R v Williams [2007] ACTSC 57 (28 June 2007)

Last Updated: 28 July 2008

R v DANIEL ROBERT WILLIAMS

[2007] ACTSC 57 (28 June 2007)

EVIDENCE - Admissibility - search of a motor vehicle - search by consent - weapons found.

Evidence Act 1971, s 138

Ex Tempore Judgment

No. SCC 176 of 2006

Judge: Connolly J

Supreme Court of the ACT

Date: 28 June 2007

IN THE SUPREME COURT OF THE )

) No. SCC 176 of 2006

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

DANIEL ROBERT WILLIAMS

ORDER

Judge: Connolly J

Date: 28 June 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The application to exclude evidence be dismissed.

2. The evidence regarding finding of firearms in the motor vehicle be admissible.

1. This is an application pursuant to s 138 of the Evidence Act 1971 to have certain material excluded in a forthcoming trial of the accused, Daniel Robert Williams, who faces trial on two counts of possessing an offensive weapon with the intent to commit an aggravated burglary. Those weapons being a revolver and a sawn-off shotgun.

2. The weapons came to light in a search conducted of a vehicle that the accused was in charge of, and admitted to the ownership of, at the Tuggeranong Police Station on the morning of Saturday, 22 October 2005.

3. The challenge is based, as it must be, on asserted illegal or improper acts by police. I will say at the outset, before going into my reasons, that I am not satisfied that any illegality or impropriety is made out in the course of conduct that I will shortly describe.

4. The circumstances were that at about half past three in the morning of Saturday, 22 October 2005, two police officers, who were on general duties, were on mobile patrol in Calwell when a vehicle passed them. They pulled the vehicle over to conduct a random breath test. Police are entitled to, and indeed community expectations are that they conduct random breath tests, and half past three on a Saturday morning is a pretty good time to be conducting random breath tests.

5. The police acknowledged, in cross-examination, that there were other reasons why they were in the area at the time, there being some form of fracas at the Calwell Shops earlier that evening involving a large number of youths fighting and causing disturbances. There was a frank acknowledgement by Constable Laidler that they were intentionally conducting random breath tests on drivers in the area and the conduct of those random breath tests they thought may bring to light persons who had been involved in earlier incidents. There is no suggestion that the accused was involved in that earlier incident.

6. In any event, it seems to me that the possibility that other incidents may come to light does not put any cloud over a perfectly legitimate decision to conduct a random breath test on a driver who is out and about at half past three on a Saturday morning.

7. The police signalled to the accused to pull over. He promptly complied once the lights were flashed. He pulled over and co-operated from that point on, unusual in these types of cases. It is common ground, and the accused acknowledged, that the police were polite throughout, and indeed the police would seem to indicate that the accused was polite throughout.

8. As the random breath test was lawfully and properly conducted, one police officer walked around the passenger side of the vehicle in order to look at the registration sticker. This, it seems to me, was an entirely legitimate thing for police conducting a random breath test to also look at the registration of a vehicle, and indeed it is quite a normal process, that they ask to see the driver's licence.

9. While one officer was inspecting the registration sticker, he made the observation that the registration sticker did not match the plates displayed on the vehicle. That is to say, the plates on the vehicle bore a different registration than the sticker on the windscreen of the vehicle.

10. At about the time one constable was making that observation, the other constable was asking the accused for his driver's licence. He said he did not have a driver's licence but was able to give a number which he said was the number of his licence.

11. The random breath test was undertaken, he was screened and was found to be negative on the screen. The police, aware of the problem with the registration, went back to the vehicle and radioed. It seems to me that that was an entirely legitimate thing to do. The radio message confirmed that the accused was an unlicensed driver. That is to say, the number he gave as his driver's licence was correct, it matched a driver's licence issued in the name of Daniel Robert Williams and his date of birth, but the licence had been cancelled due to some unpaid fines. So the police went back to speak to him about that.

12. The bonnet of the vehicle was opened by the police and I am entirely satisfied that it was consensual. The examination under the bonnet showed that the compliance plate on the vehicle failed to match the registration sticker on the vehicle, which itself failed to match the number plates.

13. So the police are confronted with a man driving without a driver's licence and driving a vehicle that was unregistered and uninsured. Perhaps suspicions may have arisen about the source of ownership of the vehicle, but the accused asserted it was his and indeed that seems to be the case.

14. At that point, a discussion occurred with the accused and he was asked whether he would go with them to the police station. The police say he was asked to come back to the police station to talk about the driving offences. The accused acknowledged that he was asked and he agreed. He says, however, that he felt as though his will was overborne. He felt under a compulsion to return to the police station.

15. When they arrived at the police station there was a tape recorder activated to record a conversation with the accused. It was put to him that:

... As a result of that traffic stop, I spoke to you about a number of matters including some traffic infringements - some traffic offences that I'm alleging you have committed which is driving while your licence is suspended and driving a motor vehicle unregistered and uninsured. Subsequently we asked you to come back to Tuggeranong Police Station to discuss those matters. Do you agree with that? Do you agree you're here of your own free will?

To which he replied, "Yeah".

16. He now says that his will was overborne. I do not know how police officers are expected to tell whether a will is overborne in circumstances like this where it was common ground that the police were polite and co-operative. There was no overt threats or threatening conduct. It seems to me that that is a test that just cannot be expected of a police officer when the person says they agree that they are here of their own free will.

17. I also make the observation that when police, at half past three in the morning, pulled the vehicle over, which is found to be unregistered and uninsured, there is something of a dilemma as to what they should do.

18. The decision here was that another police officer would drive the vehicle back to the Tuggeranong Police Station where it would be secured in the police yard. It seems to me that that was a sensible administrative arrangement to take.

19. Leaving the vehicle by the side of the road could create a potential hazard to other motorists. Also, potentially, one would think, expose the police to some form of litigation or responsibility if the vehicle was subsequently damaged or vandalised, or otherwise interfered with.

20. The reason the police, it seems to me, acted properly in taking the vehicle back was that it was an unregistered and uninsured vehicle. Had the accused not been driving without a valid driving licence and in a vehicle that was unregistered or uninsured, the reality is that after his breath test was found to be negative, the police would have said, "Sir, on your way" unless they had sufficient grounds to lawfully arrest him.

21. However, being in a vehicle that was unregistered and uninsured and driving without a licence, the police were entitled to ask him to come back to the station to talk about those traffic offences. He still would have been entitled to say no, but I am satisfied that he said yes. Taking him to the station was, it seems to me, lawful.

22. A second police vehicle turned up while the random breath test was being conducted, again an unusual circumstance but, it seems to me, this occurred because of the number of police in the district as a result of the earlier and unrelated fracas at Calwell. A police officer drove the vehicle back while the accused accompanied the two original arresting officers.

23. The two original arresting officers clearly had some suspicions. They had seen, in the back of the vehicle, a number of implements, including a block splitter and, we are told, a large set of bolt cutters.

24. The accused was asked about those items, and his explanation, which is entirely legitimate, is that he is a painter and works in the building industry and was doing some renovation work in offices that are being significantly refurbished and hence had a legitimate reason for carrying those implements.

25. I accept that as true. One can accept that police officers at half past three in the morning may have some suspicions about the presence of such items in a car.

26. The other passenger in the car was spoken to by Constable Laidler. He was asked why he was there. He gave an explanation that did not seem to convince Constable Laidler. He was asked again what he was doing in the area, and he said they were there to see a certain named individual in a nearby suburb.

27. That named individual has a surname that matches a person who Constable Laidler volunteered was known to police as a recidivist offender in relation to property offences. And he agreed, with the cross-examination of Mr Gill, that that surname is held by a notorious offender in the district.

28. Again, the police may well have had some suspicions as to the sort of activity that was going on. However, their suspicions fell well short of the ability to make an arrest. No arrest was made. They were perfectly entitled to ask the accused to return to the station to conduct a discussion about the relatively serious traffic offences of driving whilst suspended and driving an unregistered and uninsured motor vehicle.

29. These were not mere speeding or parking offences. It was said that either on the way back or at the police station Constable Laidler and Constable Petterson had some discussions about where to go next. They had their suspicions. They were of the view that they did not have sufficient grounds to make an application before a magistrate for a warrant to search the vehicle and that they would ask the accused for permission to search it.

30. The transcript shows that that is precisely what they did. The transcript also shows that after the passage I read earlier where he agreed that he was there of his own free will to discuss some traffic matters, it was then put that the vehicle was transported back to the Tuggeranong Police Station. He was asked:

Okay, currently right now it's in a secure yard of the station. Before we go any further, I'd like to ask you if you give us consensual - if you give us consent to do a search of your vehicle whilst here at the police station.---Yep. Yeah.

So you're happy for police to conduct a search of your vehicle? That means under the seats and ... --- Yeah.

... and in the boot and - that's fine. What we'll do now is - you'll be present for that search. We'll use the same tape while we're conducting the search. You have to understand that anytime during the search if you want us to stop all you can do is ask us to and we'll stop the search. Do you understand all that? --- Yeah.

31. That seems to me to be a proper legitimate request for a search, which was freely consented to. It is the case that their suspicions were further aroused and not just by the name of the offender and the bolt cutters and the other items that were in plain view in the back of the car, but by the fact that the other police officer who drove the vehicle back, reported that he saw, in plain view, although he was not here for cross-examination, a knife.

32. It seems to me that it was perfectly legitimate for the police to transport the vehicle back to the Tuggeranong Police Station in order for it to be secured and later collected and, when able to be legitimately driven on the roads, driven back to the accused's place or put into his custody.

33. It seems to me that when the police officer drove that vehicle and saw a knife in it, he was entitled to report that to the other constables. It was not only legitimate, but one would think the police would have been derelict in their duties if they had not then sought to do something about taking the matter further, which they did, I am satisfied, by a consensual search.

34. There may be some question as to whether there is in fact a statutory cover in the Motor Traffic General Regulations for a police officer to drive an unregistered or uninsured vehicle, even for the purposes of removing it from a position of hazard on the road to a safe and secure location at the police station. Even if I am to assume that there is no statutory cover, and so there was some breach of the Motor Traffic General Regulations in doing that, it seems to me that that is a level of illegality that falls well short of tainting any subsequent search of the vehicle.

35. A search of the vehicle was conducted. The accused was present for the search. A revolver was found under the passenger seat of the vehicle. At that point the accused was immediately told that he was under arrest and was handcuffed. It seems to me that was an entirely legitimate process.

36. A weapon at that point was in plain view. The person who police believed was connected to the weapon, was immediately arrested and handcuffed. It was again, an entirely legitimate thing to do when a serious offence is suspected and there is a situation of potential danger.

37. The accused at no time acted violently or threateningly, but nonetheless it was entirely legitimate, it seems to me, and direct in that manner at that point that he was given a formal criminal caution. I see nothing wrong with the original decision to conduct the random breath test on this vehicle, even accepting that there may have been other potential police motives in pulling this vehicle over, being the possibility that it may assist them with their enquiries into the unrelated fracas in the district earlier that evening.

38. Once the vehicle was legitimately pulled over, and the random breath test conducted, the accused, to his misfortune, came to police attention because of the unregistered and uninsured and deeply suspicious nature of the vehicle where its registration sticker failed to match its registration plate, which failed to match its vehicle compliance plates.

39. A licence check revealed that the accused was unlicensed. At that point, it seems to me the vehicle had to be dealt with by police and that involved the police officer legitimately entering the vehicle in order to move it to the safe location of a nearby police station.

40. At that point a knife was observed. That further deepened suspicions of the original police, I should not say arresting police because I am satisfied that no arrest was made until later that morning at the station and, while feeling that they fell short of the basis to obtain a warrant legitimately, they asked for consent to the search. That consent was, it seems to me, legitimately given.

41. I see nothing in the Evidence Act or the authorities that would suggest that this is a case for exercising the discretion. To the extent that there is any illegality, it may involve breaches of the Road Transport General Regulations in moving the vehicle from the unsafe position on the side of the road back to the police station, but if that was the fact, it would fall well short of justifying a discretion to exclude the evidence. The evidence I therefore rule is admissible at any forthcoming trial.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 28 June 2007

Counsel for the Prosecution: Mr C Todd

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Accused: Mr S Gill

Solicitor for the Accused: Mark Fleming Criminal Lawyers

Date of hearing: 28 June 2007

Date of judgment: 28 June 2007