R v Okwechime [2007] ACTSC 56 (4 July 2007)

Last Updated: 28 July 2008

R v EMEKA OKWECHIME [2007] ACTSC 56 (4 July 2007)

EVIDENCE - Admissibility - search of person - whether police had power to request search.

Crimes Act 1900, s 207, s 212

R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562

EX TEMPORE JUDGMENT

No. SCC 260 of 2006

Judge: Connolly J

Supreme Court of the ACT

Date: 4 July 2007

IN THE SUPREME COURT OF THE )

) No. SCC 260 of 2006

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

EMEKA OKWECHIME

ORDER

Judge: Connolly J

Date: 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The trial proceed in front of a jury on 5 July 2007 in relation to each of the five counts on the indictment.

1. This is an application to exclude certain evidence in the forthcoming trial of Mr Emeka Okwechime. Mr Okwechime was committed for trial in this Court in relation to a series of offences said to arise from incidents in the early hours of 26 August 2006.

2. He is charged with trafficking a controlled drug being MDMA, commonly known as Ecstasy, simple possession of the same drug, causing harm to a public official, a police officer with whom, it is alleged, he was involved in a punch-up, and resisting a public official. He is further charged on two counts relating to two separate officers, one being Constable Johnston and the other being Constable (now Sergeant) Serbatoio.

3. The matter has had some difficulties in getting to trial, but in the scheme of things for an August 2006 matter to be coming on for trial in July 2007 it is not in the slow lane. Certainly in May 2007 when it was on for directions it was clearly indicated that the first day of the trial which is today, 4 July, should be by way of a voir dire to deal with the question of admissibility of evidence. Accordingly, the jury was directed to attend court tomorrow morning as today was set down to deal with the question of the evidential issue.

4. The argument, shortly put, is that the police were not authorised or did not have sufficient lawful authority to search the accused and, moreover, that they further erred in arresting the accused. It is necessary to understand the nature of the application to briefly summarise the facts which are essentially consistent with the case statement that was filed in this matter.

5. The Crown case is that in the early hours of the morning of 26 August 2006 Australian Federal Police, on beat duties in Canberra Central in Civic, were approached by two persons who police described as being apparently distressed. It was about 4.20 in the morning and these two persons, identified as Mr De Wit Tesfamichael and Ms Krystyna Kielich, approached the police.

6. They were observed to be puffy about the face, had inflamed faces, were teary and, according to police evidence, had been distressed. They claimed that they had been assaulted by a person in a club known as Club Nitro by way of having some substance sprayed in their face.

7. There was some confusion with police witnesses as to precisely what was said. It seems to me to be well-established that Mr De Wit Tesfamichael claimed that he had been sprayed in the face by a substance by a named person, Mr Emeka Okwechime, the accused now before the court. Ms Krystyna Kielich said that she had been attacked by the same person whom she, I am satisfied, described as Peter's son or Peter's older son, referring to Mr Peter Okwechime, the proprietor of the premises.

8. Some of the police witnesses had a recollection that she had named the accused. Her clear evidence was that she had never named the accused, that she simply knew him as the older son of the proprietor.

9. Little turns on that conflict within the police evidence other than generally being consistent with a genuine recollection, however potentially erroneous rather than any attempt to concoct evidence. The police, on the evidence that has emerged before me, were confronted with two persons who claimed that they had been sprayed in the face by a chemical substance. This, it seems to me, is clearly a serious matter.

10. Capsicum spray, or CS spray, however it is described, or any form of chemical agent sprayed in the face is capable of causing serious injury to a person. The evidence before me is that the police observed that they were in distress, took the matter seriously, radioed the Police Communications Centre and summonsed an ambulance, although the evidence would seem to suggest that the ambulance was not needed.

11. The beat patrol constables, to whom the complaint had been originally made immediately drew the matter to the attention of a detective sergeant and a senior constable, now Sergeant, who were also out and about that morning.

12. They formed the view that they ought to further investigate the matter, a view it seems to me that was entirely proper. An allegation of any person being sprayed in the face by a chemical agent, it seems to me, is a serious matter.

13. The evidence is that police went to the front door of the club which was locked. A decision was then taken that the police would stay at the front door and Detective Sergeant Hains and Sergeant Serbatoio would go around to the back door. They apparently were aware, as you would expect they would be as beat officers, that there was a rear entrance to the premises and a buzzer that can be pressed which would draw attention.

14. The evidence is that they pressed the buzzer, that an employee of the club came to the door and consensually admitted them to the premises, there was no challenge to that. They were aware of the identity of Mr Emeka Okwechime, the accused. They wanted to see him. They went into the general area of the club where they say they saw him with a number of other male persons.

15. The police evidence is that they then approached him and requested a search. The challenge to this goes to the extent of police power to search without a warrant. It is certainly the case, and Dr Boss, for the accused, very eloquently put the case that courts should be vigilant to protect individual civil liberties and be very, in effect, suspicious of police powers to search without a warrant.

16. That certainly is the law, if anything magnified by the impact of the Human Rights Act in this jurisdiction. The case of R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 is a good example, Rondo being the case in the New South Wales Court of Appeal where the court very appropriately prevented the admission of evidence that was obtained by a police decision in effect to stop somebody who looked suspicious and ask them questions. They conducted a search of their vehicle.

17. This, it seems to me, is not such a case. This is not some general position where police are acting on some hunch or acting on some observation to want to proceed with a warrantless search of a named individual. This is a situation where the police observed two members of the public who were, clearly in the police's view, injured and, clearly in the police's view, displaying evidence of some form of injury by way of their inflamed faces and tears.

18. These two members of the public, one of whom gave evidence today, the other of whom I am told is currently overseas, claimed to have been assaulted by a named and identified person, one of those claimed victims of the assault was able to give a name and the other was able to identify the present accused as the older son of the proprietor of the nightclub.

19. It seems to me that the police could be legitimately criticised if they did not take some action in relation to a claim by members of the public in the early hours of the morning that they had been assaulted by a named, identified individual by way of the application of a chemical spray to the face. Section 207 of the Crimes Act 1900 (the Crimes Act) gives the police power to conduct a stop and search if the police officers suspect, on reasonable grounds, the person has in his/her possession a thing described in the Act relevant to an indictable offence.

20. It seems to me that where there is an allegation of the application of a chemical spray to the face in circumstances where there has been clearly identified damage to the person, police have reasonable grounds to believe that an indictable offence has been committed.

21. The two officers who went into the club to speak to the accused, being Detective Sergeant Hains and Constable Serbatoio, very properly, honestly and frankly, it seems to me, acknowledged at Dr Boss' examination that what they were searching for was a thing, and the thing that they were searching for was some kind of spray device. They described it as a chemical munition, and that possession of such a thing would be an offence, as Dr Boss states, which is a summary offence.

22. I am satisfied from their earlier evidence that the principal reason they went into the club was because of the complaints by two members of the public of, on its face, a significant assault. The application of a chemical agent to the face in such a way that it creates an inflammation of the face and tears amount, it seems to me, not only to common assault but prima facie to either assault occasioning actual or assault occasioning some other form of bodily harm, probably assault occasioning actual bodily harm.

23. Both common assault and assault occasioning are indictable offences. It is true that the Crimes Act also contains a summary offence of common assault. Dr Boss argues that by reason of the Human Rights Act, I should read down the police's power to invoke s 207 so that they will only be able to act on the lowest form of offence disclosed on the facts. I do not accept that the Human Rights Act has this effect.

24. It seems to me that in the circumstances of this case, where the allegation by two members of the public is of the application of chemical spray to the face causing obvious injury and distress to the individual, that is not conduct that could, on any reasonable grounds, be read down to the mere summary form of an assault. It seems to me that the police were right in having reasonable grounds to believe that a serious offence may have been committed.

25. I am therefore satisfied that police had appropriate power in the circumstances that in the early hours of the morning in central Canberra in the face of complaints by citizens of an apparently serious assault by a named individual known to police, to conduct a search of the person accused.

26. Mr Okwechime was, on the evidence, cooperative with the police at that point when they indicated that they wished to search him, and I am satisfied from the evidence that they said they wished to search him for the weapon.

27. There is, it seems to me, no obligation under s 207 to provide any form of caution in relation to a specific offence. The fact that they said they were looking for a weapon by way of a chemical munition, it seems to me, is entirely appropriate.

28. Mr Okwechime said he did not know what they were talking about and that he did not have anything. He was observed to be wearing a black bag and he cooperated by handing the bag to Detective Hains. Detective Hains' evidence was that he searched the bag. He first looked in the larger pocket but there was no weapon or chemical munition. He then looked in the smaller zippered section and observed a small red tablet which he described as being recognisable to him as a tablet consistent with being a form of ecstasy or the drug MDMA. At that point he arrested Mr Okwechime.

29. There is, quite properly, no challenge, or no point taken that a search, if it is properly initiated under s 207 somehow ceases to be appropriate if what is found is not the thing suspected but some other unlawful or illegal item.

30. In this case, the police evidence, which I accept, was that the search was initiated to look for a weapon by way of a chemical munition which, I am satisfied, answers the statutory definition of being a thing relevant to an indictable offence.

31. The indictable offence being the assault or more serious assault occasioning by way of the application of a chemical agent to the face. The police did not find such a thing, they never found a chemical munition, what they found was a pink tablet. But having lawfully conducted the search, as I find they did, there is no difficulty at all that they found an item. That item led to a decision by Detective Sergeant Hains to arrest Mr Okwechime. That was challenged as not complying with the appropriate process for arrest.

32. The Crimes Act, by s 212, does provide a significant guarantee of civil liberties by essentially requiring police to proceed by way of the lower form of criminal procedure, rather than arrest. It provides that a police officer may, without a warrant, arrest a person for an offence if the police officer suspects, on reasonable grounds, that the person has committed or is committing an offence. There is very properly no point taken that the discovery of the pink tablet indicated an offence may have been committed.

33. There are reasonable grounds to believe that a person is committing an offence, if the person is in possession of such a prohibited narcotic. However, that is not sufficient to justify an arrest. A police officer can only proceed by way of arrest, rather than summons if the police officer suspects, on reasonable grounds, proceedings by summons would not achieve one or more of the following purposes which are then enumerated as sub-clauses 1 to 6 of s 212(1)(b). They are ensuring the appearance of a person before a court in respect of the offence, and that is not called in aid here, and then preventing the repetition or continuation of the offence, preventing the concealment of or obstruction of evidence relating to the offence, preventing harassment of, or interference with a person who may be required to give evidence of proceedings in relation to the offence, preventing fabrication of evidence in respect of the offence, or preserving the safety or welfare of the person. And the person, under the Act, must refer to the accused person.

34. The evidence of the police officer was effectively that there were two reasons that led him to proceed by arrest rather than summons. They were concerned about evidence disappearing and a general concern about safety.

35. In relation to the general concern about safety, it does seem to be something of a glaring error or omission in the Crimes Act that while a basis for an arrest may be to preserve the safety or welfare of the person, being the person suspected of committing the offence, the safety or welfare of the police is nowhere referred to.

36. These are circumstances where, in the very early hours of the morning, two police officers have entered a nightclub in relation to what was believed to be an assault. They have exercised, as I find, their statutory powers under s 207 of the Crimes Act to conduct a form of search upon a named individual who they, I find, had reasonable grounds to suspect had committed, or was carrying a thing relevant to an indictable offence. The thing being a weapon that was alleged to have been used in relation to an assault by way of the application of chemical spray.

37. In the course of conducting what I have found to have been a lawful stop and search of that person, they then found what they believed were narcotic substances. There are two police officers in a nightclub in the early hours of the morning surrounded by a group of male persons, on one view seven, on one view a larger number.

38. Constable Hains said he thought it was a safer course to arrest the accused and proceed outside where there were other police and a police vehicle. That, on any common sense view, must be the correct action for the police officer to take. However, on its face, it seems to me it does not comply with s 212, and I recommend to the prosecution that that be drawn to the attention of the authorities.

39. It would seem an extraordinary oversight that if that was the only basis, and a basis which seems to me is completely compliant with common sense, there would be a problem. However, in this case, I am satisfied that the other ground given of preventing a repetition or continuation of the offence is made out.

40. On discovering a single tablet, it seems to me that preventing the repetition or continuation of the offence, or the commission of another offence, including preventing the concealment, loss or destruction of evidence relating to the offence, is common sense in accordance with experience of the courts, and indeed members of the public, that when a person is found with one drug there may be other drugs. Preventing the concealment, loss or destruction of other drugs would clearly be the case if an officer proceeded by way of summons when one drug is discovered, and it seems to me that preventing harassment of, or interference with a person who may be required to give evidence may provide some cover for police concerns for their own safety, which was the reason given by Sergeant Hains.

41. I am satisfied that the decision to arrest at that point was appropriate. At that point the accused was told that he was under arrest and was escorted out of the nightclub.

42. The evidence is that he cooperated with that process when he was taken outside the nightclub. They proceeded to the area in Civic where a police caged vehicle was parked, in fact there seems to have been at least two police caged vehicles which were parked there.

43. I am satisfied from the evidence that Detective Sergeant Hains at around that point said to the accused that he was going to search him and was there anything else on him that he needed to know about. If the accused person had then not wished to cooperate, it seems to me that the police would have been forced to go to certain other clear procedures to conduct the search. However, I accept the police evidence that Mr Okwechime, in the absence of any evidence from him, and this is only a preliminary point of course for me, said, "Yes, there's some pills in my pocket" and Detective Sergeant Hains noticed a bulge in the pocket of his pants.

44. At or about that point a difficulty occurred when the accused's father, Mr Peter Okwechime who, on the police evidence, had been following these events, intervened.

45. There then followed an altercation involving the accused and police during which, on the police evidence, Mr Okwechime conducted himself in a manner that lead to the charges of which he now stands accused and faces trial. The charges being causing harm to Detective Sergeant Hains by way of a punch, and two charges of resisting a public official, being Constable Johnston and Sergeant Serbatoio in the course of a struggle.

46. Mr Peter Okwechime's evidence was that as he approached to ask police what they were doing he was racially abused in a most offensive manner. His evidence is that his son then sought to come to his father's aid, and Mr Peter Okwechime gave evidence that the police then proceeded to assault his son.

47. In cross-examination Mr Peter Okwechime acknowledged that when he pleaded guilty to four counts of hindering police he did not tell the magistrate of any racial taunts or assaults. The police witnesses consistently denied that any of them had uttered a racial insult or had heard a racial insult uttered by any other person.

48. The cynic might say, "Well they would say that, wouldn't they?" Sergeant Serbatoio, on cross-examination volunteered that he was actively involved in the police Indigenous Affairs Committee, that his mother was an Australian indigenous person and that he would take great offence to any racial taunt uttered by any of his colleagues in the Australian Federal Police, and would himself initiate charges against any officer who uttered such racial taunts.

49. I have no reason to doubt what the Sergeant said, and I have great doubts about what Mr Peter Okwechime said today for the first time, having failed to give such evidence before a magistrate when he pleaded guilty to allegations of hindering police.

50. I make the observation that some years ago many members of the public would be cynical of an allegation of police racial taunts, and may well think, "Yes, they probably did that". However, these offences were alleged to have occurred in 2006, at 4 o'clock on a Saturday morning in the centre of Civic where there would have been hundreds of young people about, and I would make the observation that it is to the point of taking judicial notice that nearly all of those young people would have been equipped with a mobile telephone.

51. Many of them would have had mobile telephones that would be able to record by video and audio the events taking place. If police officers, in any part of Australia, were in a public place at 4 o'clock in the morning engaging in vicious, unacceptable racial taunts, they would have been on U-tube the next morning and on the front page of every newspaper in Australia the next day.

52. The sort of conduct that on instructions was put is very properly unacceptable. I would question whether it would amount to a ground to exclude evidence, but it would certainly be a basis for very serious charges to be brought against all of the police involved in this if they were engaging in racial taunts, but I find that unbelievable.

53. I find it unbelievable firstly because it was not raised before in the Magistrates Court. I find Sergeant Serbatoio's evidence quite compelling, that he himself is a person with an indigenous mother who no doubt as a young person suffered such taunts and he would take it seriously and lay charges.

54. It seems to me that if police, in a public place, being the centre of Civic at half past four on a Saturday morning, when there are many young people about, engaged in this sort of conduct, there would be independent witnesses, and indeed there would be independent evidence by way of some form of mobile phone evidence.

55. I am satisfied that the search was lawfully initiated, pursuant to s 207. I am satisfied that when the pill was discovered the police had appropriate grounds under s 212 to proceed by way of arrest. I am satisfied that after the arrest and at a point of time when matters were peaceful Mr Okwechime indicated to Detective Sergeant Hains that there were other pills in his pocket.

56. I am satisfied that there then occurred an altercation when his father intervened. What one may say would have been the basis for an altercation, the basis for an altercation might well have been that the person who had 18 additional tablets of ecstasy in his pocket might have been looking for an opportunity to get rid of them.

57. In any event that did not occur. I see no difficulty in accepting that when Mr Okwechime was subdued at a point when he was under arrest, for the police to have continued with a search that was earlier conducted, and in particular to, in effect, comply with his earlier acknowledgement that there were pills in his pocket and to remove those pills.

58. It follows that the evidence in relation to the drugs is properly admissible and it may be lead before a jury in a trial scheduled for tomorrow.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 4 July 2007

Counsel for the Prosecution: Mr S Drumgold

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Accused: Dr B Boss

Solicitor for the defendant: Darryl Perkins Solicitor

Date of hearing: 4 July 2007

Date of judgment: 4 July 2007