The King v Amital

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Blokland J
• Judgment Date: 12 September 2022
• Neutral Citation: [2022] NTSC 74
• Docket Number: FILE NO: 22117621

[2022] NTSC 74

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JUDGMENT OF:

Blokland J

FILE NO: 22117621

Between:

The King

Applicant

and

James Amital

Respondent

REPRESENTATION:

Counsel:

Applicant: J Bourke/ C Larkin

Respondent: L Payne/ T Grealy/ J Moore

AlKateb v Godwin (2004) 219 CLR 562; Babui v O'Neill [2020] NTSC 50; Bropho v Western Australia (1990) 170 CLR 1; Coco v The Queen [1994] HCA 15; Connor v Pittaway Mendes v Pittaway [1969] VR 335; Director of Public Prosecutions (on behalf of Watson) v Kaba [2014] VSC 52; DPP v Farr [2001] NSWSC 3; DPP v Magnus Kaba [2014] VSC 52; DPP v Tamcelik (2012) 224 A Crim R 350; EM v The Queen (2007) 232 CLR 67; Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16; Henwood v Balchin [2011] NTSC 84; John Holland v Industrial Court of New South Wales [2010] NSWCA 338; Johns v Australian Securities Commission [1993] HCA 53; Lacey v Attorney General of Queensland (2011) 242 CLR 573; Magrath v Goldsborough Mort Co Ltd (1932) 47 CLR 121; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission [1993] FCA 77; Momcilovic v The Queen (2011) 245 CLR 1; Munkara v Bencesevich [2018] NTCA 4; Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; Parker v Comptroller-General of Customs (2009) 83 ALJR 494; Parker v Comptroller-General of Customs [2007] NSWCA 348; Parker v Comptroller-General of Customs [2009] HCA 7; Parsens Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; Plaintiff S 157/2002 v The Commonwealth (2003) 211 CLR 476; Police v Grozev [2006] SASC 353; Potter v Minahan (1908) 7 CLR 277; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Buddee [2016] NSWDC 42; R v Goodwin [1944] KB 518; R v Haddad (2000) 116 A Crim R 312; R v Kola (2002) 83 SASR 47; R v Kovac [2021] NSWDC 85; R v Large [2019] NSWDC 627; R v Onuorah (2009) 76 NSWLR; R v Rondo [2001] NSWCCA 540; R v Secretary of State for Home Department Ex Parte Simms [2002] 2 AC 115; Richardson v Austin (1911) 12 CLR 463; Rigby v Mulhall [2019] NTSC 70; Robinson v Woolworths Ltd (2005) 64 NSWLR 612; Williams v The Queen [1986] HCA 88; Wilson v Kuhl [1979] VR 315, referred to.

Evidence (National Uniform Legislation) Act 2011 (NT); ss 138, 139.

Liquor Act 2019 (NT); s 237–239.

Police Administration Act 1978 (NT).

Traffic Act 1987 (NT); s 29AA-AAFA.

International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 3 September 1953).

A Ligertwood & G Edmond, Australian Evidence: A Principled Approach to the Common Law and Uniform Acts (LexisNexis Butterworths, 6 ^th ed, 2017).

EVIDENCE — Discretions — Exclusion of evidence — Criminal proceedings — law — Whether evidence obtained or received as a consequence of impropriety or contravention of an Australian law — Applicant stopped at a RBT on north side of Adelaide River — Negative breath test followed by negative drug test — Accused told police he was going to Port Keats — Police declared a random search would be performed under the Liquor Act — Detained applicant, occupants and vehicle for search under Police Administration Act.

EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence — Whether forfeiture offence under the Liquor Act was ‘about to be’ committed — Meaning of ‘about to be’ committed — Approach to interpretation of statutes that impair rights.

EVIDENCE — Discretions — Exclusion of evidence — Whether impropriety to detain and search under Liquor Act when point of search is 290 kilometres from general restricted community.

EVDIENCE — Discretion — Exclusion of evidence — Whether improper to detain under the Liquor Act for random search and investigate for drug offences while detained — Question of the need for caution and compliance with police general orders — Partial caution given — some acknowledgment that suspect did not fully comprehend — Compliance with Evidence (National Uniform Legislation) Act, s 139 on cautioning.

EVIDENCE — Discretion — Exclusion of evidence — International Covenant on Civil and Political Rights — Whether breaches of Covenant — Liberty — Freedom of movement — Privacy — Potential for discrimination on the basis of race or social origin if Liquor Act interpreted in particular manner.

RULING ON OBJECTION TO EVIDENCE

(Delivered 12 September 2022)

Background

1 James Amital (‘the applicant’) is charged on indictment with one count of supply of a Schedule 2 dangerous drug, namely cannabis that was less than a commercial quantity, and the dangerous drug was supplied in an Indigenous community, contrary to s 5D(1) of the Misuse of Drugs Act 2017 (NT). He is also charged with one count of possess a traffickable quantity of the same, contrary to s 7A(1) of the Misuse of Drugs Act. The date of the alleged offending was on or about 6 June 2021.

2 The applicant seeks exclusion of the evidence sourced from a police search of the car he was driving under s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) ‘ UEA’.

3 Under s 138 of the UEA, evidence obtained or received as a consequence of an impropriety or contravention of an Australian law is not to be admitted unless on balance it is desirable to admit it. The section sets out the factors a court may take into account in determining whether to admit the evidence.

4 Broadly, the facts which will be alleged by the Crown should the matter proceed to trial are as follows: 1 The applicant collected $8000 from the Wadeye Community. He came to Darwin and purchased 400 grams of cannabis for $8000 from an unknown source. He placed the cannabis into a cloth bag and attached it under the rear bumper of his black Kia Sorrento. On the evening of 5 June 2021, he left Darwin with passengers Patrick Amital/Jongmin, Eva Bunduck, Danielle Bunduck and began driving back to Wadeye.

5 It is alleged that at around 11:30pm the applicant was stopped at a Random Breath Testing (‘RBT’) station on the northern side of Adelaide River. He provided a negative result when a random breath test was administered. He also tested negative when a random drug test was taken. When a police sergeant asked him where he was going, the applicant said they were travelling back to “Port Keats”. In response to questioning, one of the

occupants, Patrick Jongmin told police he had recently used cannabis. The Crown case is that police then formed a reasonable suspicion there were drugs in the car, on the basis of the conversations with the applicant and Jongmin. Additionally, suspicion was raised as it was late at night for travel from Darwin on a common supply route to Wadeye. The police officers concerned knew there was a high prevalence of cannabis use at Wadeye.

6 A search of the car, the applicant and other occupants was conducted, purportedly under s 120C of the Police Administration Act 1978 (NT). As well as other potentially relevant items associated with cannabis use and supply, under the car, 400 grams of cannabis was located in clip seal bags in a small cloth bag. 2 No alcohol was found.

7 The application for exclusion of the evidence is framed as follows: 3

a. That all evidence obtained as a consequence of the continued detention and search on vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer is objected to and should be excluded from evidence pursuant to section 138 of the Uniform (National Evidence Legislation) Act.

8 There was some modification of the grounds of objection towards the end of the voir dire, though principally the grounds are:

• a. That the continued detention of the vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021

  by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer pursuant to s 238 of the Liquor Act 2019 (NT) was unlawful; and

• b. That the continued detention and search of vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer was improper as it began with police using the Liquor power for the ulterior purpose of investigating suspicions around drug offending, and that this ulterior use of the Liquor power is improper; and

• c. That the continued detention and search of the vehicle CE23RO and passengers James Amital and Patrick Jongmin on 5 June 2021 by Sergeant Kenneth Bradshaw, Acting Sergeant Alan Green, Constable Jimmy Parimeros, and Constable Gemma Farmer pursuant to s 120C of the Police Administration Act 1978 (NT) was unlawful as there were no reasonable grounds for the continued detention or search of the vehicle or the continued detention of both James Amital and Patrick Jongmin.

9 The Crown opposed exclusion of the evidence on all of the grounds advanced by the applicant. Counsel for the Crown submitted: evidence on the voir dire would show the applicant was stopped by police at a random breath testing station at Adelaide River; that police indicated the car would be searched, and as a result the occupants were removed from the car. 4 The applicant returned a negative test to both the random breath test and saliva drug test. The Crown relied on the police powers contained in s 29AAB of the Traffic Act 1987 (NT) to stop the car and require the tests and on ss 237–239 of the Liquor Act (2019) NT which allows police to stop, search and

detain a vehicle or person, if it is suspected on reasonable grounds that a forfeiture...