By Paul Gregoire and Ugur Nedim
At about half past midnight on 28 January 2018, NSW police constable Ward, senior constable Aston and probationary constable Pranic were patrolling the Sydney suburb of Paddington in an unmarked car, which had been driving behind a grey Mazda, prior to turning onto another street.
However, as Ward later claimed, he then spotted in his rear-view mirror that the Mazda “from a stationary position, accelerate harshly”. So, he turned his car around, and on driving up behind the other on Hopetoun Street, he turned on his vehicle’s flashing blue and red lights.
As the Mazda stopped, Ward got out of the police car holding a random breath test (RBT) device ostensibly to use on the driver, Chloe Large, although he never did this, while the two other officers got out and walked over to the passenger side of the car, where Matthew Copeland was seated.
Ward later claimed that Large’s answer to his questions as to what she was doing were inconsistent and she appeared “red-faced” and “watery-eyed”, whilst her hands were shaking. Incidentally, it is well established under the law that such observations are not enough, by themselves, to justify a search, whether a personal search or the search of a vehicle.
However, the officers went ahead and ordered the occupants out of the car and then searched it, which led to a wallet containing illegal drugs being found in the passenger side door, and three more inside a woman’s handbag, which also contained $13,420.
Amongst four phones found in the car, Large and Copeland were said to both be in possession of similar white Samsungs, which, when later searched, were found to contain messages having been sent between them, and it was suggested these indicated discussion of supplying drugs to others.
The wallets contained 88 MDMA capsules, weighing in at 8.38 grams and 18 bags of coke, containing 12.41 grams of the drug. And while the police found Copeland’s DNA on some bags, there was never any mention made of Large’s DNA being found on any of the suspect items, including the phones.
Deny everything
Large pleaded not guilty to three charges in the NSW District Court on 25 March 2019. These included one count of dealing with the suspected proceeds of crime – that being the cash – contrary to section 193C of the Crimes Act 1900 (NSW), which carries a maximum penalty of 3 years prison.
The further charges were two counts of supplying an indictable quantity of a prohibited substance, contrary to section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). This offence, when tried in the District Court, carries a maximum of 15 years inside and/or a fine of $22,000.
According to her testimony, Large was in possession of an iPhone located in the car but had no idea about the Samsung. And as to accelerating her vehicle, that didn’t happen. She also had no knowledge of the drugs, nor the cash and she insisted she wasn’t involved in any drug operation.
The accused did claim that officers didn’t caution her, despite their stating they had. She said Ward was intimidatory, in terms of his close physical presence and other general conduct. And the woman, who had no priors, further stated that she was never told she was being placed under arrest.
NSW District Court judge Stephen Norrish set out that the issues involved in the trial included whether Large gave conflicting versions of what she was up to with Copeland, as well as a number of large discrepancies in the officers’ versions of events.
But most pertinent of all was whether the NSW police officers had any justification to pull the car over in order to proceed with the questioning and the search of the vehicle.
Stopping and searching vehicles
Schedule 3 of the Road Transport Act 2013 (NSW) permits officers to pull over a car to conduct a random breath test for alcohol. It also allows an officer to speak to the person prior to conducting it. But it doesn’t provide power to pull someone over for the purposes of criminal investigation.
The power to conduct warrantless searches of people or vehicles is contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA).
Section 36 of the LEPRA provides that police may stop, search and detain a vehicle without a warrant if they have a reasonable suspicion that it contains stolen items, has been used in an offence, is carrying anything used, or to be used, in an offence, or is carrying any illicit substances.
In his 5 April 2019 judgment, Judge Norrish outlines that the LEPRA doesn’t provide police with any power to question a citizen prior to arrest, or to detain or arrest them in order to question them. And further an individual must be cautioned by officers prior to any questioning.
So, if the car was pulled over for the purposes of RBT, there was no authority to conduct the questioning that led to the search, and if the stop wasn’t for testing, there was no lawful authority to stop it, as the officers provided no reasonable grounds of suspicion that led them to pull it over.
Reasonable suspicion
In order pull over and search a vehicle, NSW police must hold a reasonable suspicion as to the potential wrongdoing set out in the LEPRA; otherwise, the search is illegal under the law.
The NSW Court of Criminal Appeal’s 2001 case R versus Rondo is the key authority pertaining to what constitutes a reasonable suspicion in these situations.
The case of Rondo sets out that there are three aspects to holding a reasonable suspicion. There must be “less than a reasonable belief but more than a possibility”, with a factual basis being shown for this, along with the information in the officer’s mind at the time that led them to act.
Whilst the NSW Court of Appeal’s 2012 case Hyder versus the Commonwealth underscored that “what constitutes reasonable grounds for forming a suspicion or a belief must be judged against ‘what was known or reasonably capable of being known at the relevant time’”.
In Rondo, a young man was pulled over for leaning over and placing something in the glovebox of the sports car he was driving. This didn’t constitute a reasonable suspicion. And as an example of what might have, “a knife with blood on it or a housebreaking implement” was cited by the court.
And 2016’s R versus Buddee, which proceeded in the District Court, set out that as far as the power to pull a driver over for RBT is concerned, it was clear that the parliament had distinguished this motor traffic power from those that relate to criminal investigations.
As to the current case, Judge Norrish said there was no assertion that Large’s vehicle was pulled over for anything but an RBT, and in the descriptions provided as to her driving, there was nothing that would have led officers to consider she was intoxicated.
Further, Ward’s actions on approaching the driver of the car weren’t consistent with his state of mind, as he didn’t attempt to conduct the RBT. “The officer’s complete failure to conduct the RBT is more consistent with a focus upon “proactive” policing and investigation,” his Honour maintained.
“The strongest indicator of intention is action; the action being, not conducting a breath test for a long enough period to conduct questioning… towards the possibility of some offence being committed,” he added. And if that was the case, “then there is no other lawful basis for the stop”.
As to the presence of the drugs
Rondo found that an unlawful stop doesn’t automatically discount subsequent evidence found. And Judge Norrish set out that while finding the drugs in Large’s car must be taken into account, the discovery of them doesn’t retrospectively justify unlawful and improper conduct.
His Honour further said that he didn’t accept all of Large’s reasoning as to how she came to be driving upon the particular road she was on in terms of where she said she was heading to, and he did accept that something in his rear-view mirror drew Ward’s attention to her car.
The judge then pointed to section 138 of the Evidence Act 1995 (NSW), which stipulates that evidence obtained “improperly or in contravention of Australian law” is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting it in such circumstances.
“I have concluded that the accused has established that the ‘stopping’ of her motor vehicle and her continued detention up until the caution was administered was certainly improper and likely unlawful,” Judge Norrish determined.
His Honour further stated that while the evidence found was “highly probative”, the officers’ contravention of the law was significant and “at least reckless”. And these police powers have been established to maintain “a free society” where law enforcement doesn’t arbitrarily search citizens.
“I have concluded that evidence of the questioning of the accused in Hopetoun Street Paddington and that of the search of the motor vehicle driven by the accused, as well as the ‘product’ of that search, not be admitted,” his Honour ruled, which meant that Large walked free.
