Varty v Director of Public Prosecutions (NSW)

By amended summons filed on 23 September 2014 Craig Varty appealed against a conviction entered by Magistrate Gilmour at the Downing Centre Local Court on 14 May 2014 for possessing a prohibited drug contrary to s 10 of the Drugs Misuse and Trafficking Act 1985 (NSW) (DMTA). The appeal was brought pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal is of right on a question of law alone: subs 52(1).

Although the amended summons does not specify the grounds of appeal, it was accepted by Mr Kell, who appeared on behalf of the Director of Public Prosecutions (NSW) (DPP), that the grounds relied upon were those identified in the plaintiff’s written submissions as follows:

Although the second and third grounds raised questions of fact that were not open for this Court to review, the first ground involved a question of law, since the plaintiff contended that her Honour had had regard to an irrelevant consideration. The second ground also involved a question of law since the application of the correct standard of proof is a question of law.

On Thursday 4 September 2012, at about 2.20pm the plaintiff was a passenger in a red Holden Commodore sedan which was being driven by Jonathan McCarrie. The car was travelling northbound on the Pacific Highway near Chatswood. Police in an unmarked car noticed that the Commodore was being driven erratically. Senior Constable David Wilson used his mobile phone to advise police, who were travelling ahead in another unmarked police car, that the Commodore was being driven dangerously. He saw the Commodore swerve into a 7/11 service station for a short period before continuing along Pacific Highway.

Senior Constable Wilson recognised Mr McCarrie and informed Senior Constable Sleigh, the driver of the second police vehicle. Senior Constable Hassett, the passenger in that vehicle, also recognised him in connection with other police matters in the Forster area. Senior Constable Hassett asked Senior Constable Sleigh to pull the Commodore over. He activated the car’s flashing lights and brought the Commodore to a stop on the side of the road.

Senior Constable Hassett went to the passenger door of the Commodore. He recognised the plaintiff and noticed that his hands were shaking and he was sweating. By this time the first police vehicle had stopped. Senior Constable Wilson approached the driver’s side of the Commodore and saw the plaintiff put his hands down in front of him in the direction of the foot well of the vehicle.

Senior Constable Hassett told Mr McCarrie and the plaintiff that he believed that they may be in possession of illegal drugs and proposed to search them and the Commodore. Senior Constable Hassett opened the passenger door and the plaintiff started to get out. Senior Constable Wilson saw that the plaintiff was carrying a pair of black jeans. He saw him move both of his hands behind his back and vigorously shake a container. Numerous particles of substance fell to the ground. Senior Constable Wilson called to other police and said, “It’s in his hands.” The plaintiff did not relinquish his grip on the container. After a physical altercation, the plaintiff was arrested and collected the particles collected from the ground. When the Commodore was searched, glass smoking implements and wallet, containing the plaintiff’s identification, and two plastic bags of a white crystalline substance, accepted to be methylamphetamine, known as ice, were found.

The plaintiff was charged with deemed supply of methylamphetamine under s 25(1) of the DMTA, with an alternative charge of possession under s 10(1) of the DMTA. He was also charged with resisting an officer in the execution of his or her duty: s 58 of the Crimes Act 1900 (NSW).

The matter was heard summarily before Magistrate Gilmour over four days: 2 September 2013, 26 November 2013, 10 March 2014 and 14 May 2014.

The plaintiff objected to the evidence of what occurred after the Commodore was stopped on the ground that it had been unlawfully obtained because the officer did not have reasonable grounds to suspect that the occupants of the vehicle were in possession of prohibited drugs.

After Senior Constables Wilson and Hassett had given evidence on the voir dire the Magistrate gave an ex tempore judgment, on 10 March 2014, in which she held that the search was illegal as Senior Constable Hassett did not have reasonable grounds to suspect, within the meaning of s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), that the plaintiff had a prohibited drug within his possession or control. At the conclusion of this part of the decision, her Honour said:

Her Honour then heard submissions on whether the evidence that had been obtained after Senior Constable Hassett had decided to search the Commodore should be admitted notwithstanding that it had been unlawfully obtained: s 138 of the Evidence Act 1995 (NSW). Her Honour’s reasons for admitting the evidence included the following:

Following this ruling, the prosecution withdrew the deemed supply charge (subs 25(1) of the DMTA) on the express indication to the Court by the defence that the plaintiff would not be called to give evidence and that the defence would concede that, on the evidence, the Court would find the accused guilty of possession of the drugs (subs 10(1) of DMTA). Thus, while the plaintiff did not plead guilty, he accepted that the offence had been made out.

The plaintiff was, accordingly, convicted of the possession charge and placed on a good behaviour bond for 15 months pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The resist officer charge was dismissed, in accordance with her Honour’s finding that the search was not lawful.

Section 7 of the DMTA relevantly provides:

Subsection 10(1) of the DMTA provides

Subsection 25(1) of the DMTA provides:

Section 29 of the DMTA:

The DMTA (s 3 and Sch 1) provides that the traffickable quantity of methylamphetamine is 3g.

Section 21 of LEPRA provides in part:

Section 36 of LEPRA relevantly provides:

Section 138 of the Evidence Act relevantly provides as follows:

Section 142 of the Evidence Act provides:

Ms Manuell SC, who appeared on behalf of the plaintiff, contended that her Honour erroneously conflated two issues and used the evidence of the “intervening fact”, namely the plaintiff’s dropping of the drugs, to determine both whether there were reasonable grounds for suspicion (whether the evidence had been lawfully obtained) and whether the evidence ought be admitted under s 138 (1). She submitted that the Magistrate was prohibited from taking the “intervening fact” into account in deciding whether it ought to be admitted.

Ms Manuell submitted that the evidence of the “intervening fact” was obtained as a result of the unlawful search because, had it not been for the plaintiff having been directed to get out of the car, the drugs would not have been dropped.

Ms Manuell conceded in oral submissions that the probative value of the evidence and its importance was high. She accepted that the plaintiff’s conduct amounted to a “consciousness of guilt” but submitted that this was irrelevant to the question whether the evidence, which had been found to be unlawfully obtained, ought be admitted.

Mr Kell submitted that it was open to her Honour to have regard to the evidence that the plaintiff was observed attempting to dispose of the drugs before the search was effected. Mr Kell contended that the so-called “intervening act” might fall within subs 138(3)(a), (b) or (c) but that it was otherwise relevant to the exercise of the discretion in s 138(1) of the Evidence Act which did not restrict the matters that could be taken into account to the matters listed in s 138(3).

Mr Kell contended that the plaintiff’s conduct amounted to a consciousness of guilt which would make it easier to prove the charge of deemed supply, or alternatively, possession because it would assist the police to prove that the drugs had been in his possession and that he was aware that the drugs were on his person (which is why he needed to get rid of them).

Ms Manuell contended that, although the Magistrate had referred to the gravity and weight of the contravention, her Honour gave too much weight to the “intervening act”. She asserted that her Honour’s decision “turned largely” on the attempted disposal of the drugs, that her Honour gave “primacy” to this factor and that it “tipped the balance” in favour of admission of the evidence.

She also contended that the Magistrate erred in applying the criminal standard (beyond reasonable doubt) to the determination whether the contravention had been deliberate or reckless, when the applicable standard, as provided for by s 142 of the Evidence Act was the civil standard, or proof on the balance of probabilities.

In support of this submission Ms Manuell relied on an extract from the debate between Bar and Bench in the course of argument, which I propose to disregard since, as I understood Ms Manuell to concede in oral argument, such exchanges are an orthodox means of testing propositions, rather than reflecting a considered view arrived at on the basis of evidence and submissions. They are no substitute for reasons (Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at [19]) and ought not to be taken to amount to reasons.

Ms Manuell also relied on the following extract from her Honour’s oral reasons, and emphasised the passages which I have italicised below:

Ms Manuell submitted that the words chosen by her Honour revealed that the criminal standard had been applied contrary to s 142 of the Evidence Act which makes the civil standard applicable. She contended that this was a material error because of the importance of the factor in s 138(3)(e), namely whether the contravention was deliberate or reckless, and referred to R v Dalley [2002] NSWCCA 284 at [93] per Simpson J.

Mr Kell submitted that a fair reading of her Honour’s reasons indicated that her Honour did not misapprehend the appropriate standard of proof to be applied.

Ms Manuell submitted that her Honour did not sufficiently address the seriousness of the deemed supply offence (s 25(1)) and did not address the seriousness of the lesser offence (s 10) at all. She submitted that the public interest in admitting unlawfully obtained evidence varies with the seriousness of the offence: R v Dalley at [1]-[7] per Spigelman CJ, Blanch J concurring. She contended that the amount of methylamphetamine was barely above the traffickable quantity and, accordingly, its seriousness ought to be regarded as relatively low. She submitted that this ought to have inclined the Magistrate to refuse to admit the evidence.

Mr Kell contended that it was not necessary for her Honour separately to address the seriousness of the s 10 offence since the primary charge was brought under s 25(1). He submitted that it was open to her Honour to assess the seriousness of the offence in the way in which her Honour did.

Where an objection is taken to evidence on the grounds that it has been unlawfully obtained, the Court must consider: first, whether the evidence has been unlawfully obtained; and, if so, whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way. It is not necessary to address the first step since in the present case there was no challenge to her Honour’s finding that the evidence of what had occurred after the car was stopped had been unlawfully obtained.

The second step involves the Court weighing up the desirability of admitting the evidence against the undesirability of admitting it. The wording of subs 138(3) indicates that the list is non-exhaustive (“Without limiting the matters that the court may take into account”) and that each of the items on the list is a mandatory relevant consideration (“it [the Court] is to take into account. . . ”). Section 138 does not specify any matters which are not to be taken into account. Accordingly, a matter will only be an irrelevant consideration if the statutory wording, as a matter of necessary implication from its subject matter, scope and purpose, prohibits a decision-maker from taking it into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 (Peko-Wallsend) at 40 per Mason J, referring to Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505 per Dixon J.

I do not accept Ms Manuell’s argument that her Honour did not consider that the drugs were obtained as a consequence of the unlawful search. The whole premise of the decision which her Honour had to make was that the evidence (of the plaintiff attempting to conceal the drugs and then dropping them) had been unlawfully obtained. Although some of what her Honour said could be read as distinguishing between conduct that occurred before the search had got underway and the search proper, the way the Magistrate approached the question made it clear that all of the evidence, from the time the occupants got out of the car, had been unlawfully obtained.

It is difficult to see how the so-called “intervening fact” could be irrelevant to the discretion conferred by s 138(1). It would seem to fall within the description of the “nature of the subject matter of the proceeding” in subs 138(3)(c) as well as coming within subs (3)(a) and (b). However, even if it is not regarded as falling within the list in subs 138(3), I do not accept that it is not otherwise relevant or that the Magistrate was not entitled to take it into account. The subject matter, scope and purpose of the discretion conferred by s 138 are such as to render significant the context in which the illegality occurred. But for what her Honour found to be an illegal search, the evidence of Mr Varty trying to conceal and then dropping the prohibited substance when he got out of the motor vehicle would not have been obtained.

The evidence was also relevant because of the way the provisions relating to deemed supply operate. Section 3(1) of the DMTA provides for a wider definition of supply, which includes "keeping or having in possession for supply". Section 25(1) of the DMTA provides for the offence of supply of a prohibited drug. Section 29 of the DMTA relevantly deems possession of an amount not less than the traffickable quantity of a prohibited drug (3g in the case of methylamphetamine) to be supply.

Accordingly, Mr Varty could be convicted of deemed supply (count 1) if the Magistrate was satisfied beyond reasonable doubt that the prohibited drugs were in his possession. Proof of this fact was assisted by Mr Varty’s consciousness of guilt (which Ms Manuell accepted he exhibited by trying to conceal and then dropping the drug) since it tended to show that the drugs were in his possession rather than in Mr McCarrie’s possession: see R v Nguyen [2001] VSCA 1 (disposal of a gun).

In my view, the Magistrate was entitled to take into account the evidence of the attempted concealment and the dropping of the drugs in the exercise of the discretion under s 138(1) of the Evidence Act. Accordingly, the first ground is not made out.

Where reasons are given ex tempore, it is necessary to apply a certain latitude to them and to resist adopting too pedantic an approach: Acuthan v Coates (1986) 6 NSWLR 472 at 479A and 485C-D per Kirby P (Glass and Mahoney JJA agreeing). This is not to say that a court reviewing such reasons should refrain from intervening to correct error, if error be shown, but rather to accept that, when reasons are expressed ex tempore, there is no opportunity to correct or remove infelicities of expression which may be taken to suggest, if the reasons are not read fairly as a whole, some mistaken apprehension of the facts or the law.

Having read the Magistrate’s reasons as a whole, I do not consider that her Honour’s use of the words “benefit of the doubt” indicate that her Honour was applying the criminal standard of “beyond reasonable doubt”. Although the civil standard applies (s 142) of the Evidence Act, so too does the doctrine of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361–362, which is not excluded by the Evidence Act: Habib v Nationwide News Pty Ltd [2010] NSWCA 34; 76 NSWLR 299 at [338] per Hodgson, Tobias and McColl JJA (which dealt with s 140, which is, on this point, relevantly indistinguishable). The so-called Briginshaw doctrine has the effect that, although the standard of proof is not altered where the matter to be proved involves fraud, criminal conduct, or, as in the instant case, unlawful conduct, the strength of the evidence necessary to satisfy the tribunal of fact on the balance of probabilities may be greater because of the seriousness of the allegation.

There was no finding that Constable Hassett did not believe there to be grounds to search the vehicle and its occupants. Her Honour recited his evidence as to his grounds for stopping and searching the car in the following passage from her reasons for determining that the search was unlawful:

What made the search unlawful was that her Honour found that there were, objectively, no reasonable grounds to suspect that there were prohibited drugs in the car, principally because of the lack of written data to back-up the factors identified by Senior Constable Hassett. However, her Honour did not find that Senior Constable Hassett did not believe the grounds which he identified as his grounds for suspicion.

Her Honour’s reference to “benefit of the doubt” ought, in my view, be taken to indicate her Honour’s appreciation of the gravity of the allegation that a police officer acted either deliberately or recklessly in contravention of the law and the effect of the Briginshaw doctrine on its proof on the balance of probabilities. Although her Honour did not expressly refer to this, it is implicit in the reasons that the determination of whether grounds are reasonable grounds is one about which minds may differ. The use of the word “doubt” in this context does not, in my view, incorporate the criminal standard, but rather indicates that her Honour was not persuaded that Senior Constable Hassett did not consider the grounds he identified to be reasonable (which would have made the illegality deliberate) or that he did not care whether the grounds he identified were reasonable (which would have made the illegality reckless).

The weight to be given to relevant considerations is pre-eminently a matter for the decision-maker. The weight given to such considerations does not give rise to a question of law, unless the decision is manifestly unreasonable: Peko-Wallsend, at 41-42 per Mason J. It was not contended that the Magistrate’s decision was manifestly unreasonable (in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 223-234 per Lord Greene MR).

Although the submissions as to the weight accorded to relevant factors do not concern a question of law, I should say for completeness that I do not accept the plaintiff’s submission that her Honour’s decision turned largely on the evidence of the so-called “intervening act”. While it was a factor in her Honour’s decision (and, in my view, a relevant factor), and did “play a part” in her Honour’s decision I do not consider that it can be said to have been the determining factor. Rather, her Honour’s reasons indicate that it was but one of several relevant considerations that were taken into account in forming the judgment required of her Honour by s 138(1) of the Evidence Act, which confers, by its nature, a wide and flexible discretion: Em v The Queen [2007] HCA 46; 232 CLR 67 at [95] per Gummow and Hayne JJ and Employment Advocate v Williamson [2001] FCA 1164; 111 FCR 20 at [78] per Branson J.

Her Honour’s reasons indicate that she considered whether the contravention was deliberate or reckless and was not satisfied that it was either. For the reasons given above, this finding did not involve any error of law since I consider that her Honour applied the requisite standard under s 142 of the Evidence Act. The weight to which her Honour gave the finding was a matter for her Honour and does not give rise to a question of law. The second ground is not made out.

It is apparent from the extract of her Honour’s reasons set out above that her Honour considered the objective seriousness of an offence under s 25(1) of the DMTA. Although her Honour did not specifically address the seriousness of the alternative count under s 10(1), there was no need for her to do so. If the evidence was admitted, the threshold quantity for an offence under s 25(1) had been exceeded. There was no reason for her Honour to contemplate, much less predict, the arrangement that was eventually arrived at by agreement (that Mr Varty would not contest the s 10 charge) following her Honour’s ruling. The weight to which her Honour gave her assessment of the objective seriousness of the s 25(1) offence was a matter for her Honour and does not give rise to a question of law. The third ground is not made out.

The decision which the Magistrate was required to make was discretionary. The principles in House v The King [1936] HCA 40; 55 CLR 499 apply. The plaintiff has failed to make out any basis for a finding that her Honour had regard to any irrelevant matter or failed to consider a relevant matter or otherwise made an error of law (or indeed fact). The conclusion which her Honour reached was open to her in the exercise of the discretion conferred by s 138(1) of the Evidence Act.

The DPP did not seek costs of the proceedings. Mr Kell, who appeared on behalf of the DPP, confirmed that there should be no order as to costs with the intent that each party should bear his own costs of the proceedings.

For the foregoing reasons I make the following orders: