 Thirdly, a major difficulty with the appellant's broader construction is that by seeking to include "any words" spoken between the suspect and the police officer, it gives no weight to the requirement that there be questioning. The appellant's broader construction means that s 8 of the Act applies where a police officer says to a suspect - "Let us go to the police station so that I can ask you some questions. I do not propose to question you until we get there" - and the suspect then volunteers a confession. An event cannot be said to have taken place "in the course of official questioning" if the official nominates a future time when that course of questioning will commence, and the event happens before that time. The appellant's broader construction also means that s 8 of the Act applies where the police officer says that no further questions will be asked and that the suspect is free to go home, and some time later the suspect confesses. These consequences of the appellant's broader construction are inconsistent with the statutory language and indicate that that construction is fallacious. 52 The expression "in the course of official questioning" in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made "in the course of official questioning". It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made "in the course of official questioning", without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made "in the course of official questioning" - whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression "in

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the course of official questioning" is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical. 53 In this matter "the course of official questioning" ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: "[W]e'll conclude the interview". Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language. The impugned statement in this case is in the same position as the statement made by the accused in R v Julin where, after questioning had ceased, the accused had been arrested and cautioned, and driven half a kilometre to the scene of the crime during which time no conversation took place between him and the police officer: "[t]he official questioning of the accused concluded prior to the car trip when he was arrested and cautioned ...". 54 The Crown submitted that the use of the word "interview" in ss 8(2)(a) and (b) and (3)(b)(d) of the Act was significant, and that that word was synonymous with "the course of official questioning". There is authority against that submission[52]. It is not necessary to reach a view on the Crown's submission in order to decide the present appeal. Either "official questioning" is identical with an "interview" with an accused person, or it is broader, because it cannot be narrower. If the impugned statement was not made "in the course of official questioning", it does not matter whether or not it was made in an interview. For the reasons set out above, it was not made in the course of official questioning. 88 McHUGH J (in dissent) Cases concerning professional criminals created a special problem. Where the accused was a professional criminal, often the only evidence sufficient to convict him or her was an alleged oral confession made to one or more police officers. Anecdotal evidence suggested that, in many of these cases, no signed confession could be obtained from the accused, despite severe physical or psychological pressure being placed on that person. In these circumstances, manufacturing an oral confession (the so-called "verbal") was an effective - often the only - means of convicting an accused person believed by unscrupulous police officers, often through reliable informants, to be guilty of an offence. 89 In the second half of the 20th century, another form of confessional evidence became widespread: the unsigned typewritten record of interview where the accused allegedly confessed freely and in great detail to a police officer but refused to sign the typed record of the interview. If the officer claimed that the accused had adopted the typewritten document recording the interview, the document was admissible as evidence against the accused. 92 There are good grounds for supposing that over the years many of these "records of interview" tendered in evidence have been fabricated. This is so even though an objective fact or facts often seemed to point to them being an accurate record of a real interview. Frequently, the details of the offence were interwoven with or linked to some fact or facts, unconnected with the offence, that the accused admitted was true and which the police officer claimed had not been known to him until the accused confessed. Further, the answers seemed to catch the jargon, idiom and speech patterns of the accused. Sometimes, as the Wood Royal Commission found, the recorded answers did not directly inculpate the accused but were cunningly constructed to prejudice the jury against that person. Many records of interview, if they were fabricated, were works of art, worthy of an award-winning scriptwriter. 102 However, s 8(2) must be read with the definitions of "confession or admission", "official questioning" and "serious offence" in s 8(1). Those definitions show that s 8(2) does not require the videotaping of all confessions or admissions, but only those made to police officers in respect of serious offences. This accords with the Minister's statement in the Second Reading Speech that it is directed at "police confessional evidence". The need to limit s 8's preclusion to police confessional evidence also explains the use of the awkward phrase "in the course of official

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questioning". Although the phrase is a pre-condition to the operation of s 8(2), given the mischief at which the section was aimed, it is better to treat the phrase as a concept rather than a precise criterion of legal rights and duties. The fact that the phrase is in a definition clause and that the section must be construed purposively provides further support for doing so. 104 The mischief at which s 8 is aimed is clear: the attack on the integrity of the administration of justice by false or unreliable confessions or admissions allegedly made by suspects during a police investigation of a serious criminal offence. It should be interpreted, so far as possible, to overcome that mischief. The prohibition in the section may not be confined to oral confessions. Arguably, it includes written as well as oral confessions unless "in the course of official questioning" impliedly excludes a written confession or admission. In any event, however, the section's effect on the mischief that it was intended to overcome would be seriously undermined if "in the course of official questioning" were defined by the clock and the officer's testimony as to the times when questioning commenced and ended. To construe s 8(2) in the way that the learned judges did in the Supreme Court of Tasmania is to undermine its purpose and to fail to deal effectively with the mischief at which it is aimed. Such an interpretation would also make the section's operation hostage to the oral evidence of the police officers as to when the questioning commenced and ended. 105 When the definitions in s 8(1) are read into s 8(2), that sub-section shows that, subject to specified exceptions, evidence of a confession or admission is not admissible if it was made in the course of questioning by a police officer in connection with the investigation of the commission or possible commission of a serious offence in circumstances where the person was or ought reasonably to have been suspected by a police officer of having committed an offence. 106 Given the purpose of the section, there is no difficulty in construing the words "confession or an admission ... made in the course of official questioning" as referring to a confession or admission made in connection with police questioning. Nor do I think there is any difficulty in holding that the section applies to any confession or admission that is made in response to an intimation that the officer intends to question the suspect. The legislature is not likely to have intended the section's preclusion to operate only on confessions or admissions allegedly made after a police officer has asked a question connected with the investigation, however trivial it might be. Of course, the confession or admission must be related to police questioning in connection with the investigation, but it will be so related if it is made in response to an indication that the suspect is to be questioned. It borders on the absurd to think that s 8 does not apply to a confession or admission made immediately after the officer has said, "I want you to come to the station for questioning", but applies to a confession or admission made in answer to the officer's first question: "What can you tell me about the assault on X?" To so hold would make "a fortress out of the dictionary". It would treat the term "questioning" as a precise criterion of admissibility rather than as an element in a compound conception that is concerned to limit the admissibility of "police confessional evidence". 107 In the present case, the alleged admission - if it was an admission, and I doubt that it was - was directly connected to the extensive questioning by the police officers that had occurred about an hour earlier. The Crown did not argue that it was not an admission. Because that is so, it was an "admission" to which s 8 applied. The learned trial judge should have rejected evidence concerning it. 161 KIRBY J. (in dissent) Confronting the appellant with the impugned statement on video recording would not have been a difficult task in the circumstances of the present case. When the impugned statement was made, the police detaining the appellant were still in the vicinity of the police building, only minutes away from the video recorder. It would have been a small inconvenience to return the appellant to the videotape recording facility to confront him with the accusation of his alleged additional statement. Then, the jury would have had the benefit of a prompt and contemporaneous assertion by police of what the appellant had said and a recording of the appellant's immediate response.

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162 The object of the Act was to discourage "police verbals", to promote police integrity, to save court time and to ease the task of the jury by such procedures. I agree with the joint reasons that the prosecutor's argument, that the Act was addressed solely or mainly to unsigned written confessions, should be rejected[164]. The procedures spelt out in the Act indicate a parliamentary consciousness of the risks and difficulties presented by just such an oral exchange as was alleged to have happened in the appellant's impugned statement. Given the language and objects of the Act, it cannot be the case that it is left to police officers alone to determine conclusively when the "course of official questioning" is concluded. 163 Yet, by adopting the approach stated in the joint reasons, that "official questioning" concluded with the statement to that effect by the interrogating police officer, the switching off of the video recording and departure from the police recording room, effectively it is left to police to mark the boundaries of the obligations imposed upon them by Parliament. Such a construction is unacceptable given that the object of the Act was to put checks on the conduct of police officers. It would seriously undermine the achievement of that object to permit those placed under scrutiny to determine the limits and termination of the duration of their own scrutiny. A more objective criterion, consonant with the language and objects of the Act, must be adopted. 170 [U]sing the language of the Act, I would conclude that the "course of official questioning" begins, in the case of an accused person who is or ought reasonably have been suspected of an offence and who is later tried for a serious offence, when that reasonable suspicion arose, or ought reasonably to have arisen, in the minds of the police officers detaining that person. It is not terminated or interrupted by silence on the part of the police officer. It includes responsive or unresponsive statements made whilst the accused is detained by the police officer in connection with the investigation of the commission, or the possible commission, of an offence. The official questioning is not concluded at the termination of any formal interview, the termination by police of video recording or other decisions wholly within the power of police officers. The termination only occurs when the investigation of the offence whilst the accused person is in police detention is terminated either by the release of that person or by the action of police in bringing the accused to a judicial officer upon a charge laid by the police officer concerning an offence.
**** Section 85 of the UEA (extracted below) was amended in the wake of the majority decision in Kellys case. However, s281 has not been amended.

6.

Section 281 checklist: is there a reasonable excuse for not taping the admission?

Nicholls v R; Coates v R [2005] HCA 1; 219 CLR 196

11 McHUGH J. These appeals by Thomas Nicholls and Martin Graeme Coates arise out of their convictions in the Supreme Court of Western Australia for the murder of Clare Garabedian, [a prostitute, and police witness who was given a hot shot of heroin]. 15 The first issue in Coates' appeal is whether the trial judge erred in holding that disputed oral admissions, allegedly made by Coates during a break in a videotaped interview with the police (and not subsequently confirmed on video), were admissible in evidence. That issue turns on whether the break in the interview constituted a separate interview to whose videotaping Coates did not consent and, if so, whether that constituted a "reasonable excuse" for not videotaping the alleged admissions within the meaning of s 570D of the Criminal Code (WA). Coates' unrecorded admissions 91 [T]he Crown relied on several admissions that Coates had allegedly made while he was in police custody. The admissions were made during the second break in a videotaped interview of Coates. Filming was suspended during that time. During the second break, which lasted

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approximately 45 minutes, Coates allegedly made admissions to Hawley and Hutchinson and made further admissions to Kays and Byleveld. The transcript of the interview indicates that the second break in the filming occurred at the suggestion of either Hawley or Hutchinson . 93 Counsel for Coates submitted that the trial judge erred in admitting the admissions allegedly made by Coates during the 45 minute break in the videotaped interview of Coates. The admissions were not later confirmed on videotape when the videotaped interview was resumed. Section 570D of the Criminal Code relevantly provided that evidence of any admission by an accused person on trial for a serious offence is not admissible unless there is a "reasonable excuse" for there not being a videotaped recording of the admission. Counsel for Coates submitted that the trial judge and the Court of Criminal Appeal erred in finding that there was a "reasonable excuse" in the circumstances for the lack of a videotaped recording of the admission. 102 Both the natural and ordinary meaning of "interview" and the purposive construction of s 570D favour interpreting that term in s 570D(4) to cover the entire time during which Coates spoke with and was questioned by the police. ... The policy of the section is that no admission is admissible unless it falls within one of the three paragraphs in s 570D(2). Paragraph (b) - the reasonable excuse exception - is the relevant exception in the present case. 103 The natural meaning of "interview" in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements[122] from the suspect concerning the commission of a "serious offence". It is unlikely that the Legislature in using the term intended it to mean each separate question and answer or statement made on a particular occasion, so that each such question and answer or statement constituted an "interview". It seems absurd to think that the Legislature intended the occasion of Coates' interrogation to constitute at least four separate interviews, consisting of two videotaped interviews and two unrecorded interviews during the toilet breaks. 104 A purposive construction also supports interpreting "interview" to mean the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a "serious offence". Such a construction assists in having a record of the entire discussion between the police officer and the accused on a particular day at a particular place instead of records of parts of the discussion. In accordance with the policy of the section, it also reduces - although it cannot eliminate - the occasions for disputes between accused persons and police officers as to what was said in "interviews", particularly interviews at police stations. A purposive construction also provides an incentive to police officers to have off-camera admissions recorded or at all events referred to when recording resumes. 105 Hence, by interpreting "interview" to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of "reasonable excuse" as defined in s 570D(4)(c). 106 Nor do the circumstances of the disputed admissions warrant their admission under the umbrella of "reasonable excuse" independently of the inclusive exceptions in s 570D(4). The focus of any inquiry directed to the application of the "reasonable excuse" exception must take account of the conduct of the police, as well as the fairness or otherwise to the accused of permitting the admissions to be admitted. In construing similar provisions in MDR, Wicks J held that the conduct of the police officers was relevant to the question whether it would be "in the interests of justice" to admit evidence of admissions by the accused. His Honour thought relevant matters included whether non-compliance with the provisions was deliberate or the product of a reckless disregard of the provisions or was inadvertent or otherwise excusable. Such matters are also relevant in determining whether there was a "reasonable excuse" for not recording the admission. Most importantly of all, however, is whether the officers attempted to have the off-

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camera admission recorded. If, on-camera, the accused denies making an off-camera admission, it will be highly relevant in determining whether there was a "reasonable excuse" "for there not being a recording on videotape of the admission". 107 In this case, Hawley admitted in cross-examination that he had encouraged Coates to speak off-camera, that he deliberately chose to continue the interview off-camera and that this was not proper or careful practice. Hawley also admitted that it would have been possible during the second break in videotaping to have the video turned on and the disputed conversations recorded. Hawley did not say that Coates refused permission to do so. Moreover, there was apparently no attempt by the police, once the videotaping resumed, to have Coates confirm his admissions on tape. The police made no contemporaneous notes of the off-camera conversations, and the notes that Hawley and Hutchinson wrote the following morning were later lost or mislaid. These circumstances indicate a departure from proper police procedure. They indicate that the trial judge and the Court of Criminal Appeal erred in permitting the reception of Coates' admissions in evidence. 108 Moreover, even if the off-camera statements constituted an "interview" to whose recording Coates did not consent, the above circumstances made an overpowering case for the trial judge to exercise his general discretion concerning evidence unfairly obtained to exclude the evidence. The Legislature has set its face against admitting unrecorded admissions by suspects except in special circumstances. When interviewing police officers encourage the making of offcamera admissions, despite the presence of recording equipment, and then fail to refer to the admissions when the recording resumes, the policy of the legislation points strongly to excluding the admissions even though, if the officers' evidence is accepted, the case comes within an exception specified in s 570D(2). Given the legislative policy of recording interviews of suspects wherever possible so that disputes concerning admissions can be reduced to a minimum, attempts to avoid the effect of that policy should be perceived as unfair attempts to obtain evidence and such evidence should be excluded. [For these reasons McHugh J held that Coates ground of appeal in relation to the inadmissibility of his unrecorded admissions succeeded. These admissions should not have been admitted and his conviction should be quashed.] 115 GUMMOW AND CALLINAN JJ. These appeals raise serious questions as to the admissibility in evidence of unrecorded admissions and of statements of intention to give false evidence made by a key prosecution witness out of court. 144 The appellant, Coates, submits that the Court of Criminal Appeal erred because no evidence had been given that he was "anxious to speak off-tape about the options he might have if he was to implicate others." The evidence of Hawley was that he encouraged Coates to speak offvideo and that he "deliberately chose to continue this interview off-camera". 150 In Kelly v The Queen, Gleeson CJ, Hayne and Heydon JJ said that the purpose of legislation of this nature was to overcome perceived problems with so-called "verbals", including "the possibility of police fabrication, and the ease with which experienced police officers can effectuate it, the frequent lack of reliable corroboration of the making of the statement, and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence." 151 In that case McHugh J said this: "The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect." 152 If claims by interviewing police officers, that they "did not initiate" an alleged offcamera interview were enough to constitute "reasonable excuse" for a failure to record admissions on camera, the purpose of the legislation could easily be frustrated. The decision of the Court of Criminal Appeal does leave open the possibility that police officers may choose to continue an interview off-camera (without seeking to have an accused afterwards repeat on-

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camera an admission then made) and seek to secure the admission of the unrecorded evidence on the basis of a contention that they believed the accused was "anxious" to speak off-camera, and that he had initiated the conversation. 153 There is also substance in the submission that the approach of the Court of Criminal Appeal of Western Australia would add to the definition of "reasonable excuse" a definition neither stated nor intended by the legislature, such as, "an admission made during an interview not initiated by the police" or "an admission that a person was anxious to make off-, but not oncamera," a definition which, if adopted, would defeat the purpose of section 570D. 154 The legislation under consideration in Kelly was not identical with the legislation here. It was however designed to meet exactly the same mischief as provoked it, and the statements in that case to which we have referred are accordingly apposite to this case also. 155 There is no doubt that the off-camera statements here would constitute "admissions" under the statutory definition, and that the charge was a "serious offence". The section also makes it clear that it is for the Crown to prove, in the case of off-camera admissions, that there was reasonable excuse for not videotaping them, or that exceptional circumstances, in the interests of justice, justify the admission of the evidence. 156 What occurred in this case answers none of the explicit descriptions of reasonable excuse contained in s 570D(4)(a), (b), (c) or (d). The appellant did not refuse to consent to his interview being videotaped. We do not overlook that "reasonable excuse" is inclusively defined, and that therefore circumstances not within the explicit definition might still give rise to a reasonable excuse. In our opinion, however, what occurred falls so far short of, and is so different from, any of the defined circumstances that it could not amount to a reasonable excuse; nor could it be objectively regarded as a reasonable excuse. No attempt was made by any police officer to have Coates repeat on-camera what he was alleged to have said off-camera even though there was a reference to what he might say when the video resumed. It has been submitted however that the admission was made when it was not practicable to videotape it. We disagree. 157 The fact, if it be a fact, that Coates "was anxious to speak off-tape" cannot of itself provide a "reasonable excuse". Anxiety to speak off-tape, especially during a suspension of a lengthy interview on tape, in the absence of unwillingness to consent to the videotaping of the "interview", could not of itself, as here, possibly constitute a reasonable excuse. Because of the absence of any evidence of an unwillingness to consent, it is unnecessary to decide whether s 570D(4)(c) should be read as meaning "... consent to the interview [or any part of it] ... ." Furthermore, there is a real question whether anxiety on the part of Coates to speak off-camera, was, in the circumstances, an inference that was available to the Court of Criminal Appeal, particularly when no invitation was given to Coates, either off-camera or on-camera, to repeat the inculpatory material which the Crown claims he had earlier volunteered. That Coates was anxious to speak off-camera appears to be no more than an assertion by the police officers conducting the interview. 158 This ground of appeal relied on only by Coates therefore succeeds. 212 KIRBY J. Purposive interpretation of the Code: The appeal by Mr Coates, relying on the suggested breach of s 570D of the Code presents the second occasion in a year that this Court has had to address the consequences of a failure of police to record, or put on the record, a videotaped interview, conducted in accordance with statute, an alleged off-camera "admission" by an accused that is subsequently tendered against him at his trial. The other such case was Kelly v The Queen. 214 It is fair, I think, to say that McHugh J and I were greatly affected in Kelly by the legal history that had preceded the introduction of legislative requirements for electronic recordings of interviews of accused persons by police; the "mischief" to which the legislation was directed; and the need for a purposive construction of contested provisions, so as to avoid an interpretation that would defeat the achievement of the clear statutory objects. The majority acknowledged these

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concerns. However, in that case, they reached their preferred construction by reference to what they took to be the requirements of the text of the Tasmanian statute. 215 Nothing said in Kelly decides the outcome of the present appeal. It concerns different legislation; different provisions for exceptions from the recording obligation; and quite different factual circumstances. All that is in common between the two cases is that the persons involved were suspects in police custody under suspicion of murder; that recording on videotape of an interview between police and suspect took place; that important statements were allegedly made to police (denied by the suspect) that were not recorded on videotape; that it was not suggested that the videotape equipment malfunctioned or was unavailable for any reason; and that the alleged admissions off-camera, that were later recounted by police witnesses at the trial, were not immediately put to the accused on camera so that the accused's response could be recorded contemporaneously and seen by the jury, although this course would have been practicable in the circumstances. 216 For the reasons which McHugh J and I gave in Kelly, I remain of the view that this Court should give such legislation a purposive construction. Various verbal or linguistic reasons can be mounted to sustain the construction urged by the respondent. The case would not be in this Court were it otherwise. However, it is not a necessary construction. It tends to defeat the achievement of the objects of the Western Australian Parliament to put an end, so far as possible, to contests of the present kind. 217 True, the Western Australian Parliament did not enact an absolute bar on the reception at trial of unrecorded admissions to police. Circumstances will arise where the provisions of the Code are inapplicable (eg admissions blurted out before the accused person is a suspect) or, although applicable, where the admission is warranted (eg because the prosecution proves that there is a "reasonable excuse for not recording or the court is satisfied of "exceptional circumstances" that justify the admission of the evidence "in the interests of justice"). 218 Absence of "reasonable excuse": For the reasons given by Gummow and Callinan JJ, the explanations advanced on the part of the police in their evidence at trial did not provide a "reasonable excuse" within the Code for their failure to record the off-camera conversations with Mr Coates. Despite the opinion of the trial judge that Mr Coates asked for a toilet break when the second interruption to the recorded interview occurred, the circumstances of that break are very troubling. So far as the recorded transcript is concerned, it was the police, not Mr Coates, who initiated the break. The police interviewer twice asked Mr Coates if he wanted to break for the toilet. The fact that the question had to be repeated suggests that Mr Coates did not at first respond to the suggestion because he was not expecting (still less indicating) the proposal of a break. His was an odd response if it was Mr Coates who was seeking the break. The use by Mr Coates of the answer to the question "sure", may tend to indicate that he was willing to go along with a police suggestion. In my experience, "sure" is an expression usually used in conversational English as an unenthusiastic word of concurrence, like "alright" - rather than an affirmation by someone who positively desires and initiates the course proposed. However, I acknowledge that much would turn upon the facial expression, body language and tone of the person saying the word. 219 The trial judge expressed a contrary impression and he saw the police video recording. However, his Honour acknowledged that it was a matter of dispute, not certainty. Ultimately it was for resolution by the jury. He identified no bodily or non-verbal indications of the request. He left the conflict to the jury. In evidence, Mr Coates denied that he had requested the break. Much later the police reconstructed the alleged oral ("verbal") admissions by Mr Coates that allegedly followed. Objectively, the interruption was a very long one. The police notes that were allegedly prepared were then mysteriously lost. The alleged admissions were not put on the record immediately after the break in the recording. As a matter of law, they did not have to be, under the Code, in order to be admissible at trial. But could there have been a safer and fairer way

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to ensure transparency of the process that ensued and to demonstrate the integrity of the police conduct than to take that course? 220 The fact that, in some circumstances, the accused might be upset by the police immediately repeating an inculpating statement made off-camera as soon as possible thereafter (and certain risks associated with that course) is less significant than the desirability of laying to rest, as far as possible, disputes such as have now arisen in Kelly and in this case. The accused will be more than upset if the alleged conversation is raised years later at a trial, without contemporaneous notes and in circumstances (as here) of sharp contest. Parliament has now spoken on the matter. And the general purpose of Parliament in these provisions of the Code is to put an end to contested police "verbals". The construction preferred by McHugh J and Gummow and Callinan JJ has that effect. With respect, the construction preferred by Hayne and Heydon JJ perpetuates the very mischief that the provisions of the Code were intended to prevent. 221 Conclusion: material error: Subject, then, to the decision on the "proviso" issue, the result is that Mr Coates is entitled to succeed in his appeal. He has shown material error on the part of the trial judge in admitting the police evidence of the alleged unrecorded "admissions" offcamera. He has demonstrated error in the failure of the Court of Criminal Appeal to correct the trial judge's error. [GLEESON CJ agreed with the reasons given by Hayne and Heydon JJ, that the appeal should be dismissed.] 7. Is a McKinney warning still necessary?

The McKinney warning is given whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated (McKinney v R (1991) 171 CLR 468, per Mason CJ, Deane, Gaudron and McHugh JJ). However, with the universal advent of the taping of police interviews, is there really any need for a McKinney warning?

Nicholls v R; Coates v R [2005] HCA 1; 219 CLR 196

222 KIRBY J: I disagree with any suggestion that the enactment of legislative provisions controlling the receipt of police evidence of admissions in interviews with suspects may have removed the necessity of the warning of the kind mandated by this Court in McKinney. The recording legislation varies in its requirements in different parts of Australia. The rule of practice stated in McKinney was a rule of the common law. Hence it is a rule of universal application throughout Australia. To the extent that subsequent legislation leaves unrepaired the allegations of contested unconfirmed admissions to police whilst in police custody, the "mischief" addressed in McKinney remains. To that extent, the rule stated in that case continues to apply. So much is required by an analysis of McKinney which is functional and not purely verbal. 223 Indeed, upon one view, the need for McKinney-type warnings may be increased, not reduced, by the passage of legislation obliging videotaped recordings of police interviews. To the extent that police practices develop, to exploit the boundaries of the legislative language (such as alleged admissions after the termination of a recorded interview as in Kelly or alleged admissions during an interruption whose purpose and course is contested), the need for judicial warning to juries about the dangers identified in McKinney may actually be enlarged. Otherwise, courts will surely witness a rise in the occurrence of "verbals" in gaps found in the legislation. On the theory suggested by Hayne and Heydon JJ, the common law would then stand mute and powerless. The trial judge in Kelly, properly in my view, gave a clear McKinney-type warning to the jury. He was prudent to do so. The fact that he had done so became a consideration in the application of the

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"proviso" in that case. I would resist any suggestion that the binding rule in McKinney is under a cloud arising from supervening enactments. Neither as a matter of legal authority, nor as a matter of legal principle or policy is this so. 224 Indeed, upon one view, the need for McKinney-type warnings may be increased, not reduced, by the passage of legislation obliging videotaped recordings of police interviews. To the extent that police practices develop, to exploit the boundaries of the legislative language (such as alleged admissions after the termination of a recorded interview as in Kelly or alleged admissions during an interruption whose purpose and course is contested), the need for judicial warning to juries about the dangers identified in McKinney may actually be enlarged. Otherwise, courts will surely witness a rise in the occurrence of "verbals" in gaps found in the legislation. On the theory suggested by Hayne and Heydon JJ, the common law would then stand mute and powerless. The trial judge in Kelly, properly in my view, gave a clear McKinney-type warning to the jury. He was prudent to do so. The fact that he had done so became a consideration in the application of the "proviso" in that case. I would resist any suggestion that the binding rule in McKinney is under a cloud arising from supervening enactments. Neither as a matter of legal authority, nor as a matter of legal principle or policy is this so. 227 It is impossible for an appellate court to know what weight (if any) the jury gave to the alleged off-camera admissions ascribed by the police witnesses to Mr Coates. For all that appeal judges know, that evidence may have been critical for the jury as revealing a consciousness of guilt of the crime charged. Perhaps the "admissions" were the evidence, or the ultimate evidence, on which the jury acted in Mr Coates' case. That possibility cannot logically be excluded. The jury's process of reasoning is unknowable. It is no less possible that the jury took the course suggested because the trial judge instructed the jury that they could not convict Mr Coates on the off-camera admissions alone. That instruction did not, in terms, caution about the use of the admissions in conjunction with other evidence or indeed at all. 228 People like Mr Coates, when accused by police of admissions that are not recorded or otherwise independently confirmed, are in an extremely vulnerable position. They are in police custody. They have no control over the circumstances or the presence of witnesses or other means of authentication. They have a criminal record. Attacking police credibility at the trial may come at the price of the disclosure to the jury of their own past criminal record. Yet accepting everything attributed to them by police may be seriously unfair to them in a particular case. That is why the law seeks to redress the dangers for justice inherent in the situation. It does so, in part, by the legislation now enacted to require admissions in interviews between police and suspects to be recorded on video. And to the extent that this redress does not meet the potential problem, it does so by requiring a judicial warning of the kind mentioned in McKinney and the cases which preceded that case. 229 The words in McKinney are not cast in stone. They were the outcome of two decades of authority in this Court dealing with the problems that I have described. What is required in the way of judicial instruction to the jury depends on the needs of the particular case. In my view it would have been prudent for the trial judge in the present case (as was done in Kelly) to have given a warning of the dangers of convicting Mr Coates using in any way the unrecorded, unconfirmed, contested evidence of the alleged admissions to police made off camera and never put to Mr Coates on camera. 8. What if a suspect refuses to be recorded?

See R v Em [2007] HCA 46, extracted below in relation to s90, UEA. In that case, Sophear Em was a suspect in relation to two home invasions. During his first police interview, he refused to be either audio or video-taped because he said he didnt want to look like a dick-head. However, he continued to answer questions in the police interview. Notes were made by the two interviewing police officers after the

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unrecorded interview finished. Are the notes of this interview admissible in evidence against the accused? Is oral evidence of the admission admissible? Consider s86, UEA, below.

86 Exclusion of records of oral questioning (1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official. (2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response. (3) The acknowledgement must be made by signing, initialling or otherwise marking the document. (4) In this section: "document" does not include: (a) a sound recording, or a transcript of a sound recording, or (b) a recording of visual images and sounds, or a transcript of the sounds so recorded.
Section 86 only applies where s281, CPA does not require operate. That is, s86 might apply to46: (i) admissions made in relation to non-indictable offences; (ii) admissions to indictable offences that can be dealt with summarily; (iii) questioning that wasnt made in the course of official questioning; (iv) admissions made freely without any questioning; (v) admissions made by a non-suspect; (vi) admissions made where a reasonable excuse exists for not taping.

8.

Do consecutive interviews have to be taped?

You might also need to consider the issues raised by the High Court in Heatherington v The Queen47 below, where an accused person is questioned at different places and makes admissions at different times. Consider the following questions:

1) 2)

If a suspect is interviewed somewhere other than in an interview room at a police station, and makes an admission, does the interview have to be taped? If a suspect is interviewed first at the scene of the crime, then secondly at the police station, which interviews are required to be taped?

Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370
2. MASON CJ, DEANE AND McHUGH JJ. At 9.36 p.m. on 30 August 1990, a telephone call was received by an officer of the Metropolitan Ambulance Service in Melbourne. The caller, who did not identify himself but who was undoubtedly the applicant, requested that an ambulance attend at a stated address in Hallam which is a Melbourne suburb. He went on to say that he had "hit" his "mate on the head with an iron bar" and that he thought that the other person was dead. 3. Shortly afterwards, police and an ambulance attended at the address which was a residence in which the applicant had been lodging with a Mr Edwin Simpson. The applicant was present. Simpson was found with severe head injuries, from which he subsequently died. The applicant
46
47

See Anderson, Williams and Clegg (2010) The New Evidence Law, LexisNexis Butterworths, pp338-339. Cited in J Hunter, C Cameron and T Henning (2005) Litigation II: Evidence and Criminal Process (7th ed) LexisNexis Butterworths, p.596.

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apparently repeated to Senior Constable Watson the statement that he had hit the injured man on the head with an iron bar. The material before the Court does not disclose whether the statement was repeated in response to questions asked by Senior Constable Watson. The applicant was cautioned and taken into custody. He was transported in a police van to the Dandenong Police Station where he was held in an interview room. 4. The applicant was interviewed at 10.35 p.m. that night by Detective Senior Constable Steendam, in the presence of Detective Senior Constable Ziemann and Senior Constable Watson. Of this interview, which lasted about five and certainly no more than ten minutes, Steendam made approximately one page of handwritten notes. In the interview, the applicant gave details of his name, address and occupation, an account of the events leading up to the assault, details of the assault itself and his conduct after the assault.Referring to this interview, the trial judge found that "Steendam asked enough questions to lead to the accused providing much more than a bare outline of what had happened earlier that night". Steendam and Ziemann then departed for approximately 40 minutes. In that time they made further inquiries. On returning, they commenced an interview which lasted almost two hours. A total of 601 questions was asked. That interview was taped. In the course of it, the applicant made a full confession. The trial judge allowed evidence of the second interview to go before the jury, which subsequently found the applicant guilty of murder. 5. The application for leave to appeal to the Court of Criminal Appeal and the application for special leave to appeal to this Court were grounded on the contention that the evidence of that confession was inadmissible. It was not suggested that the confession was not made voluntarily or in circumstances that were other than fair. Instead, argument was directed to s.464H [the mandatory taping provision in Victoria at the time]. 6. As Pollard and the judgments in the Court below in the present case make clear, the construction of s.464H is not free from difficulty. Despite what was said in the Minister's speech during the second reading of the Bill the legislation does not provide that a confession is inadmissible unless the entire interrogation is tape-recorded and the tape-recording is available to be tendered in evidence. Instead, the section expressly allows for the admissibility of evidence of a confession which was not tape-recorded when there are no facilities for recording and the confession is subsequently confirmed (par.(e)) or when the confession occurs before the questioning begins and it is subsequently confirmed (par.(c)). It also allows a court to admit evidence of an otherwise inadmissible confession if the court is satisfied on the balance of probabilities that exceptional circumstances justify the reception of the evidence (s.464H(2)). On the other hand, even where the requirements of s.464H are satisfied, a court retains the ordinary discretion to exclude unfairly or improperly obtained evidence Clearly enough, the primary object of s.464H is not to protect the guilty from acknowledging guilt but to ensure that alleged confessions or admissions are genuine and voluntary and not unfairly obtained. 10. [I]n a case where there have been different and distinct periods of interrogation, the expressions "if the confession ... was made during questioning" and "the questioning and anything said by the person questioned" in s.464H(d) refer not to the overall interrogation or to the overall interrogation at a particular place, but to the particular period or episode of questioning in which the confession sought to be tendered was made. Th[e] narrower proposition is that, when one has different periods or stages of questioning at different places, a confession made at one place is not rendered inadmissible because an earlier period or stage of questioning at the other place was not recorded . That narrower proposition should, in our view, be seen as a particular instance of the more general proposition namely, that in a case where there have been different periods or episodes of interrogation, the requirement that "the questioning" which yields a confession be recorded relates to the particular period or episode during which the confession was made. 12. It cannot be supposed that the legislature intended to bring about [the result that earlier questioning at a particular place required the suspect to be taken to some other place for the any

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admission to be recorded.] Much to be preferred is a construction according to which the admissibility of a confession turns on a question of substance: whether the earlier questioning was part of the same questioning which produced the confession. If it was not, the fact that the earlier questioning was not recorded will not of itself preclude the reception of evidence of the questioning in the course of which the confession was made. The existence and circumstances of the earlier unrecorded questioning could, of course, be relevant to, and possibly decisive of, the question whether evidence of the confession should be rejected on unfairness or public policy grounds ... 13. The issue here then is whether the initial period of questioning and the second period should be characterized as the same questioning. The resolution of such an issue involves questions of degree and may require a weighing of a variety of factors including the proximity of time and venue, the relationship between the occasions on which questioning took place and the relationship between the interrogations which took place on those occasions. Thus, it may transpire that, on the second occasion, the questioning is largely influenced by what was said on the earlier occasion, in which event one might the more readily conclude that a confession made on the second occasion was made in the same or the one period of questioning which began on the first occasion and ended on the second occasion. 14. The present case may approach the borderline. On balance, however, we consider that the Court of Criminal Appeal was not in error in concluding that the two occasions gave rise to separate periods rather than the same period of questioning. The two periods were separated by a significant interval of time during which the police made further inquiries. The first period was extremely short; the second was very comprehensive. The second was self-contained in the sense that the questions and answers did not on their face relate back to or refer to the questions and answers on the first occasion. As Marks J observed in the Court of Criminal Appeal, the confession adduced in evidence emerged from a period of questioning which was separate and distinct from the prior unrecorded interview . And, as Southwell J noted, the second interview was not, and did not purport to be, a resumption of the first interview 16. We do not agree with the suggestion that, because Southwell J characterized the first interview as a "lead-up conversation", the two interviews necessarily constituted the same or the one questioning . The expression "lead-up conversation" signifies in the present context no more than that the conversation was a preliminary conversation to be followed by a substantive interrogation. That does not make the two periods of questioning the same or the one questioning; nor does it demonstrate that the relationship between the two periods of questioning is such as to require or even suggest that conclusion.
REVISION QUESTIONS 1. In R v Smith (1996) A Crim R 30848, the accused was interviewed, first, at his house for an hour although the interview was not recorded. He was not cautioned. Two more interviews took place after he was taken to a police station. He was not cautioned before the second interview, which was recorded. A third interview took place after Smith was charged. It was also taped. Only the third interview was admitted into evidence. The question, arising from Heatherington, is, did the three interviews constitute one interview or three separate ones? What issues would you need to consider in answering this question? 2. In R v LMW, below, consider whether the police ought to have taped LMWs admission. The admission occurred when the police knocked on the door of LMWs mothers house, seeking to interview local people about the recent drowning of a young boy. At what stage did LMW become a suspect? At what stage did the official
48

Cited in J Hunter, C Cameron and T Henning (2005) Litigation II: Evidence and Criminal Process (7th ed) LexisNexis Butterworths, p.599.

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questioning commence? Was there a reasonable excuse for not taping the admission?

R v LMW [1999] NSWSC 1128

1 STUDDERT J: The Crown is seeking to introduce evidence of conversations which a police officer had with the accused at his home on 3 March 1998 and later at the police station. ... 2 Mr Zahra has submitted that the evidence sought to be tendered should be excluded because of the requirements of s 424A of the Crimes Act [now s281, CPA]. 3 At the outset I should record the evidence which the Crown seeks to introduce. Constable French has stated that he attended the accused's home at 8.20 am on 3 March 1998 in company with Detective Sergeant Foster. There he said he first spoke to the accused's mother, and subsequently to the accused. The evidence which the Crown seeks to elicit is that having introduced himself and Sergeant Foster to the accused's mother as officers from the Macquarie Fields Detectives' Office, he asked the child's mother: "Do you have a son named [LMW]?" He received an affirmative reply and the accused then came to the front door where the police officer had introduced himself. This conversation then occurred, according to Constable French (and for the purposes of this judgment I include the various paragraph numbers to be found in the relevant statement made by Constable French): [LMW] do you know Corey from across the street?' He said, `No.' The young child's mother said, `Little Corey?' [Constable French] said, `Yes.' She said `You know Corey.' The young child said, `Yes.' [Constable French] said `When was the last time you saw Corey?' He said, `Yesterday.' [Constable French] said `Where were you when you saw Corey?' He said, `I was riding my skateboard.' [Constable French] then said to the young child, `Did you see him any other time yesterday?' He said, `No.' [Constable French] said `Do you know [GW2] from next door to Corey?' He said, `Yes.' [Constable French] said `Did you tell her that you saw Corey at the creek?' He said, `No.' [Constable French] said `She has told me you told her that.' He said `I didn't tell her, I told [GW1].' [Constable French] said `Her sister?' He said, `No, she's Corey's sister.' [Constable French] said `Did you tell her that you saw Corey at the creek?' He said `No. Ah, I saw Corey with two boys in the bush, that's what I told her.' [Constable French] then said to the young child `The girls told me that you said he was at the creek.' He said `The boys told me they were going to the creek.' [Constable French] said `Are you fibbing?' He said, `Sure, I pushed him. What do you think' and the young child became upset and walked away. [Constable French] said to the young person's mother, `Corey drowned in the river yesterday afternoon.' She said, `Oh no'. [Constable French] said `The only person that we have been told that knew he was there is [LMW].' The young child's mother said `Corey (sic), come back here' and the young child returned to the front door and said, `Yeah, I pushed him in the creek. So what.' The young child's mother said `[LMW], don't be cheeky.' [Constable French] then said to the young child, `What happened?' He said, `Well, the two boys kicked and punched him and I told them to stop, and he followed me down to the creek. He wouldn't go away and kicked me like he did last year so I pushed him in the creek. When I pushed him in I ran and got help.' [Constable French] said `Why didn't you tell me that at first?' He said `I don't want to get in trouble. 4 Constable French then asked the accused's mother to attend the police station with the accused to talk further about the matter, and the accused and his mother complied with this request. 5 At the police station Constable French spoke further to the accused's mother, asking her, in the absence of her son, whether she would permit the accused to be electronically interviewed and to participate in a video interview at the scene. Mother and son were then taken to an interview room where they were seated, and Constable French informed them, addressing the mother, that

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they would wait for the Aboriginal Liaison Officer, but the mother indicated that she was happy for her son to be interviewed without that officer and arrangements were made for the interview to proceed. Constable French then gave the following further account of events: [He] asked the young child, `[LMW], what I am going to do is talk to you about what happened to Corey yesterday. Do you understand that?' He said `Yes.' [Constable French] said, `What I say and anything you say to me will be taped by this machine,' and [Constable French] indicated the three tape decks in the hybrid recording device, `Do you understand that?' He said, `Yeah.' [Constable French] said `What we say will be recorded on a video tape at the same time. Do you understand that?' He said, `Yeah.' [Constable French] said, `When we finish you will be given one of the tapes of what we say. Do you understand that?' He said, `Yes.' [Constable French] then said to the young child, `[LMW], anything you say to me when I talk to you can be used in a Court. Do you understand that?' He said, `No.' [Constable French] said, `Do you know who goes to Court?' He said, `Bad people.' [Constable French] said, `[LMW], if I talk to you and you say something to me that says you have done something bad to Corey, you might have to go to Court. Do you understand that?' He said, `Yes.' [Constable French] said, `Okay [LMW], if you think you might have done something bad to Corey yesterday, you don't have to talk to me about it. Do you understand that?' He said, `Yes. I pushed him into the creek and he was splashing around in the water with his arms and legs and I left to get someone to help.' 6 At this stage however proceedings were interrupted when the child's mother received a telephone call after which Constable French was informed that a solicitor was coming to the police station and that the mother wanted to wait until he arrived before the interview commenced. That request was complied with. A solicitor then arrived from the South West Aboriginal Legal Service. Following discussion which the solicitor held with the accused and his mother, the police officer was informed that the boy's mother did not want police to interview her son. There was no further interview and there was no electronically recorded interview at all. 10 According to Constable French the accused admitted, first at his home and again at the police station, that he pushed the deceased into the river. However it is not every admission that enlivens the operation of s 424A, as the definition of "admission" in sub-s (4) of the section makes plain. 11 According to Constable French, at the time when he called at the accused's home and the accused first admitted pushing the deceased, he did not suspect the accused of having committed an offence. He said that he went there to the home seeking in effect to track the deceased's movements and to find out who was the last to see the young child. The police officer's information apparently was that the accused had said that the child was at the creek and the purpose of his call, as I understand the thrust of his evidence, was simply to find out what the accused knew of the deceased's movements. 12 So it is, the Crown has submitted, that s 424A was not enlivened because at the time the accused spoken to he was not suspected, nor ought he reasonably to have been suspected, by Constable French of having committed any offence. 13 The evidence which Constable French has given satisfies me that at the time when he first spoke with the accused and when the accused first made what otherwise would have amounted to an admission for the purposes of s 424A Constable French did not suspect, nor ought he reasonably to have suspected, so far as inquiries had then proceeded, that the accused had committed any offence. 14 Hence s 424A can have, in my opinion, no application to the admission which the accused made, and such as Constable French detailed in paragraphs 15 and 16 of his statement. 15 However, the accused went on to elaborate upon that admission at his home (paragraph 17 of Constable French's statement) and to make the further admission at the police station (paragraph 27 of that statement). It seems to me that for the purposes of those later admissions, s

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424A had been enlivened because once the accused had first admitted pushing the deceased into the creek, Constable French ought reasonably to have entertained a suspicion for the purposes of s 424A(4)(a). 16 It is common ground that there never was any "tape recording" concerning these later admissions, but the Crown has submitted that there was "a reasonable excuse" for this for the purposes of s 424A(1)(c). Hence it has argued that the evidence as to the later admissions is not rendered inadmissible under that section. 18 I am satisfied that there was a reasonable excuse for no tape recording of what took place at the accused's home. I am satisfied that Constable French did not go to the boy's home suspecting that he had done anything wrong or that the accused would make any of the admissions which were forthcoming there. I am satisfied that Constable French was taken by surprise by the events at the home and that there was, in the relevant sense, a reasonable excuse for no tape recording of any of the admissions there made. 19 I am satisfied further that Constable French intended that a tape recording would be made at the police station to record the verbal admissions. Preparations were made for this to be done and the reason why there was no tape recording at all was because, following the involvement of the solicitor for the accused, the decision was conveyed to the police officers concerned as to the unwillingness for there to be further interview of the accused. 21 Mr Zahra submitted that it was not enough that the police were informed that the child was unwilling to be interviewed or that the parents were unwilling to have him interviewed. He submitted that the section required, even where there was a refusal to be interviewed generally, that an attempt to make a more limited interview remained necessary under the section. That is to say, where a person refuses to be interviewed at large the police should persist in seeking a tape recorded interview for the limited purpose of having recorded only the admissions previously made orally. 22 I have given that submission anxious consideration but it seems to me that the acceptance of the submission reads into the section more than it requires. I am satisfied here on the evidence that there was what in effect was a refusal to be interviewed by way of tape recording at the police station and once that occurred there was no further requirement for the police officer to persist in seeking to have some limited tape recording made. The law has always recognised a suspected person's right to remain silent and s 424A recognises this too. Hence it is that the refusal of a person being questioned to have any questioning electronically recorded is expressly recognised as a reasonable excuse under the section, and once there was conveyed in this case an unwillingness to be further interviewed, it was not required of the police that they persist in seeking to obtain further incriminating evidence, even of a limited kind. 23 In all the circumstances of this case, I have concluded that the Crown has established that there was a reasonable excuse as to why tape recordings of the type referred to in s 424A(2)(a) and (b) could not be made. 24 Accordingly the evidence sought to be introduced should not be excluded under the section.

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CLASSES 22 & 23: ADMISSIONS AND EXCLUSIONARY RULES OF EVIDENCE 1. How does the Evidence Act deal with admissions as a
particular type of evidence?
Part 3.4 of the Evidence Act 1995 (NSW), which is referred to as the uniform Evidence Act (UEA) regulates the admissibility of admissions. But first you need to consider some definitions.

What is an admission? The dictionary to the Evidence Act 1995 states: "admission" means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the persons interest in the outcome of the proceeding. "representation" includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.
Overall the UEA requires the admission to be voluntary (s 84), to be reliable (s 85), to be made in circumstances of fairness (s 90) and to have been obtained properly, without impropriety (s 138(2)). It is common for an accuseds admissions to be disputed by the defence in a criminal trial because such evidence is highly inculpatory. If an admission is disputed, the prosecution bears the burden, on the balance of probabilities, of showing the court why the admission should be admitted. On the other side, the defence will make arguments as to why the evidence should be excluded (in a voir dire: s 189). We consider the types of arguments that can be made, based on the various provisions under Part 3.4, with reference to the case law.

2.

The Threshold Issue: Is the admission really an admission?

Section 88 Proof of admissions For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
In a criminal trial, the defence might argue that the accused, him- or herself, did not make the admission, or that the statement made doesnt actually amount to an admission, as defined above. These issues were considered in the case below.

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R v Olivieri; R v Norman [2006] NSWSC 882

1 HIDDEN J: The accused were tried before me for the murder of a solicitor at his office in Petersham on 6 April 2004. The accused Olivieri was alleged to have shot the deceased that evening. The accused Norman was charged as an accessory before the fact to the murder. 2 Mr Austin, for the accused Olivieri, objected to the evidence of a number of intercepted mobile phone conversations to which his client had been a party. I allowed the evidence, and the recordings of the relevant conversations were admitted as calls D, E, F, H, I, J, K, L, N, O, P and Q of exhibit CC. These are the reasons for that ruling. 3 All the calls were made after the publication of an article about the shooting of the deceased in the Sydney Daily Telegraph on 10 June 2004. That article followed a press release by the police, together with the release of an image said to be that of a man seen acting suspiciously in the area near the deceaseds home at the relevant time. The clear implication of the press release, and of the article, was that that man was suspected to have been the gunman. ... 4 After the shooting the deceaseds widow had helped police compile a COMFIT image and a FACE image of the gunman, whom she had seen running from the office where her husband had been shot. The image released by the police for publication on 10 June was neither of those. It was a photograph of Mr Olivieri, modified to give the appearance of a computer generated image. What the newspaper articles conveyed to the reader was that that image had been able to be compiled by a witness or witnesses who had seen such a man in the area at the time of the shooting. 5 This was false, to the knowledge of the investigating police. It was a subterfuge for which they sought and obtained authority under s8 of the Law Enforcement (Controlled Operations) Act 1997. ... Telephone intercepts on the mobile phones of Mr Olivieri and his co-accused, Mr Norman, were in place before the issue of the press release. The purpose of the subterfuge, no doubt, was to engender phone conversations in which the accused made statements implicating themselves in the murder. 6 On 10 June Mr Olivieri, then in Queensland, had two telephone conversations with a friend, Ray Johnson, in Sydney ... Mr Johnson told him about the Telegraph article and, in particular, of the publication of an image bearing a startling resemblance to him. Mr Olivieri expressed concern a number of times about this development, even saying (in call E) that he thought that he was gone. Later that same day there was a call between the two accused (call F), in which the matter was discussed and Mr Olivieri said that he would have to go away for a while .... 7 The remaining calls were made over the period of about two weeks thereafter. ... They disclose a continuing interest in the development of the investigation into the murder. Mr Olivieri on several occasions asserted that he was in Queensland at the time of the shooting, and he and Mr Norman discussed witnesses who might have given evidence to that effect. However, he also expressed concern that police who searched the property in Queensland where he had been living might find items from a motel in Sydney at which he had been staying at the time of the shooting. 8 Put briefly, the Crown Prosecutor relied on the calls as evidence of knowledge on the part of Mr Olivieri of the murder such as to suggest that he was involved in it, and a concern about the newspaper article and the continuing police investigation born of a fear that his involvement might be detected. She proposed to put to the jury that his apparent protestations of innocence on the basis that he was in Queensland at the time were in fact part of a process of concocting with his co-accused a false account to be given to the police. 9 Some of the calls contain discussions between the two accused about the payment of money by Mr Norman to Mr Olivieri. Mr Austin did not object to that material, accepting that it was admissible as evidence of their continuing relationship. Otherwise, the first basis of his objection was that the calls were irrelevant because they contained no statement by Mr Olivieri which could constitute an admission of involvement in the murder. He relied upon s88 of the Evidence Act, and I accept that that section extends to the question whether a representation is capable of

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constituting an admission. I would respectfully adopt the view of Greg James J in R v Hall & Ors [2001] NSWSC 827 at [27] [29] [who stated]: 28 The nature of the test to determine what it is reasonably open to find has not been authoritatively explained in the case law to this point. In my view, [s88] deals both with the identify of the person said to be making the admission and whether what is done is an admission. The Crown Prosecutor contends that evidence is an admission, ie., a previous adverse representation and must be put before a jury in the event that it is an utterance or act such that the jury might attribute it to the accused 29 Were the test not whether "it is reasonably open" but whether "it might be possible", there would be much to be said for that submission. The section speaks of the court making a finding. That finding could only be made on the basis of what appears to the court to be reasonably open rather than some conjecture as to what others might perceive. A trial judge can only determine whether evidence has the capability of rationally affecting a matter in issue by application of his or her own senses. 10 True it is that no explicit admission of involvement in the murder is to be found in any of the calls. Indeed, some of Mr Olivieris statements amounted on their face to protestations of innocence. Mr Austin argued, what was said was at most ambiguous and was consistent with the state of mind of a man wrongly suspected of a serious crime. However, I took the view that the significance of the calls was a matter for the jury and that they were fairly open to the interpretation for which the Crown Prosecutor had contended. That being so, they could be said to contain admissions, being representations adverse to the accuseds interest in the outcome of the proceeding [and] relevant as part of the Crowns circumstantial case. 11 Mr Austins second and alternative argument was that, if the calls did contain admissions, they should be rejected upon the basis that to admit them would be unfair to the accused, within the meaning of s90 of the Evidence Act, or for reasons of public policy under s138. Thirdly, he argued that, even if the evidence were found to be admissible otherwise than as admissions, it should still be rejected under s138. 12 He submitted that the situation was analogous to that of police making a false or misleading representation to a suspect in the course of an interview, in the hope of inducing an admission: cf. s138(2)(b) of the Evidence Act. It was said that the evidence should not be allowed as admissions because it would be unfair to the accused to do so . 13 The arguments are related, and both require consideration of the fact that the misleading article in the Telegraph was published pursuant to an authority under the Law Enforcement (Controlled Operations) Act. ... Section 16 provides that an activity engaged in under an authority under s8 is not unlawful, and does not constitute an offence or corrupt conduct, so long as it is authorised by, and is engaged in in accordance with, the authority for the operation. Corrupt conduct is defined as bearing the meaning it has in the Independent Commission Against Corruption Act 1988. 14 Whether the issue of the misleading press release in the present case was unlawful, or could constitute an offence or corrupt conduct, is far from clear. No basis on which it might be considered to be unlawful or to amount to corrupt conduct was articulated in argument. The question remains whether it might amount to an impropriety within the meaning of s138 of the Evidence Act and, if so, whether an authority under the Law Enforcement (Controlled Operations) Act is effective to deprive it of that character. 16 The ambit of .. s16 was raised, but not developed, in argument. The matter was not the subject of research and full argument, and it would be inappropriate for me to express any concluded view about it. I took the view that the evidence should not be rejected under s90 or s138 even if it were assumed, without deciding, that the publication was improper and that it was not validated by its authority as a controlled operation. 17 The view I took of the balancing exercise under s138 was the same, whether or not the evidence was relevant as a series of admissions or otherwise as part of the Crowns circumstantial

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case. Having regard to the matters set out in s138(3), I assessed the evidence as important and as having substantial probative value. I did not consider any impropriety to be grave, noting that it was neither deliberate nor reckless. Indeed, there was nothing to suggest other than that the investigating police, and the senior authorising officer, saw the issue of the press release as a legitimate investigative tool, appropriately authorised as a controlled operation. 18 As to s90, I saw no relevant unfairness to the accused. There is no true analogy with a misrepresentation by police to a suspect under interrogation. Certainly, the evidence might be seen as the product of a subterfuge but, like it or not, subterfuge is an accepted part of police investigation, particularly of serious crime. It is, for example, an inherent part of every undercover operation. To the extent that it led to relevant and significant evidence in the present case, it was not unfair to use it against Mr Olivieri. 3. Is the admission admissible as evidence in the accuseds trial?

As seen in R v Olivieri, above, usually the defence will argue that the admission in question is not admissible on a number of different, alternate grounds or bases. These may include s281, CPA which we dealt with last class. If the taping requirements have been met, you will need to consider the other alternate grounds. Your familiarity with these different arguments will be tested in the final exam, along with your ability to make detailed submissions in relation to each particular reason for non-admissibility. First of all the UEA makes it easier to admit admissions as evidence, compared to other out-of-court statements made by other persons, by excluding admissions from the operation of the hearsay rule (s59) and the opinion rule (s76), which you will study in lots more detail in Litigation 2.

Section 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. Example [from the Evidence Act]: D admits to W, his best friend, that he sexually assaulted V. In Ds trial for the sexual assault, the prosecution may lead evidence from W: (a) that D made the admission to W as proof of the truth of that admission, and (b) that W formed the opinion that D was sane when he made the admission.
However, our focus is on the provisions of the UEA which exclude admissions on the basis of lack of voluntariness, lack of reliability, lack of fairness and lack of propriety on the part of investigating officers: ss 84, 85, 90, s 137 and s138(2). All the relevant provisions of the UEA are set out first before we consider the issue of exclusion or admissibility.

Section 84: Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

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(2)

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind. Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

Section 85: Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Note: Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216 . (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning: (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned. Section 90: Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Section 137: Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Section 138: Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

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(2)

Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Extracts from the International Covenant on Civil and Political Rights (for s138(3)(f)) PART III Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

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5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. Article 11 No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Article 14 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality; (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 21 The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in comformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or

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the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

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CHARTING THE ADMISSIBILITY OF AN ADMISSION

s 81 UEA the hearsay rule doesnt apply to evidence of an admission s281(1) CPA (a) was the admission made when D was a suspect or could reasonably have been suspected? (b) was the admission made in the course of official questioning & (c) in relation to indictable offence? (2) does the admission comply with sub-section (2)(a) or (2)(b) (taped or reas excuse)? YES compliance with s 281 NO compliance with s 281 MUST EXCLUDE s84 UEA: was the admission influenced by violent, oppressive, inhuman or degrading conduct or threat of that kind? NO YES MUST EXCLUDE s85(1) UEA: does the admission comply with the pre-conditions? (2) is there anything in the circs that makes it likely the truth of the admission was adversely affected? (3) court must take into account factors in subsection (3) NO YES MUST EXCLUDE s90 UEA: having regard to the circs in which admission made, would it be unfair to the D to use the evidence of the admission? NO YES MAY EXCLUDE s138(1) UEA: was the admission improperly or illegally obtained (see sub-section (2))? (e.g. evid is improperly obtained if, under s139, D not cautioned before questioning & was under arrest) IF SO, does the desirability of admitting the admission outweigh the undesirability of an admission obtained illegally or improperly (BALANCING TEST)? IN APPLYING THE BALANCING TEST, court must take into account factors in subsection (3) NO EXCLUDE UNLESS YES s137 UEA: is the probative value of the admission outweighed by the danger of unfair prejudice to the D? NO YES

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ADMISSIBLE

MUST EXCLUDE

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4.

Was the admission (or other evidence) improperly or illegally obtained?

The threshold question for s138

Section 138 is a discretionary power to exclude improperly or illegally obtained evidence and constitutes a control on the powers of police, and other investigating officials. The threshold issue is whether the evidence (which may include an admission by the accused) was: (a) obtained improperly OR in contravention of an Australian law; OR (b) in consequence of an impropriety OR of a contravention of an Australian law. It is, therefore, necessary to establish, at the outset, that the evidence was obtained either improperly or illegally. The onus will be on the party seeking to exclude the evidence to do so. Once that threshold issue has been established, the trial judge must then exercise his or her discretion and weigh up the desirability of admitting the evidence against the undesirability of admitting evidence that has been improperly or illegally obtained. But first we deal with whether the evidence in question has been improperly or illegally obtained. The following cases focus on improper or illegal conduct by investigating officials.

DR DENISE ROBINSON v WOOLWORTHS LTD [2005] NSWCCA 426

1 BASTEN JA (with whom Barr and Hall JJ agreed): [T]he Public Health Act 1991 (NSW) creates offences in relation to the supply of tobacco products to persons under the age of 18 years: Public Health Act, s 59(1). 2 [T]he Department of Health undertakes a program of compliance testing designed to identify those who would sell cigarettes to persons under 18 years of age. Officers in the Department of Health invite young people aged 16 years and under, with their consent and the consent of their parents, to seek to purchase cigarettes from vendors. 3 In the present case, a judge of the District Court held that the evidence of the offence was improperly obtained because Woolworths Ltd (the Respondent) had in a real sense brought about the commission of the offence the subject of the prosecution. The issue before this Court is whether his Honour was correct in holding that such conduct was improper for the purposes of s 138(1) of the Evidence Act. 12 On 2 October 2003, a young woman identified as SA went into a service station operated by the Respondent and purchased a packet of cigarettes. She was accompanied by another young woman, RH. Both were 16 years of age. The cashier who sold the cigarettes did not ask for any proof of age from SA. 13 Both of the young women were instructed by officers of the appellant to tell the truth at all times. They were told to tell the truth if they were asked their age, and to say that they did not have identification if they were asked for identification. 14 [H]is Honour found, in considering the exercise of his discretion: The impropriety was not deliberate. Ms Ptolemy [the Departmental officer] and the young women in question believed themselves to be acting perfectly properly in performing an important function designed to protect the health of children in our community. It was not suggested that Ms Ptolemy realised that she was playing some sort of underhand trick on the cashier or the appellant.

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15 The final fact identified in the case stated was one which appears to have been of importance, possibly critical importance, in the reasoning of the District Court. (h) The retailers approached are selected randomly. There was no suspicion held by the appellant or any of its officers that the respondent, or the casher who served the young person, were in the habit of selling cigarettes to underage purchasers. 21 Section 138 has a broad scope. For example, it applies not merely to evidence obtained unlawfully, but also evidence obtained improperly. It applies not only in criminal proceedings, but also in civil proceedings. It applies to all kinds of evidence, including admissions which, for the purposes of criminal proceedings, may also need to be considered under ss 84, 85 and 90. Finally, and significantly for the present case, the section covers, not merely impropriety or unlawful conduct in the acquisition of evidence following an offence, but also conduct which constitutes the offence. 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 . 24 On the other hand, the clear intention of s 138 is to replace the general law discretion to exclude such evidence; the two cannot sensibly coexist together: ... 25 The concept of inducement was also addressed by this Court in R v Sloane (1990) 49 A Crim R 270 in the context of an application for a permanent stay of proceedings with respect to supply of cocaine, on the basis that the accused had been induced by police to commit the offence and that there had, therefore, been entrapment. In Ridgeway, Gaudron J noted that such claims, prior to Ridgeway itself, had generally proceeded on the basis that the idea of entrapment engaged the principles with respect to the discretion to exclude illegally or improperly obtained evidence . In that context, her Honour referred to the following reasoning of Gleeson CJ in Sloane at 272-3: The authorities relied upon in support of the application for a stay of proceedings ... established that, whatever its precise legal effect may be, the concept of entrapment involves as a necessary element the idea that an accused person has been induced to commit a crime which he or she otherwise would not have committed, or would have been unlikely to commit. 26 Gleeson CJ went on to refer to an on-going course of criminal activity such as dealing in drugs, before noting (at 273): A common method of establishing that a person is carrying on an activity of selling goods of a particular kind is to buy some of the goods in question from that person. The specific sale would never have taken place but for the activity of the relevant police officer or informer, but that is not sufficient to constitute a case of entrapment. 27 In Ridgeway, Gaudron J adopted a similar distinction between the mere provision of an opportunity to commit a crime and inducement to commit a crime. Thus her Honour noted (at 77): In cases of mere opportunity, the accused person is fairly regarded as wholly responsible for his own actions. And that is so even if there is some illegality associated with the opportunity provided, as, for example, that involved in the purchase of contraband where it is clear that it is generally available to all who wish to purchase it. Her Honour then distinguished a different category of case. But in cases which go beyond the provision of mere opportunity, where the offence results from the illegal actions of those whose duty it is to uphold the law, it is they who, in a real

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sense, are responsible for its commission, not the accused. In such circumstances the accused and society in generally may well view prosecution as a serious injustice. 28 As will be noted below, the District Court concluded, without extensive justification, that the present case fell within the latter category identified by Gaudron J and did not involve a mere provision of an opportunity to commit an offence. 29 [T]he test identified by Lord Bingham of Cornhill CJ in Nottingham City Council v Amin [2000] 1 WLR 1071 at 1076-7 is in terms which bear a close similarity to the language found in Ridgeway. His Lordship stated: On the one hand it has been recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else. 31 R v Looseley [2001] UKHL 53; [2001] 1 WLR 2060 involved a prosecution for supply of heroin, where the recipient had been a police officer who had been given the defendants name and telephone number and identified as a potential source of drugs. The speech of Lord Hoffmann is, however, of direct relevance, because it draws a distinction between crimes and regulatory offences where effective administration of the law may require enforcement officers to have the power to make random tests : The test of whether the law enforcement officer behaved like an ordinary member of the public works well and is likely [to] be decisive in many cases of regulatory offences committed with ordinary members of the public, such as selling liquor in unlicensed quantities ..., selling videos to children under age ... and operating a private hire vehicle without a licence ... . But ordinary members of the public do not become involved in largescale drug dealing, conspiracy to rob ... or hiring assassins. 32 The operation of s 138, with respect to improper conduct, has been considered on a number of occasions, but usually in circumstances far removed from the present 33 In the course of oral submissions, counsel for the Respondent said he did not accept that an onus lay on the party resisting admission of the evidence to establish impropriety. However, Coulstock is authority for that proposition. Prior to the Evidence Act, a defendant bore the onus of establishing illegality or impropriety as a basis for invoking the general law discretion to exclude evidence [T]he onus of proof under s 138 was expressly addressed by this Court in Coulstock by Hunt CJ at CL, Ireland and Levine JJ agreeing, in the following terms at 147: It is clear that the onus still lies on the accused to establish the impropriety or illegality before any onus is placed upon the Crown to persuade the trial judge that the evidence should nevertheless be admitted. The discretion is therefore to admit the evidence notwithstanding the impropriety or illegality. Consistently with this line of authority, Howie J (Giles JA and Carruthers AJ agreeing) stated in R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505 at [16]: There are two things that can be said about the determination made by his Honour on the question of the admissibility of the evidence of the search and the finding of the tablets: first, the appellant bore the onus of proving on the balance of probabilities that the search was unlawful or improper within the terms of s 138 of the Evidence Act; second, the findings made by his Honour were matters of fact. There is no reason to depart from these conclusions in relation to the onus of proof, as they are clearly correct.

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34 Before leaving these authorities, it is convenient to note the decision of Beach J in the Victorian case Rice v Tricouris [2000] VSC 73; (2000) 110 A Crim R 86. That case bore a remarkable similarity to the present. A magistrate had dismissed a charge brought against the defendant for selling a tobacco product to a girl under the age of 18 years, in circumstances where the girl had been asked by the informant to attend a milk bar and make a test purchase of cigarettes. In considering the facts of the case, Beach J stated: [21] It is clear from the evidence of the appellant and Amanda Smith that the respondent was not induced to sell the cigarettes. In all probability he would have been prepared to sell them to anyone who asked. [24] And true it is that the council engaged a 15-year-old child to procure the commission of the offence. But that can hardly be said to be improper conduct. To successfully prosecute the respondent it was necessary that the council obtain evidence that the respondent was selling tobacco products to children under the age of 18 years. [25] Amanda Smith was not committing any offence by purchasing the cigarettes. The situation in this case can be contrasted with that in Ridgeway where the actual importation of heroin into Australia was performed by police. 35 His Honour also noted the failure of the magistrate to take account of the policy of the law, the damage done to the health of children who smoke, the need to deter the selling of cigarettes to children, the difficulty of obtaining evidence to prove the commission of the offence and the absence of viable or practical alternatives in relation to the successful prosecution of such offences. His Honour concluded at [31]: I cannot accept that society would frown upon the use of a 15-year-old child to make a test purchase of cigarettes from a milk bar in the circumstances in which Amanda Smith did in the present case. Indeed I suspect that most reasonable members of the community would take the view that that was a most satisfactory way of attempting to stamp out the illegal sale of tobacco products to minors. 36 These principles should inform the determination of a court as to what constitutes improperly obtained evidence or impropriety for the purposes of s 138. In circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety. 38 No doubt the circumstances of the particular case, including the nature of the offence, and, in the context of regulatory offences, the purpose underlying the prohibition, may give rise to different answers in different circumstances. For example, in the present case, the judge noted at [25]: One can think of many analogies. I doubt that the community would accept the prosecution of taxi drivers who stop in no-stopping zones when hailed by undercover police officers. This analogy helpfully demonstrates the dangers of seeking support in [other] reasoning. To describe a police officer as undercover in these circumstances tends to involve an emotive and misleading element. To compare the enforcement of no-stopping zones, an element of a traffic law, with the protection of public health is also inapt. Application of principles 39 It was clearly of central importance to the decision reached by the District Court, at [24], that the officer brought about the commission of the offence in circumstances where no suspicion previously attached to either the appellant or the cashier. 41 The conduct of the law enforcement officer in the present case involved the procurement of a member of the public (and a friend) to enter a shop and seek to purchase an item which was legally and openly available for sale. That conduct on the part of the officer resulted in the commission of an offence by the Respondent, through its employee. The gist of the complaint made by the Respondent, accepted by his Honour at [24], was that the officer had brought about the commission of the offence which it now prosecutes. There was no separate conduct involved

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in the obtaining of evidence and there is some artificiality in saying that the evidence, as such, was obtained improperly. In terms of s 138(1), it may be more apt to describe the complaint as being that the evidence was obtained in consequence of an impropriety within the terms of par (b) of that subsection . However, nothing turns on this point as it was not suggested before this Court that there would be any different result from applying par (b), rather than par (a). 46 In my view the conduct complained of was not capable, as a matter of law, of constituting impropriety for the purposes of s 138 of the Evidence Act. The factors which support that conclusion have been discussed above, but may be summarised as follows. (a) The conduct of the law enforcement authority provided the opportunity for the commission of the offence, but did not involve any form of pressure, persuasion or manipulation. (b) The conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no harassment. (c) The two girls acted [like] of ordinary members of the public in purchasing cigarettes. (d) In the case of an offence which does not involve a criminal intent, the policy against tempting people to commit crimes which otherwise might not have occurred is of limited significance. (e) Because the victim of a contravention of the law, namely the young person who successfully purchases tobacco products, is unlikely to complain about a contravention, the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependent on receipt of complaints. (f) A properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law. 47 In noting at (a) above that there was an absence of pressure or persuasion in the present case, it is not intended to suggest that the presence of pressure or persuasion would necessarily lead to a different result. These are matters of degree, and may need to be tested in accordance with the factor noted at (c), namely the likely behaviour of members of the public. 48 The list of considerations does not contain explicit reference to fact that the purpose of the law is to promote public health. ... It is no doubt a correct and pithy encapsulation of the purpose of the law in question, but it does not distinguish this law from many similar regulatory provisions, nor from the underlying purpose of outlawing some criminal activity, such as the prohibition on the importation and supply of certain drugs. The legislative purpose, and indeed the nature of the offence created, are undoubtedly relevant to the kinds of law enforcement conduct which would be seen as reasonable and appropriate with respect to that law. However, even where that test may be satisfied, other factors, such as the intrusive nature of compliance testing in particular circumstances, may suggest that statutory permission is required, as with random breath testing of drivers . Albeit in a context in which law enforcement authorities were involved in unlawful (and not merely improper) conduct, Brennan J noted in Ridgeway : As a technique of law enforcement, the so-called controlled importation of prohibited imports may be an acceptable technique for the detection and breaking up of drug rings but, if that be so, the law enforcement agencies must address their concerns to the Parliament. ... If law enforcement agencies apply for an amendment of the laws to permit the employment of detection methods such as those used in this case, it will be for the Parliament to consider whether controls should be legislatively prescribed. Legislative provision in relation to controlled operations now exists in several jurisdictions ... Accordingly, the purpose of the legislation, broadly stated and taken in isolation, is unlikely to be a critical factor in this analysis. 49 Where a compliance program does not involve unlawful conduct on the part of the law enforcement agency and does not involve any intrusion on the human rights and freedoms of the person being tested, there is less likely to be concern as to the propriety of compliance testing procedures, so long as they satisfy the elements identified in paragraph [46] above. The purpose

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of the particular law to be enforced will have been assessed by the Parliament: caution should be applied in seeking to confer greater moral rectitude on some statutory purposes, as compared with others.

Parker v Comptroller-General of Customs [2007] NSWCA 348

3 BASTEN JA (with whom Mason P and Tobias JA agreed): Over a period covering 19871989 officers in the Australian Customs Service conducted an extensive investigation in relation to suspected breaches of the Spirits Act 1906 (Cth) and the Customs Act 1901 (Cth). The officers came to the view that certain importers of brandy, prior to bottling and sale, had been contaminating or extending the product with locally produced grain-based alcohol on which duty had not been paid. The scheme was understood to involve three main businesses. Lawpark Pty Ltd (Lawpark) imported and distributed spirits. Kingswood Distillery Pty Ltd was a maker and processor of spirits in Australia. Breven Pty Ltd (Breven) operated a bond store at which imported spirits could be warehoused without incurring a liability to pay duty. The present Appellant, Mr Stephen Parker, was a director and shareholder of both Lawpark and Breven. 4 By March 1990, customs officers had formed the view that all of the bottled stock which had been tested and contained extended spirit, came from the bond store operated by Breven. On 6 March 1990 officers attended at a number of premises, requested the production of books and documents and, on forming the view that there had been a failure to comply with the request, executed search warrants issued under the Customs Act. An analysis of documents produced as a result of these searches led to charges being laid under the Customs Act against, amongst others, the present Appellant. 5 Proceedings commenced in 1992 in the Common Law Division against Mr Parker and others laid charges of offences under the Customs Act involving the evasion of duty in an amount exceeding $3 million. The charges relating to Mr Parker came on for trial before Simpson J in April 2005 and was convicted of 14 offences. 6 Mr Parker appealed against his convictions on numerous grounds, but by the conclusion of the hearing of the appeal, the scope of the challenges had been drastically reduced. The grounds which were pressed were restricted to the admission of company records seized from Lawpark on 6 March 1990. The records were seized pursuant to a warrant issued under s 214 of the Customs Act. Both the issue of the warrant and its execution were said to be either unlawful or attended by impropriety. Accordingly, the Appellant sought to have the documents obtained in the execution of the warrant excluded by the trial judge pursuant to s 138 of the Evidence Act 1995 (NSW). 8 Over the years that have elapsed there have been significant changes to the law. [T]he Customs Act under which the warrant was issued and the search conducted [has been repealed]. The Evidence Act, under which questions of admission of evidence arose, was enacted after the commencement of the proceedings, but before the trial. Exclusion of evidence: Evidence Act, s 138 54 Before considering further the factual circumstances relevant to the appeal, it is convenient to consider the basis on which it was sought to exclude the documentary evidence obtained by execution of the warrant. 55 One difficulty in the construction of s 138(1) is the distinction between conduct which is improper and conduct which is unlawful. Apart from some possible variation in the closeness of the causal connection, there does not appear to be any significant distinction between evidence obtained in contravention of an Australian law and evidence obtained in consequence of a contravention of an Australian law, being the second limbs of pars (a) and (b) respectively. The same intention should be attributed to the first limb of each paragraph, so that there is no significant difference between obtaining evidence improperly and obtaining evidence in consequence of an impropriety. The real issue is to identify the scope of an impropriety which will result in the qualified exclusion of evidence where there has been no unlawfulness, in the

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sense of a contravention of an Australian law. [T]he best known example of improper conduct, not amounting to unlawfulness, is the action of an agent provocateur or person who induces another to commit a crime through subterfuge or trickery. This situation was discussed in Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at [16]- [38]. 56 There may be circumstances in which it is not the commission of the crime itself, but the obtaining of evidence of an antecedent crime which is attended by trickery or deception, not amounting to a contravention of a legal prohibition. For example, a police officer may induce the occupant of premises to allow a search to be undertaken voluntarily, in the false belief, induced by the officer, that he or she had a warrant which could be relied upon if consent were not forthcoming. Improper conduct may also occur in circumstances where a police officer has a warrant and seeks to exercise a search based on its authority, knowing that the warrant was for some reason invalid. One can envisage variations on the theme: the warrant may in fact have been invalid for reasons which the police should have been aware of, but were not. The warrant may in fact have been valid, but was believed by the officers to be invalid. Further consideration of such examples need not be pursued in the circumstances of this case. 57 The exercise of the discretionary power conferred by this provision involves two steps. The first is to determine whether evidence sought to be adduced was in fact obtained improperly or unlawfully in one of the senses identified in pars (a) and (b). The second step is to consider whether despite that conclusion, the discretionary considerations favour its admission. The importance of giving appropriate weight to the effect of any impropriety or unlawfulness is reflected by means of a qualified proscription the evidence is not to be admitted unless. In carrying out the balancing exercise, the Court is required to take into account the factors identified in sub-s (3) . 5. Does the desirability of admitting the evidence outweigh the undesirability of admitting the evidence?

Once a trial judge is satisfied that the evidence has been obtained improperly or illegally, he or she must then exercise their discretion to either exclude or admit the evidence in question. This involves applying the following test: Does the desirability of admitting the evidence outweigh the undesirability of admitting evidence obtained improperly or illegally? This is a balancing test. Where that balance lies will vary from case to case and depend on how important the evidence is and the degree of impropriety or illegality, as the case law shows. Sub-section (3) sets out a list of eight factors that the trial judge must take into account in applying this test. The following cases illustrate how judges have exercised their discretion in a range of different circumstances.

Parker v Comptroller-General of Customs [2007] NSWCA 348

3 BASTEN JA (with whom Mason P and Tobias JA agreed): 58 Other factors, relevant to the circumstances of the case, may be taken into account, but the listed considerations [in sub-section (3)] are mandatory. No guidance is given in the section as to how the particular matters are expected to affect the outcome. It is clear from the Law Reform Commission report on which the legislation was based that both the policy and the language were derived in significant part from the joint judgment of Stephen and Aickin JJ in Bunning v Cross . Their Honours identified the issue as involving two competing requirements of public policy and the need to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law: at 74. Often the unlawful

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conduct involves the collection of evidence in contravention of constraints deliberately imposed by the legislature to protect human rights and freedoms. Their Honours noted at 77-78: These safeguards the executive and, of course, the police forces, should not be 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 legislatures safeguards of individual liberties, subordinating it to the executive arm. 59 In considering the circumstances before them in Bunning v Cross, which involved the admissibility of the results of a breathalyser test where the statutory preconditions for undertaking the test had not been met, their Honours identified the primary consideration as whether the police officers had acted in deliberate disregard of the law . 60 This factor is reflected in paragraphs (d), (e) and (f) of s 138(3). Accordingly, a deliberate or reckless disregard of legal constraints, involving a contravention of an internationally recognised human right or fundamental freedom, will undoubtedly weigh against admission. On the other hand, if the contravention were accidental or inadvertent and involved no serious contravention of an internationally recognised right, that would tend in favour of admission. 61 Paragraph (h), concerning the ease with which the evidence might have been obtained without contravening a legal protection, was treated in Bunning v Cross as a third consideration, but is closely related to the first, their Honours stating (at 79): A deliberate cutting of corners would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could easily have lawfully required him to do, had they troubled to administer an alcotest at the roadside, has little significance. As in Bunning, it is likely that this factor will often be treated as either neutral or equivocal. 62 The second consideration identified in Bunning v Cross was the effect of the illegality on the cogency of the evidence. This factor does not find explicit recognition in s 138(3), but may be understood as part of the assessment required under pars (a) and (b) of the probative value of the evidence and its importance in the proceedings. The Law Reform Commission, following Stephen and Aickin JJ, noted that the public interest in admitting evidence where other evidence untainted by impropriety is available is weaker than may be the case where there is no untainted evidence. However, the analysis by the Commission in relation to probative value generally, is that the higher the probative value of the evidence the greater the public interest in its admission, in the interests of accurate fact-finding . However, Stephen and Aickin JJ adopted a somewhat different approach, stating at p 79: To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. ... Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. 63 The weight to be given to these considerations cannot be resolved in the abstract and is likely to depend not only on the circumstances of the case but on the interplay between the different factors. Thus, the subject matter of the proceeding, identified in par (c), will provide both an independent and a comparative element. As an independent element there is a greater public interest in convicting of a serious crime than of a lesser crime . In the comparative sense, it allows for the nature of the alleged wrongdoing to be weighed against the unlawfulness of the conduct involved in obtaining the evidence . Thus the probative value of the evidence and its importance in the proceeding (pars (a) and (b)) if high in each case, combined with a serious criminal offence (par (c)), may militate strongly in favour of admission, particularly if combined

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with an affirmative finding as to the difficulty of obtaining the evidence without impropriety or contravention of the law (par (h)). 64 Paragraph (g) concerns possible disciplinary or other action in relation to the misconduct in obtaining evidence. If a police officer is likely to be disciplined for the impropriety, it may be thought that the sanction of excluding the evidence is unnecessary; on the other hand, there may be some incongruity in convicting a person of a criminal offence on the basis of evidence where a disciplinary or even criminal process has been invoked against the officer responsible for obtaining it. Further, it will not always be possible to know whether disciplinary proceedings are likely to be taken: such steps may deliberately have been left until after any criminal proceedings have been completed, so as not to prejudice their outcome. Clear findings in a judgment of contravention of a relevant law may lead to disciplinary proceedings against the offending officer, whether or not the evidence was excluded. No reliance was placed on paragraph (g) in the present case and it need not be considered further. 65 What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard of an individuals civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence. Application of discretion to admit evidence 119 Any assessment of the discretionary factors identified in s 138(3) must be undertaken in light of the statutory purpose, which is to provide a context for the resolution of the conflicting public interests noted above. 120 The first consideration is that the seizure of a large volume of documents without consent and without the authority of a valid warrant involved a major invasion of the rights of Lawpark and Breven to be free of such interference in their affairs, without those responsible having lawful justification for their conduct. In terms of par (d) of s 138(3), the consequence of the contravention was a serious intrusion on the rights of the companies. That factor would weigh heavily against the admission of the documents seized. Indeed, if combined with wilful disregard of the legal requirements of the relevant customs officers, the case for rejection of the evidence would be strong, if not overwhelming. 121 There were, however, significant countervailing considerations. Thus it was properly held by the trial judge, and not disputed on appeal, that the evidence was critical to establishing the unlawful conduct of the Appellant (amongst others); it not only constituted virtually the whole of the prosecution case, but it was compelling. Nor was it established that its probative value was diminished by the unlawfulness attaching to the execution of the warrant. Further, for the purposes of par (c), the purpose for which the evidence was to be used was a prosecution of a criminal offence; the offence was, in its own right, serious, involving a deliberate flouting of the revenue laws for commercial benefit over a considerable period. When those considerations are weighed against the unlawfulness involved in the conduct of the customs officers, the significance of the latter is greatly reduced. Ultimately, the weighing exercise required to determine whether the evidence should be admitted must turn on whether the actions of the customs officers could properly be described as involving a wilful disregard of legal constraints imposed on their powers. It was no doubt in recognition of that factor that much effort was exerted by the Appellant at trial in attempting to establish, if not wilful disregard, at least indifference to the legal requirements of the lawful exercise of the [Customs officers] powers . 122 The seriousness of the intrusion on the rights of Lawpark and apparently Breven, through the seizure of their documents, flowed from the extraordinary breadth of the power conferred by s 214. The seriousness of the consequence for the affected businesses of an unlawful exercise of the power warranted careful scrutiny of the conduct of Customs: however, it did not turn genuine attempts at compliance into deliberate disregard or reckless indifference. 123 While the Comptroller accepted that the notice to produce was inadequate in its specification of the subject matter of the offence, so that non-compliance did not engage the power to execute the warrant, he did not concede that the request for production was a charade

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having only one purpose, namely to provide an apparent trigger for the execution of the warrant. The Appellant sought to establish that improper purpose and to add a further serious impropriety, namely a search and seizure going beyond the understood limits of the power conferred by the warrant. However, the Appellant failed to satisfy her Honour that at any stage there had been wilful disregard of the law, dishonourable or dishonest motives or improper purposes at play. 124 In the result, the unlawfulness of the conduct of customs officers turned on the failure adequately to identify the bottle of brandy said to have been illegally dealt with pursuant to the Spirits Act. There was no evidence to indicate that it would not have been relatively easy to comply with that obligation of specificity. However, the fact that it was not done was not due to deliberate cutting of corners or disregard of the legal requirements. On one view, the error arose from a failure to reproduce in the notice requiring production of documents the detailed information supplied on oath for the purposes of s 214(1). 128 The appeal should be dismissed with costs. R v CAMM; R v CARY; R v QUINCE [2008] NSWDC 40 (19 February 2008) 1 Goldring DCJ: In this case the Crown seeks to tender the record of an interview conducted by Federal police officers and others with the accused Cary and Quince, while the police were executing a search warrant, properly obtained, on the property occupied by the accused, V near Hay. There is no challenge to the validity of the search warrant or to the way in which it was executed, nor to the admissibility of any material seized in the course of the execution of the warrant because of the manner of seizure. 2 The objection is taken to the admission of the record of interview on the basis that the interview was conducted improperly, unlawfully. The accused rely on the provisions of s 23G of the [Cth] Crimes Act, [in NSW, see s123, LEPRA] which reads: Right to communicate with friend, relative and legal practitioner (1) Subject to s 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may: (a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and (b) communicate, or attempt to communicate, with a legal practitioner of the persons choice and arrange, or attempt to arrange, for a legal practitioner of the persons choice to be present during the questioning. The investigating official must defer the questioning for a reasonable time to allow the person to make or attempt to make the communication, and if the person has arranged for a legal practitioner to be present to allow the legal practitioner to attend the questioning. 3 The next subsection deals with the obligation on the police to give the person reasonable facilities to exercise those rights. S 23L (3) provides that: Subject to s 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must: (a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation. (b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning. 4 Ms Quince who, and there is no dispute about this, is Aboriginal, also relies on s 23H of the Crimes Act, which specifically refers to Aboriginal and Torres Strait Islander people, and it gives them even more protection than s 23G, and is much more explicit, but I do not need to deal in detail with that section.

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5 It is not in dispute that both Mr Cary and Ms Quince were protected suspects within the meaning of s 23C(2) because the officer in charge of executing the search warrant, Sergeant Sands, gave evidence that, at the time, she was of the view that there was sufficient evidence to establish that the person has committed the offence. 6 In my view, the words of s 23G are quite clear and must be applied if their plain meaning can be given effect. The Crown Prosecutor relies on the High Court decision of Pollard v The Queen (1992) 176 CLR 177 which concerned the interpretation of a similar provision in the Victorian Crimes Act, but a provision which did not refer in terms to the rights of people who were protected suspects, as the Commonwealth Act describes them. These provisions have in common that they give rights to people who are in custody. 7 It is not in dispute that neither Mr Cary nor Ms Quince were ever arrested. They were charged by summons with these matters. However, they clearly fell within the definition of the term protected suspect, and therefore it is important that the words of s 23G, and 23H in the case of Ms Quince, be given full effect. 8 When the accused were informed of their rights in relation to the search warrant and given an occupiers notice, Ms Quince indicated that she wished to contact her legal adviser, Mr Gordon Duff. Mr Duff, it appears, may not be a qualified legal practitioner, but he certainly worked in the office of a firm of solicitors and had been retained by Mr Cary and Ms Quince to do some other legal work. 9 Sergeant Sands advised her that at the same time as she was executing the search warrant at V, a search warrant was being executed at Mr Duffs office in relation to these matters. Ms Quince, nevertheless, rang Mr Duffs office and was told that he was not available. She left a message for him to call back, and Sergeant Sands then indicated that Mr Duffs office was being searched. Notwithstanding the clear intent of s 23G, the accused were not informed of their right to request that the questioning be delayed until the arrival of a lawyer, and in fact the questioning continued for several hours. 10 It was conceded that Mr Cary and Ms Quince were interviewed for the most part in the presence of each other. Little distinction was made between the process of asking them about material recovered during the execution of the search warrant and asking them about the commission of the offences. 11 It is also apparent from the record of interview that over several hours some matters were recorded, but at times the tape recorder was turned off. Sergeant Sands conceded that there were conversations with both or either of these accused when the tape recorder was turned off. 12 It is clear that during the course of what was recorded the accused were informed of their right to remain silent on at least three occasions. 13 Sergeant Sands indicated that when she was executing the search warrant she did not have with her a video camera. 14 The accused rely primarily upon s 138, which gives the Court a discretion to exclude improperly or illegally obtained evidence. 16 Before considering whether or not there is an impropriety, and therefore any call for the application of s 138, I wish to point out that in New South Wales where police are investigating a crime, it is usual for them to interview suspects individually, and certainly not in the presence of other suspected persons. When a search warrant is executed this process is recorded on videotape, which also records any conversation occurring during the execution process. Each suspect who is questioned is given a written statutory statement of his or her rights in the language which he or she understands, before the interview is conducted, in addition to any verbal advice or caution given by police. As in the Commonwealth, special provision is made for Aboriginal people who are questioned. 17 In this case it is clear that the police knew that Ms Quince was Aboriginal. 18 New South Wales police appear to be trained not to question suspected people in the course of executing a search warrant, except in relation directly to matters discovered during that

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process. The questioning is done separately in a process known as an Electronically Recorded Interview with a Suspected Person. In my view, the procedures followed by the New South Wales Police are infinitely preferable to those followed by the Federal Police in this case, and the failure of the Federal Police, even to approach the standards of the New South Wales Police, is directly relevant. 19 Both Mr Cary and Ms Quince have objected to the admissibility of the records of interview, and I have read the transcript of the interview for this purpose. Little in it, standing alone, could be said, subject to some exceptions that I will mention, to be an admission, because nothing in it is in any real or everyday sense a statement against the interests of either of the accused. On the contrary, much of what each of them say is exculpatory. As I said in the course of argument, if Mr Watson had not pleaded guilty, much of what was said, particularly by Mr Cary, in the record of interview, would be highly relevant, but it is not relevant to either of these accused. 20 Given the very broad construction which the Court of Criminal Appeal in this state has given to the term admission, it is certainly possible and probably likely that the Crown will ask the jury to draw certain inferences from what the accused said to the police on this occasion. In this sense what they said may constitute one or more statements against their interests. It is for this purpose that the objection has been taken, and indeed the Crown conceded that there were things said by Mr Cary that he says are admissions. 21 That raises an additional question which is the application of s 90 of the Evidence Act upon which the accused also rely. 22 The requirements of s 23G provide an extremely important protection of the rights of the citizen. I do not accept the Crowns submissions, in any way, that s 23 applies only to people in custody. I also reject the submission that the breaches of s 23G were technical. Although I accept that the police did not intend to trespass unnecessarily on the rights of the accused, what they did was, in my view, probably inadvertent. But the words of s 23G and indeed s 23H are so important and so clear that police must observe them meticulously, and any failure to do so ought, in my view, lead to the application of s 138 and a consideration, therefore, of the balance of the weight of the evidence obtained and the interests of justice. 23 In this case it is clear that Ms Quince, at least, and probably Mr Cary, wished to contact their legal adviser and expressed that wish very early in the process. Both of them should have been advised of their right to request a delay in the questioning until such time as their lawyer was available. The police knew, and indeed had stated, the reason why Mr Duff was not available. 24 It is not absolutely necessary that the lawyer originally selected should be available, but if the questioned person expresses the wish to contact a lawyer, given the situation of a police interview, the police should be meticulous in doing all they can to ensure that a lawyer is contacted, and should not, in any circumstances, continue to question the accused, unless a lawyer has been in contact with the suspected person. This is so, notwithstanding that these particular events took place on a remote rural property in the far west of New South Wales. The fact that a person lives in a remote area does not lessen the protection which the law should afford to him or her. That is not to say that the police do not have a difficult task, but they cannot carry out that task if they do not meticulously observe the law when they are doing so. 26 The impropriety or irregularity was compounded when, later in the interview, Ms Quince asked Mr Lee, an officer of ATSIC who was present, about her rights of access to legal aid from the Aboriginal Legal Aid Office, and she was then assured that she would be entitled to legal aid. At that stage her concern for proper legal protection became apparent and it was incumbent on the police, at that stage at least, if it had not been earlier, to refrain from asking her further questions, until such time as she was legally represented and her legal representative was present. This is so, notwithstanding that earlier she had been asked if she wished to have a lawyer from the Aboriginal Legal Aid office present during the search, and had declined the offer. A person being

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interviewed always has the right to change his or her position and request the presence of a lawyer, and in that case the questioning should cease until the lawyer is present. That is the effect of s 23G. 27 I conclude that there was an impropriety, if not an illegality, in the continuation of the questioning of the accused, given the awareness by the police of Ms Quinces concern about obtaining proper legal advice and indeed a concern that Mr Cary also expressed early in the interview. It should have been obvious to the officers that they wished to have legal representation, and that this was a view that both of them had expressed. 28 I also conclude that, although it is not technically illegal, the questioning of suspected persons during the conduct of the execution of a search warrant is certainly inadvisable, and may, in some circumstances, amount to improper conduct by the police. 29 I draw a similar conclusion about the practice of interviewing suspects, even in part, in the presence of each other. 30 It is therefore necessary for me to decide whether or not, notwithstanding these improprieties, the evidence should be admitted. The probative value of the record of interview is, in my view, small, as with a few possible exceptions, there are no direct admissions by either accused. It may be that what Mr Cary told the police about his use of the name Tatt might be regarded as a statement against his interest, and there were some other statements to which the Crown Prosecutor drew my attention that might be used as admissions, or at least things from which the jury might be invited to draw inferences. The challenged evidence is not therefore necessary to support the Crown case, and there is other evidence that may implicate either or both of these accused, quite independent of anything said by them to the police. 31 I conclude that the evidence is of slight importance to the Crown case. 32 Impropriety in relation to the failure to advise the accused of the right to have a legal representative present during the execution of this search warrant, and, more importantly, to have the questioning delayed pending the arrival of a lawyer, is a very serious impropriety in any case, notwithstanding that the offence being investigated involved the alleged fraudulent misappropriation of a large sum of money. It is an impropriety of the type where the effect of the wrong conduct by the police will be outweighed by the value of the evidence obtained, only where that evidence is of extremely high probative value and the case is extremely serious. 33 It is important that police and other law enforcement officers understand that the rights of persons under investigation, particularly those who fall within the definition of protected suspects, are extremely important and must not be disregarded. 34 I would be prepared in some cases to overlook the fact that the accused were questioned during the execution of the search warrant or questioned in each others presence, given the rather inconclusive nature of the questions they were asked and the answers they gave. However, given the serious nature of the failure of the police faithfully to follow the requirements of ss 23G and 23H, the potential that the Crown may use the evidence obtained, as a result of this impropriety, on the basis of asking the jury to find that there were admissions or to draw inferences adverse to the accused, I propose to exclude the evidence of the records of interview. 35 If I had not reached this conclusion on the basis of s 138, I would have been compelled, so far as the record of questioning is said to include any admission, to exclude it under s 90 of the Evidence Act, because the questioning was not conducted in a manner that was fair to the accused, for the reasons that I have stated. Anything gained by the police in the course of that questioning is tainted by the unfairness.

Campbell and 4 Ors v Director of Public Prosecutions (NSW) [2008] NSWSC 1284
1 HIDDEN J: The five plaintiffs, Ian Campbell, Garry Campbell, Vivian Campbell, Brett Rotumah and Steven Rotumah, were prosecuted in the Local Court at Bega for a number of

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charges arising from events at Bermagui on the night of 7 October 2006 and the early hours of the following morning. Most of the charges were dismissed, but all five were convicted of affray and Brett Rotumah was also convicted of assault occasioning actual bodily harm. All of them were placed on good behaviour bonds. 2 They have appealed to this Court against their convictions, pursuant to ss52 and 53 of the Crimes (Appeal and Review) Act 2001. Section 52 provides for an appeal as of right on a ground that involves a question of law alone. Section 53 provides for an appeal by leave on a ground involving a question of fact or a question of mixed law and fact. The defendant, the Director of Public Prosecutions, did not prosecute the matter in the Local Court, but has taken over the conduct of the proceedings in this Court under s10 of the Director of Public Prosecutions Act 1986. 3 The grounds of appeal relate to the magistrates admission into evidence of transcripts of electronically recorded interviews by police with four of the plaintiffs. 4 There are seven grounds of appeal. The first five are concerned with the admission of the police interviews, while the last two are directed to the soundness of the convictions. It will be necessary to examine some of the evidence when dealing with those last two grounds. However, it is convenient to consider first the grounds relating to the admission of the police interviews. For that purpose, a bare outline of the facts is sufficient. 5 The plaintiffs are all Aboriginals. It was the prosecution case that, on the night of 7 October 2006, they had been drinking in a park next to the Bermagui bridge. They saw some racist graffiti written on the bridge and became upset. This was said to have led to violent incidents involving the plaintiffs and two white men, Aaron King and David Campbell (who, I take it, is no relation to the three plaintiffs of the same name). These incidents led to the charges the subject of this appeal. The interviews 7 The grounds relating to the admission of the police interviews are relied upon by all the plaintiffs except Vivian Campbell, who declined to be interviewed. The other four plaintiffs took part in electronically recorded interviews, in which each of them made relevant admissions. [The] principal focus is the way in which the magistrate dealt with an issue under s138 of the Evidence Act. 8 The transcripts of the interviews were admitted after an inquiry on the voire dire. The evidence disclosed that the interviewing officer, Snr Cst Barry, had arranged for the plaintiffs to attend the Bermagui police station. Ian Campbell, Steve Rotumah and Brett Rotumah attended some time after 6pm on the Sunday, 8 October 2006. Garry Campbell presented himself at about the same time on the Monday, 9 October. Upon their arrival, they were arrested and Snr Cst Barry referred them to the custody manager on duty for the purpose of procedures under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). On the Sunday the custody manager was Sgt Flood, and on the Monday Snr Cst Crouden. 9 Section 109 of LEPRA explains that the objects of Part 9 are to authorise the detention of a person under arrest for the purposes of investigation and to provide for the rights of that person. 10 Of more importance for present purposes are certain clauses of the Regulation made under the Act. Clause 24 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 provides that certain persons should be categorised as vulnerable. Among those categories are Aboriginal persons or Torres Strait Islanders. Clause 27 entitles a vulnerable person to have a support person present during any investigative procedure in which he or she is to participate. Special provision for Aboriginals and Torres Strait Islanders can be found in cl 33, and it is this provision which lies at the heart of the appeal. Clause 33(1) is in these terms: 33(1) If a detained person is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must:

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(a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified: (i) that the person is being detained in respect of an offence, and (ii) of the place at which the person is being detained, and (b) notify such a representative accordingly. 11 The custody manager dealing with each of the plaintiffs read to him a document entitled Caution and Summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), and gave him a copy of that document. Among other things, the document informed them of their right to silence and their right to seek legal advice. It also informed them of their right, as Aboriginals, to have a support person with them. However, it said nothing about the obligation of the custody manager under cl33. 12 The evidence was that all three police officers knew that the plaintiffs were Aboriginals. The officers were familiar with the LEPRA requirements, including cl33. The Aboriginal Legal Service in the relevant area was the South Eastern Aboriginal Legal Service, to which I shall refer as the ALS. It had been the practice of the custody managers to notify the ALS by fax if an Aboriginal person came into their custody, but his Honour found that none was sent on these occasions. In any event, to do so would have been a futile exercise. As the plaintiffs had attended the police station outside ordinary business hours, it was most unlikely that there would have been anyone at the ALS office. This also the police knew. 13 In the event, none of these plaintiffs had a lawyer present when interviewed or had access to a lawyer immediately before being interviewed. His Honour found that cl33 had not been complied with, so that the plaintiffs were interviewed at a time when their custody was tainted by illegality. Accordingly, a question arose whether evidence of the interviews should be rejected pursuant to s138(1) of the Evidence Act 1995, on the basis that it had been obtained in contravention of an Australian law. That being so, it could not be admitted unless his Honour was satisfied that the desirability of doing so outweighed the undesirability of admitting it, given the way in which it had been obtained. In practical terms, then, it was for the prosecution to show that the evidence should be admitted notwithstanding the illegality attending it. 14 It was this balancing exercise which his Honour undertook, having regard to the relevant factors set out in s138(3). Putting aside cl33, he noted that the police had sought to comply with the guidelines given to them by the relevant legislation. In addition to the information conveyed to them about their rights, both orally and in writing, by the custody managers, his Honour noted that each of the plaintiffs had been cautioned at the outset of his interview. Thus, he found, it could not be said that the police deliberately went out of their way to cut corners and provide no assistance to the plaintiffs concerning their rights and the responsibilities the police had towards them. 15 As to the breach of cl33, apart from finding that no fax had been sent to the ALS prior to any of the interviews, his Honour referred to the fact that that course would have been futile in the circumstances. Further, he found that sending faxes after hours had been a general procedure of the police, despite their knowledge that there would almost certainly be no response because a practice had developed that there was no ALS representative at the office after hours. 16 In the result, these four plaintiffs were interviewed without the ALS being notified of their being at the police station, and at a time when, realistically, no such notification was possible. His Honour referred to cl33 as a mandatory provision and conveyed a clear understanding of its purpose and significance. Nevertheless, he exercised his discretion to admit the evidence because he found that the LEPRA requirements had been met in other respects and because there was no guarantee that, if the interviews had been postponed to the following day, an ALS representative would have been available to attend the police station and speak to the plaintiffs. In my view, that last matter raises an important issue which did not receive the attention it deserved in evidence or in submissions on the voire dire.

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17 In cross-examination of one of the custody managers, Sgt Flood, he raised the possibility of adjourning the interviews to the following day during business hours. Sgt Flood said that he could have told the arresting officer to cease the interview, but added that hes the arresting officer. The sergeant had a point. The interviewing officer, Snr Cst Barry had given evidence on the voire dire before Sgt Flood. The matter was not raised with him and, of course, it should have been. 18 To do so was as much the responsibility of the prosecutor as it was of Mr King. As I have said, for the purpose of the issue under s138 of the Evidence Act, it was the prosecution which bore the burden of satisfying the magistrate that the evidence should be admitted. From the fact that Snr Cst Barry had asked the plaintiffs to attend the police station voluntarily, and they had done so, it is reasonable to infer that he did not fear that any of them would attempt to evade arrest. Why they had to be arrested and interviewed on the evening they attended is not apparent. Whether or not there was good reason why those procedures could not have waited until the following day, and whether or not an ALS representative would have been available to assist them during ordinary business hours, were matters which were not explored in the evidence. 19 Mr King tendered a letter from a solicitor at the ALS which confirmed that no fax had been received from the police concerning the detention of any of these plaintiffs. It also asserted that a representative of the ALS would have attended a police station during working hours if requested to do so by any of them. It added that, if the ALS had been notified outside working hours of a request for a representative to attend during an interview, it would have asked the police to arrange for the interview during working hours and a representative would then have attended. At that stage of the proceedings, of course, the voire dire had been completed and his Honour had given his ruling. I do not think it appropriate for me to have regard to this evidence for present purposes. That said, it is reasonable to infer that any notification to the ALS made during business hours would have been received and that the attendance of a representative at the police station within a reasonable time could have been arranged. 20 The fact remains that the plaintiffs were interviewed at a time when cl33 had not been complied with and when, to the knowledge of the police, there could not have been effective compliance. No explanation was forthcoming on the evidence on the voire dire for the interviews being conducted at the time they were, rather than at another time when the requirements of cl33 could have been met. As the evidence stood, the failure to comply with the clause was deliberate, a relevant matter by virtue of s138(3)(e) of the Evidence Act. 21 His Honours judgment on the voire dire does not deal with this issue, a fact which can fairly be attributed to the way in which the proceeding had been conducted. I am mindful that it is not appropriate to subject to detailed analysis the ex tempore reasons of a magistrate in a busy local court: Acuthan v Coates (1986) 6 NSWLR 472, per Kirby P at 478-9. However, a crucial matter in the balancing exercise to be undertaken under s138 is the gravity of the contravention of the law which brought the section into play: subs 3(d). An important matter bearing upon the gravity of the contravention in the present case was not taken into account by his Honour. Accordingly, I am satisfied that the exercise of his discretion miscarried. 22 I should observe, in passing, that the obligation under cl33 is twofold: not only to notify the ALS that an Aboriginal person is in detention, but also to inform that person that the ALS will be notified. That additional requirement is itself an important safeguard, ensuring that the suspect is aware of the availability of legal assistance through that organisation. As I have earlier noted, the document summarising the LEPRA procedures which was furnished to the plaintiffs is silent about the requirements of cl33. This is not an issue which appears to have been raised at all on the voire dire in the present case and, of course, it is in no sense determinative of this appeal. 23 It follows that the convictions of these four plaintiffs must be set aside. The recorded interviews were a significant part of the evidence against them. Indeed, in the absence of evidence of their interviews Ian Campbell, Garry Campbell and Steven Rotumah could not have been convicted. The question is whether their cases should be remitted to the Local Court for

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redetermination. Putting aside for a moment the other grounds of appeal raising the sufficiency of the evidence against them, that would be the normal course. It would be for his Honour to reconsider the admissibility of the interviews in the light of this judgment.

Director of Public Prosecutions (DPP) v Marijancevic [2011] VSCA 35

Warren CJ, Buchanan and Redlich JJA. [1] The respondents are charged with various offences related to drug manufacture and trafficking. Much of the evidence comprising the prosecution case was obtained by the execution of warrants issued under the Drugs Poisons and Controlled Substances Act 1981 (the Act). [2] During pre trial argument it emerged that the deponent to certain affidavits in support of the warrants had not sworn as to the truth and accuracy of their content but rather, had merely signed them in the presence of an inspector authorised to take affidavits. The trial judge, in a ruling that is not in issue, found that the affidavits relied on to obtain the warrants had not been sworn, in breach of s 81 of the Act, and that the magistrate who granted the warrant was not aware of the deficiencies. The trial judge accordingly found the search warrants were invalid and that the entries, purportedly pursuant to the warrants were unlawful and constituted a trespass. [3] The respondents objected to the admissibility of the evidence derived from the warrants. The prosecutor applied to have the evidence admitted pursuant to s 138 of the Evidence Act 2008 (the Evidence Act). The trial judge refused that application on 18 October 2011, ruling all of the evidence gathered pursuant to the warrants inadmissible. Further evidence gathered pursuant to other warrants was ruled inadmissible under a second ruling by his Honour made on 25 October 2011. The reasons for excluding the evidence under each ruling were essentially the same. Although the ruling of 25 October was also the subject of appeal, it received little discrete attention in either the written or oral argument on appeal. The appeal was conducted on the basis that the arguments advanced by each party applied to all of the evidence gathered under all of the warrants the subjects of both rulings. Accordingly we have not dealt separately in our reasons with the individual warrants. [4] The Director of Public Prosecutions now seeks leave to appeal against both rulings by way of an interlocutory appeal, the trial judge having granted a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009. [5] The question raised in this interlocutory appeal is whether the decision to exclude the evidence on the ground that public policy relating to the administration of criminal justice outweighed the public interest of bringing conviction to the wrongdoer was one that was reasonably open. Background [6] The police conducted two investigations of the respondents: Operation Falsie and Operation Hotrod. Operation Falsie was an investigation into the manufacture of methylamphetamine by the first respondent, one Glushak and one Adams. The first respondent and Adams both lived at Sunshine and Glushak at Essendon. These addresses were the focus of operation Falsie. [7] Operation Hotrod was an investigation of the manufacture of methylamphetamine at a Broadford address. The property had been purchased by the first and second respondents. The property included a shearing shed and cottage. Adams later lived for a time at the cottage on the Broadford property. [8] The first respondent faced trial on multiple counts of conspiracy to traffic in a commercial quantity of a drug of dependence, possession of items for trafficking in a drug of dependence and possession of precursor chemicals. The second respondent faced trial on one count of possession of items for trafficking. The third respondent faced trial on one count of conspiracy to traffic. By the time of trial, Glushak and Adams had pleaded guilty and had been sentenced. On the

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presentment relating to these respondents, the prosecution was proceeding with the charges relating to operation Hotrod. [9] The nature and seriousness of the charges was not in issue on the appeal nor was the probative value of the impugned evidence gathered pursuant to the warrants. It was not disputed that the exclusion of that evidence would substantially weaken the prosecution case against the respondents. It is therefore unnecessary to provide any detail of the prosecution case against the respondents or the detail of the evidence gathered under the warrants. The issues on Appeal [10] The Director appeals the orders made by the trial judge on 18 and 25 October excluding the evidence pursuant to s 138 on the ground that the finding pursuant to s 138 of the desirability of admitting the evidence was outweighed by the undesirability of admitting evidence. [11] [12] In his statement of contentions the Director provided particulars of specific errors that it was submitted resulted in the trial judge erring in refusing to admit the evidence pursuant to s 138 of the Evidence Act. The specific errors identified were: (a) that the gravity of the impropriety or contravention was of the highest order. (b) that the conduct of the police officers who signed the affidavit was deliberate. (c) that the police officers conduct was at the very least reckless behaviour of the highest order. [13] In DPP v MD an interlocutory appeal, in which the Crown sought leave to appeal a pre trial ruling that evidence be excluded under s 138(1) of the Evidence Act 2008, Maxwell P, Nettle and Harper JJA concluded that the exclusion of an admission pursuant to s 138 of the Evidence Act 2008 involves an exercise of discretion which, on appeal, attracts the operation of the principles in House v R [(1936) 55 CLR 499]. It was accepted by all parties on the present interlocutory appeal that we should proceed on that basis. [14] The Director sought to justify appellate intervention on the sole ground that an error in the exercise of the discretion could be inferred because the decision to exclude the evidence was plainly unjust or unreasonable. The circumstances in which we may intervene on an appeal against such a discretionary decision are limited. To infer such error the Director must demonstrate that the exclusion of the evidence was not reasonably open to the trial judge in a sound exercise of the trial judges discretion. [15] The asserted specific error (b) challenges a finding of fact as to the state of mind of the relevant police officers at the time that the affidavits in support of the search warrants were signed by each of them. The asserted error (a) challenges a value judgment made by the trial judge as to the seriousness of the impropriety. Error (c) involves both a challenge as to a finding of fact as to the officers state of mind and a value judgment as to the seriousness of the impropriety. [16] As to the alleged error as to a finding of fact, we would only be entitled to substitute our own findings of fact for those of the trial judge if he mistakes the facts. [Ibid 5045] That will only be demonstrated if there is no evidence to support such a finding [R v ODonoghue (1988) 34 A Crim R 397 at 401] or if the finding was not reasonably open on the evidence [Hopley v R [2008] NSWCCA 105, [28]; R v Merritt (2004) 59 NSWLR 557 at 573 [61]]. As to the attack upon the value judgment made by his Honour, we would not be justified in substituting our view if his Honours view as to the seriousness of the impropriety was reasonably open. Moreover, as the applicants reliance on specific errors must be considered in the context of its sole ground of appeal that the discretion was wrongly exercised, the applicant must therefore show that had such error as has been made out, not been made, it would not have been reasonably open to the trial judge to exercise the discretion as he did. [17] Little was said on the appeal concerning the principles which are attracted by s 138 although they were fully ventilated before the trial judge. Both at trial and in this court the parties proceeded on the basis that the discretionary decision required by s 138 did not essentially differ

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from that at common law save that s 138 places the onus upon the prosecution to establish that the evidence should be admitted notwithstanding the impropriety or contravention. The qualified proscription in s 138(1) that the evidence is not to be admitted unless indicates the importance of according appropriate weight to the effect of any impropriety or unlawfulness [Parker v Comptroller-General of Customs (2007) 243 ALR 574, [57][58]]. The exercise of the discretion calls for the balancing exercise to be undertaken that is discussed in cases such as Bunning v Cross [(1978) 141 CLR 54] and Ridgeway v R [(1995) 184 CLR 19]. [18] The discretionary judgment called for does not involve a simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, namely, the public interest in admitting reliable and probative evidence so as to secure the conviction of the guilty and the public interest in vindicating individual rights and deterring misconduct and maintaining the legitimacy of the system of criminal justice.8 The trial judge was right to emphasise as a relevant consideration the undesirable effect of curial approval being given to the unlawful conduct of those whose duty it is to enforce the law. In doing so he was drawing upon the implied power of the courts to protect the integrity of the judicial process. [The discussion about the police practices in relation to affidavits is extracted in BKL [12.185].] [42] The prosecutor advanced five main reasons before the trial judge for seeking to invoke the discretion under s 138 of the Evidence Act: (a) The offending was serious, involving a sophisticated arrangement. The seriousness of the offence was reflected by the maximum penalty imposed for the offence being level two imprisonment 25 years maximum. (b) Without the evidence the prosecution case would be weakened significantly. (c) The case was one involving very serious offending in which the community expectation would favour conviction and punishment of guilty persons. (d) The warrant was not executed in bad faith the police believed as to the truth of the contents and that they were liable to penalties of perjury. There was no deliberate misstatement before the magistrate as to the contents of the affidavit, rather, it was the non-effecting of the oath or affirmation. (e) The contraventions by the police were not deliberate and were not reckless, rather, were inadvertent. If the police had been aware of their error they would have sought a further warrant. [43] On appeal, senior counsel for the applicant submitted that the conduct of Senior Sergeant McIntyre and Inspector Davies was neither deliberate nor reckless. He said that the term deliberate when used by the Crown meant knowingly illegal. He submitted that the police officers conduct did not involve a calculated disregard for the law23 or a serious disregard of relevant procedures amounting to a deliberate undertaking of the risk that the rights of a suspect would be substantially prejudiced24 or some advertence to the possibility of or breach of some obligation, duty or standard of propriety and a conscious decision to proceed regardless of that risk.25 The applicant contended that the trial judge changed his view as to whether the conduct of Senior Sergeant McIntyre was deliberate. Relying upon the analysis of Vincent JA in R v Jamieson26 the Director submitted that this was not an example of an intentional abuse of power. There was no wilful disregard of a suspects rights or any deliberate adoption of an objectionable practice. The impropriety was neither deliberate nor reckless. If it could be described as carelessness, it was not of an order that warranted the exclusion of the evidence. [44] The content of the respondents written submissions before the trial judge warrant particular attention. The trial judge drew upon the form and substance of those submissions in his reasons for his ruling. By the time submissions were filed before the trial judge, the first respondent was represented by senior and junior counsel. In their written submission it was said:

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On the evidence it is open to take the view that a culture of not swearing of affidavits has developed in the Victoria Police Force. Whether that is for reasons of expediency or simply because the police do not consider themselves bound by the law or for some other reason may be difficult to determine. But there can be no doubt that it is deliberate, at the very least reckless. It is an abuse of power and amounts to a grave example of the adoption of an objectionable practice. More tellingly, to adopt the words of Vincent JA in Jamieson it is conduct of such carelessness that the reception of the evidence can be seen to compromise the integrity of the legal process. [45] So it can be seen that the submission contemplated a finding that the practice was deliberate or was at the very least reckless or was conduct of a particular order of carelessness. Later in their submission in addressing s 138(3)(e), it was contended that this was a case of deliberate impropriety because: The police knew of the proper requirements of swearing affidavits; they complied with those requirements in relation to members of the public swearing affidavits but not police; Davies could not explain the differentiation; it was inconceivable that high command did not [sic] know or at least ought to have known of the practice; the practice was blatantly engaged in in many cases and over a long time. [46] In the alternative the first respondent submitted at the very least the conduct is reckless. Relying upon authorities, principally Bunning v Cross and Ridgeway v R, it was submitted that where the conduct is deliberate or reckless and entrenched and it is serious, the balance will favour exclusion. [47] It was accepted both before the trial judge and on appeal that for the conduct to be reckless, it must involve some advertence to the possibility of a breach of the obligation and a conscious decision or a dont care attitude to proceed regardless of that possibility.27 The first respondent further submitted that the trial judge should find Senior Sergeant McIntyres evidence to be incredible because it was inconceivable that he would not know of the requirements for an affidavit and the need for jurat particulars. Finally, it was submitted that his evidence that he was not at least careless should not be accepted. [48] As to the gravity of the impropriety, the first respondent relied upon the fact that the practice of not swearing affidavits in the crime department had developed over many years; that there was training of officers in the proper swearing of affidavits; that there was a culture that as between police it was unnecessary to swear affidavits; that it may not be clear as to exactly why the practice developed; that the practice was engaged in by officers of senior rank and was known to officers of high authority; that the court should not accept that high ranking officers simply considered this poor work practices, and in the instant case the affidavit of McIntyre had not been sworn because of that culture; that the court should not accept McIntyres evidence that he was unaware that he was doing anything wrong. In conclusion it was submitted that the gravity of the impropriety was here of such a high order that the evidence should not be admitted [49] Counsel for the second respondent submitted that the contravention by members of Victoria Police was reckless and that such failures were systemic and endemic and arguably stemmed from either or both flawed training and/or a culture that pervades within the crime department of the Victoria Police. He submitted that the gravity of the impropriety was extreme because the practice was endemic and systemic in the elite crime squads of Victoria Police, it struck at the heart of a legal system based upon the fundamental premise that evidence be given on oath and that it tainted and embarrassed the legal process and the courts of this State. [50] The third respondent was also represented by new counsel for the purpose of resisting an order to admit the evidence. The third respondents submission was that the impropriety was deliberate, not reckless. It was submitted that McIntyre and Davies evidence cannot be right. It was submitted that their asserted belief could not have been honestly or reasonably held because both knew what an oath was and both knew that an affidavit involved swearing an oath. Significantly, the written submission recognised that to ground a finding of deliberate or reckless conduct the trial judge would also have to reject the evidence of McIntyre that he had never given

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any thought to what oath and sworn meant in the affidavit and that he had at no stage turned his mind to it because that was the only practice he had known. [51] Following the receipt of the written submissions, his Honour heard substantial oral argument. On 18 October his Honour gave extensive reasons and ruled that the evidence obtained under the relevant warrants should be excluded. [Paras [53]-[58] are extracted in BKL [12.185].] [59] On appeal the parties adopted and amplified the submissions made before the trial judge. It is convenient to address the submissions in the course of our further examination of his Honour reasons for excluding the evidence. [60] Section 138(3)(a) required the trial judge to take into account the probative value of the evidence. His Honour accepted the prosecutions submission that the evidence in issue had significant probative value. That finding was not contested on the appeal. [61] Next, subs (3)(b) required his Honour to consider the importance of the evidence in the proceedings. The trial judge accepted the prosecutions contention that the exclusion of such evidence significantly weakened the case against the first respondent. Although it had less importance in the proceedings against the second and third respondents, the trial judge found that the exclusion of the evidence would significantly weaken the prosecution case. Implicit in his Honours reasons is the conclusion that this consideration advanced the public interest in admitting the evidence. His Honours findings in this regard were not in issue on the appeal. [62] Subsection (3)(c) required his Honour to take account of the nature of the relevant offences which the respondents faced. Counsel for the first respondent had conceded that the offences which the first respondent faced were serious. In accepting that these were serious charges, his Honour quoted a passage from the reasons for judgment in R v Dalley [(2002) 132 A Crim R 169 ; [2002] NSWCCA 284, [95]] at which it was said: As a general proposition, the more serious the charge, the greater the community interest in the conviction and punishment of the guilty. On the other hand, it may equally be said that the more serious the charge faced, the more rigorous should be the insistence on adherence to statutory provisions enacted to protect the rights of individuals. [63] His Honour said nothing as to the seriousness of the charges faced by the second and third respondents. [64] His Honour considered s 138(3)(h), which required him to take into account the difficulty of obtaining the evidence without impropriety. The trial judge found that there would have been no difficulty in properly swearing the affidavits. Differing arguments were briefly advanced on appeal as to how this subsection should be construed. We do not consider it necessary to address this question, which should await an occasion when more substantial consideration can be given to the issue. The finding that the gravity of the impropriety was of the highest order [65] We turn then to the requirement in s 138(3)(d) that the court take into account the gravity of the impropriety or contravention. His Honour found that the gravity of the impropriety or contravention is of the highest order. The trial judge referred to the following factors relied upon by the prosecution. First, that there was no deliberate misstatement as to the facts asserted in the affidavit. Second, that the officers who attended at the relevant premises were of the positive belief that they were authorised to enter and that there was no evidence of impropriety on their part. Third, that steps had been taken by the hierarchy of Victoria Police to ensure that this improper practice did not recur. The prosecution had submitted that the contravention was only a technical one brought about by oversight or error and that it should be regarded as a minor and not serious or grave contravention. His Honour rejected this submission. The trial judge considered that the procedures here adopted devalued the significance of the oath which is taken as an objective sign of binding to the makers conscience. He accepted the defence

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submission that the swearing of evidence under oath is fundamental to the administration of justice and that the deception whether intentional or reckless undermined the whole process. It appears that in oral argument senior counsel for the applicant conceded that the conduct was serious and grave. In reaching his conclusion he took into account that the practice was endemic within the crime squads of Victoria Police and that the fact that the practice had now been revealed and steps taken to correct it, did not lessen the seriousness of what had occurred. His Honour was right to take into account the fact that the improper conduct was widespread or entrenched as bearing upon the gravity of the impropriety. [66] The conclusion expressed by his Honour appears to draw upon the language employed by the first respondent in his written submission that the impropriety was of such a high order that the evidence should not be admitted. If that is all his Honour intended, his Honours conclusion could not be successfully impugned. [67] At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct. Cases such as Ridgeway exemplify this category of impropriety. There are of course other factors which will bear upon how seriously the impropriety should be characterised such as the nature of the illegality and the extent to which it is widespread. [68] If the conduct was deliberate as the trial judge has found, and we assume for present purposes that his Honour meant thereby that it was knowingly illegal, it was not conduct that fell at the most serious end of the range. It was not engaged in for the purpose of obtaining an advantage that could not by proper conduct have been obtained. We are not, however, persuaded that his Honour intended by the use of the phrase impropriety of the highest order to convey more than was submitted by the respondents, that the impropriety was of such a high order as to justify the exclusion of the evidence. This specific error is therefore not made out. State of mind of officers [69] Section 138(3)(e) required his Honour to take into account whether the impropriety or contravention was deliberate or reckless. His Honour found as follows: On the evidence before me, I do not accept this was not a deliberate practice by these two officers. I find that it reflected the general behaviour of members of the crime squads of the Victoria Police at the relevant time. In the alternate at the very least it is reckless behaviour of the highest order. The officers made a conscious decision to follow the practice that has been outlined. This did not include the swearing of an oath. The requirements of s 81(1) of the Drugs Poisons and Controlled Substances Act and their experience as police officers should have indicated to them that the practice they were adopting was totally incorrect. A mere reading of the words of the affidavit would similarly suggest that to any junior police officer, let alone officers of such ranks and experience. The practice illustrate at the very least a dont care attitude or conduct of such carelessness that the reception of the evidence could be seen to compromise the integrity of our legal processes. [70] The applicant contends that his Honour erred in his finding of fact that the officers conduct was deliberate. These findings also give rise to the complaint that his Honour erred in finding the officers conduct to be reckless. The applicant also contended that his Honour did not apply the correct test to determine whether the conduct was reckless and that his value judgment that it was reckless behaviour of the highest order could not be supported by the evidence. [71] His Honours findings as to the officers state of mind are curiously expressed. The finding of deliberate conduct was expressed in terms of a deliberate practice that reflected the

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general behaviour of members of the crime squads of the Victoria Police. The trial judge also said in his conclusions that it had not been satisfactorily explained to him why this practice had developed. He said, cutting corners of culture were mentioned. But neither Senior Sergeant McIntyre or Inspector Davies proffered such an explanation for their conduct. [72] The affirmative finding of reckless behaviour was also rested upon a conscious decision to follow the practice that had been outlined. Similarly, it was the practice which was said to illustrate the conduct involving carelessness. It is difficult to see how the existence of the endemic practice assisted his Honour in reaching a conclusion as to whether in following that practice, these officers knew that their conduct was illegal or were reckless or careless as to whether the practice they were following was illegal. If anything it appears to us that the longer standing the practice they had followed, the greater the likelihood that there would be inadvertence to the fact that an oath or affirmation was required. It is difficult to imagine why a police officer, to avoid the extra 20 seconds of taking an oath or making an affirmation, would knowingly undertake the risk of losing all of the evidence he obtained. [73] The form in which his Honour expressed his findings gave rise to the applicants submission that it was not clear that his Honour found that the officers intended to subvert the legal requirement that the content of the affidavit be sworn to on oath or be affirmed. It led to the further submission that the conduct of other police members did not provide a basis upon which to elevate these officers conduct to a deliberate contravention. The important consideration was the state of mind of these officers. In our view, these submissions had a certain force. A deliberate or conscious decision to continue to implement a practice of longstanding does not illuminate the question whether these officers knew the practice was illegal. [74] We have already referred to the respondents submissions before his Honour and which were adopted and amplified on the appeal. It can be seen from the first respondents written submission, to which we have referred, that his Honour adopted the submission of the first respondent, who invited a finding that the officers practice was deliberate or was at the very least reckless or was conduct at the very least of a particular order of carelessness. [75] It should at the outset be observed that there was a logical difficulty about alternate findings of fact, particularly where the second and third findings both assert that at the very least they are the findings that should be made. Leaving to one side that logical conundrum, we turn first to the applicants contention that his Honours findings could not be supported on the evidence. Finding that the officers conduct was deliberate [76] We have already mentioned that following the completion of Senior Sergeant McIntyres testimony the trial judge had stated that he did not regard Senior Sergeant McIntyres conduct as deliberate. The questions which his Honour put to Senior Sergeant McIntyre, which we have set out above, reflected his Honours understanding of the effect of his evidence. The questions fully explain why his Honour thereafter expressed the view that he did not regard Senior Sergeant McIntyres conduct as deliberate. His Honour also stated during final submissions that he did not suggest the police contrived to subvert the legal system by not swearing affidavits. The first respondents submission before his Honour also acknowledged that though McIntyre understood the oath he had failed to give any thought to its meaning and that of the word sworn. This was consistent with the view expressed by the trial judge during the course of submissions when he said, We can all come to the conclusion that their state of mind was that they were absolute dimwits. Even in his reasons his Honour expressed a view about the practice not readily reconcilable with the conduct being deliberate when he said: In my view such practice is an indicator of, at least, a blatantly casual attitude to the responsibilities of a police officer applying for a search warrant. [77] The respondents submissions which found favour with his Honour, that the evidence led from the witnesses Hermans and Guerin that McIntyre and Davies would, as part of their training and experience as police officers, have come to learn precisely what is meant by the words oath

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and sworn, does not in our view advance the question as to whether the officers evidence that they followed this practice without turning their mind to the requirement of the oath was truthful. [78] Be all that as it may, the applicant can derive only limited assistance from the views his Honour expressed prior to his ruling. A judge is entitled in argument to test counsel and also express preliminary views. He may change his mind. [79] On appeal the respondents submitted that the trial judges finding as to the credibility of Senior Sergeant McIntyre could not be challenged as his Honour had the advantage denied to the Court of Appeal of observing the demeanour of the witness and the manner in which he gave his evidence. We must make allowance for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses. The value and importance of that advantage, however, will vary according to the class of case. Had there been something in the manner in which Senior Sergeant McIntyre had given his testimony that led the trial judge to doubt the truthfulness of McIntyres assertion that he had given no thought to the fact that the affidavit was not sworn, one would not have expected his Honour to express the view which he did after McIntyres evidence had been completed. We have reviewed the testimony of Senior Sergeant McIntyre and can well understand why his Honour then held the view that the conduct of Senior Sergeant McIntyre was not deliberate. That said, we note that his Honour had not yet heard the evidence of Inspector Davies nor had he the benefit of the substantial submissions made on behalf of the respondents. [80] It was for the applicant to demonstrate that it was not open to the trial judge to ultimately form the view that he did as to the officers credibility. There is considerable force in the applicants submission that the practice followed by McIntyre and Davies was neither deliberate, in the sense of knowingly illegal, or reckless but was rather inadvertent. The evidence did not show that this was an intentional abuse of power or a wilful disregard of rights. Having regard to s 142(2) of the Evidence Act and the requirement that the standard of proof is the balance of probabilities and keeping also in mind the principle in Briginshaw [v Briginshaw (1938) 60 CLR 336], there were countervailing reasons to a finding that this was deliberate conduct. [81] The analysis by Mason and Deane JJ in Norbis v Norbis [(1986) 161 CLR 513 ; (1986) 65 ALR 12 at 16] of the characteristics of a discretionary decision emphasises the limitation on appellate intervention in these terms: The principles enunciated in House v R were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decisionmaking, it would be wrong to determine the parties rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. [82] The finding of fact by the trial judge, if it was based to any substantial degree on the credibility of the two police officers, cannot be set aside because we may think that the probabilities of the case are strongly against that finding of fact. In such circumstances, as the joint judgment in Devries v Australian National Railways Commission [(1993) 177 CLR 472 at 479] states: the finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. [83] Allowing for the view that the probabilities of the case are strongly against his Honours finding and the other concerns we have expressed as to the reasoning employed by his Honour, it cannot be said that the finding was glaringly improbable or was not one reasonably open. This error has not been established.

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Findings that the officers were at the very least reckless and that the recklessness was of the highest order [84] Aspects of the manner in which his Honour dealt with the alternate finding that the officers were reckless are also problematic. His Honour cited a passage from the decision in R v Helmhout [[2001] NSWCCA 372, [33]] as setting out the appropriate test for recklessness: Recklessness must involve as a minimum, some advertence to the possibility of or breach of some obligation, duty or standard of propriety or some relevant Australian law or obligation, and a conscious decision to proceed regardless, or alternatively a dont care attitude, generally. [85] That passage accords with the conventional understanding of recklessness within the criminal law. Conduct would be reckless if the officer had foresight that it might be illegal but proceeded with indifference as to whether that was so. What is described as an alternative of a dont care attitude expressed in the passage from Helmhout must be understood as meaning that the offender, recognising that the conduct might be illegal, did not care whether it was. As can be seen from the passage of his Honours reasons quoted above, he employed the dont care attitude in adopting the first respondents written submission that the officers conduct was of such carelessness that the reception of the evidence could be seen to compromise the integrity of the legal process. Any confidence that his Honour drew the necessary distinction between recklessness and carelessness is not enhanced by the observations that he made to counsel during argument that whether careless and reckless have the same meaning is probably neither here nor there. [86] We also agree with the applicants submission that nowhere does his Honour make clear what test he has applied. His Honour only stated that the officers made a conscious decision to follow the practice. The reasoning leaves open the real possibility that there may have been a misuse of the alternative of a dont care attitude expressed in Helmhout and that his Honour did not apply the correct test. [87] The concern we have as to his Honours approach is exacerbated by the fact that his Honour in these critical findings, after adverting to the requirements of s 81(1) of the Act and the experience of the officers, concludes that those matters should have indicated to them that the practice they were adopting was totally incorrect. That does not disclose whether his Honour was satisfied that they had in fact adverted to their conduct being illegal. Again the observations made during argument do little to allay concern. His Honour was to observe: irrespective of what they thought about it its purporting to be an affidavit and they should have known that it wasnt, given their training and they are deceiving the court, whether deliberately or recklessly or carelessly. [88] The applicant also submitted that the evidence could not support a finding that the officers were reckless or that it was recklessness of the highest order. Assuming that his Honour had applied the correct test, we are not persuaded, for the reasons that we have already given in relation to the attack upon his Honours finding that the conduct was deliberate, that the applicant has discharged the high onus of establishing that a finding of recklessness was not reasonably open. We have already dealt with the difficulties arising from the use of the phrase of the highest order with respect to his Honours finding as to the gravity of the impropriety. For the reasons already given we are unable to conclude that a finding of that nature was not open. [89] As the applicant is unable to discharge its onus of establishing that it was not open to the trial judge to find that the conduct of the officers was deliberate, any error that his Honour made with respect to his finding of reckless behaviour will not advance the applicants position. [90] We turn finally to the contention that the discretion was wrongly exercised. As the court in MD stated, s 138(1) requires the trial judge to apply a very general standard, that is, to decide whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Moreover, the section calls for an overall assessment in the light of the factors mentioned in s 138(3). Because the assessment called for a value judgment in respect of which there is room for reasonable

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differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion with which we are not entitled to interfere unless persuaded that it was an opinion that was not reasonably open. This is not an appeal where the court may decide for itself whether the desirability of admitting the evidence outweighs its undesirability. [91] Once it is accepted that it was open to his Honour to find that the officers conduct was deliberate in the sense that it was knowingly illegal, it follows that the applicant is unable to discharge the burden of establishing that it was not open to the trial judge to conclude that the desirability of excluding the evidence outweighed the desirability of admitting it. The decision was reasonably open because of the finding that the conduct was deliberate, meaning knowingly illegal, and that the gravity of the impropriety was of a high order. [92] Although we have concluded that the appeal must be dismissed we would not wish it to be thought that the discretion should necessarily be exercised in the same way were the same issues to arise again for consideration in similar circumstances. We have identified error in his Honours reasons and expressed our serious reservations as to various findings made by his Honour. It should not be assumed that we would have made like findings or that we would have exercised the discretion in the same way had a finding of inadvertent or careless conduct been made. [93] We shall grant leave to appeal but dismiss the appeal.

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6.

Giving a Caution before Investigative Questioning

139 Cautioning of persons (1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (2) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and (c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. (3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately. (4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official. (5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or (b) the official would not allow the person to leave if the person wished to do so, or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so. (6) A person is not treated as being under arrest only because of subsection (5) if: (a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or (b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions. "investigating official" means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences.
Section 139 preserves an accuseds right to silence and is designed to ensure that investigative questioning does not take place before a caution is given or when a

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person is not under arrest. It also recognizes the importance of giving a caution in a language that the accused understands. The scope of s 139 was examined in the following case.

State of Tasmania v Stojakovic [2008] TASSC 48

1 PORTER J: The accused was indicted with one count of indecent assault, two counts of rape (vaginal), and one count of attempted rape (anal). He pleaded not guilty to all counts. 2 Before a jury was empanelled, I heard evidence and received submissions in relation to an electronically recorded interview between police and the accused. The issues were its admissibility and whether it should be excluded in the exercise of a discretion. The central questions were whether the accused understood the caution given to him twice before the interview, and once during it, and whether he understood the questioning itself. The accused is Croatian; his first language is Serbo-Croatian. 4 Immediately before the empanelment of the jury, I ruled that the record of interview would not be excluded from evidence. These are my reasons for that ruling. 9 [At the accuseds home], the accused was cautioned . The accused responded by saying that he had not done anything wrong, "there was not a problem", and that he was happy to co-operate. Sgt Manhood was in the company of the accused for a little over an hour, after which the accused was taken to the Hobart CIB office where the video recorded interview was conducted. 10 The duration of the interview was 41 minutes. 11 The accused was taken through the course of events following the arrival of police at his home that morning and was asked whether he remembered what he had told the police about the events of the night before. 12 When the accused was then taken through the events of the night as they unfolded, the same story essentially emerged. When he was asked if he knew the girl who was being spoken of, he gave basically the same compendious answer[s]. 13 On numerous occasions throughout the interview, the accused denied any physical contact with K, apart from contact which he said was instigated by her. He suggested that K tried to touch him on two occasions by touching his head and trying to kiss his neck, but that he said "no". The Crown said that it would rely on those denials as lies evidencing a consciousness of guilt, thus making, it was said, the statements admissible as admissions under the Evidence Act 2001 ("the Act"), s87. Counsel for the accused did not dispute the essential admissibility of the interview, on that basis. 14 About halfway through the interview, the accused mentioned for the first time that his English was very bad. 15 The were four subsequent occasions in the interview on which the accused said that his English was very bad; once when he was asked to explain why K would say that he had had sex with her, twice when he said he knew what oral sex was, but was asked to explain it, and lastly twice when he was asked at the end whether there was anything further he wanted to say to have recorded. 16 I should also note that towards the end of the interview, Sgt Manhood said to the accused that he had been told "a couple of times" that he did not have to answer any questions unless he wished to do so, but at that stage he [Manhood] did not believe what the accused had said. The accused replied, "Yeah". The circumstances of the interview 17 Sgt Manhood gave evidence that when police arrived at the accused's unit, two officers went inside and conducted a scene examination. He stayed outside with the accused and made notes of conversations which were had, and of other events. Those events included the accused telephoning someone he said was his lawyer, and telephoning someone he said was a friend.

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20 He said that he explained to the accused when they arrived, that after the search was finished he would like him to come back to the police station. The accused said that he would, it was not a problem, that he had not done anything wrong and that he would co-operate. The accused asked at that point if he could ring a lawyer and at that stage his mobile phone was retrieved so that he could do that. 21 The accused said that he was not able to make contact with his lawyer. However, he did contact a friend to whom the accused was speaking in a language other than English. 23 [At the police station,] [t]he accused asked if his friend [Mr Cica] could come in for the interview. Sgt Manhood said that this would not be appropriate and the refusal was conveyed over the phone to Mr Cica. 25 Sgt Manhood said that after the accused asked for his friend to be there to translate, he explained that if the accused were to need a translator, that they would get an accredited person. The accused said "no" that he did not need one; "So he declined the opportunity for a translator but regardless of that I was still of the view he didn't require one". Sgt Manhood was asked how, as the accused had asked for a translator to be present, was he able to asses whether the accused understood the refinement of "an accredited person". Sgt Manhood said that he had spoken to the accused for about an hour and a half at the house, that they had spoken about quite a lot of things over that time, and that he had formed the impression that they understood each other quite well. 26 He went on to say that he thought the accused's English, though not 100 per cent, was quite good and that it had not occurred to him that the accused was labouring at a disadvantage because he was not reasonably fluent in English. He conceded, however, that he did not ask the accused any specific questions as to his ability to speak English, but said he had formed an opinion as to his ability after speaking to him for that period of time, and also because of being told by the accused that he had lived in Australia for 11 years. The accused's evidence 29 The accused gave his evidence-in-chief on this determination through an interpreter. He said that he could only follow the English language when people spoke very slowly or where there were no difficult words or complicated conversations. 31 The accused said that he essentially understood what a qualified person entailed, but said that as far as he could remember, Sgt Manhood definitely did not say that he could have such a person present. 32 The accused went on to say that he understood that he had to take part in the interview, and did not understand that he was entitled to insist that an interpreter be present. He said that he did not know what the word "caution" meant, that he did not understand the words of the caution as set out at the commencement of the interview, and did not understand the words "rape", "consent", "obliged", "investigating", "complaint", or "allegation". He understood what "sex" meant, but not the expression, "sexual intercourse". He said he understood 10 to 15 per cent of the whole of what was said to him in the interview. 35 [In cross-examination,] [h]e was taken to a passage in the interview where he had said "I don't touch, I don't touch she any time". It was suggested that he knew the police were claiming that he had had sex with the complainant, and that was what he had meant by the use of those words. The accused said he did not know, and that he did not understand the words. 36 When asked whether he understood what "touch" meant, he said "Touch, I understand some things, some things not understand". He was then asked (in English) to touch the microphone in front of him, firstly with his left hand and then with his right, both of which movements he carried out without the benefit of the interpreter. 37 He then agreed that when he said in the interview, "I did not touch" the complainant, he was meaning to tell the police he did not have sex with her. He then agreed that when asked "Did you have sex with her", he understood that it meant sex with the complainant. 40 Again through the interpreter, the accused was asked why he had said, "Yep, yep, not a problem", when the police said to him that he was not obliged to answer any questions, when (as

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he had earlier said) he did not understand what they were telling him. The accused answered that he had said that because of his past traumatic experiences during the war, he was willing to cooperate with police. The trauma was revealed as being beaten with rifle butts across his rib cage and neck. 41 He was then taken to the question which was put to him before the caution and which I have set out in par9 above. He was asked why he had said, "Yep, yep". His explanation was that he had said it purely on the spur of the moment; "... I have nothing to say except fear in my mind and yep to me was something, yep, as ... body language or whatever, and that's all I can say, yep is just something you say when you're not sure what to say". 45 When asked what one would look at on the video recording to see whether he was in fear or not, he said (through the interpreter) "my facial expressions, my hand movement etc ... my mouth expression is when I'm normally nervous and apprehensive I bite my lips and some other things ...". These were said to be "obvious signs". The accused's submissions 46 Counsel for the accused submitted that there were three bases upon which the evidence of the record of interview ought be excluded. They were: that the evidence was improperly obtained and/or obtained in contravention of an Australian law within the meaning of the Act, s138, because: a caution was not given or translated into a language in which the accused was able to communicate with reasonable fluency; obtained in breach of the Criminal Law (Detention and Interrogation) Act 1995 ("the CLDI Act"), s5. [see LEPRA, s128]. It would be unfair to use the evidence, within the meaning of s90, because the accused failed to understand the warning and because of his inadequate understanding of English. The circumstances in which the admissions were made were such as to make the evidence unreliable and thus not admissible by virtue of s85. 49 [Section] 139 deems evidence of a statement made or an act done by a person during questioning to have been obtained improperly in certain circumstances. 50 Under the Act, s138, firstly it is for the accused to establish that the evidence was improperly or illegally obtained, and then for the Crown to satisfy me that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the way in which it was obtained . 52 The first question which needed to be determined was whether the accused was under arrest for an offence at the time of questioning within the meaning of s139(1)(a). (It was accepted that the elements of s139(1)(b) were satisfied.) Section 139(5) elucidates the meaning of "under arrest", in s139(1). 53 In cross-examination, Sgt Manhood readily accepted that he believed the accused was lying when, at the house, he denied that he had sexual intercourse with K, and was lying "from that point". Sgt Manhood also readily accepted that at the house, if the accused had wanted to leave, he would have arrested him, and conceded that if the accused considered that he was under an obligation to go to the police station, that would probably not have been an unreasonable view on the accused's part. 54 The evidence satisfies me that the accused was in the company of an investigating official for the purpose of being questioned, and that at least two of the matters set out in s139(5) are established. The accused was therefore under arrest for an offence within the meaning of s139(1) (a). 55 The next question relates to s139(3). Prior to the interview being conducted, the accused was cautioned twice, both times in English. The question then is whether English is a language in which the accused was able to communicate with reasonable fluency.

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56 In R v Deng [2001] NSWCCA 153, Greg James J said at par[17], of the Evidence Act 1995 (Cth), s139(3), that it: "... is purposive. It does not operate on an accused's general language ability. It operates on the ability to understand the concept underlying the caution and the function of a caution. The caution is meant to convey to an arrested person that he/she has the right to choose to speak or to remain silent. It is meant to ensure that the person is aware that if he/she speaks, what he/she says may be given in evidence." 57 Ipp JA added that the expression "a reasonable fluency" in s139 (Cth) meant "fluency sufficient to enable the person concerned to understand the caution". 58 With respect, those statements seem plainly correct to me and they should be followed. 59 The accused therefore has to satisfy me that he did not understand the matters contained in the caution; in essence, that he did not have to say anything, but that if he did, it may be used in evidence. 60 However, in R v Taylor [1999] ACTSC 47, Higgins J, dealing with the identical Commonwealth provision, said that because it is improper (albeit deemed so) for a police officer to deliver a caution where the person cautioned would not comprehend it: "... the caution will fail to satisfy s 139(3) if the circumstances are such that the officer knows, or ought to know, that the caution has not been understood. However, there is no such failure if a reasonable person in the position of the officer, acting with proper respect for the rights of suspects, did not and could not reasonably have been expected to perceive that the suspect did not understand the caution. Usually the suspect's acknowledgement that he or she has heard and understood the caution will suffice. There may be cases, however, ... where further enquiry ... would be required." 61 Again that statement as to the effect of s139(3) seems to be the correct approach ... 62 Assuming for the moment that the accused in fact did not understand the concepts involved in the caution, I am satisfied on the whole of the evidence that Sgt Manhood acted with proper respect for the accused's rights, and did not, and could not, reasonably have been expected to perceive that the accused did not understand the essence of the caution. There was no issue beyond that to put him on enquiry. 63 In particular, I would refer to Sgt Manhood's evidence as to the conversation he had with the accused outside the unit whilst the search was being conducted, during which they had spoken about a number of things, including his impression being that he and the accused understood each other quite well. 64 Sgt Manhood related a number of personal details which he said the accused had told him and which, as the accused's evidence proved, were correctly understood by the officer. Generally speaking, although plainly the accused's English is far from perfect, the fundamental thrust of Sgt Manhood's evidence was that there were no real difficulties in communicating, with each apparently able to convey what was intended, with each listener able to comprehend. 65 In any event, as will appear, I was not persuaded on the whole of the evidence that the accused's knowledge of the English language was such that he did not understand the caution. 66 Counsel for the accused did not assert any impropriety other than what would be deemed by the operation of s139(3). In this case, if the police conduct is not deemed improper by operation of s139(3), it would be difficult to see why it would otherwise be improper for the purposes of s138(1). 67 I therefore concluded that there was no basis for the exclusion of the evidence pursuant to the Act, s138. Section 5, Criminal Law (Detention and Interrogation) Act 1995 [in NSW, see LEPRA, s128] "5 Rights to an interpreter (1) If a person in custody does not have a knowledge of the English language that is sufficient to enable the person to understand the questioning or investigation, the police officer conducting the investigation must, before any questioning or investigation under section 4

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may commence, arrange for the presence of a competent interpreter and defer the questioning or investigation until the interpreter is present." 69 Section 3(2) of this Act provides: "(2) For the purposes of this Act, a person is in custody if he or she is (a) under lawful arrest by warrant; or (b) under lawful arrest under section 27 of the Criminal Code or a provision of any other Act." 70 Section 27 of the Code contains a provision making it lawful for a police officer to arrest, without warrant, any person whom he believes on reasonable grounds to have committed (inter alia) the crime of rape. 71 Evans J considered the CLDI Act, s5, in R v Butler [2000] TASSC 129. At par[6], his Honour said that the meaning given to the expression "in custody" for the purposes of the section is not as wide as the meaning given to the expression when used in the Judges' Rules. His Honour said that for the purposes of those rules, quoting from R v Amad [1960] VR 545 at 546 547, that: " ... a person is to be regarded as in custody not only after formal arrest, but also where he is ... or on police premises, and the police by their words and conduct have given him reasonable grounds for believing, and caused him to believe, that he would not be allowed to go should he try to do so." 72 For my part, in accordance with the interpretation section of the CLDI Act, s5, the question is whether, at the relevant time, the person was under arrest. 74 Whether or not a person has been arrested is dependent on the circumstances of the particular case. Different procedures might have to be followed with different persons, depending on their age, ethnic origin, knowledge of English, intellectual qualities, or other subjective characteristics; Inwood v R (1973) 57 Cr App R 529 at 536. 75 For the reasons I gave earlier in relation to the requirements of the Act, s139(5), in my view the accused was under arrest at the time of the interview. His movements had been, and were being, controlled by police. If he had made to leave, he would have been formally arrested, and Sgt Manhood accepted the proposition that the accused would reasonably have held the view that he was not free to leave. 76 The Act, s139(3), requires a caution to be given in a language in which the person is able to communicate with reasonable fluency. The CLDI Act, s5, requires the officer conducting the investigation to arrange for the presence of a competent interpreter and to defer the questioning until the interpreter is present, if the person in custody does not have a knowledge of the English language sufficient to enable that person to understand the questions. 77 To my mind, the same reasoning process which applied to s139(3), as explained in R v Taylor [1999] ACTSC 47 should be applied to the obligations on a police officer under the CLDI Act, s5. That is to say, there would only be non-compliance with that section, if the circumstances were such that the officer knew, or ought to have known, that the person in custody did not have a knowledge of the English language sufficient to enable him to understand the questions. 78 For the reasons which I have already given in relation to the Act, s139(3), I concluded that the evidence of the statements of the accused in the interview was not obtained as a consequence of an illegality. 79 There is another ground upon which I so held. On the whole of the evidence, I was not persuaded that the accused's knowledge of the English language was not sufficient to enable him to understand the questions asked. The accused's understanding of English 80 In determining this issue, I had the benefit of several viewings of the recorded interview itself, in addition to the police evidence and all of the evidence of the accused. The record of interview provided a good insight, in that the flow of the questions and answers could be closely followed, as could the behaviour and mannerisms of the accused. I was also able to observe the

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accused responding to questions, both with and without the aid of the interpreter, in the course of his evidence. 82 Both in relation to the accused's evidence in this Court, and as to the circumstances of the interview, and what can be heard and seen on the record of it, I made what I believed to be appropriate allowances. 83 I was mindful of the warnings about acting on the impressions of witnesses, and the greater difficulties created where the witness belongs to some other nationality and is giving evidence either in English as his second or third language, or through an interpreter 84 However, having made those allowances, and having regard to the whole of the material, I was not persuaded that the accused did not understand the nature of the caution which was given to him, nor that his knowledge of English was insufficient to enable him to understand the questioning. ... [For example,] [i]n spite of the accused's difficulties with pronunciation, grammar and syntax, the interview reveals relatively prompt and responsive answers. On one occasion, when the accused was asked "roughly" what time K had left his home, he offered to, and did, turn on his mobile phone to check the time at which he had called the taxi. Notwithstanding his evidence-in-chief, he ultimately agreed that he understood the words "penis", "vagina", "sex", and conceded that many, many of the questions he was asked were short ones which he understood. However, my view was that the accuseds understanding of English was not as compromised as he contended. In the end, I was satisfied that it was unlikely that the truth of the admissions was adversely affected by the circumstance of English not being the accuseds first language. 7. Was the admission influenced by violence or other oppressive conduct?

Ye Zhang [2000] NSWSC 1099

1 SIMPSON J: On 22 July 1997 the accused was charged with two counts of murder. 2 [His legal representatives] requested that a voir dire be conducted into the question of the admission of evidence of admissions made by the accused and constituting virtually the entirety of the Crown evidence against him. It is not disputed that the accused made such admissions: they are largely preserved in electronically recorded interviews The principal contention made on his behalf is that his decision to make the admissions lacked the necessary quality of voluntariness that would permit their acceptance into evidence. 17 The accused firstly invokes the provisions of s 84 of the Evidence Act. 18 It was common ground that the onus lies on the Crown to establish that the making of the admissions was not influenced by conduct of the kind referred to in the section. The accused's contention is that the conduct of the police was violent or oppressive, or constituted a threat of violence or oppression. The argument focuses upon the circumstances in which the accused made admissions of his involvement. In order to consider this contention it is necessary to resolve the disputed issues of fact concerning what precipitated his confession. The two detectives gave essentially identical accounts to the following effect. 19 Detective Breton was in the process of questioning the accused for the purposes already mentioned: that is, of taking a witness statement, and in preparation for the consideration of the involvement of the accused in a witness protection programme. Over a period of time Detective Breton obtained information from the accused concerning his early life in China and the circumstances in which he came to be resident in Australia. The information the accused provided included reference to a relationship the accused had had with a woman, but which had terminated. This piece of information subsequently acquired an unexpected significance. 20 Shortly after this Detective Goodwin entered the room and spoke to the accused. He stressed the importance of telling the truth in the interview, and of disclosing all details, no matter

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how small they may have appeared. The accused did not reply but put his head in his hands and rubbed his face. Detective Goodwin asked why he was so nervous and again the accused did not initially reply. He began to cry. Detective Goodwin then said: "Ye, if there's something you want to say, you can tell us." 21 The accused then said that he had "done these stupid things with Song and Li" [allegedly also involved in the murders]. Detective Goodwin asked if he meant by that that he had been involved in the murders and the accused replied that he had done "these stupid things". Detective Goodwin then administered a caution and when the accused said he understood, asked how the murders had taken place. The accused then gave a brief account of the events he said had taken place, again saying that the three had done "these stupid things". Detective Goodwin told him that it would be necessary for him to be interviewed further by Detective Breton. Detective Breton told him that the electronic recording device at Ashfield was not functioning, and that he was trying to secure another. A little later, in a conversation recorded in Detective Breton's notebook, the accused explicitly admitted to having committed "this murder", and was again cautioned. He affirmed the brief account earlier given. 22 In answer to a specific question by Detective Breton, the accused said that the men had arrived at the Ashfield home unit at about 2 pm. 23 In the meantime Detective Breton continued his efforts to obtain facilities for electronically recording an interview with the accused, and the necessary equipment arrived at 5.45 pm. Despite this, on the police version, there was no occasion when the accused was left alone with Detective Goodwin. 24 The conversations recounted above were recorded only in Detective Breton's notebook, which has since been lost as the result of a burglary at his home. However, although the circumstances of the loss of the notebook was explored in evidence, there is no dispute that the accused gave the answers and the information attributed to him by both Detectives . 25 The accused gave a different account of these events. It is worth here observing that he gave his evidence in a mixture of English (in which his proficiency is limited) and Mandarin through an interpreter. ... 26 The accused's account of the circumstance in which he made his admissions relevantly begins on the morning of Monday 21 July, when Detective Breton picked him up and took him to the police station, with a view to taking his statement. The taking of the statement, in fact commenced the following day. It will be remembered that the accused was to be accommodated in a hotel. He was, on any view of the evidence, being treated as a witness of some importance. 27 The accused claims that during the journey to the police station Detective Breton offered him, in return for his co-operation with police, free food, free accommodation, citizenship, assistance with obtaining employment, and financial reward. He was later taken to a hotel. 28 On the following morning, when the interview was to begin, the accused was taken by Detective Breton from the hotel to the Ashfield Police Station. He saw Sergeant Lai, who told him to "co-operate". He recounted how Detective Breton had begun taking the statement, a procedure which went smoothly, and said that as they finished, Detective Goodwin entered the room and Detective Breton left. He said Detective Goodwin, who was holding a pen in his hand, pointed at him and accused him of being one of three men who had committed the murders, and that he represented that the accused would not be sentenced at all, or would be sentenced leniently, in return for his co-operation in being fitted with the listening device equipment. He said that he felt physically very uncomfortable; that Detective Goodwin pointed the pen at him, and, effectively, gave him a choice of being charged with murder or co-operating with police; that Detective Goodwin then referred to photographs of Mr Zhang and Ms Wang and said that they were nice people who had come to Australia for a better life and had died tragically; that he again offered the accused a choice of being charged with murder or co-operating with police; that he offered the accused witness security, saying "we look after you"; that he pointed the pen again, saying he wanted to hit the accused in the face; and that he threw the pen down near the accused

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and gave him one final opportunity to co-operate, telling him that once he (Detective Goodwin) had left the room, the accused would have no further opportunity to co-operate. The accused said that he was experiencing stomach pain at this time. He said that after going to the toilet he felt much better, less stressed, but still in a difficult situation. He said that on the one hand he wanted to co-operate with police but that on the other he had little detail of the events in question, and, accordingly, he began to make things up. He said that Detective Breton returned to the room and began asking questions, and writing down his own questions and the accused's answers in his notebook. Before he did so, according to the accused, he said: "We charge you with murder but we hold your hands up." 29 The accused said that although he signed the record of the conversation in the notebook he had not read it to ensure its accuracy because he trusted Detective Breton. The accused did not deny that he had made the answers and provided the information attributed to him. What he now says is, firstly, that his decision to give the answers was influenced by the oppressive conduct of either or both of the police officers, or the violent conduct of Detective Goodwin and, secondly, that the answers he gave were figments of his imagination. 31 The first matter to be determined is whether the applicant's version, or that of the police witnesses, (or perhaps some amalgam of the two) of the events immediately preceding his confession should be accepted. Once that factual determination has been made it will be necessary to consider the application of the provisions of s 84. 32 Counsel for the accused submitted that I should accept the accused's version of events. Recognising the difficulty in making a factual determination where two conflicting accounts are before the fact finder, he pointed to certain relatively small, but telling, pieces of evidence tending to support the accused's version. 33 The first piece of evidence to which counsel pointed concerned the accused's claim that Detective Goodwin had told him that he had been in the Police Force for fifteen years and Detective Breton for twelve [which appeared to be correct]. There is no other apparent source whereby that information could have come into the possession of the accused. In other words, an apparently trivial statement attributed to Detective Goodwin by the accused accords with established facts, and no basis for the accused's knowledge of those facts, other than that Detective Goodwin indeed made the statement, can be identified. All of this tends to suggest that the accuseds evidence ought be accepted, . If the accused is to be accepted in that respect then it is a relatively short step to accept him in relation to the other matters. 34 On the other hand, this was a relatively innocuous statement, and, even though it might be accepted that this was said by Detective Goodwin, it does not establish that the more pertinent allegations made by the accused are made out. It is necessary, therefore, to look for other features of the evidence which may assist in determining where the truth lies. One such matter is the acknowledgment that the two police officers believed that the accused was not, during the period between 14 and 17 July when he was fitted with the listening device equipment, making a real effort to engage Song and Li in inculpatory conversations. Further, both officers had a continuing belief, unsurprising in the circumstances, that the accused's offer to assist did not encompass a desire to tell all that he knew, and that in fact he was far more deeply involved in the murders than he had to that point admitted. 35 Further, the account the accused gave of Detective Goodwin telling him that his cooperation would result in a reduced sentence is entirely consistent with the practice of the criminal law, yet no other possible source of knowledge of that practice in the accused has been identified. 36 Another factual matter, also pointing to the accuracy of the accused's account, concerns the unavailability at Ashfield of video recording equipment. Neither Detective Breton nor Detective Goodwin was stationed at Ashfield and could not therefore be expected to be aware of the position there with respect to facilities and equipment. On Detective Breton's account he had embarked upon his interview of the accused for the purpose of taking a written statement, not an

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interview of a suspected person, and accordingly did not expect or need to make use of that sort of equipment. Detective Breton said that he did not then know that the Ashfield machine was not functioning and he had no reason to know or to assume it. The detailed statements of Detectives Breton and Goodwin made no mention of any occasion upon which Detective Breton left the room leaving Detective Goodwin and the accused alone together, and their evidence was given on the assumption that no such event had occurred. Yet when, (on their version) it became necessary, as a result of the accused's confession, to record an interview electronically, Detective Breton, without apparently leaving the room or making other inquiries, was able to tell the accused that the equipment was faulty and that he was trying to obtain a replacement. In crossexamination he accepted that there was an error in his evidence, because, he said, he did not know until after the accused's confession that the recording equipment was unavailable. That is simply inconsistent with the unbroken sequence of events as recorded in his statement. It is not, however, inconsistent with the accused's account, which was that Detective Breton had left the room and the accused was alone with Detective Goodwin. It is also consistent with an intention on the part of the officers to establish a situation in which the accused would need to be interviewed, not as a witness, but as a suspect, and the interview be electronically recorded. 37 For those reasons, in my view the account given by the accused is more likely to be accurate than and is to be preferred to, that given by the police officer. I have, accordingly, come to the view that the account of events as given by the accused should be substantially accepted. I do not, however, accept that he began to fabricate an account of the event in question. ... 38 The provisions of s 84 set out the circumstances in which the absence of true voluntariness in admissions will result in the exclusion of evidence of the admissions. The section confers no discretion. Where there has been conduct of the kind described, unless the Crown satisfies the court that the conduct did not influence the admission or the making of the admission, the court is bound to reject the evidence. 39 Having concluded that the facts are substantially as outlined by the accused, the questions which next arise are, in sequence: (i) whether the conduct of either or both of the detectives was violent or oppressive; (ii) whether the conduct of either or both of the detectives constituted a threat of violence or oppression; if either (i) or (ii) is answered affirmatively: (iii) whether I am satisfied that the accused's admission was not influenced by that conduct. 40 Counsel for the accused argued that the promise of witness protection alone is capable of amounting to oppressive conduct. I do not find it necessary to isolate the evidence concerning the offer of future protection from the other evidence relating to the events which preceded the making of the admission, but I doubt whether that circumstance alone could be regarded as oppressive. In this case, he was not merely offered witness protection in return for cooperation (which it is also difficult to construe as oppression); he was offered witness protection in exchange for co-operation in the context of being confronted with two alternatives only: to cooperate with police or be charged with murder. He was offered those alternatives at the same time as being told that he could expect a reduced (or no) sentence in return for his co-operation. There was a threat of some kind, of physical violence (when Detective Goodwin told him he would like to hit his face); and, finally and importantly, he was told that once Detective Goodwin had left the room he would have no further opportunity to co-operate with police. This last was calculated to apply pressure to the accused. 41 I am satisfied that the conduct of the police as whole was designed to and did in fact oppress the accused. 42 On behalf of the Crown it was argued that, even if the conduct of the police was capable of being oppressive, the Crown had nevertheless discharged the onus of establishing that the accused's admissions, or his decision to make admissions, was not influenced thereby.

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43 The basis for that submission lay in something that occurred during the cross-examination of the accused. Counsel for the Crown was asking him some questions about the young woman with whom he had had a failed relationship. The accused became extremely distressed and tearful. When pressed he gave some answers that demonstrated conclusively that, even in late 2000, the subject is a cause of considerable emotional pain to him. It was pointed out that his breakdown in the police station in July 1997 could be pin pointed in time as following closely upon his giving Detective Breton information on the same subject. It might, therefore, be inferred that, in 1997 when the breakdown of the relationship with the woman was fresher in his mind, it was even more painful, and that it was this vulnerability that broke down his defences and caused him to make the admissions he did. The submission was that the admission was not influenced by any conduct on the part of the police, but rather by his own emotional vulnerability in relation to its subject matter. 44 Having observed the accused in the witness box I am satisfied that the subject of the relationship is one that renders him vulnerable and its having been raised at that time may well have been a factor that precipitated his confession. However, s 84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible. 45 I am not satisfied that the making of the admission by the accused was not influenced by the oppressive conduct. The provisions of s 84 therefore dictate that the evidence not be admitted. 8. Was the truth of the admission adversely affected?

Ye Zhang [2000] NSWSC 1099

49 SIMPSON J:The next section invoked is s 85 of the Evidence Act which is concerned with evidence of admissions the reliability of which is in question. 50 It was not in dispute that, even though the accused was not initially being questioned as a suspect, all his admissions were made in the course of official questioning, and, in any event, the admissions certainly resulted from the acts of others with the relevant capacity to influence the decision to prosecute. Accordingly, s 85 has application. By sub s (2) evidence of the admission is not admissible unless the circumstances were such as to make it unlikely that the truth of the admission was adversely affected. 51 Application of this section produces a different result to the application of s 84. Once again I proceed on the basis that the accused's account of events is to be preferred to that of the police officers. The focus of s 85 is the reliability of the admission in the circumstances in which it was made. It is necessary to consider with some care what the two officers said to the accused. Detective Breton had offered him the benefits mentioned earlier in (paragraph 27). Sergeant Lai had advised him to co-operate. Detective Goodwin had held out the offer of no, or a reduced, sentence; had expressed sympathy for the two victims and made a threat of violence; had imposed a deadline on the time during which the accused would be allowed to take advantage of the offer of co-operation; had conveyed his belief that the accused was involved in the killing; and had offered a choice of "co-operating" with police or being charged with murder. In crossexamination the accused agreed that Detective Goodwin had impressed upon him the importance of telling the truth, including the small details that may have seemed unimportant. Apart from the last matter, while the conduct of police affected the voluntariness of the accused's confession, it does not, to my mind, have the same impact on its reliability. Generally speaking, s 85 is directed to the circumstances in which an admission is made and any impact those circumstances may

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have on the reliability or otherwise of the admission. The section is not directed to the truth or falsity of the content of the admission but that position is not absolute. 53 Here the accused has explicitly raised the question of the truth or falsity of the admission he undoubtedly made. In his evidence he claimed that he began making up things that were not true. His counsel pointed to various details of the confession that were at odds with facts objectively provable. If the truth or falsity of the confession bears upon the determination of the preliminary question, considerations of that issue is not, therefore, prohibited. 54 [One question] is whether the circumstances in which the accused's admission was made make it unlikely that its truth was adversely affected. In the consideration of that question, because the accused has asserted that that admission was untruthful, it is legitimate to have regard to all of the evidence concerning its veracity. However, it is appropriate to consider separately the two questions, that is, the question relating to the circumstances in which the admission was made (excluding issues of its veracity) and, only after that has been done, the question of its truth or falsity. 55 I have already indicated that I do not consider that the circumstances generally (excepting one) in which the admission was made adversely affected its reliability. Putting that correctly, I am satisfied that the Crown has established that the circumstances (excluding one) in which the admission was made were such as to make it unlikely that its truth was adversely affected. I specifically include in this Detective Goodwin's injunction to the accused that he had a limited time in which to make up his mind to co-operate. While that placed pressure on the accused to decide to make the admission (a circumstance relevant to s 84) it did not operate adversely on the veracity of what he said. Indeed, it may well have had the opposite effect. 56 The remaining circumstance, however, is less favourable to the Crown. Detective Goodwin gave the accused two alternatives only: to "co-operate" or be charged with murder - it being, presumably, implicit that if he were charged with murder in the absence of co-operation, he would not obtain the benefit of a reduced sentence, witness protection and so on. 57 Co-operating with police in this context plainly meant admitting participation in the killings. This alone (leaving aside questions of veracity) would prevent my being satisfied that it was unlikely to have adversely affected the truth of the admission. The accused well knew what was expected of him in terms of "co-operation". However, as I have noted above, it is legitimate to take into account, and make an assessment of, the truth or falsity of the admission. The accused gave a great deal of detail on each occasion. Some of that detail has been shown to have been incorrect. 58 The point made by counsel for the accused is a telling one. Added to that, there are other discrepancies between the account given by the accused and other objectively proven circumstances. He told police that at the time he was living at the Matthew Talbot Hostel at Woolloomooloo and had been asked to leave because he had not paid rent for his accommodation. Records of the Matthew Talbot Hostel show that he did not take up accommodation there until 4 June, two days after the murders. He had, however, been living at another hostel, apparently of a similar kind to the Matthew Talbot, and in the same general area of Sydney. 60 Another divergence between incontrovertible facts and the description given by the accused relates to the position of the victims on the bed after their murder. In the walkaround video the accused asserted that they were lying across the bed; police who discovered the bodies said they were lying, conventionally, lengthwise. 62 ... The suggestion that the accused fabricated his confession cannot be seen in isolation from the fact that he has now been diagnosed as suffering from schizophrenia. But Dr Wong, who has examined the accused on at least three occasions, has also viewed the video tapes of the records of interview, and saw in them no evidence of psychiatric disorder at the time they were made. Counsel indicated that he intended to have Dr Wong and another psychiatrist listen to the audio tapes recorded by the listening devices for the same purpose. No evidence was adduced to

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suggest that, at the time the accused answered the questions put to him by police, he was psychiatrically disturbed. I do not think that the consideration of the veracity of the admissions, so far as that is relevant to the s 85 determination, should be based upon doubt emanating from the later diagnosis of schizophrenia. The earliest evidence of a diagnosis, or provisional diagnosis, of that disorder is in Dr Wong's report of April 1999, following interviews with the accused in the same month. 63 I was asked to watch the whole of the video tape of the "walkaround" . It shows the accused willingly answering police questions, identifying relevant parts of the apartment, demonstrating what he said had taken place. It was, as the Crown submitted, a compelling piece of evidence. 64 I am satisfied that, notwithstanding the circumstances in which the admissions were made, and my conclusion that they were deprived of the necessary quality of voluntariness that would permit their admission into evidence, the reliability of the circumstances in which they were made is unaffected. I would not, on the basis of s 85, reject this admission. The veracity or accuracy of the content of the admissions would, if they were otherwise admissible, be a matter for jury determination. 9. Would it be unfair to admit the admission?

Em v The Queen [2007] HCA 46

GLEESON CJ AND HEYDON J: Sophear Em ("the appellant") was convicted of murdering Joseph Logozzo; assaulting Joseph Logozzo with intent to rob him while armed with a dangerous weapon; and firing a firearm with disregard for the safety of Marianne Logozzo. ... At that trial the appellant was also charged with five other offences, namely that, being armed with a dangerous weapon, the appellant had robbed Michael Kress, his wife Beverly Kress, his daughter Alyson Kress, his son Jonathon Kress, and Ramzi Tamer, who was a friend of his daughter. In the course of the trial the appellant pleaded guilty to those charges. The appellant's appeal to the Court of Criminal Appeal against conviction and sentence was dismissed. The Notice of Appeal makes two complaints. One is that the primary judge erred in overruling an objection to part of a confession recorded by police officers in a suburban park on 15 May 2002. The other complaint is in the alternative; that the jury should have been given a warning about the unreliability of the confession. For the reasons given below, the appeal should be dismissed. The police then discovered that SIM cards registered in the name of two persons having an address of 1/119 Chester Hill Road, Bass Hill had been used in a mobile phone stolen during the Kress home invasion. This caused police officers to execute a search warrant on 24 April 2002 at 1/119 Chester Hill Road, Bass Hill, which were premises then occupied by the appellant. Until then the appellant had not been the subject of police interest in relation to either the Logozzo or the Kress home invasions. The appellant was made to wait in the lounge room for an hour while the house was searched. He was then taken to his bedroom while it was searched. In the appellant's bedroom the police found a carry bag containing, inter alia, black clothing, a balaclava, ski goggles, cable ties, two pairs of gloves, a roll of grey duct tape, and a sheath knife. He admitted that he owned those items, apart from the cable ties, but he said under questioning later that they had been used for fishing. On 24 April 2002, following the search of the premises, the appellant was arrested. He was taken to Bankstown Police Station. He was questioned in an interview room about both the Logozzo and the Kress home invasions by Detective Senior Constable Bradley Abdy and Detective Senior Constable Michael McLean. Detective Abdy told the appellant he was to be asked about the Kress home invasion and administered the following caution: "I want you to

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know that you don't have to say or do anything unless you wish as anything you say or do may be recorded and later given in evidence at court." He was given a document to the same effect and a written summary of Pt 10A of the Crimes Act 1900 (NSW). He was also told that the interview would be recorded on a "video and audio machine". The following conversation then took place. The appellant said: "I'm not going to say anything to you if you turn that on. I don't want to look like a dickhead." Detective Abdy said: "I can turn the audio tapes on and leave the video off if you want?" The appellant said: "No, nothing." Detective Abdy said: "Well how about I turn the tapes on and you state that objection on them?" The appellant said: "I won't say a word if you turn it on." Detective Abdy said: "What about we write down what you say?" The appellant said: "No." Detective Abdy said: "Mick and I are going to ask you some questions anyway and it is up to you what you say." The detectives then put a number of damaging circumstantial matters to the appellant in relation to the Kress home invasion. After a few minutes the appellant twice said that he did not want anything recorded on the tapes. After the second refusal he said: "But what do you want to know, like where is the gun and stuff?" The detectives then left the room. On their return the following conversation took place. Detective Abdy said: "Well Sophear what is it going to be are you going to talk to us or not?" The appellant said: "Not if it's on the tapes." Detective McLean said: "There I've turned it off, even our phones are off." As he said this he turned the machine off. The appellant said: "What about a wire, like in the movies?" Detective Abdy said: "I'm not going to sit here naked with you mate, you'll just have to trust us. We have been up front with you from this morning and we haven't tried to trick you." The detectives then questioned the appellant for some time about the Kress home invasion and elicited admissions, including his possession of a silver pistol used in that home invasion. In answer to a question from Detective McLean: "Why did you pick that house anyway?", the appellant said: "They just looked rich, nice house, they had a Commodore in the driveway." The appellant declined to name the co-offenders. The detectives then left the room. On their return, before questioning him about the Logozzo home invasion, the following conversation took place. Detective Abdy said: "Sophear, there is one other thing that [we] want to speak to you about, so just listen to what we have to say. You don't have to say or do anything unless you want to. But whatever you say or do may be recorded and later given in evidence at court." The appellant said: "I don't want anything recorded." Detective Abdy said: "It is the same as before. Nothing in this room is turned on." The detectives then questioned the appellant about the Logozzo home invasion. Detective Abdy proposed turning the machine on, but the appellant began to cry. He asked to speak to a solicitor, and he was given an opportunity to do so. After the appellant returned to the interview room, the following conversation took place. Detective Abdy said: "What is it going to be mate? How about I just put the tapes in and you tell us whatever you want?" The appellant said: "No." Detective Abdy said: "What are you afraid of?" The appellant said: "I don't want to look like a dickhead." Detective Abdy said: "I told you before, I can leave the video out if you want." The appellant said: "No tapes." Detective McLean said: "We can record the conversation in our notebook and get you to sign it if you are happy with what has been written." The appellant said: "No I don't want to sign anything or have anything written down." The detectives then prepared a record of what had been said based only on their recollections, not on notes. It was set out as a word-for-word record, but Detective Abdy agreed it was unlikely that word-for-word accuracy had been achieved. At the trial, pursuant to s 281 of the Criminal Procedure Act 1986 (NSW), the primary judge excluded evidence of what had been said on the ground that it had not been tape recorded. On 30 April 2002 police officers attended the appellant's residence and asked him whether, if they brought some photographs of different types of guns, he would be prepared to look at them and show them the type of .32 calibre pistol which, according to what he had said on 24 April 2002, he had been in possession of during the Kress home invasion but had later sold. He said he

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would have a look but that he might not point anything out. The police advised him to speak to a solicitor. In early May 2002 warrants (ST 02/149(c)-(f)) were issued by O'Keefe J, a judge of the Supreme Court of New South Wales, under s 16 of the Listening Devices Act 1984 (NSW) authorising Detective Abdy and Detective McLean each to wear a covert listening device transmitter and recorder for the purpose of recording conversations with the appellant. The events of 15 May 2002 At about 11.55am on 15 May 2002 Detective Abdy and Detective McLean picked the appellant up from his residence. Each had been fitted with a covert listening device transmitter and recorder. Detective Abdy said they wanted to show the appellant some photographs and talk to him for five or ten minutes, and that they were not going to the police station. He went into their car. Detective Abdy said: "Mate, we're just gunna go and have a talk to you, I think there's a park or something up here. We're not going to take you to the police station or anything. So you know you're not under arrest, ok? As I told you before, we're going to come back and talk to you. Remember we said we might come back and show you some photos of some guns?" While driving to the park, Detective Abdy reminded the appellant of his visit to the police station on 24 April 2002. The conversation continued as follows. Detective Abdy said: "Remember they gave you a piece of paper that said you didn't have to say anything to the police?" The appellant said: "Yeah, I know that." Detective Abdy said: "You know that?" Detective McLean said: "And we told you that, you remember that?" Detective Abdy said: "And the same goes again. You don't have to say anything to the police if you don't want to, ok?" But the detectives did not then or at any other stage say that anything the appellant said might be recorded and given in evidence. In evidence and argument this omitted warning was described as "the second part of the caution". A little later the appellant asked: "So what, what do you want to know?" Detective Abdy said: "We want to know, you said when you did the home invasion at Hoxton Park. Do you remember that? Mate, I'm struggling to remember, I'm struggling to remember what you said. You said you picked the, why did you pick that house out?" The appellant then said: "I don't want to talk about that any more." The detectives then showed the appellant photographs of guns. In the course of the conversation the appellant said: "The one that was used at the shooting was an SK." He had earlier denied knowing anything about the Logozzo home invasion. During the balance of the conversation, the detectives repeatedly assured the appellant that he was not being tricked. Detective Abdy said: "Mate, we didn't even take you to a police station, it's not hard, I mean we spoke to you once before and you wanted to talk to us, we're not, we're not trying to trick you or anything." A little later the appellant said: "I know how you guys work ... you try to con us", to which Detective Abdy said: "I'm not trying to, mate, I'm not trying to con you, we told you before, we're investigating a home invasion and a murder." A little later still Detective Abdy said: "Sophear, we haven't tried to trick you once, have we? We've brought you to a God damn park. We're not, we haven't got you in the police station." In the course of the conversation the appellant denied involvement in the Logozzo home invasion. But thereafter he behaved in such a fashion as arguably to make admissions in relation to that home invasion. Then at page 25 of the transcript of the conversation, Detective Abdy said: "Maybe you might feel better if you tell us. It's not as though we're going to slap the handcuffs on you and take you away otherwise we'd be at the police station if we were gunna do that, wouldn't we?" Below, this will be referred to as "Detective Abdy's p25 statement". It had great significance in the trial, because James J rejected the whole of the conversation taking place after it, in which the appellant gave a detailed account of his arrival at the Logozzo residence, the struggle, the shootings and the departure. The position of the appellant in summary. In relation to the first part of the 15 May 2002 conversation, the appellant has thus failed in and later abandoned some allegations; failed to

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advance others; and, to some degree, made express concessions. The resulting position is as follows. There had been compliance with s 281 of the Criminal Procedure Act, the statutory provision directed to the question of the form in which the results of official questioning may be tendered in evidence. There had been no violent, oppressive, inhuman or degrading conduct employed or threatened towards anyone, and hence there had been compliance with s 84, the provision particularly directed to interrogation methods. The circumstances were such as to make it unlikely that the truth of the admission was adversely affected, and hence there had been compliance with s 85, the provision particularly directed to unreliable confessions. The police had not acted improperly or in contravention of any Australian law (cf s 138), and in particular they had not acted improperly in failing to caution the appellant because s 139(1)(c) did not apply; hence there had been compliance with s 138, the provision particularly directed to the rejection of illegally or improperly obtained evidence. The probative value of the evidence was not outweighed by the danger of unfair prejudice (cf s 137), and was not substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time (cf s 135). There had been no breach of the Police Commissioner's Code. Of course it is possible for accused persons to invoke s 90 successfully even if they fail to invoke, or successfully to invoke, any other ground of exclusion. The question is whether in the particular factual circumstances of this case the appellant has done so. Uncontested factual findings Before concluding that it was not unfair to admit the first part of the conversation in the park, James J made the following findings which are not challenged by the appellant: "[T]he accused knew on 15 May that the persons he was speaking to were police officers. On 15 May the accused was told several times by the police officers that he did not have to say anything to the police [and he] ... understood that he did not have to say anything to the police. [T]he accused would not have spoken to the police on 15 May if he had known the conversation was being recorded; ... the police knew on 15 May that the accused would not speak to police if he knew that the conversation was being recorded; ... the accused did not know that the conversation was being recorded and believed that the conversation was not being recorded; ... the police knew that the accused believed that the conversation was not being recorded; and the police did not tell the accused that the conversation was being recorded." He found that the appellant believed on 24 April and still believed at the commencement of the conversation on 15 May that if a conversation he had with the police officers was not recorded, evidence of the conversation could not be used against him in criminal proceedings. James J found that this belief was one which the appellant had formed himself independently of anything said or done by the police officers. He found that up to the commencement of the conversation on 15 May 2002 the police officers had not set out to induce that belief in him. In these circumstances James J found that it was not unfair to use evidence of the first part of the conversation against the appellant. The reasoning in the courts below It was common ground between the parties that what the appellant said in the first part of the 15 May 2002 interview included "representations", "previous representations" and "admissions" within the meaning of those expressions as defined in Pt 1 of the Dictionary to the Act; and that since the evidence was tendered by the prosecution, s 90(a) was satisfied. James J held that s 90(b) was not satisfied because nothing that happened before or during the conversation of 15 May 2002 up to Detective Abdy's p25 statement made it unfair to use evidence of what was said before then. The Court of Criminal Appeal agreed. In particular the Court of Criminal Appeal treated the case as being one in which the detectives did no more than fail to correct a belief of the appellant's which they knew to be erroneous, namely that the evidence could not be used against

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him. The Court of Criminal Appeal specifically rejected a submission, which had not been put to James J, that "albeit unintentionally, prior to [Detective Abdy's p25 statement] the detectives had said and not said things which would have tended to confirm the appellant's pre-existing belief that evidence of the conversation could not be used against him in criminal proceedings." The appellant's arguments: the law The appellant's first complaint is that the first part of the 15 May 2002 conversation should have been excluded on the ground that it was unfair, within the meaning of s 90, to receive it in evidence. Central arguments. Counsel for the appellant said that the word "unfair" in s 90 was not defined in the Act, and could not be defined comprehensively and precisely. The "concept of unfairness" had "been expressed in the widest possible form" in s 90. It was submitted that the court had to consider the whole of the circumstances in which the admission was made, and examine the effect of those circumstances on the fairness to the appellant of its use at the trial. The origins of s 90 lie in the Australian Law Reform Commission's Report on Evidence. The draft Bill annexed to the Report contained a clause 79, which is similar but not identical to s 90. The Report said: "This clause enacts an exclusionary discretion similar to that known as ... 'the Lee discretion' in existing law." The appellant did not contend that the common law and s 90 were identical, but said that they had considerable similarities, and that the common law was of some assistance in applying s 90. The appellant submitted that the primary focus of s 90 was on any incorrect assumptions made by accused persons and the reasons why they made them. The appellant submitted that the purpose of the corresponding common law discretion was "to protect the rights and privileges of the accused person." Among those rights and privileges is an entitlement to remain silent (statute apart) when questioned by police officers, and hence "the accused's freedom to choose to speak to the police", and a relevant issue is "the extent to which that freedom has been impugned." Arguments not calling for decision. The appellant also submitted that the specificity of ss 84, 85 and 138 contrasted with the generality of s 90. The appellant submitted that as a result of ss 84, 85 and 138, violence and the like, unreliability and unlawful or improper obtaining are not the touchstones of "unfairness" under s 90, for otherwise s 90 would not have independent work to do. But the appellant also submitted that the factors identified in ss 84, 85 and 138 were not irrelevant under s 90 - a submission which need not be dealt with, since the appellant did not submit that what the detectives did bore any resemblance to the conduct described in ss84, 85 and 138. On the other hand, the appellant submitted that the factors to be weighed under s 138(3) were irrelevant to the s 90 discretion. He submitted that s 90 derived from R v Lee and s 138 from Bunning v Cross, and that the factors relevant to the "public policy" discretion in the latter case were quite distinct from the fairness described in R v Lee. The argument is not without support in authority but one difficulty is that in R v Lee Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said: "No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense. If it is non-voluntary it is ... legally inadmissible. If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of 'improper' or 'unfair' methods by police officers in interrogating suspected persons or persons in custody. 'In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.' What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by

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improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and to limit the extent of these conceptions." Their Honours thus evidently thought that police impropriety was relevant to the exclusionary discretion on which s 90 is based. However, it is possible to decide the present appeal against the appellant without engaging in the process described in s 138(3), and hence the correctness of the appellant's submission that it is impermissible to take into account the propriety of the police conduct need not be dealt with. The language in s 90 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Whether or not the appellant was correct to submit that the primary focus of s 90 was on incorrect assumptions made by accused persons, there is no doubt that it is one focus of s 90, and it is one which is relevant to the way in which counsel submitted the appellant's incorrect assumption should be viewed. In any particular case, the application of s 90 is likely to be highly fact-specific. Certainly it is on the facts of this particular case that the result must turn. The appellant's arguments: the facts The way the appellant's argument was put in this Court was different from the way it was put to the first Court of Criminal Appeal. Now the vice is said to lie not in tricking the appellant into a belief that the conversation was not being recorded, but in exploiting the appellant's belief that it could not be used in evidence. In oral argument the position taken up was that the detectives had not contributed to or caused the formation of the appellant's belief; they had merely acted in a way which contributed to its continued existence. According to counsel for the appellant, the effect of the detectives' conduct could be seen in several ways. One was the contrast between the formality of events on 24 April 2002, involving cautions and with recording machines and notebooks available, and the effect on the appellant of the informality of the discussion in the park, during which he was repeatedly told that he was not under arrest, was not to be taken to the police station and was not being tricked. Another was the contrast between the full caution given to the appellant on 24 April 2002 and the shorter version given on 15 May 2002, omitting the part relating to the recording of what was said and its possible use in evidence. Another, taken in juxtaposition with assurances that the appellant was not under arrest and was not obliged to talk if he did not want to, was Detective Abdy's statement: "We want to try and eliminate who else was involved". It was said that this "would have conveyed the message to the appellant that, outside the confines of arrest at the police station, the detectives were unable to use the conversations against him and they were instead seeking information to assist their investigation". It was said that all these circumstances "conveyed the message to the appellant that recorded conversations at the police station could be used against him in contradistinction to informal 'chats' with the police outside the station which could only be used for 'information purposes' when conducting investigations regarding the involvement of others." The appellant also relied on a claim that he had been "pressured to speak". The appellant's arguments: analysis Pressure? The last submission can be rejected at once. It is true that the detectives tried by various means to get the appellant to talk to them about the January crimes. But, as James J found without challenge at either level of appeal, the appellant was not under arrest, and the detectives had not given the appellant reasonable grounds for believing that he would not be allowed to leave if he had wished to. A reading of the whole of the recorded conversation up to Detective Abdy's p25 statement confirms the correctness of James J's finding that the questioning was not hostile, overbearing, unduly persistent, confusing or too leading. That finding was not challenged, and it is fatal to the submission that the detectives pressured the appellant to speak. The appellant's subjective mental state. At common law, the onus of demonstrating that it would be unfair to accused persons to use the evidence lay on them. The onus lies in the same

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place under s 90 [compared to ss 84 and 85 where the burden of proving the facts necessary for admissibility rests on the prosecution]. The appellant's submissions depend to a considerable extent on whether the police conduct "conveyed" or "would have conveyed" any particular "message", on the effect on the appellant of any contrasts between the behaviour of the detectives on 24 April 2002 and their behaviour on 15 May 2002, and on the idea that the detectives "confirmed" the appellant's belief. In this respect the submissions face the difficulty that these are allegations going to the appellant's subjective mental state. All that can be concluded about that mental state depends on circumstantial inference. Here circumstantial inference falls well short of the best evidence, direct evidence from the appellant. The appellant's failure to give evidence on the voir dire thus increased his difficulties in discharging the onus of proof. An example is afforded by the appellant's argument that after leaving the police station on 24 April 2002 he believed the police would not be charging him because of an agreement he had made with them not to use what he had said to them. That that was his mental state is contradicted by an admission in his evidence in chief that after he returned home on 24 April 2002 he thought he "was going to be charged, arrested and taken away to gaol." Contrary to the appellant's submissions, it cannot be concluded that the police reinforced or contributed to the continuation of the appellant's mistaken assumption that what he said could not be used against him. The reasons why that is so are that once it was clear that the appellant believed that what he said could not be used in criminal proceedings, there is no evidence that he turned his mind to the question again, or that he had any doubt about it which might cause him to question it, or that he had any desire to search for confirmation. The effect of the appellant's concessions. It follows from concessions which the appellant necessarily and rightly made that the use against him of the first part of the 15 May conversation was not unfair. The appellant accepted that the mere fact that a conversation was being secretly recorded was not sufficient to make it "unfair" to the defendant to admit the recording into evidence. Yet decisions to record conversations with a particular accused person secretly are made because no recording would be possible if that accused person knew of the recording. Thus secret recordings often could not be made without some kind of trickery - a positive representation or conduct suggesting, and leading to the false assumption, that there was no recording being made, a deliberate failure to correct that false assumption, or conduct confirming that false assumption. The scheme of the Listening Devices Act 1984 (NSW), pursuant to which the detectives made their recordings, is that by reason of ss 5 and 10 it is a criminal offence to record a private conversation without consent of all parties unless an exception applies. The relevant exception is a warrant granted by an "eligible Judge" pursuant to the various safeguards set out in s 16. If no exception applies, evidence of the private conversation is inadmissible (s 13). This implies that if an exception applies, the evidence is admissible subject to the general law of evidence. Hence the appellant's concession that if his mistaken assumption consisted only in a belief that the conversation was not being recorded its use in evidence would not be unfair was rightly made. To reach the opposite conclusion would be for the judiciary, by exercise of its capacity to reach a judgment characterising conduct as "unfair" under s 90, to create an automatic and universal rule of exclusion in place of a provision calling for case-by-case judgment. For the courts to adopt such a rule would be to substitute their view about the merits of the statutory scheme involving judicially sanctioned covert surveillance as an aid to the detection of crime for that which has been adopted by the legislature. It is true that the appellant's mistaken assumption went beyond a belief that the conversation was not recorded to a belief that evidence of the conversation could not be given. And counsel for the appellant submitted that there was a "big difference" between speaking while falsely assuming that no recording was being made of what was said, and speaking while falsely assuming that what was said could not be used in criminal proceedings. The difference was said

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to be that in the former instance, accused persons would assume that, although the admission was unrecorded, police officers who heard it could give oral evidence of it. This would give accused persons the "limited benefit" of being able to advance an argument about the unreliability of the police evidence of what was said. In the second instance, ex hypothesi they could not: if accused persons falsely believed that what they said could not be used in evidence, "a very significant factor in exercising [their] right to silence is missing." One difficulty with the submission is that it attributes improbably subtle reasoning to the appellant, which cannot be inferred from the circumstances and which is unsupported by testimony from the appellant. But the most fundamental difficulty with the submission is that the appellant's belief that evidence of the conversation could not be given was integrally connected with his belief that the conversation was not being recorded. That is because, as counsel for the appellant said: "[T]he appellant incorrectly assumed that the conversation was not being electronically recorded and, as a result, incorrectly assumed that anything he said could not be used in evidence." (emphasis added) To conclude that while it is not unfair to use an admission which its maker did not believe was being recorded, it is unfair to use an admission which its maker did not believe could be used, when the reason for the second false assumption is the existence of the first, is illogical. The reliability of the evidence. At one point the appellant conceded that, as at common law, the reliability of evidence was a factor affecting the fairness of its use. Later the appellant withdrew that concession, and later still the appellant denied that the concession had ever been made. The appellant's final position appeared to be that it was irrelevant to the application of s 90 that the impugned evidence was reliable, although s 90 was capable of being triggered by conduct falling short of that described in s 85 but creating the risk of an unreliable confession. The appellant's original concession was correct. It is supported by common law authority. Indeed in R v Swaffield Toohey, Gaudron and Gummow JJ said: "Unreliability is an important aspect of the unfairness discretion but it is not exclusive." Here the evidence was completely reliable in that there is no doubt about what the appellant said: the recording device worked efficiently. The appellant advanced only one reason why what he said was unreliable, and it was a contention put forward in the appellant's evidence at the trial. The contention was that the appellant falsely told the detectives of his involvement with the crimes in order to protect his friends. This does not reveal error in James J's decision to admit the evidence for two reasons. The first is that since the appellant did not give evidence on the voir dire, the contention was not before James J at the moment when the evidence was admitted. The second is that while ultimately the acceptability of the appellant's contention was for the jury, it lacked plausibility to a very significant degree. Not only is it the case, as James J found without any present challenge by the appellant, that the circumstances were such as to make it unlikely that the truth of the admissions was adversely affected, but even if the appellant's contention had been advanced in evidence on the voir dire, it could not have caused James J to regard the reliability of what the appellant said as suspect. It is highly implausible that anyone fearing prosecution for murder would admit to the murder in order to protect unnamed friends. Did the courts below misdirect themselves? The appellant submitted that it was not necessary for a finding of unfairness under s 90 in circumstances similar to the present for police officers deliberately to induce a person being questioned to hold an erroneous belief. The appellant also submitted that James J and the Court of Criminal Appeal wrongly assumed that this was crucial. So far as James J is concerned, the submissions put to the Court of Criminal Appeal and the somewhat different submissions put to this Court were not put to him. The question he dealt with appears to have been that which the parties were content for him to deal with, and where a conception as amorphous as "unfairness" is under consideration, it was not an error to fail to depart from the course they charted. Further, as the Court of Criminal Appeal pointed out, James J considered the whole of the circumstances and did not limit his attention to the detectives' intention. So far as the Court of Criminal Appeal is concerned, it did not require that the

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appellant's mistaken assumption be caused by deliberate inducements by the detectives. It did not concentrate on the mental state of the detectives, but instead, after recording the appellant's submissions as set out above, rejected them. The Court of Criminal Appeal's references to the fact that whatever effect the conduct of the detectives had on the appellant's state of mind, it was unintentional, merely mirrored the appellant's submissions. Its method, which conformed to the parameters set by those submissions, objectively analysed what the detectives did and whether that tended to confirm the appellant's mistaken assumption. It did not rest on the flaw which the appellant attributed to it. The significance of the park. The mere fact that the recording of the conversations was made in a park and not a police station cannot make it unfair to admit it into evidence. Section 281 of the Criminal Procedure Act requires confessions to be recorded; it does not require them to be recorded in a particular place, and many admissible confessions are made in places other than police stations. No provision in the Evidence Act or in any other statute requires them to be recorded in a particular place. Nor does the Police Commissioner's Code. The conduct of the detectives cannot be seen as undermining the statutory regime in s 281 and its equivalents elsewhere requiring confessions to be recorded. That is so partly because the appellant eschewed any such point as relevant only to s138, on which he was not relying; and partly because whatever other criticism could be made of the detectives, they cannot be criticised for failing to comply with s281: they did comply with it. Counsel for the appellant submitted that it was unfair to permit the reception of evidence obtained from the appellant where the appellant was operating under a disability - a significant mistake of which the detectives were aware. The difficulty is that every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute, and a mistake of the kind the appellant was operating under was simply a species of ignorance or stupidity. Was the appellant's freedom to speak or not to speak impugned? In one formulation, the appellant's submissions identified as the central question whether his freedom to speak or stay silent had been impugned in the first part of the 15 May 2002 conversation. When all the circumstances analysed above are considered, it is impossible to conclude that that freedom was impugned. The appellant knew he was speaking to police officers. He knew they were investigating two home invasions, one involving a murder. He knew, having been cautioned several times on 22 February and 24 April 2002, that he was not obliged to speak to the police officers. He spoke to those officers knowingly and willingly. He had an awareness of his rights and a capacity to act on them. While s 281 compelled the detectives to record what was said if they wanted to tender it, the appellant possessed no right not to be recorded once the listening device warrants had been obtained from O'Keefe J. The appellant was free to leave. The questioning was not overbearing. As counsel for the appellant conceded, neither legislation nor the Police Commissioner's Code created any obligation on the detectives to caution him. The appellant did not know the conversation was being recorded, but he accepted that that did not make it unfair to receive the evidence. The appellant did not contend that he spoke because of any threat of violence, or any illegality, or any impropriety. He thought that the conversation could not be used against him in criminal proceedings, but that cannot of itself make it unfair for the conversation to be received in evidence. The detectives kept secret from him the fact that the conversation was being recorded, and hence his freedom to speak was affected in the sense that a factor that was important to him was kept secret from him. But that is true of virtually all cases of lawfully authorised secret surveillance. Virtually all persons who are the subject of that type of surveillance have been deprived of the opportunity to make an informed choice about whether or not to exercise their right of silence. For these reasons use of the first part of the 15 May 2002 conversation was not unfair to the appellant. GUMMOW AND HAYNE JJ. When it is "unfair" to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. "Unfairness", whether for the

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purposes of the common law discretion or for the purposes of s90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s90. Thus although the discretion given by s90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s90. The consequence is that the discretion given by s90 will be engaged only as a final or "safety net" provision. That this is the way in which the Act, and s90 in particular, operates is apparent when two circumstances that may be relevant to the exercise of the common law discretion (the reliability of the confession and the use of improper means to secure it) are considered. At common law, questions of reliability play an important part in considering the exercise of the common law unfairness discretion. As pointed out in Swaffield, other considerations may be engaged. In particular, admitting evidence of a confession may, sometimes, disadvantage an accused in ways that are not readily remedied. Cases of the latter kind include cases where admitting evidence of the confession would put the accused at a particular forensic disadvantage. Because the chief focus of the common law discretion falls upon the fairness of using the accused person's out-of-court statement, not upon any purpose of disciplining police or controlling investigative methods, the reliability of what was said out of court is important to the exercise of that discretion. As noted earlier, s90 of the Act expressly directs attention only to the fairness of using the evidence at the trial of the accused. Section85 deals with evidence of an admission made by a defendant in the course of official questioning, and provides that the evidence is not admissible unless the circumstances in which the admission was made "were such as to make it unlikely that the truth of the admission was adversely affected". It follows that consideration of the reliability of what was said in a statement made to police can have no part to play in the operation of s90. (By contrast, questions of reliability may well have a role to play in the application of s90 if the statement was not made in the course of official questioning or "as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued" [s85(1)(b)]. But that is not this case.) Because s 85 was not engaged to exclude the disputed evidence in the present case, no question of the reliability of what this appellant said in the admissions now in question was relevant to the exercise of the discretion under s 90. The hypothesis upon which that discretion was to be exercised must be that the circumstances were not such as to make unreliable the admissions the appellant made. The second consideration that is relevant to the present matter, and assists in demonstrating that s90 is to be understood as a safety net which catches a residuary category of cases not expressly dealt with elsewhere in the Act, where use of the evidence at trial would be unfair, is the consideration of improper police methods. The appellant's central complaint in the present matter was that the police deceived him. He thought that what he said to the police was not being recorded, but it was. This complaint lay at the heart of his contention that s 90 should have been applied to exclude the evidence. For present purposes, it may be accepted that what the police did and said (and most importantly what they did not say) caused or contributed to the appellant forming the belief that what he said was not recorded and would not be admissible in evidence. The question presented by s 90 was: why did these circumstances make the use at his trial of the evidence of what he had said unfair? But that question was to be asked and answered only after other questions presented by the Act had been considered.

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The appellant's argument, shorn of expressions like "trick" and "trickery", amounted to the propositions that what the police did, by interviewing the appellant as they did, was to be condemned, and that he had been misled into saying something that could be used in evidence against him. Neither of these propositions, whether taken separately or together, established that use at his trial of the evidence of what he said to police would be unfair. First, the proposition implicit in much of the appellant's argument, that what the police did is to be condemned, requires close attention to other provisions of the Act which regulate when evidence may be excluded. The operation of those other provisions denies the conclusion, implicit in so much of the appellant's argument, that what the police did in this case was not only to be condemned but was such as to require the exclusion of the evidence. Nor was the discretion to be engaged by asserting that the conduct of the police is worthy of condemnation for more general (if unspecified) reasons. First, it was not suggested that what the police did was unlawful. Indeed, argument proceeded on the footing that the police recorded their conversation with the appellant under warrants issued under the Listening Devices Act 1984 (NSW) that permitted them to do just that. Secondly, as to the other limb of s138, concerning improperly obtained evidence, either what the police did was not improper, or if it is asserted that it was (and again it was not demonstrated in argument why that was so) the significance to be attached to the impropriety of the conduct was to be judged according to the balancing exercise that was called for by s138. It was not a matter that bore upon the exercise of the discretion under s90. It also follows that to begin examination of the operation of s 90 from a premise which attaches determinative significance to the fact that the appellant had the mistaken belief (caused or contributed to by the police) that what he said was not being recorded and would not be admissible in evidence would be erroneous. It would be erroneous because that would not take the operation of provisions like ss85 and 138 into account. The relevant questions presented by the Act (in particular, by ss85 and 138) are about the reliability of the admissions made to police, and the lawfulness and propriety of the methods used to obtain the admissions. Showing that the person making the admission acted under some misapprehension is not to the point. It is a truism that an Act must be read as a whole. When the Act that now is under consideration is read in that way, it is evident that the discretion given by s90 is not to be understood as unaffected by the more particular provisions of the Act. Yet that, in essence, is what the appellant sought to argue. Evidence of only part of what the appellant said to police was admitted at his trial. The exclusion of the other part of that evidence is not in issue in this appeal. The conclusion reached in the courts below, that no error was shown in the trial judge refusing to exclude under s90 the evidence of part of what the appellant said to police, was correct. The appellant's appeal on this ground fails. KIRBY J The conduct of police had the effect of derogating from the appellant's entitlement, as a person suspected of murder and other serious offences, to remain silent in the face of police questioning. The detectives took conscious advantage of a mistaken belief on the part of the appellant as to his legal position. The admissions were procured following the administration of a caution since admitted to have been incomplete. The caution omitted reference to the fact that any statements that the appellant made might later be used in evidence against him. It was unfair to the appellant to use any of the evidence of admissions made by him in the course of the secretly recorded conversation. That evidence should have been wholly excluded under s 90 of the Act. The convictions that followed its receipt into evidence must be quashed. The April conversation: James J excluded from evidence the record of an earlier interview between Detectives Abdy and McLean and the appellant on 24 April 2002 ("the April conversation"). He did so on the basis that it was a reconstruction and not electronically recorded. However, what occurred at that interview, as the second Court of Criminal Appeal remarked, was material to the issue of whether or not the May conversation was admissible.

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The April conversation was material in that, in contrast to the May conversation, it began with the provision of a full caution to the appellant. The appellant then told the detectives about his involvement in the Kress home invasion. He made substantial admissions in relation to it. The appellant was released without charge. Detective Abdy later testified that he did not then think the admissions made by the appellant in respect of the Kress offences were sufficient to warrant charging him because they were not electronically recorded. He believed that "for that evidence to be admissible it had to be electronically recorded". Detective McLean gave similar evidence. Doubtless it was that belief, and the frustration caused by the April conversation, that led to a police application, early in May 2002, for warrants under the Listening Devices Act 1984 (NSW). The May conversation: The May conversation resulted in a record of 40 pages. At no stage [before or] during the May conversation, did the detectives warn the appellant (as they had before the April conversation) that anything he said would (or might) be recorded and later used in evidence against him. Instead, they repeatedly assured him that he was not being tricked by them. " [During] the conversation [this] exchange took place (recorded on p 25 of the transcript) that led to the exclusion from evidence of the record that followed: "Abdy: Maybe you might feel better if you tell us. It's not as though we're going to slap the handcuffs on you and take you away otherwise we'd be at the police station if we were gunna do that, wouldn't we? Mate, one of these days you're gunna have to want to talk about it, aren't you? You can't keep it in forever, imagine was [sic] it's going to be like. When you, you're sitting here nodding your head, so I'm assuming you're meaning yes. Appellant: Yeah, I mean, yes." (emphasis added) James J concluded that the subsequent parts of the interview should be excluded by reason of s 85, s 90 or s 138 of the Act. [I]n this Court, the appellant elected to confine his arguments to s90 of the Act. The formal preconditions for the application of s90 were established. The proceedings against the appellant were criminal in character. The contested evidence of the May conversation was tendered as evidence of admissions. It was adduced by the prosecution. It was admitted before the jury. They found the appellant guilty. The meaning of s 90 of the Evidence Act Textual considerations: The word "unfair" in s90 is not defined either in the Dictionary at the end of the Act or elsewhere. However, the word is one of common use in the law. It must take its meaning from the context and purpose of its use. Depending on such context, the word connotes "not fair"; "biased or partial"; "not just or equitable"; "unjust"; or "marked by deceptive dishonest practices". Unfairness, for the purposes of s 90, cannot be defined comprehensively or precisely. A general law on evidence (such as the Act) must cover the admission (or rejection) of evidence adduced in a vast range of predictable and unpredictable circumstances. Moreover, what is "unfair" will vary over time in response to changing community attitudes and perceptions. The language of s 90 of the Act expresses the concept of unfairness "in the widest possible form"[Swaffield]. This fact, and the fact that the power afforded under s90 is to be exercised at the moment that evidence is tendered for admission before a court, indicates that the judgment must be made on a case-by-case basis, normally on the run. The section envisages individual decision-making by reference to all relevant facts, not a priori rules of universal application. What would be "unfair" in one set of circumstances might not be so if just a few of the integers were changed. There are four textual features of s90 that are relevant to the proper exercise of the power for which it provides.

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. First, the section is limited in its application to evidence "adduced by the prosecution" in a "criminal proceeding". Thus, s90 is confined in its operation to a particular type of trial which, in Australia, has distinctive features. Most importantly, criminal proceedings in this country normally observe an accusatorial principle by which it is for the prosecution to establish the criminal accusation. The defendant is not usually required by law to say or prove anything. The specified context is thus that of admitting evidence of an admission which, by our law, normally a defendant is not required to make but which is contained in the evidence adduced by the prosecution and proffered against the defendant. Whether, in these circumstances, admission of the evidence would be "unfair" needs to be judged taking into account these peculiarities that lie deep in the Australian system of criminal justice; . The "unfairness" that enlivens s90 is not at large. It is not related to broader considerations such as unfairness to the community, unfairness to investigating police, unfairness to witnesses or to any other person or thing. The sole consideration is unfairness "to a defendant". This focuses the inquiry on the effect of the "circumstances in which the admission was made" on the defendant as such. The impact on a wider range of persons or values must be considered, if at all, under other exclusionary rules provided by the Act, not under s90; . The unfairness "to [the] defendant" is also not at large. It is not addressed to unfairness to the defendant outside the courtroom. It is only in the criminal proceedings where that person is "a defendant" and the relevant evidence is tendered for admission, that the admission may be excluded because it would be unfair to the defendant to use it in such proceedings; and . The criterion for rejection of the evidence is not the way in which it might later be used by the tribunal of fact. That would involve a concern with unfair prejudice to which other sections of the Act are directed, such as s135 (a general discretion to exclude evidence) or s137 (a special discretion to exclude prejudicial evidence in criminal proceedings). As noted above, the several provisions for the exclusion of evidence necessarily overlap in some circumstances. They operate alternatively and cumulatively. An accused person is entitled to invoke any and all of the provisions that are alleged to be relevant to the proceedings in hand. In a statute of general application, the existence of differently expressed powers of exclusion that may, in a given case, have more particular application to the circumstances of a trial, is not a reason for reading down the alternative grounds for exclusion provided by the Act, including s90. A power in the court: The heading to s90 is "Discretion to exclude admissions". Certainly, the decision of a court when s90 is invoked is one involving judgment and the evaluation of multiple considerations. Strictly speaking, it is a power conferred on a court to admit evidence of an admission or to refuse to admit the evidence to prove a particular fact. It is not a discretion at large. The decision that s90 requires is confined to the general or particular refusal to admit evidence envisaged by the opening words of the section. Once a court, in circumstances to which s90 applies, concludes that it "would be unfair to [the] defendant to use the evidence", the section does not provide the court with an uncontrolled option to allow the evidence or to reject it or limit its use. If relevant unfairness to a defendant in the use of the evidence is demonstrated, the only discretion provided to the court is to refuse to admit the evidence of an admission at all or to refuse to admit the evidence to prove a particular fact. This construction, which follows from the character of the repository of the power selected by Parliament ("the court"), shifts the field of dispute, in a case such as the present, to the determination of whether or not "it would be unfair to a defendant to use the evidence". Some of the language of the second Court of Criminal Appeal proceeded on an assumption that a general "discretion" was conferred on the trial court to provide, or withhold, relief[102]. This constituted

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an error on that Court's part. It is an error relevant to the function of this Court in disposing of this appeal. History of the s 90 provision: in its final report, upon which the Act was substantially based, the [Australian Law Reform] Commission retreated from an interim proposal to subsume the discretion to exclude evidence in criminal trials on unfairness grounds within other judicial powers conferred on trial courts [because at common law:] " The Lee discretion focuses on the question whether it would be unfair to the accused to admit the evidence. The discretion to exclude illegally or improperly obtained evidence requires a balancing of public interests. It would, therefore, be less effective than the Lee discretion in the situation where the confession was obtained because the accused proceeded on a false assumption." The Commission summarised its conclusion: "There is a need for a discretion to enable the trial judge to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence against the accused who made them. Such a discretion should be added to the proposal." This Court concluded in Lee that the unfairness rule was part of the Australian common law of evidence; that it was not excluded by the existence of a statutory provision permitting the rejection of involuntary confessions; and that it served a separate and justifiable purpose. Specifically, the Court observed that the rule was to be understood in the context of a system of criminal justice in which police observed the obligation to caution suspects. All of these postulates remain true today. They inform the way in which s90 of the Act, designed to preserve the Lee discretion, was intended to operate in contemporary criminal trials. Elaboration of the exclusion: The fact that the unfairness discretion (including now in s90 of the Act) falls to be exercised in criminal proceedings as they are normally conducted in Australia warrants a reminder of the fundamental principle explained by four members of this Court in Petty v The Queen. It is a principle, applicable to "criminal proceedings", that should not in my view be undermined, but preserved and protected: "A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless." As the Police Code of Practice applicable in this case recognised, the "right to silence" should be respected by police themselves. Of course, referring, without more, to that right will not suffice to establish that particular evidence must be excluded. However, in appropriate circumstances, the unfairness discretion can be applied to uphold it and to deprive those who ignore or defy it of the fruits of their conduct. In R v Swaffield, the joint reasons in this Court acknowledged that the term "unfairness" lacks precision and demands an evaluation of all of the relevant circumstances. As noted in Van der Meer v The Queen, it is not concerned as such with unfair conduct on the part of police, but rather with whether it would be unfair to the accused to use his statement containing admissions against him. Thus, unfairness is concerned with "the right of an accused to a fair trial", and whilst the unreliability of an admission might be "a touchstone of unfairness", it is "not to be the sole touchstone". It might be "that no confession might have been made at all, had the police investigation been properly conducted". In Swaffield, the Judges' Rules in Queensland (equivalent to the Police Code of Practice applicable in this case) were recognised to be "a yardstick against which issues of unfairness (and impropriety) [could] be measured".

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In my own reasons in Swaffield, I acknowledged that s90 permitted changing social circumstances to be considered. In discussing such changing circumstances, I accepted that "[m]odern surveillance technology and covert police operations are potentially effective means for [bringing wrongdoers to justice]". After reviewing overseas authority, I remarked, in words to which I adhere : "Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in an endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused ... that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police ... in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent." Swaffield, like this case, involved the secret recording of a conversation by an undercover police officer who, in disregard of the relevant Judges' Rules in Queensland, did not administer any caution at all to the suspect. The entire Court in that appeal concluded that the accused's admissions had rightly been rejected by the intermediate court. The joint reasons decided that this was so because the police conduct had impugned the suspect's freedom to choose whether to speak to the police or not. My own reasons represented a variation of the same principle. Consistency with the Court's approach in Swaffield requires that principle also to be applied in this appeal. Conclusion: The unfairness provision in s90 of the Act was clearly intended to confer a "power or discretion" on a court in criminal proceedings to reject prosecution evidence that was at least as broad as that provided by the previous common law. It may even be that s90 casts a wider net. For the purpose of deciding this appeal, it is unnecessary to resolve that question. Whilst the several provisions of the Act governing the exclusion of evidence may overlap in particular circumstances, each provision, when invoked, should be applied according to its own terms. The history of s90 demonstrates that the section was preserved, and intended to apply, so as to address a particular and well-identified problem. It would be a serious departure from the text to impose on its broad language restrictions imported from the language of other exclusionary provisions in the Act. It is a mistake that this Court should itself avoid. There is nothing in the language, history or purpose of s90 that would licence overlooking the statutory objective of protecting criminal suspects against unfairness in favour of other concerns (such as the need to clear up a serious murder where the accused has repeatedly insisted to police on his right to silence). Application of s 90 in this appeal Uncontested considerations: I am prepared to concede that the mere fact that a conversation with a suspect is secretly recorded does not alone make later use of any admissions contained in the recording "unfair" to the suspect. I also accept that the existence of warrants under the Listening Devices Act militates in favour of a secret recording of a private conversation comprising admissible evidence. However, such a warrant does not absolve a court of the obligation to decide, in accordance with s90, whether particular evidence adduced in criminal proceedings should be excluded as unfair to a defendant. In granting such a warrant, a judge has no means of anticipating later unfairness to a defendant arising out of attempted use of the recorded evidence and the way the questioning proceeds.

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I accept that, for example, the administration of a defective caution to a suspect does not give rise to a "right" to the exclusion of subsequent recorded evidence. The unfairness to which s90 refers must be found taking into account all the circumstances relevant to the procurement of the impugned admissions. I agree that it would be a mistake to attribute over-subtle reasoning to the appellant. However, there is a clear and not particularly subtle distinction between a belief (often correct) that unrecorded evidence of admissions to police cannot be used in a subsequent criminal trial and a false assumption (encouraged by things said and done by police) that on a particular occasion police were not in fact recording a conversation. [I]t was recognised in Lee, and confirmed in other cases down to Swaffield, that reliability is "not ... the sole touchstone" of unfairness. In the present case, the fact of the sound recording would seem to preclude challenge to the reliability of the record of the May conversation. However, it is not the case that every electronically recorded admission, whenever and however made, is ipso facto admissible. Section 90 demands consideration of "the circumstances in which the admission was made". The fact that the admission is recorded is only one such "circumstance". It remains for the court to evaluate the proposed "use [of] the evidence" in the context of "criminal proceedings". The answer is not supplied by a judgment as to the motives of the detectives in adopting the course of conduct that they did. It may be accepted (as all the judges below agreed) that Detectives Abdy and McLean were frustrated, and anxious to secure evidence to solve a most serious crime. However, the governing consideration is not whether the detectives deliberately intended to deprive the appellant of his right to a fair trial. It is whether their conduct had that effect in the proceedings in which the contested evidence was admitted. I consider that the conduct did have that effect. To explain why, it is necessary for me to refer to five important considerations. Omission of a full caution: The most important consideration favouring the conclusion that use of the contested evidence was unfair to the appellant was the detectives' intentional failure to administer to him the second part of the caution set out in the Police Code of Practice. That caution includes the following warning: "We will record what you say or do. We can use this recording in court. Do you understand that?" There is nothing unusual in the second part of the caution. Giving such a caution is a regular feature of police practice in dealing with suspects, in Australia and in other common law countries. It is therefore a feature that will be normal in conduct anterior to "a criminal proceeding" to which s90 of the Act applies. It recognises a suspect's "right to silence" and the character of an accusatorial trial. The rights of suspects in this respect are not to be undermined by courts unless derogation is expressly authorised by Parliament. The failure of the detectives to administer the second part of the caution to the appellant was incontestably a conscious one. It rested in the detectives' fear that, had the caution been given, the appellant would have said nothing, as was his legal right. For the purposes of s90 of the Act, the vice of the incomplete caution did not lie in the detectives' deliberate transgression of the Police Code of Practice. Rather, it lay in their resulting failure to alert the appellant, whom they had under their control, to a vital consequence of continuing the conversation into which he had been drawn. The importance of the second part of the caution has been explained in many cases. In Miranda v Arizona[145], the Supreme Court of the United States explained: "The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make [a suspect] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this

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warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest." Although these remarks were made in the context of the requirements of the Fifth Amendment to the United States Constitution, they usefully explain the purpose of the caution obliged, in Australia, by both Judges' Rules and Police Instructions or Codes of Practice. In New South Wales, the caution might not be required under binding legislation. However, it is incontestable that it represents an established feature of police practice. It is founded on what is by now a "fundamental rule of the common law". It reflects the recognition, as noted in the Police Code of Practice, that: "If you fail to caution at the appropriate time, or if the suspect does not fully understand it, any subsequent conversation or admission might be ruled to be improperly obtained and inadmissible. Particular care should be taken in relation to vulnerable persons." In the present case, the detectives were quite aware of their obligation to give the appellant a full formal caution. ... If it was necessary on 15 May 2002 to repeat the first part of the caution, it was equally necessary to repeat the second part. Either this Court is serious about the right to silence and the need for police and like officials to caution suspects about the incidents of that right, or it is not. To condone the consequences that flowed after providing half a caution is, in effect, to accept that giving half the caution is adequate and the deletion of the other half results in no unfairness to a suspect. I find it impossible to brush aside the intentional administration of an incomplete caution to the appellant on the part of Detectives Abdy and McLean, both sworn officers of police. I acknowledge their frustrations. But if their conduct on this occasion is vindicated by this Court, we must face the reality that what they did will be repeated. By condonation, it may well become a common or general practice. I will not willingly accept that development. It carries with it the seeds of the destruction of a suspect's right to silence and the undermining of the accusatorial character of criminal proceedings. Trickery and informed choices: The foregoing conclusion is reinforced by the fact that trickery was used by the detectives to overcome the appellant's obvious initial unwillingness to speak about the Logozzo home invasion, and to deprive him of an "informed choice" as to whether to make admissions or not to speak until appearing in court with the benefit of legal advice. The detectives arrived at the appellant's home and took him for what was presented as an informal chat in a public park on a specific and limited subject. They repeatedly emphasised that he was "not under arrest" and "not going to ... the police station". They reassured him on a number of occasions that he was not being "tricked" or "conned". It involved a course of conduct consciously designed to deceive the appellant into believing that he was engaged in an off-the-record conversation. The detectives' reference to his earlier interview with them, following which he had not been arrested but released, renders still more apparent the unfairness of the trickery. It compounds the unfairness occasioned by the administration of only half of the official caution. Necessarily, the deception influenced everything that the appellant then proceeded to say and do in the course of the May conversation. It caused the attempted use of admissions contained in that conversation (including the first part thereof) to be unfair to the appellant. It violated the appellant's right in law to choose whether or not to make admissions that would later be used against him in his trial. It engaged the application of s 90 of the Act. Selection of the park venue: Of itself, the fact that the meeting with the detectives on 15 May 2002 took place in a suburban park might seem innocuous. However, given the context, the detectives' selection of that venue for their second extended conversation with the appellant was far from so. Indeed, it was part of the deliberate deception designed to emphasise in the appellant's mind the distinction between a formal interview at the police station and an off-therecord chat in the park.

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The detectives' repeated statements throw this fact into sharp relief: "[Y]ou don't want to go to the cop shop and talk"; "[W]e didn't even take you to a police station ... we're not trying to trick you or anything"; "We've brought you to a God damn park. We're not, we haven't got you in the police station." Whilst trickery, deception and covert operations are an inevitable part of modern policing, the detectives' conduct on 15 May 2002 transgressed the threshold of acceptable police investigative behaviour in a material respect. It rendered unfair the reception and use in criminal proceedings of the appellant's subsequent admissions. In effect, it deprived the appellant of his right to silence. With all respect, it is impossible to reconcile the outcome favoured by the other members of this Court in this case with the unanimous conclusion reached in Swaffield. In Swaffield, no caution at all was administered. Here, the caution administered was incomplete, and even its limited effectiveness was undermined through trickery and deception, including that arising from the non-official venue chosen for the conversation. It is obvious that the detectives selected the park as a venue with a view to deceiving the appellant. It assisted them to deprive him of a free choice to speak to the police about the Logozzo offences. It denied him the right that he asserted in the April conversation to withhold his version until he was on trial in a court. As in Swaffield, the resulting admissions ought to have been excluded to avoid unfairness to him. This Court should so order so as to vindicate the appellant's right to silence, out of which he was tricked. My conclusion is further reinforced by what was the unconvincing discrimen that led to James J's exclusion of part only of the May conversation as from p25 of the record. It was at that page that Detective Abdy reassured the appellant: "It's not as though we're going to slap the handcuffs on you and take you away otherwise we'd be at the police station if we were gunna do that, wouldn't we?" Understood in its context, this was but one in a long series of reassurances by the police designed to distinguish an inferentially recorded conversation at the police station from a purportedly unrecorded off-the-record chat in the park. Statements to the appellant to the effect that "you might feel better if you tell us" and "one of these days you're gunna have to want to talk about it" were not significantly different from the pseudo-ingratiation with which the earlier 25 pages of the conversation were replete. If the "circumstances in which the admission was made" were such as to make it unfair to the appellant to use the evidence following p25, the unfairness was, in my view, established long before the exchange recorded on that page. It was erroneous and artificial to choose the passage on p 25 as the point after which the record became inadmissible when that record was the product of a tactic that was unified, well planned and designed to procure the precise admissions that it did. Ignorance and stupidity: Finally, there is a statement in the reasons of Gleeson CJ and Heydon J with which I disagree. Gleeson CJ and Heydon J state that "every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute". Their Honours suggest that the appellant's incorrect belief about the availability of any admissions in the May conversation at a trial was simply a species of such "ignorance or stupidity". This approach implies that the educated and the clever enjoy a special position under the law which the ignorant and stupid do not. I could never agree with such a view. It is true that a well-advised, clever accused would probably not have gone to a park with detectives expecting to engage in an off-the-record conversation in such a place. Indeed, in all likelihood, no attempt would have been made to deceive and trick such a person, or to administer to him or her only half of the official police caution. However, the law, including the Act, exists to protect all defendants in criminal proceedings against relevant unfairness, not just the educated and the clever. The law is not silent for vulnerable people who are "ignorant" about their rights and who are regarded as "stupid". [T]o limit the protection s 90 of the Act offers to defendants who are "stupid and ignorant" would be "to favor the defendant whose sophistication or status had fortuitously" made the need

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for protection unnecessary (or less necessary) in that defendant's circumstances. That could not be the purpose of s 90, and that provision should not be applied as though it were.

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