In the matter of an application by Crisp [2009] ACTSC 34 (7 April 2009)

Last Updated: 19 May 2009

IN THE MATTER OF AN APPLICATION BY DONALD ANTHONY MARTIN CRISP [2009] ACTSC 34 (7 April 2009)

APPLICATION – application to exclude evidence – evidence not obtained improperly or in contravention of an Australian law – s 138 Evidence Act 1995 (Cth).

CRIMINAL LAW – offences – possession of a prohibited substance, namely cannabis.

EVIDENCE – evidence obtained by police when preparing applicant’s car to be towed – whether there was express or implied authority for police to open door of applicant’s car – legislative provisions cited by parties do not provide answer.

EVIDENCE – evidence obtained by police when preparing applicant’s car to be towed – whether actions of police in opening door of applicant’s car constituted a trespass – counsel for applicant failed to establish on balance of probabilities that police action constituted a trespass.

EVIDENCE – evidence obtained by police when preparing applicant’s car to be towed – continuing presence of car as providing incentive or excuse for applicant to return to premises at which car was located – resident of premises at risk of physical violence from applicant.

EVIDENCE – evidence obtained by police when preparing applicant’s car to be towed – whether exclusion of evidence required by community standards – whether exclusion of evidence required to prevent unfairness, irrespective of community views.

PRACTICE AND PROCEDURE – exclusion of evidence obtained improperly or in contravention of an Australian law – initial onus on applicant to establish there was an impropriety or contravention in actions resulting in the obtaining of disputed evidence – no single substantive ground of impropriety and no specific contravention clearly alleged.

STATUTORY INTERPRETATION – applicant’s car parked in former partner’s front yard – police discretion to remove car – whether entering car justified by powers of entry provisions in Crimes Act 1900 (ACT), Drugs of Dependence Act 1989 (ACT), Road Transport (Safety and Traffic Management) Act 1999 (ACT).

STATUTORY INTERPRETATION – powers of entry provisions – entry not authorised by empowering provisions – whether entry therefore in contravention of those provisions.

Crimes Act 1900 (ACT), ss 188, 190, 209

Criminal Code 2002 (ACT), Ch 6

Drugs of Dependence Act 1989 (ACT), ss 174, 182, 184, 185, 187, 188

Evidence Act 1995 (Cth), s 138

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 32

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

R v Stankovich [2004] ACTSC 93 (1 October 2004)

Ridgeway v The Queen (1995) 184 CLR 19

Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612

No. SCC 361-2 of 2007

Judge: Penfold J

Supreme Court of the ACT

Date: 7 April 2009

IN THE SUPREME COURT OF THE )

) No. SCC 361-2 of 2007

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN

APPLICATION BY

DONALD ANTHONY MARTIN CRISP

ORDER

Judge: Penfold J

Date: 7 April 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The application to exclude evidence is dismissed.

Introduction

1. Donald Crisp, the applicant in this case, has been charged with possessing a prohibited substance, namely cannabis. In prosecuting the charge, the Crown will rely on evidence of a quantity of cannabis found by a police officer in Mr Crisp’s car.

2. Mr Crisp applies for an order under s 138 of the Evidence Act 1995 (Cth) excluding evidence of the finding of the cannabis in his car. There were no submissions to this effect, but in the absence of such evidence it is hard to see how the prosecution could proceed.

3. Section 138 of the Evidence Act is set out at Appendix A to this judgment. In summary, it provides for evidence obtained improperly or in contravention of an Australian law (whether directly or indirectly), to be excluded unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way the evidence was obtained.

4. The first question to be answered is whether the evidence concerned was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or such a contravention. If I decide that it was so obtained, I will then need to undertake the weighing-up exercise involved in deciding whether the evidence should nevertheless be admitted in proceedings against Mr Crisp.

5. In matters involving s 138, the onus is on the applicant to establish on the balance of probabilities an impropriety or contravention of Australian law, before the respondent is required to persuade the court to exercise its discretion under s 138 to admit the evidence in spite of the impropriety or contravention, (see Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612 at [33]). That is, it is not up to the respondent initially to establish that there was no impropriety or contravention in the actions that resulted in the obtaining of the evidence concerned.

Background: how the cannabis was found

6. Mr Crisp had been in a relationship with Valerie Drummond. On 29 July 2007, in breach of bail conditions requiring him to keep away from Ms Drummond’s address and not to enter the suburb of Macgregor, he drove his car to Ms Drummond’s home in Macgregor, where he parked it in her front yard, behind the property line, and left it with the windows down and keys in the ignition. Mr Crisp then assaulted Ms Drummond and did some damage to her house; there was a suggestion that Mr Crisp had also threatened to assault Ms Drummond’s son. Ms Drummond’s daughter was also present in the house. In due course Ms Drummond called the police, who attended, arrested Mr Crisp, and put him into a caged police vehicle, in which he was taken initially to Calvary Hospital because of his apparent level of intoxication.

7. Before the police left, Ms Drummond asked them to remove Mr Crisp’s car, which was still in her front yard. She was concerned that if the car remained where it was, Mr Crisp might return to retrieve it, and might again assault her or a family member.

8. Police officers accordingly arranged to remove the vehicle, at the expense of the Australian Federal Police (the AFP), to the AFP Property Office, a secure compound operated by the AFP, and called a tow truck. As part of assessing the suitability of the car to be towed, one of the police officers, Federal Agent Shane Hancock, established that it was unlocked, and then opened the driver’s side door to check that the keys were in the ignition and that the driver’s seat was safe and clean enough for the tow-truck driver to sit in (if the car-keys to a vehicle are available, then the ignition can be turned on and the steering used, so that the vehicle is less likely to be damaged as it is moved onto the tow truck). After opening the car door, Agent Hancock saw a large plastic bag on the floor in front of the passenger seat, which appeared to contain green vegetable matter. He then investigated further, confirmed his initial assessment, and seized the bag of vegetable matter.

9. In due course, Mr Crisp was charged with possession of 297.6 g of cannabis; he has now applied for evidence of the finding of the cannabis in his car to be excluded from proceedings relating to that charge.

10. There is one further aspect of this matter that should be mentioned, although neither party sought to attribute any significance to it. Evidence emerged at the hearing that the car driven by Mr Crisp was still registered in the name of Ms Drummond’s daughter, who was present in Ms Drummond’s house during Mr Crisp’s visit, and who had sold the car to Mr Crisp.

Police evidence about the incident

11. Agent Hancock gave evidence at the hearing of the application. His evidence as to the reason for deciding to remove the car was as follows:

And did Ms Drummond tell you something in relation to that car or ask you something in relation to that car?---Constable Middlemiss spoke to me about that car after speaking to Valerie Drummond.

Okay. And was the substance of that, that she requested that car be removed?---Yes it was.

And why did she want it removed?---She wanted it removed to ensure that the defendant would not return to the property to obtain that vehicle again.

And why didn’t she want the defendant to, Mr Crisp to return to the property?---She was fearful for her safety and the safety of those in the house.

And you’re aware that Constable Middlemiss obtained a notebook statement from Ms Drummond requesting its removal?---Yes, that’s correct.

And requesting its removal for fear that he would return and collect

it?---That’s correct.

But your elaboration on that, as I understand it, is that she feared that if he returned there would be a further offence committed on her?---It was her person, that was what was conveyed to me, was that she was fearful and in seeing her I certainly confirm that she was fearful on the night.

I’m just showing you a photocopy of a notebook statement, a two page notebook statement, is that the statement taken by Constable Middlemiss from Ms Drummond requesting the removal of the vehicle?---Yes it is.

Now had you sighted that on the night?---I had spoken to Constable Middlemiss, he had given me a verbal of the information he’d just obtained from her, Valerie Drummond.

I tender that, your Honour.

MR EDMONDS: There’s no objection on the voir dire, your Honour.

MR DRUMGOLD: And did you decide to act on that request to move the vehicle ?---Yes I did.

And why did you decide to move, to act on that request, to move the vehicle?---In my opinion I agreed that the vehicle would more appropriate if it was removed from the premises, due to the previous incidents that had occurred over time between the defendant and the victim.

And specifically what was your concern if the vehicle was to remain at the premises?---The harm of the occupants of that premises.

In what way?---That the defendant may harm them, may commit a further offence.

When he returned to collect the vehicle?---When he returned, yes.

12. He then went on to explain the process of arranging removal of the car:

Okay, and what did you do in order to remove that vehicle?---I considered the use of an AFP tow, being a tow arranged and paid for by the AFP. And then assessed the vehicle for its appropriate tow, whether there was any damage that the tow truck needed to know about. Whether the steering lock was unlocked, whether there were keys in the car, and that the driver’s seat was in a safe manner for the tow truck driver to enter.

Sorry, If I could just digress for a moment, where was your intention to take the car to, what location?---To the Property Office, a secure compound with the AFP.

And what did you do then?---Then I assessed the vehicle for its ability to be towed.

And what did that entail?---That entailed seeing whether the vehicle was secure or insecure, whether the ignition key was in the vehicle to enable the tow truck driver to use steering to get it onto the back of the truck.

What’s the significance of that, what if the key’s not in the ignition?---It’s harder for the tow truck driver to get it onto the back of the truck, because if the wheels are locked into a turned position, the car is then basically dragged onto the truck and there’s more likely for damage.

Right. So you decided to determine whether or not there was a key in the car?---Yes that’s correct.

And how did you do that?---I approached the vehicle, saw that the driver’s window was partly down and could then see that the vehicle was unlocked. Opened the driver’s door, had torchlight with me, could see the keys in the ignition and the driver’s seat appeared clean, I assessed for any obstacles that could undue safety towards the tow truck driver, or ourselves if we needed to answer to assist the tow truck driver, and then observed items on the passenger seat.

13. As to the authority for removing the car, Agent Hancock gave the following evidence in response to questions from me:

... since you were arranging a tow that would have been at AFP expense, that was presumably covered by some sort of internal procedures?—That is correct, and that needs to be approved by a sergeant, which I obtained permission from the communication sergeant.

You had?—Yes, that the AFP take the cost of the tow.

14. I accept the evidence to the effect that Ms Drummond was concerned that the continuing presence of Mr Crisp’s car in her front yard could provide either an incentive or an excuse for Mr Crisp to return to her premises, if and when he was bailed, and that this would place Ms Drummond, her family members and her property at risk of physical violence. I also accept Agent Hancock’s evidence that opening the door of Mr Crisp’s car was a routine part of preparing it to be towed away, and that the removal of Mr Crisp’s car at AFP expense was authorised in accordance with AFP internal procedures.

The applicant’s argument

15. Counsel’s argument in support of Mr Crisp’s application for the evidence to be excluded was made over several hearing days and to some extent developed in response to questions from me. It can be summarised as follows.

16. First, he argues that the evidence was obtained improperly or in contravention of an Australian law.

17. The claim is that an impropriety arose because:

(a) there was no positive authority (express or implied) for the police officer to open the door of Mr Crisp’s car when he did so; and

(b) in the absence of such authority, opening the car door was a trespass.

18. Alternatively, the police officer’s action contravened one or more laws empowering police officers to take such action in limited circumstances.

19. Thus, counsel argued, the evidence obtained as a result of the police officer’s action in opening the door was obtained, directly or indirectly, “improperly or in contravention of an Australian law”.

20. Secondly, counsel for Mr Crisp argues that, having regard to the impropriety or contravention, the undesirability of admitting the evidence obtained in the way that this evidence was obtained outweighs the desirability of admitting the evidence.

21. These arguments require consideration of a range of questions that were canvassed during the hearing, as follows:

(a) Was there any express or implied authority for the police officer to open the door of Mr Crisp’s car?

(b) Did the police officer commit a trespass in opening the door of Mr Crisp’s car?

(c) Did the police officer contravene an Australian law in opening the car door?

(d) If there was an impropriety or contravention, how serious was it and what are the implications of admitting the evidence obtained through that impropriety or contravention? Do those implications make the admission of the evidence sufficiently undesirable to outweigh the desirability of admitting evidence with such high probative value?

Was there express or implied authority to open the door of Mr Crisp’s car?

22. Counsel drew my attention to several Acts that might have provided express authority for the police officer to enter Mr Crisp’s car, as follows:

(a) Crimes Act 1900 (ACT) (ss 188, 190, 209);

(b) Drugs of Dependence Act 1989 (ACT) (s 184);

(c) Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Road Transport Act) (s 32).

23. Counsel for Mr Crisp argued that none of the provisions provided authority for police to enter Mr Crisp’s car, and that therefore the entry was a contravention of those provisions. Counsel for the DPP argued that opening the car door might not have amounted to entering the car anyway, but that if it did, one or more of the provisions authorised such entry. For reasons set out below, I have found against both parties in relation to these arguments, with the effect that none of the various provisions provides an answer to the questions raised in this application.

24. The questions whether any of the provisions authorised police to enter the car is dealt with in paragraphs [28] to [50] below.

25. The question whether opening the car door contravened any of the provisions is dealt with in paragraph [62] below.

26. Counsel for the respondent queried whether opening Mr Crisp’s car door was an “entry” at all, but he did not suggest any basis for interpreting “entering” so as to exclude the police action, and the matter was not argued. I note that if the action did not amount to an entry, then it would not have been expressly authorised by any of the legislative provisions about powers of entry, but on the other hand it might not need to have been expressly authorised in the way in which some entries need to be authorised.

27. In the absence of proper argument about the classification of the police action, I have taken the approach that seems to be most favourable to Mr Crisp, and assumed that some step in the police action in relation to Mr Crisp’s car did amount to an entry. However, this assumption has not been sufficient to enable Mr Crisp to succeed in this application.

Crimes Act 1900—sections 188 and 190

1"> 28. Section 188 of the Crimes Act is set out at Appendix B to this judgment. It lists, in pars (a), (b) and (c), three circumstances in which “a police officer may enter premises” and take action to prevent an offence or a breach of the peace or to protect life or property. Section 185 of the Crimes Act defines “premises” to include “a place and a conveyance”, and “conveyance” in turn is defined to include a vehicle.

Paragraph 188(a)—by invitation from resident where person injured or in danger of injury

29. It is not clear how par 188(a) is generally intended to apply to premises being a motor vehicle. The term “resident” does not appear to be defined anywhere, so it presumably takes its ordinary meaning, and it would be an unusual (although not inconceivable) case in which a police officer would be able to identify anyone as a “resident” of a motor vehicle. Nor is it clear how the provision is intended to operate when one set of premises (in this case Mr Crisp’s car) is located wholly within another set of premises (in this case Ms Drummond’s property), although the inclusion of “a place” in the meaning of “premises” may mean that this issue arises quite frequently. However, there is no need to reach any conclusions about either of those issues, because, whether or not Ms Drummond was able to invite police officers onto that part of her premises already occupied by Mr Crisp’s car, it is clear that there was no person in Mr Crisp’s car who had suffered physical injury at the hands of another person or was in immediate danger of suffering such injury, and therefore par 188(a) did not provide any direct authority for the police officer to enter the premises consisting of Mr Crisp’s car.

Paragraph 188(b)—under s 189 warrant

30. There is no evidence that any warrant had been issued under s 189 in relation to premises being Mr Crisp’s car, or indeed premises being Ms Drummond’s yard, so paragraph 188(b) is not applicable.

Paragraph 188(c)—in accordance with s 190

1"> 31. Counsel for the DPP argued that the police officer who opened the door of Mr Crisp’s car did so for purposes covered by s 190 (also set out in Appendix B) and was therefore acting under par 188(c). The relationship between s 190 and par 188(c) is somewhat obscure.

32. Section 190 provides a power of entry, essentially to prevent offences or breaches of the peace or to protect life or property. The power depends on a belief on reasonable grounds that an offence, a breach of the peace, or injury to a person has happened or that injury or property damage is imminent.

33. Section 188 provides a power to enter and to take action. Paragraph 188(c) is expressed in a way that might lead the reader to expect that s 190 would simply define “circumstances of seriousness and urgency” for the purposes of s 188 but, as already mentioned, s 190 confers an independent power of entry, in circumstances that involve largely the same elements as s 188 but assembled in a slightly different way. If s 190 applies, then the power to enter conferred by s 188 in circumstances mentioned in par 188(c) would seem to be unnecessary, but the s 190 power of entry still needs to be backed up by the s 188 power, having entered premises, to take certain action, namely action necessary and reasonable to prevent further offences or breaches, or to protect life or property.

Did section 190 apply?

34. I find that s 190 did not apply, whether the premises in question were Mr Crisp’s vehicle or Ms Drummond’s property. It was not necessary to enter either of those premises immediately for the purpose of preventing anything or protecting anyone. Even if removing the car was necessary for any preventing or protecting, that removal only needed to be effected, at the earliest, before Mr Crisp was released from custody. In the normal course of events that was not likely to happen for some hours at least, and there was no evidence before me that his release was in fact imminent when the police officer opened the car door.

35. The finding that s 190 did not apply is consistent with (although not required by) the concession by Agent Hancock in cross-examination that in cases of violence arising out of failed relationships, it is not unusual for an offender who was a party to the relationship to be bailed on conditions including that he must not return to the premises occupied by the other party to recover his property unless accompanied by a police officer. The implication of this concession was that even when Mr Crisp was released on bail, his bail conditions could have addressed the risk that concerned Ms Drummond by providing for the removal of Mr Crisp’s car by Mr Crisp in the company of a police officer.

36. Since s 190 is not applicable, then par 188(c) is not satisfied.

37. This means that there was in the circumstances no express power under s 188 or s 190 to enter the premises consisting of Mr Crisp’s car.

Crimes Act 1900, section 209

1"> 38. This section is set out in Appendix B. It permits police officers to stop and search vehicles for things relevant to indictable offences that they reasonably suspect are in or on the vehicle and at risk of being concealed, lost or destroyed.

39. Since it is common ground that Agent Hancock did not see anything suspicious in Mr Crisp’s car before he opened the door, and there was no claim that he had other reasons for suspecting the presence of a relevant item in Mr Crisp’s car, it is clear that this section did not provide a power for police to “enter” Mr Crisp’s car. I do not need to decide whether, if the police officer had seen any suspicious item earlier, it would have been necessary to seize the item “without the authority of a search warrant because the circumstances [were] serious and urgent” (par 209(1)(c)).

Drugs of Dependence Act 1989, subsection 184(2)

40. Section 184 of the Drugs of Dependence Act is set out in Appendix C. In relation to a “place” (defined by s 182 to include a vehicle), subs 184(2) confers search and seizure powers on a police officer in six specified circumstances set out in pars 184(2)(a) to (f). However, none of the six circumstances appears to be relevant in Mr Crisp’s case.

Paragraph 184(2)(a) (consent under s 185)

41. If Mr Crisp was the occupier (not apparently defined) of the place, he did not consent to the police entry to that place. Nor was it argued that Ms Drummond was, for the purposes of the Drugs of Dependence Act, in immediate control of the car that was parked on her property, or that she consented to a search of the car under s 185.

Paragraph 184(2)(b) (person taken into custody in relation to an offence)

42. Mr Crisp had not been taken into custody in relation to an offence as defined for s 184, being an offence against the Drugs of Dependence Act or Chapter 6 of the Criminal Code 2002 relating to serious drug offences (see subs 174(1) of the Drugs of Dependence Act).

Paragraph 184(2)(c) (warrant under s 187)

43. There is no evidence that any relevant warrant had been issued in relation to Mr Crisp.

Paragraph 184(2)(d) (circumstances of seriousness or urgency under s 188)

44. At the point when the police officer opened the door of Mr Crisp’s car, there were no grounds to believe that a thing connected with an offence (being an offence related to drugs as mentioned in paragraph (b) above) was situated in Mr Crisp’s car and was at risk of being concealed, lost or destroyed (par 188(1)(a)).

45. I note, and accept, Agent Hancock’s evidence of the need, having found the cannabis, to seize it before allowing Mr Crisp’s vehicle to be towed away by a private tow-truck operator. However, this is not relevant to the original opening of the door. Nor is it clear that subs 188(2) provides authority for such a seizure, given its somewhat unorthodox structure; while pars 188(2)(a) and (b) seem to provide separate and independent powers of search and entry, par 188(2)(c) appears to provide a power of seizure, even in circumstances of seriousness and urgency, only of items found in the course of exercising the search or entry powers under pars (a) and (b).

Paragraph 184(2)(e) (order made by a court)

46. No court order authorising a police officer to enter the vehicle was brought to my attention.

Paragraph 184(2)(f) (provision of ACT law)

47. There is no provision of a law in force in the ACT that was identified to me as authorising a search and seizure so as to justify the initial entry under s 184.

Operation of subs 184(2) in general

48. Counsel for Mr Crisp argued that subs 184(2) could not apply at all in this case because the purpose of entering Mr Crisp’s car was not to search it but to facilitate its removal, whereas s 184 provides a power of entry that is explicitly linked to the conduct of a search and seizure. I am inclined to agree with this analysis, subject to noting that the words “if, and only if,” in subs 184(2) would seem to qualify only the exercise of the search and seizure power; clearly, the power of entry conferred by subs 184(2) of the Drugs of Dependence Act could not be the only power of entry exercisable by police in the ACT. However, since it is clear that none of the preconditions set out in subs 184(2) was satisfied, I do not need to decide the broader question raised by counsel.

Road Transport (Safety and Traffic Management) Act 1999, section 32

1"> 49. This provision (which is set out in Appendix D) confers power on a police officer to move an unattended vehicle from a road or road related area in certain circumstances. The definitions of “road” and “road related area” are also set out in Appendix D. It is clear that Ms Drummond’s front yard was not a road or a road related area, and therefore s 32 of the Road Transport Act did not empower the police officers to seek to remove Mr Crisp’s car from her yard.

50. However, I note that if Ms Drummond or one of her family had responded to the car’s unauthorised presence in her front yard by moving the car off her front yard and onto the adjacent nature-strip, which was a “road related area”, then the police officers might well have been able to remove it from there to a retention area in direct reliance on s 32.

Was there a trespass?

51. In support of his assertion that the police dealing with Mr Crisp’s car was a trespass, counsel for Mr Crisp relied on the explanation, in Fleming, The Law of Torts (9th Edition) (Fleming) at 58, of the tort of trespass as it applies to intentional interference with chattels:

Any unprivileged interference with a chattel in the possession of another is a trespass. It may be committed by any act which brings the defendant into ... contact with the chattel, as by destroying, damaging or merely using goods ... or removing an article from one place to another. [references omitted]

52. However, as indicated in Fleming’s description, trespass is not an absolute concept; the interference with goods needs to be unprivileged to amount to a trespass. In various circumstances an interference will not constitute a trespass, including, for instance, if the interference is for the abatement of nuisance or for the recovery of property.

53. Opening the car door as such was, in the absence of damage, probably not a trespass in itself; see Fleming at 59:

...it is still moot whether the action lies without proof of actual damage, as for harmlessly touching the fender of a car ...

54. However, if the removal of the car was a trespass, opening the door might have been tainted by its connection with the intended trespass.

55. It seems clear that removing Mr Crisp’s car was an interference with Mr Crisp’s property. However it is also clear that Mr Crisp had no right to park his car in Ms Drummond’s front yard; quite apart from the risk of Mr Crisp returning to take the car, its mere presence in her yard was an interference with Ms Drummond’s rights and possibly a trespass in itself.

56. In argument, counsel for Mr Crisp did not establish that Ms Drummond had no right to seek the removal of the car, nor that the approach adopted by Ms Drummond and the police officers was an improper way of achieving the removal of the car such as to render it an unprivileged interference and therefore a trespass.

57. Despite submissions made on behalf of the DPP, I do not consider that the question whether the police action amounted to a trespass is easily resolved by resort to standard texts on the tort of trespass. Much of the material relied on by counsel for the DPP relates to trespass to land or trespass to the person, and it is not clear that defences available in relation to those versions of the tort apply, or apply in any particular way, in the case of a trespass to goods. In the absence of careful argument on this question, I refrain from conclusions about whether the police action was or was not a trespass, or indeed whether Mr Crisp’s parking of his car on Ms Drummond’s property was or was not a trespass. Rather, I find that counsel for Mr Crisp has not established, even on the balance of probabilities, that the police action did constitute a trespass.

58. Since the alleged trespass was the only specific impropriety raised by counsel for Mr Crisp, this in turn means that Mr Crisp has not established on the balance of probabilities that the police action to arrange the removal of Mr Crisp’s car at Ms Drummond’s request was improper for the purposes of the Evidence Act.

Was opening the door improper?

59. Counsel for Mr Crisp initially submitted that in the absence of a statutory or common law power to do so, the police entry into his car was unlawful. However, in written submissions provided after the initial hearing day, he expressly conceded that there is no requirement for:

every action of a police officer [to] be justified either by some express statutory power, or at common law, particularly, where such actions do not involve any interference with an individual’s legal rights.

60. However, he argued that actions that would:

on the face of it, constitute a civil wrong, such as trespass ... must be considered “improper” within the meaning of s 138 of the Evidence Act ... unless ... justified either at common law or by statute.

61. On this basis, and since I have found that no specific impropriety such as a trespass has been established, Mr Crisp would need to establish another ground for any finding the police officer’s action was improper. One approach would have been to allege impropriety based on a breach of “the minimum standard which a society such as ours should expect and require of those entrusted with powers of law enforcement” (Ridgeway v The Queen (1995) 184 CLR 19 at 36). However, counsel for Mr Crisp, while referring to Ridgeway in support of his submission about the impact of a trespass on the admissibility of evidence, did not raise such an argument directly, perhaps because he recognised that community standards would in this case provide support for the actions of the police officers and little or no sympathy for Mr Crisp. No other ground was suggested.

Was an Australian law contravened?

62. Counsel for Mr Crisp, while arguing successfully that none of the provisions listed in [21] above empowered the police officer to open the door of Mr Crisp’s car, has not established that those provisions or any other law has been contravened. I note in this context that an action that is not authorised by an empowering provision is not properly described as contravening the empowering provision; a contravention can only arise when a provision prohibits action, not when it simply does not empower particular action. Thus, my finding that none of the cited provisions of the Crimes Act, the Drugs of Dependence Act and the Road Transport Act provided express authority for police to remove Mr Crisp’s car does not imply that any of those provisions was contravened.

Is the evidence liable to be excluded?

63. Accordingly, I find that, although no express statutory power for police to remove Mr Crisp’s car has been identified, counsel for Mr Crisp has not established on the balance of probabilities:

(a) that removal of the car was a trespass; or

(b) that the police decision to help Ms Drummond remove the car to reduce the likelihood that Mr Crisp would return to collect his car and thereby, or in conjunction with that return, commit further offences, was improper on any other basis; or

(c) that the removal of the car contravened any Australian law.

64. If there was nothing improper about the police decision to remove the car, and the removal did not contravene an Australian law, then there was no impropriety or contravention in the first step of opening the car door, and therefore there is no basis for excluding under the Evidence Act the evidence discovered as a result of opening the door.

65. This does not mean that police officers can without constraint randomly and arbitrarily open the doors of cars parked, or being used, otherwise legally (the cases of George v Rockett [1990] HCA 26; (1990) 170 CLR 104 and R v Stankovich [2004] ACTSC 93 (1 October 2004) are relevant to this more general question). It does mean, however, that a police officer who, in opening the door of a car, is not seeking to obtain evidence of an offence but is acting reasonably and in accordance with standard procedures (see Agent Hancock’s evidence quoted at [12] and [13] above) to address the immediate consequences of criminal behaviour for other members of the community should not be taken to be acting improperly merely because there is no specific power in the law for him or her to act in that way.

Should the evidence be excluded?

66. In case this finding is not correct and the police action in opening the door of Mr Crisp’s car was improper or contravened an Australian law, it would be useful for me to reach a conclusion on the application under s 138 of the Evidence Act for the evidence thus obtained to be excluded, on the basis that the undesirability of admitting evidence obtained in the way this evidence was obtained outweighs the desirability of admitting the evidence.

67. However, no single substantive ground of impropriety, and no specific contravention, has been clearly alleged; rather the general assertion is that the action of the police officers was not clearly authorised and therefore the evidence must have been obtained in circumstances that attract the operation of section 138 of the Evidence Act. It is accordingly difficult to hypothesise a particular basis for finding an impropriety or contravention that could be used in reaching a conclusion whether the evidence should be excluded, and such a conclusion is in any case unlikely to be helpful to any court considering this question in the future. Accordingly, I refrain from reaching any conclusion on that hypothetical question.

68. However, I do note my view that there was nothing about the actions of the police in this case that the community in general would regard as unacceptable; indeed many members of the community would probably have been critical of any refusal by the police to help Ms Drummond in the circumstances of this case. Nor can I see any basis for suggesting that this is a case in which the rights of accused people should be protected from police activities that might be in some way unfair, and in which the courts need to ensure that such protection is afforded despite the views of members of the broader community.

69. Rather, the actions of the police officers were undertaken as an element of genuine community policing, and were not in any way part of a criminal investigation as such, let alone an attempt to obtain evidence using methods that should be discouraged.

70. On the other hand, I note that there may be some benefit for the AFP in seeking to establish, more clearly than emerged in evidence in this case, the source of their power to remove vehicles in circumstances of this kind, and the basis of any protection for the AFP from any action that arises directly from removing a vehicle and securing it in AFP custody or that is brought in connection with loss or damage sustained by the owner as a result of such a removal.

Conclusions

71. I find that:

(a) the applicant has not, on the balance of probabilities, established for the purposes of s 138 of the Evidence Act that evidence of the finding of cannabis in Mr Crisp’s car was obtained as a result of any impropriety or contravention of Australian law by the AFP; and

(b) there is therefore no basis for finding the evidence inadmissible under s 138 of the Evidence Act in proceedings against Mr Crisp.

72. The application is accordingly dismissed.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 7 April 2009

Counsel for the applicant: Mr S Drumgold

Solicitor for the applicant: Director of Public Prosecutions (ACT)

Counsel for the respondent: Mr P Edmonds

Solicitor for the respondent: Paul Edmonds & Associates

Date of hearing: 12, 17 June, 12 August 2008

Date of judgment: 7 April 2009

Appendix A—Evidence Act 1995 (Cth)

138. Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted 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.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(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.

Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986.

Appendix B—Crimes Act 1900 (ACT)

188. Police powers of entry

A police officer may enter premises, and may take the action that is necessary and reasonable to prevent the commission or repetition of an offence or of a breach of the peace or to protect life or property—

(a) when invited onto the premises by a person who is or is reasonably believed to be a resident of the premises for the purpose of giving assistance to a person on the premises who has suffered, or is in imminent danger of suffering, physical injury at the hands of some other person; or

(b) under a warrant issued under section 189; or

(c) in circumstances of seriousness and urgency, in accordance with section 190.

190. Entry in emergencies

A police officer may enter premises where the officer believes on reasonable grounds that—

(a) an offence or a breach of the peace is being or is likely to be committed, or a person has suffered physical injury or there is imminent danger of injury to a person or damage to property; and

(b) it is necessary to enter the premises immediately for the purpose of preventing the commission or repetition of an offence or a breach of the peace or to protect life or property.

209 Stopping, searching and detaining conveyances

(1) This section applies if a police officer suspects, on reasonable grounds, that—

(a) a thing relevant to an indictable offence or a thing stolen or otherwise unlawfully obtained, is in or on a conveyance; and

(b) it is necessary to exercise a power under subsection (2) to prevent the thing from being concealed, lost or destroyed; and

(c) it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.

(2) If this section applies, the police officer may—

(a) stop and detain the conveyance; and

(b) search the conveyance and any container in or on the conveyance, for the relevant thing; and

(c) seize the thing if he or she finds it there.

(3) If, in the course of searching for the relevant thing, the police officer finds any evidential material, the police officer may seize the material if he or she suspects, on reasonable grounds, that—

(a) it is necessary to seize it to prevent its concealment, loss or destruction; and

(b) it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.

(4) The police officer shall exercise his or her powers under this section subject to section 210.

Appendix C—Drugs of Dependence Act 1989 (ACT)

184. Search and seizure

(1) A police officer may search a person or the clothing that is being worn by, or property in the immediate control of, a person and may seize any thing that he or she suspects on reasonable grounds to be connected with an offence that is found in the course of the search, if, and only if, the search and seizure is made by the police officer—

(a) after obtaining the consent of the person to the search in accordance with section 185; or

(b) in accordance with section 186 on taking the person into lawful custody in relation to an offence; or

(c) under a warrant issued under section 187; or

(d) in circumstances of seriousness and urgency, in accordance with section 188; or

(e) under an order made by a court; or

(f) otherwise under a provision of a law in force in the ACT.

(2) A police officer may enter any place, and may search for and seize any thing that he or she suspects on reasonable grounds to be connected with an offence that is found on or in the place if, and only if, the search and seizure is made by the police officer—

(a) after obtaining the consent of the occupier of the place to the entry in accordance with section 185; or

(b) under a warrant issued under section 187; or

(c) in circumstances of seriousness and urgency, in accordance with section 188; or

(d) under an order made by a court; or

(e) otherwise under a provision of a law in force in the ACT.

Appendix D—Road Transport (Safety and Traffic Management) Act 1999 (ACT)

32. Removal of unattended vehicles from certain places

(1) A police officer or authorised person may move an unattended vehicle from a road or road related area to a retention area—

(a) if the vehicle is unlawfully parked; or

(b) if the police officer or authorised person believes on reasonable grounds that the vehicle is causing, or is likely to cause, a danger to the public or an unreasonable obstruction to other users of the road or road related area; or

(c) in any other circumstances prescribed by regulation.

(2) As soon as practicable after moving the vehicle to a retention area, the police officer or authorised person must report the action to the police officer in charge of the closest police station and ask that the responsible person for the vehicle (or other person entitled to possession of the vehicle) be told where it has been moved to.

(3) A vehicle moved to a retention area is taken to be uncollected goods under the Uncollected Goods Act 1996 and—

(a) the road transport authority is taken to be the possessor of the vehicle under that Act; and

(b) the responsible person for the vehicle is taken to be the owner of the vehicle; and

(c) the road transport authority may dispose of the vehicle in accordance with that Act, part 3; and

(d) reasonable costs of the possessor in complying with that Act are taken to include the cost of moving the vehicle to the retention area.

(4) However, the responsible person for the vehicle is not required to pay costs under the Uncollected Goods Act 1996, section 26 (2) (a) or (b) if the person satisfies the road transport authority that the vehicle was stolen or illegally taken or used at the relevant time.

Note The Uncollected Goods Act 1996, s 26 (2) (a) and (b) require the owner to pay the reasonable costs incurred by the possessor in complying with that Act and the possessor’s reasonable costs in storing and maintaining the goods before they are collected.

Dictionary

road means an area that is open to or used by the public and is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles, but does not include an area that would otherwise be a road so far as a declaration under the Road Transport (General) Act 1999, section 12 (Power to include or exclude areas in road transport legislation) declares that this Act does not apply to the area.

road related area means—

(a) an area that divides a road; or

(b) a footpath or nature strip adjacent to a road; or

(c) an area that is open to the public and is designated for use by cyclists or animals; or

(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles; or

(e) a shoulder of a road; or

(f) any other area that is open to or used by the public so far as a declaration under the Road Transport (General) Act 1999, section 12 (Power to include or exclude areas in road transport legislation) declares that this Act applies to the area;

but does not include an area that would otherwise be a road related area so far as a declaration under that section declares that this Act does not apply to the area.