The Queen v Baker

• Jurisdiction: Northern Territory
• Judge: Brownhill J
• Judgment Date: 11 February 2021
• Neutral Citation: [2021] NTSC 11
• Docket Number: FILE NO: 21851049
• Court: Supreme Court

[2021] NTSC 11

SUPREME COURT OF THE NORTHERN TERRITORY

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

JUDGMENT OF:

Brownhill J

FILE NO: 21851049

Between:

The Queen

Appellant

and

Rachel Baker

Respondent

REPRESENTATION:

Counsel:

Appellant: N Loudon

Respondent: M Thomas

R v Gehan [2019] NTSC 91, applied.

George v Rockett (1990) 170 CLR 104; Prior v Mole (2017) 261 CLR 265; R v MacKenzie [2103] 3 SCR 250; R v Nguyen (2013) 117 SASR 432; Rigby v Mulhall [2019] NTSC 70; Walsh v Loughnan [1991] 2 VR 351, referred to.

Evidence (National Uniform Legislation) Act 2011 (NT) s 138

Misuse of Drugs Act 1990 ss 5(1), 8(1)

Police Administration Act 1978 (NT) s 120C

EVIDENCE — Admissibility of evidence — whether evidence obtained from police search of vehicle should be excluded — s 135 of Evidence (National Uniform Legislation) Act 2011 (NT) — whether police search of vehicle lawful — s 120C of Police Administration Act 1978 (NT) — reasonable grounds to suspect a dangerous drug may be found — police officer found to have subjectively held suspicion — facts found to be sufficient to induce reasonable grounds of suspicion in a reasonable person — police officer's experience capable of informing suspicion — information in intelligence reports capable of informing suspicion — time, place and circumstance may be used in development of reasonable suspicion.

REASONS FOR DECISION

(Delivered 11 February 2021)

Background

1 The accused is charged on indictment with supplying a commercial quantity of cannabis plant material contrary to s 5(1) of the Misuse of Drugs Act 1990 (‘MODA’) (Count 1), and with possessing $32,100 in cash being property obtained from the supply of cannabis plant material contrary to s 8(1) of the MODA (Count 2). The maximum penalties for the offences are imprisonment for 14 years and 25 years respectively.

2 The Crown alleges that the accused and Steven Tipungwuti-Peris (‘the co-accused’) were in a relationship, residing in Darwin. The accused grew up in Galiwinku on Elcho Island. Between January 2017 and September 2018, the accused and the co-accused sourced commercial quantities of cannabis and arranged for it to be sent, by various means, to Galiwinku for supply. From time to time, they would travel to Galiwinku, stay there and supply cannabis themselves from the house they stayed in. When they were not in Galiwinku, they would also have others supply cannabis in the community on their behalf. If they were in Galiwinku, the accused would take the cash from the supply of cannabis back to Darwin with her on her person. If they were not in Galiwinku, the accused and co-accused used various means to obtain the proceeds from the sale of the cannabis. On 22 May 2018, the accused booked for herself, the co-accused and two other persons a charter flight from Galiwinku to Jabiru. They travelled to Jabiru and were met there by the co-accused's uncle, who drove the four of them from Jabiru to Darwin.

3 As the vehicle approached Corroboree, it was stopped by Police. They conducted a random breath test on the driver. The co-accused was sitting in the front passenger seat and the accused was sitting in the back seat with the other two people who flew from Galiwinku on the charter flight. The occupants were removed from the vehicle and Police conducted a search of the vehicle in the exercise of the power conferred by s 120C of the Police Administration Act 1978 (NT). In the course of that search, Police located three packages inside some women's shoes that were in a sports bag belonging to the accused in the boot of the vehicle. The packages contained $32,100 in cash, contained in clip seal bags bound with rubber bands and tightly duct taped. The cash was seized and is the subject of the charge in Count 2.

The accused's objection

4 At a voir dire held on 14 January 2021, the accused contended that all evidence obtained as a consequence of the search of the vehicle, particularly in relation to the $32,100 in cash, should be excluded pursuant to s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’). The grounds of the objection were that the search of the vehicle was unlawful because Police had no reasonable grounds to suspect that a dangerous drug might be found in the vehicle.

Ruling

5 At the voir dire, I concluded that there were reasonable grounds to suspect that a dangerous drug may be found in the vehicle, and ruled that the evidence obtained as a consequence of the search of the vehicle bearing registration “BP3GEEL” on 22 May 2018 is not excluded by operation of s 138 of the ENULA. These are my reasons for doing so.

The operation of s 138 of the ENULA

6 Section 138(1) of the ENULA provides that evidence that was obtained improperly or in contravention of an Australian law, or 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.

7 “Impropriety” is not defined in the ENULA. Essentially, the conduct in question must be inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement, and it must be clearly and significantly inconsistent with those standards. 1

The search of the vehicle

8 Section 120C of the Police Administration Act provides:

Searching without warrant

A member of the Police Force may, without warrant, stop, detain and search the following:

• (a) an aircraft, ship, train or vehicle if the member has reasonable grounds to suspect that a dangerous drug, precursor or drug manufacturing equipment may be found on or in it;

• (b) any person found on or in an aircraft, ship, train or vehicle being searched under paragraph (a);

• (c) a person in a public place if the member has reasonable grounds to suspect that the person has in his or her possession, or is in any way conveying, a dangerous drug, precursor or drug manufacturing equipment.

9 The exercise of the power required the searching police officers to have reasonable grounds to suspect that a dangerous drug may be found in the vehicle. Those grounds must have existed in both the subjective and objective senses, which I will come to. If there were not grounds in both senses, the search was “improper” within s 138 of the ENULA. 2

10 The section requires reasonable grounds for a suspicion, not a belief. Suspicion and belief are different states of mind, and suspicion is a state of conjecture or surmise where proof is lacking. 3 Suspicion denotes a less positive state of mind than belief, but some factual basis for the suspicion must be shown because 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. 4 To be reasonable grounds, there must exist some facts which are sufficient to induce the state of mind (suspicion) in a reasonable person. 5 The question is not resolved by reference to the rules of evidence or the application of a test related to the balance of probabilities. 6 The evaluation of the

reasonableness of the suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. 7

11 The accused relied on the case of Rigby v Mulhall [2019] NTSC 70, in which Riley AJ found that there were insufficient grounds on which to reasonably suspect that a dangerous drug may be found in a vehicle. The grounds proffered were that the vehicle was being driven by the respondent (the defendant) who was the subject of police intelligence information to the effect that he was involved in transporting drugs between Palmerston and Katherine and the rural areas at night; the vehicle was driving around 3am; the respondent had a day job; and the vehicle was seen leaving a service station. The Court found the quality of the intelligence information was subject to serious concerns. It held that the fact that the respondent's wife and baby were also in the vehicle, dressed in pyjamas, was inconsistent with a suspicion that the respondent was undertaking a drug run and consistent with a late night trip to the service station for some domestic need.

12 As CJ Grant observed in R v Gehan [2019] NTSC 91 at [43], there is limited utility in examining the...