R v Kain [2009] ACTSC 103 (26 August 2009)

Last Updated: 22 September 2009

HUMAN RIGHTS ACT 2004 (ACT)

R v PETER KAIN
[2009] ACTSC 103 (26 August 2009)

CRIMINAL LAW – trial by Judge alone – drug offences – possession of drug of dependence – drugs found in person – contravention of s 4(2) of Intoxicated People (Care and Protection) Act 1994 (ACT) – discretion to admit evidence obtained in contravention of an Australian law – rule in Brown v Dunn applied – leave recall of police witness exercised – circumstantial evidence of exclusive possession and knowledge – finding of guilt in respect of the charge

Supreme Court Act 1933 (ACT), s 68
Intoxicated People (Care and Protection) Act 1994 (ACT), ss 4, 5
Evidence Act 1995 (Cth), s 46, s 138
International Covenant on Civil and Political Rights, article 9
Crimes Act 1900 (ACT), s 351
Human Rights Act 2004 (ACT), ss 18, 30

Brown v Dunn (1893) 6 R 67
MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436

No. SCC 251 of 2008

Judge: Gray J
Supreme Court of the ACT
Date: 26 August 2009

IN THE SUPREME COURT OF THE )
) No. SCC 251 of 2008
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

PETER KAIN

ORDER

Judge: Gray J
Date: 26 August 2009
Place: Canberra

THE COURT ORDERS THAT:

The accused is guilty of the charge that on 14 September 2007 he possessed a drug of dependence, namely methylamphetamine.

1. Peter Kain has pleaded not guilty to a charge that on the 14th day of September 2007 at Canberra he possessed a drug of dependence namely methylamphetamine.
2. Pursuant to s 68 of the Supreme Court Act 1933 (ACT), Mr Kain elected for trial by Judge alone.

The circumstances

3. In the early hours of Friday, 14 September 2007, three police Constables on the “City Beats Team” observed a person, who was later identified as Mr Kain, and who, in their view, was “acting aggressively” in front of Academy nightclub at Bunda Street in Civic. At the time there were a large number of people gathered out the front of the night club. Mr Kain, who was wearing a ripped yellow t-shirt, apparently observed the police vehicle in which the officers were in approaching the area and “started to run towards Garema Place”. One of the police officers, Constable Wolfkamp, pursued him down an alleyway. Another, Constable Beaver, took off in a different direction to intercept him where the laneway came out at another location and the third police officer, Constable Mokrij, drove the police vehicle towards the southern side of Garema Place. Constable Wolfkamp apprehended Mr Kain in that alleyway near where Constable Mokrij was. Constable Beaver and Constable Mokrij intercepted the two other males who had run off with Mr Kain. Constable Wolfkamp placed Mr Kain into custody by “placing one hand on Mr Kain’s arm and grabbing the top of his shoulder”. Mr Kain was then “placed” on the ground and handcuffed. He was then “walked” to the police vehicle which was parked out the front of the R M Williams clothing store adjacent to the alleyway. He was searched before being placed in the vehicle and in the course of the search, a clip-lock sealed plastic bag with 42 tablets was found. Those tablets were subsequently found to contain methylamphetamine of a total quantity of 0.618 grams as the base. They also contained the pseudoephedrine and caffeine.
4. After the evidence had been given by the three police officers involved in the incident with Mr Kain, the prosecution indicated that no more evidence would be called and I was asked to rule on the admissibility of the evidence of the search on the ground that the evidence of the drugs was obtained as a consequence of the unlawful act of placing Mr Kain into custody and subsequently searching his person.

The circumstances of the search

5. Constable Wolfkamp says that his apprehension and taking into custody of Mr Kain was authorised by the Intoxicated People (Care and Protection) Act 1994 (ACT). Section 4(1) and (2) of that Act provide:

(1) If a police officer believes, on reasonable grounds, that a person in a public place is intoxicated and is, because of that intoxication—
(a) behaving in a disorderly way; or
(b) behaving in a way likely to cause injury to himself, herself or another person, or damage to any property; or
(c) incapable of protecting himself or herself from physical harm;
the officer may take the person into custody and detain the person.
(2) The police officer may take the person into custody only if the officer is satisfied that there is no other reasonable alternative for the person’s care and protection.

6. Section 5(1) of that Act then provides that a police officer may search a person taken into custody under s 4(1) of the Act and take possession of any articles found in the person’s possession.
7. In forming his belief under s 4(1) of the Act, Constable Wolfkamp relied upon the actions that he observed of Mr Kain in what was clearly a public place outside the front of Academy nightclub, Mr Kain’s flight on seeing the police officers and the observations that he made of Mr Kain when he cornered him in the alleyway. Those observations included the smell of alcohol and watery and bloodshot eyes. He then formed the opinion that Mr Kain was intoxicated. He arrested him, in his words, “for intoxicating disorderly at the – at that time”. I am satisfied that Constable Wolfkamp held the belief as to Mr Kain being intoxicated in a public place and that Mr Kain had behaved in a disorderly way because of that intoxication.
8. Although Mr Gill, who appeared as counsel for Mr Kain, submitted that Constable Wolfkamp could not have had the belief to which he deposed, it seems to me that the real issue is whether the Constable had grounds for the belief to which he deposed. I am satisfied that he did have such a belief and that there were reasonable grounds for such a belief having regard to what Constable Wolfkamp observed both as to Mr Kain’s appearance and his actions before he was taken into custody.
9. The more difficult issue is whether the condition in s 4(2) of the Act that the person may be taken into custody “only if the officer is satisfied that there is no other reasonable alternative for the person’s care and protection” was made good. There may be considerable scope for argument as to what is required to satisfy that condition. However, in the present case, Constable Wolfkamp did not directly depose to his satisfaction of this condition. He was not asked in examination-in-chief, cross-examination or re-examination as to his state of mind in this regard. He was asked in cross-examination if he considered whether there was any alternative to Mr Kain being taken into custody but that question was not specifically directed to alternatives for Mr Kain’s care and protection. Questions that were asked could have been relevant to whether Constable Wolfkamp had, in fact, the satisfaction required by s 4(2) of the Act or could have honestly deposed to such satisfaction. Fundamentally, however, I had no evidence before me of the condition provided by s 4(2) of the Act for Mr Kain to be lawfully taken into custody, namely that the police officer had the satisfaction require by that subsection.
10. Ms MacKenzie, who appeared for the Director of Public Prosecutions, ultimately conceded that that was so and that I should regard the fact that Mr Kain was taken into custody as an act not authorised by the Intoxicated People (Care and Protection) Act 1994 (ACT). The evidence of the drug on Mr Kain’s person was obtained as a consequence of him being taken into that unauthorised custody.

Discretion to exclude

11. Section 138 of the Evidence Act 1995 (Cth) provides that evidence obtained in consequence of a contravention of an Australian law is not to be admitted. The provision goes on to provide that “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”. The admission of such evidence is a discretionary matter for the court. Section 138(3) provides:

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Consideration of the factors effecting the exercise of the discretion

12. In the present case, the evidence obtained on the search is probative of an essential fact in issue. That is that Mr Kain was in possession of the drug. As such, the success of the prosecution depends upon it.
13. It was suggested by Mr Gill that the offence was not of the “most serious” and reference was made to it being a charge of possession, not trafficking. Nonetheless, it is a criminal indictable offence punishable by two years imprisonment and I have regard to that circumstance.
14. In the present case, the gravity to be attached to the contravention is, to an extent, dependant upon whether the contravention was deliberate or reckless. It is clear that Constable Wolfkamp did not deliberately seek to exceed the authority given him under the Intoxicated People (Care and Protection) Act 1994. This is not a case where there were obvious matters that would have precluded him from forming the degree of satisfaction that was required of him. Evidence was not adduced from him as to whether or not he turned his mind to the requirement of such satisfaction. In such circumstances, the importance of the court registering disapproval of the conduct because of its seriousness is not as great as in other cases.
15. Mr Gill submitted that the conduct of the police in dealing with his client “would fall into the category of being an assault, an assault with the intent to commit certain indictable offences or the indictable offence of forceful confinement”. To say so is to pitch that submission far too high. Not only was there no evidence before me as to whether or not the police officer had the satisfaction required by s 4(2) of the Intoxicated People (Care and Protection) Act but, also, I would not be prepared to infer that the police officer had the intent to commit criminal offences that Mr Gill suggested might have been involved.
16. In the event that I was not prepared to find that the police officer’s actions constituted criminal activity, Mr Gill submitted that I should take a similar view to that taken by Justice Spender in The Queen v Stankovich [2004] ACTSC 93 (1 October 2004). That case dealt with the validity of a search warrant that had defects on its face in a situation which required strict compliance with statutory conditions. In that regard, Justice Spender said at [44] and [45]:

In the case of the warrant relied on to search the person of Thomas Stankovich, there has not been “strict compliance with the statutory requirements” governing the issue of a warrant to search a person. So egregious has been the departure from those requirements, that the warrant can only be regarded as a laughable parody of what is required to render lawful what would otherwise be a violation of a person’s right to the integrity of his person.
Having regard to the gravity of the departure from what is required under Australian law for a valid warrant to search a person (the factor referred to in s 138(3)(d) of the Evidence Act), and the need to deter any expectation that slovenly and serious departure from the conditions that the legislature has imposed before a person’s rights to the integrity of his person can be invaded will be tolerated or condoned, I will not admit the evidence of the search which led to the seizure of the heroin found in the coat sleeve of the accused.

17. I regard those as comments made to circumstances that are quite different to those of the present case and to be distinguishable. The present case involves actions taken by a police officer confronted with an immediate situation requiring a contemporaneous assessment of the circumstances surrounding it before exercising a power to take a person into protective custody. The search that then took place was consequential upon that action. I do not regard the police officer in this case as being in a position to make the sort of considered approach to the question of the powers to be exercised as was the case before Spender J. In the present case I do not regard the police officer’s actions as a “serious departure from the conditions that the legislature has imposed” that Spender J found to be so in the case that he was considering.
18. Article 9 of the International Covenant on Civil and Political Rights (the Covenant) provides for the right to liberty and security of the person. No one is to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law. It may be noted that as originally enacted, s 4 of the Intoxicated People (Care and Protection) Act 1994 (ACT) did not have a requirement for satisfaction as to there being no other reasonable alternative for the person’s care and protection before a person could be taken into custody (as was also the case with the predecessor of s 4, s 351 Crimes Act 1900 (ACT)).
19. The Human Rights Act 2004 (ACT) has been enacted to respect, protect and promote human rights based upon the Covenant. Sections 18(1) and (2) of that Act provide:

(1) Everyone has the right to liberty and security of the . In particular non-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.

20. Section 30 provides:

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

21. Section 4 of the Intoxicated People (Care and Protection Act 1994 establishes procedures for the deprivation of liberty in the particular circumstances for which it provides. It may be regarded as compatible with the right not to be deprived of liberty; no submission was made in this case to the contrary.
22. In the present case, the requirement for the police officer to hold the belief on reasonable grounds that a person in a public place is intoxicated and is, because of that intoxication, behaving in a disorderly way, was satisfied. Nevertheless, it is a material matter that the actions of the police officer in this case are not shown to be consistent with the identified right under the Covenant in that the evidence before me did not show whether or not the police officer held the requisite satisfaction.
23. There does not appear to be any likelihood of proceedings being taken in respect to Constable Wolfkamp’s actions in this matter. That may be said to follow from an overall assessment that may be made of the seriousness of the contravention in the circumstances of this case. I do not regard this as a significant factor which would militate against the admissibility of the evidence.
24. In this case, the factor of the difficulty of obtaining the evidence without impropriety or contravention of Australian law can not be said to be a relevant consideration.
25. Further, on an overall consideration of the factors to be taken into account, I am satisfied that this is not a case where the reliability of the evidence obtained is affected by the actions of the police officer in taking the action that he did.
26. Overall, I am satisfied that, in the balancing exercise that I am to consider, the considerations supporting the admission of the evidence outweigh those that favour its exclusion.
27. For those reasons I ruled that the evidence be admitted.

The elements of the offence

28. The offence with which Mr Kain is charged requires that the prosecution prove that Mr Kain had the clip-lock sealed bag in his possession, that it contained the drug methylamphetamine and that it was knowingly in his possession.
29. Having admitted the evidence of the search taken with the evidence of the analysis of the tablets in the bag, which was not challenged, the outstanding element that the prosecution has to prove beyond reasonable doubt is Mr Kain’s knowledge of the drugs found on his person.

The defence case

30. As I have said, the prosecution had closed its case at the conclusion of Constable Mokrij’s evidence. Mr Gill then commenced the defence case by calling Mr Kain.
31. Mr Kain’s evidence accepted that he was heavily intoxicated (“pretty drunk”) and that he had been involved in a fight in Bunda Street. He said that he had been “hit”. He says that he was “regaining consciousness”, his hands were covered in blood from his nose and his shirt was torn. He became aware of the “cops” and ran from the scene because he “couldn’t really deny I’d been in a fight”.
32. He said he was “grabbed” by a police officer and thrown to the ground. His evidence was:

After the police officer put you onto the ground did anything occur?---I just remember, sort of, him talking to me saying, “You know, what’s this,” and he presented a bag pills. Yes.
And did you answer him when he asked you “what’s this”?---Yes, I said I had no idea what they were and he just sort of laughed it off and said, “Stop playing dumb.”
Well, let me take you through that. He showed you something and you said it was a bag of pills?---Yes.
Was that a bag that you’d seen before?---No.
So when was the first time that you saw this bag of pills?---When the officer pulled it out and showed it to me.
And do you know where he pulled it out from?---My pocket.
And if I can ask you about your pockets, was there anything in your pockets apart from the pills that the officer’s pulled out?---I don’t remember if it was in that particular pocket or not but I remember I had my wallet, keys and phone. So - - -
And did they remain in your pocket or were they taken out of your pocket as well?---Everything was taken out from my memory.
And when the officer showed you the bags with the pills in it, do you remember what went through your mind?---Pretty shocked and then, you know, I just thought, “Fuck, what’s gonna happen now?”

33. In cross-examination:

When you were - you said that you made one comment about not having any knowledge of the methylamphetamine in your pocket?---Yeah, I just denied it. I didn’t know where they came from, I didn’t know how they got there so. I don’t remember my exact words to the officer but he knew that I’d said that they weren’t mine.

34. It can be seen from the foregoing that the defence sought to meet the inference of knowledge arising from the police finding the drugs on Mr Kain’s person by reference to Mr Kain’s direct evidence that he did not know that he had the drugs on his person. If it is accepted that there is reasonable possibility that Mr Kain did not know that he had the bag of pills on his person, the prosecution will not have discharged its onus of proof in respect of this element of the offence. An important confirmatory factor is Mr Kain’s reaction and assertions concerning that fact.

The obligation to put the defence case

35. A concerning aspect of this matter to me was the fact that neither the occasion upon which Mr Kain made the response or the content of the response was put in cross-examination to the police witnesses who were there when he said that this event occurred.
36. The common law rule known as the rule in Brown v Dunn (1893) 6 R 67, clearly applied to this event. It is only fair that the prosecution witnesses should have had the opportunity to comment upon what is said to have taken place in their presence and which they could be expected to have witnessed.
37. The Evidence Act provides a mechanism for such a circumstance to be addressed. Section 46 of that Act provides:

46 Leave to recall witnesses
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:
(a) it contradicts evidence about the matter given by the witness in examination in chief; or
(b) the witness could have given evidence about the matter in examination in chief.
(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

38. Although it was put that Constable Wolfkamp said in cross-examination that he could not recall what he said to Mr Kain or what Mr Kain said to him at the time Mr Kain was taken into custody, that cross-examination was not directed to anything relating to the subsequent search of Mr Kain’s person. It was also put that the defence was proceeding on the agreed basis that “Mr Kain was made aware of the fruits of the search at that time”. Both of the matters do not constitute a sufficient reason as to why the defence case on this aspect could not have been directly put to the relevant prosecution witnesses.
39. In this circumstance, there does not appear to be any reason why I should not grant leave to have the prosecution witnesses recalled. In MWJ v The Queen [2005] HCA 74 at [40], the majority of the High Court in that case (Gummow, Kirby and Callinan JJ) said:

In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

40. Having regard to what was said in MWJ, to permit the recalling of the police witnesses in this case could not be said to be unfair. Nor would it necessarily result in the prosecution being able to unfairly split its case. I said that I would restrict the recall to making the witnesses available for cross-examination because of the stage that the proceedings have reached.
The recall of the police witness
41. As a consequence on 20 August 2009, Constable Wolfkamp was recalled for further cross-examination. He agreed that he may have said something to Mr Kain about the pills along the lines of “What’s this?”, although he could not be sure whether it was to Mr Kain or Constable Beaver. He could not recall anything being said about “playing dumb”. He was not asked whether Mr Kain gave any indication to him that Mr Kain was unaware of the clip bag of pills. In any event, the evidence of the police officer does not support what Mr Kain asserts he said to them.
The issues for determination
42. The matter is to be determined on whether the prosecution have proved beyond reasonable doubt that Mr Kain knew of the drugs found in his possession. The prosecution rely upon the inferences to be drawn from all the surrounding circumstances. In particular, that the drugs were found in the pocket of Mr Kain’s jeans after he had been pursued by police officers. Further, that persons are likely to be aware of items in pockets of reasonably close fitted jeans.
43. A photograph of the various items taken from Mr Kain’s pockets was tendered. It shows a wallet, keys and remote, a small mobile phone, tube of deodorant, a flat pack of chewing gum as well as the packet containing the 42 pills. The packet of drugs appears the same size or thereabouts as the mobile phone. It is comparatively smaller but still a significant item in comparison to the other items found on his person.
44. The fact that he had such a number of innocent items in his pockets tends to militate against the ability of some person being able to put an additional item of the size of the packet of drugs into one of his pockets without his knowledge. What also tells against such a proposition is what can be assumed as to the value of the drugs themselves brings. Mr Kain did not give evidence of any circumstance which could explain why someone would “plant” (my expression) the drugs on him. There was no confirmatory evidence as to a possible incident that might have given rise to such a circumstance. Mr Kain says that he was in a fight in respect of which he said “I don’t remember much from this”. There is perhaps an implication that incident could have been such an occasion when the drugs could have been placed on his person. I reject that as a reasonable possibility basically because of the monetary value of the drugs.
45. It is clear from the photograph of the drugs in Exhibit 4 that they were at least a quarter of the size of his wallet. In light of the matters referred to by the prosecution, I do not find Mr Kain’s assertion that he did not know of the presence of the bag of pills on his person at all convincing. Mr Gill stressed the size of the package in comparison to the other items found in Mr Kain’s pockets. That does not dissuade me from the view that it is most unlikely that a package of that size could have been placed in Mr Kain’s jean’s pockets without his knowledge no matter how intoxicated he was.
46. I proceed on the basis that Mr Kain is not required to prove anything, but I do not regard his denial of knowledge of the drugs as a rational explanation in the face of the circumstances from which I infer that he knew the drugs were on his person.
Conclusion
47. I am satisfied beyond reasonable doubt that Mr Kain knew that the drugs were in his possession.
48. I find Mr Kain guilty of the charge that on 14 September 2007 he possessed a drug of dependence namely methylamphetime.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 26 August 2009

Counsel for the prosecution: Ms K MacKenzie
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the accused: Mr S Gill
Solicitor for the accused: Mr D J Ridge
Date of hearing: 30 April 2009, 1 May 2009
Date of judgment: 26 August 2009