On the matter of an application by Huy Huu Lee [2009] ACTSC 98 (27 August 2009)

Last Updated: 22 September 2009

HUMAN RIGHTS ACT

IN THE MATTER OF AN APPLICATION BY HUY HUU LEE [2009]
ACTSC 98 (27 August 2009)

EVIDENCE – admissibility – identification evidence relying on photograph of accused –photograph taken during execution of defective search warrant – whether identification evidence obtained improperly or in contravention of Australian law, or in consequence of impropriety or contravention.

EVIDENCE – admissibility – identification evidence relying on photograph of accused –photograph taken during execution of defective search warrant – application of s 230 Crimes Act 1900 (ACT) – whether photograph should have been retained by police if taking of photograph not authorised by s 230 Crimes Act 1900 (ACT) – whether s 231 applies to material taken in mistaken belief that s 230 permits taking of material – whether, if s 231 does not apply, material can be retained or should be destroyed.

EVIDENCE – admissibility – identification evidence relying on photograph of accused – scope for taking identification material apart from s 230 Crimes Act 1900 (ACT) – effect of Surveillance Devices Act 2004 (Cth)].

EVIDENCE – admissibility – application of s 138 Evidence Act 1995 (Cth) – evidence obtained in consequence of an impropriety or contravention of Australian law – whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained in the way it was obtained – public interest in compliance with restrictions on police powers to take identification material.

Australian Federal Police Act 1979 (Cth), s 8
Evidence Act 1995 (Cth), s 138
Surveillance Devices Act 2004 (Cth), s 37
Crimes Act 1900 (ACT), ss 378, 230, 231
Human Rights Act 2004 (ACT), ss 12, 18(1), 18(2)

International Covenant on Civil and Political Rights, Art 9.1, Art 17
Crimes (Amendment) Bill (No. 3) 1994 (ACT) Explanatory Statement

R v Rondo [2001] NSWCCA 540; 126 A Crim R 562
R v Michael Ryan Malloy [1999] ACTSC 118 (9 November 1999)
Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612
R v Haughbro (1997) 142 FLR 415
R v Peter Blundell [2007] ACTSC 94 (15 November 2007)
Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395

No. SCC 410 of 2007

Judge: Penfold J
Supreme Court of the ACT
Date: 27 August 2009

IN THE SUPREME COURT OF THE )
) No. SCC 410 of 2007
AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION BY HUY HUU LEE

ORDER

Judge: Penfold J
Date: 27 August 2009
Place: Canberra

THE COURT ORDERS THAT:

1. In the trial of Huy Huu Lee on charge [CC2007/2927] of trafficking in a controlled drug other than cannabis, namely heroin, the following evidence is not to be admitted:
(a) the photograph of Mr Lee;
(b) Mr (formerly Constable) Richards’ identification of the person driving the Ford Telstar at some time after 9.38 am but before about 10.00 am as Mr Lee; and
(c) Senior Constable Knight’s identification of the person who drove the Ford Telstar into Blandon Place after 9.30 am but before about 10.00 am as Mr Lee.

Introduction

1. Huy Huu Lee was arraigned on 21 July 2009 on one charge of trafficking in a controlled drug other than cannabis, namely heroin. He has applied under s 138 of the Evidence Act 1995 (Cth) for certain evidence to be excluded from his forthcoming trial.

Background

The first police operation

2. In 2004, a police operation (the warrant operation) resulted in Mr Lee being charged with possession of a prohibited substance, namely heroin. That operation involved the execution on 31 July 2004 of several search warrants, including one intended to authorise a search of Mr Lee’s person.
3. The operation began with Mr Lee being subjected to an ostensibly random traffic stop by police. At the hearing in the Magistrates Court the police officer concerned, while refusing to concede that he had told Mr Lee a lie, agreed that it was not a random traffic stop and that what he had said to Mr Lee was misleading. The stop was apparently prolonged until the arrival of other officers who were bringing a series of warrants, including one intended to authorise a search of Mr Lee and one intended to authorise a search of a house in Charnwood. After the search warrant related to Mr Lee was produced at the scene of the traffic stop, police found several water balloons containing white powder which they believed had been thrown away by Mr Lee, and he was arrested.
4. Mr Lee was then taken to an address in Bunker Place in Charnwood. He was kept near the premises but not allowed to enter the house for several hours; eventually he was placed in a caged vehicle and taken to the police station.
5. When the charge in relation to the balloons, which had been found to contain heroin, came before the Magistrates Court for hearing on 23 May 2005, the magistrate indicated that evidence obtained through that operation would be excluded because of defects in the warrant. The magistrate made no formal findings on two other defence claims, one about the legitimacy of the traffic stop, and the other to the effect that Mr Lee had been detained in connection with the warrant operation for some hours longer than was justified without being released or taken before a magistrate.
6. After the magistrate indicated his finding in relation to the warrant, counsel for the Director of Public Prosecutions (DPP) declined to offer any more evidence, the information against Mr Lee was dismissed with costs, and he was discharged.
7. At some time in the course of the warrant operation a photograph was taken of Mr Lee. The claim that the photograph was taken during the warrant operation is central to this application, but for several months after the application first came on for hearing there was uncertainty about the provenance of the photograph—among other things it seems that there was no date information attached to the digital photograph. However, in October 2008, counsel for the DPP finally conceded that the photograph challenged by Mr Lee was taken during the warrant operation, and explained that the photograph was taken:
(a) to ensure that no injury had been sustained by Mr Lee during the operation; and
(b) for what counsel described as “internal identification” and “police intelligence purposes”.
8. The photograph shows Mr Lee standing in front of a fence and looking straight at the camera. Apart from the concession that the photograph was taken during the warrant operation, and the explanation of the purposes, no evidence was put before me of the exact circumstances of the taking of the photograph. I am prepared to infer from the image of Mr Lee shown in the photograph that Mr Lee submitted to being photographed without the use of force, but I do not infer that Mr Lee gave any kind of meaningful consent to the taking of the photograph, and counsel for the DPP did not submit that he had done so. It seems far more likely that he submitted to being photographed because, in the circumstances, particularly the production of the warrant, he believed he had no choice but to do so (in the same way that most people who are asked by a police officer to give their name and address will comply without argument because they assume that any such request, being made by a police officer, is backed by the force of law). In the absence of any evidence inconsistent with this, I find that Mr Lee did not consent, but submitted, to the taking of the photograph.

The surveillance operation

9. In late 2006, police undertook a surveillance operation in relation to Mr Lee. The surveillance operation, which culminated in Mr Lee’s arrest on 27 November 2006, involved a number of police officers who had previously been given information about Mr Lee including vehicle details, home addresses and a photograph. The photograph was the photograph of Mr Lee taken during the warrant operation. Those officers gave evidence about the surveillance operation at a committal hearing in October and December 2007.
10. There were three stages to the surveillance operation on 27 November 2006. Evidence of each stage was given at the committal hearing.
(a) Between about 9.30 am and 10.00 am, a vehicle linked to Mr Lee (a white Ford Telstar) was seen on several occasions driving through Belconnen.
(b) During that period, a Mr Gregory Walker bought a $50 deal of heroin, in a Belconnen street, from an Asian man in a white car, and a few minutes later was interrupted by police as he was about to inject the heroin.
(c) A bit more than an hour later, the white Ford Telstar was stopped in Belconnen and Mr Lee was identified as the driver.
11. Several police officers gave evidence about the surveillance operation at the committal hearing. I mention only the evidence of those who purported to identify the driver of the car under observation as Mr Lee.

Evidence of Constable Richards

12. Mr Brad Richards, who had in 2006 been an AFP Constable, said that he was given a surveillance request accompanied by information about Mr Lee including vehicle details (make, model and registration number), home address and a photograph said to be of Mr Lee. Mr Richards gave evidence that at around 9.38 am on 27 November 2006 he was alerted by another officer that the car he was waiting for was “mobile”. While driving roughly north along Florey Drive, Belconnen, he saw a Ford Telstar matching the details he had been given as part of the surveillance package, and identified the person driving the Telstar as Mr Lee. He claimed that this identification, which he said was based both on the photograph he had been given and what is recorded in the transcript as “my previous association working this subject”, was made at an intersection when the Telstar was turning left and Constable Richards’ vehicle was turning right. A few minutes later, he saw the Telstar in Blackham Street and turning into Birtles Street, at which point he could not see the occupant of the Telstar but he could see that there was only one occupant. He then saw another car follow the Telstar into Birtles Street and the two cars stopped. He saw a man at the driver’s side of the Telstar, who then got into the driver’s seat of the other car. He then saw the other car leave Birtles Street and drive to the Higgins shops.
13. Shortly after 11.50 am that day, Constable Richards saw the Telstar again, pulled over on Ginninderra Drive, with the person he had earlier identified as Mr Lee speaking to other police officers.
14. Constable Richards agreed in cross-examination that before seeing the driver of the Telstar he “was confident it was going to be Mr Lee, but [his] priority was to look at the driver and confirm and identify that it was Huy Huu Lee”.

Evidence of Senior Constable Knight

15. Senior Constable James Knight gave evidence that he was given a brief, including vehicle details and home addresses and a photograph, to enable him to conduct surveillance on Mr Lee. From around 9.38 am on 27 November 2006, Senior Constable Knight followed the Telstar along several streets in Belconnen including Florey Drive, Southern Cross Drive, and Blackham Street. He was not able to identify the driver at that stage, but could see that the driver was the only occupant of the Telstar. About 10 minutes later he saw the Telstar come out of another street into Blandon Place and, at a distance of 20 to 25 metres, “recognised” the driver as Mr Lee. Senior Constable Knight said that his recognition was based on the photograph and the fact that he had “sighted the person on previous occasions”.
16. Later that morning, Senior Constable Knight saw the white Telstar parked on Ginninderra Drive with police officers around it and, outside the car, the person he had seen earlier and recognised as Mr Lee.
17. In cross-examination Senior Constable Knight gave evidence to the effect that he was aware of the need to make a proper observation of Mr Lee in the Telstar, but also said that “[the Telstar is] registered to [Mr Lee] so you would suspect that he would possibly be the driver” and that everything he’d seen until the point he made the identification had been consistent in his mind with the driver being Mr Lee.

Evidence of Constable Wiggins

18. Constable Steven Wiggins gave evidence of receiving the surveillance brief including vehicle and address details and the photograph of Mr Lee. From 9.38 am on 27 November, Constable Wiggins saw the Telstar on several streets including Blackham Street and Birtles Street, but gave no evidence of observing the car’s occupant. He then saw the Telstar on Blackham Street again, but again did not observe the occupant.
19. Later he saw the Telstar parked on Ginninderra Drive with other police officers around it. He gave evidence that the person he saw in the driver’s seat was the person whose photograph he had been given for surveillance purposes.

Outcome of surveillance operation

20. Partly in reliance on the police observations of the man identified as Mr Lee, Mr Lee was charged with trafficking in a controlled drug.

What evidence is sought to be excluded?

21. The evidence that Mr Lee seeks to have excluded from his trial is described in his application as:
    • (a) the photograph of Mr Lee tendered in the committal, and
    • (b) related evidence of the identification of Mr Lee as the driver of vehicle registration YDZ 18Y between 9:35 am and about 10:00 am on 27 November 2006.
22. For the time being I shall refer to all that evidence as “the evidence in question”. In due course it will be necessary to describe the evidence covered by my decision in more detail.

Operation of the Evidence Act

23. Section 138 of the Evidence Act is set out in the Appendix 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.
24. The first matter for determination is whether the evidence in question was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of such a contravention. The onus is on the applicant to establish such an impropriety or contravention of Australian law on the balance of probabilities.

Was the evidence improperly obtained?

25. There are three ways in which the evidence in question might be affected (a neutral word which I use deliberately at this stage) by an impropriety or contravention of law.
(a) First, the photograph, and evidence obtained through its use in the surveillance operation, might be said to be directly affected by the same impropriety (that is, reliance on a defective warrant) that led to the evidence obtained through the warrant operation being excluded in the earlier proceedings.
(b) Secondly, the taking or retention of the photograph might have involved a contravention of s 230 or 231 of the Crimes Act 1900 (ACT).
(c) Finally, the taking or retention of the photograph, if not technically a contravention of s 230 or 231, might have been in breach of a prohibition that can be inferred from those sections.
26. If the taking or retention of the photograph was improper or in contravention of an applicable law, then both the photograph itself, to the extent that it is evidence of anything, and the evidence obtained through surveillance operations involving the use of the photograph, may have been obtained directly by, or “in consequence of”, an impropriety or contravention for the purposes of s 138(1)(b) of the Evidence Act.

Other alleged improprieties related to the warrant operation

27. As mentioned in [5] above, the magistrate hearing the matter in 2005 made no findings on two other alleged improprieties affecting the warrant operation, namely the legitimacy of the original traffic stop and the alleged detention of Mr Lee for longer than was permitted for investigative purposes. The case of R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 (Rondo) was drawn to my attention as authority for the proposition that, in considering an application under s 138 of the Evidence Act where multiple improprieties are alleged, it is permissible to consider not just each impropriety but the cumulative effect of multiple improprieties (see Spigelman CJ at [25]). As the hearing unfolded, the two other improprieties were not argued in any great detail, and the fact that they were not argued in detail before the magistrate in 2005 meant that there was, in any case, limited material on which I could have made findings about those improprieties. However, since my view is that the impact of the defective warrant is sufficient to dispose of this matter, I have not needed to consider those other alleged improprieties, or the impact of Rondo, in order to identify an impropriety for the purposes of s 138.

Police intelligence purposes

28. Before considering the three possibilities identified in [25] above, I mention that counsel for the DPP did not identify any basis for a submission that the taking of the photograph could be directly justified by the “internal identification” and “police intelligence purposes” mentioned at [7] above. Nor did he refer me to any power for the police to obtain such material apart from s 37 of the Surveillance Devices Act 2004 (Cth) (as to which see [45] below) and ss 230 and 231 of the Crimes Act, which are clearly aimed, among other things, at permitting the taking of such material, and the use of such material for ongoing investigations, where the conditions of the legislation are satisfied (for instance, where a person is convicted of an offence or is being investigated for other offences when he is acquitted of a particular offence).
29. It is possible that there is other legislation not mentioned by counsel that provides broader powers to the police, but it is equally possible that the undoubted scope for collecting and retaining material under s 37 of the Surveillance Devices Act and ss 230 and 231 of the Crimes Act may have been misunderstood as being broader than it actually is.

Was the photograph tainted by the defects in the original warrant?

30. I have already found that Mr Lee, in submitting to being photographed, was influenced by his belief that police were acting pursuant to a warrant (see [8] above). There is nothing before me to suggest that in the absence of such a warrant, police would have been empowered to require Mr Lee to submit to having his photograph taken, or that in such circumstances he would have consented to being photographed. Thus, the photograph itself appears to have been obtained in consequence of an impropriety constituted by the purported execution of a defective search warrant.
31. I am inclined to the view that evidence obtained through the use of that photograph could also be described as obtained in consequence of an impropriety; that is, that evidence may be obtained “in consequence of” an impropriety not only where the evidence is an immediate product of the impropriety but also where the evidence can be directly linked to the impropriety (albeit through a process involving several steps). In this case there is a clear chain of causation between the taking of the photograph (in circumstances in which, I have found, it would not have been taken but for the reliance on the defective warrant), the retention of the photograph, and the use of the photograph in the subsequent surveillance operation. It is true that possibly the retention of the photograph, and certainly the use of the photograph in the subsequent operation, required decisions that were separated from the warrant operation in terms of both decision-makers and time, but it is also clear that neither of those decisions could have been made if the photograph had not been taken. I am satisfied that this chain of causation is sufficient to identify the evidence arising from the use of the photograph as evidence that has been obtained “in consequence of” the impropriety associated with the defective warrant (see R v Michael Ryan Malloy [1999] ACTSC 118 (9 November 1999), per Crispin J at [20], and Rondo per Spigelman CJ at [5]).

Was the photograph taken or retained in breach of s 230 or 231 of the Crimes Act?

32. As indicated above, there are two possible ways in which ss 230 and 231 of the Crimes Act might operate to render the retention and use of Mr Lee’s photograph questionable. They are conveniently dealt with together.
33. For reasons which never became clear, ss 230 and 231 were mentioned only in passing quite late in the proceedings and in response to questions from me, and were never argued in detail. This may have been because the (probably correct) assumption that Mr Lee was not in fact in lawful custody when the photograph was taken convinced counsel that the provisions were irrelevant. I am not so convinced of their irrelevance.
34. Sections 230 and 231 are set out in the Appendix to this judgment. They deal with identification material, which includes such material as fingerprints and handwriting evidence and, relevantly, photographs. In summary, s 230 deals with three matters:
(a) taking identification material under s 230 from a person who is in lawful custody (s 230(2)(a), (3) and (4)), which is expressly permitted as specified in the section; and
(b) taking identification material from a person who consents to the taking of the material (s 230(2)(b) and (10)), which is expressly not restricted by the section; and
(c) requiring a person to submit to the taking of identification material (s 230(2)(b)), which is expressly prohibited except as specified in the section.
35. Section 231 requires that, in certain circumstances, identification material taken under s 230 is destroyed within specified periods. By implication, it permits the retention of such material in other circumstances. The material must be destroyed, in general terms:
(a) if relevant proceedings are not brought or completed against the person within specified time limits, or
(b) if such proceedings are completed without a conviction being recorded (whether because the person is acquitted or otherwise), the matter is no longer subject to appeal and there are no other investigations or proceedings pending.
36. No evidence was put before me that there was any appeal from the Magistrate’s decision to dismiss the information and discharge Mr Lee after the finding that the warrant had been defective (under s 378 of the Crimes Act 1900, the dismissal of the information has the same effect as an acquittal in a trial on indictment). Nor was there evidence that when Mr Lee was discharged, there was any other pending investigation or proceeding of the kind referred to in s 231(2).
37. I note that under s 138 of the Evidence Act, the onus is on the applicant to establish the impropriety or contravention relied on before the respondent is required to argue in favour of admitting the evidence in question. I do not consider that this obliges the applicant, having identified a possible impropriety, to disprove matters (such as the existence of other pending investigations) that could, if established, negate the asserted impropriety but that are entirely within the knowledge of the respondent.
38. In the absence of any evidence about the exact circumstances of the taking of the photograph, I do not propose to make any finding about whether Mr Lee was in lawful custody when the photograph was taken. Fortunately, I do not consider that such a finding needs to be made, because my conclusion will be the same in either case.
39. If Mr Lee was in lawful custody when the photograph was taken, and the photograph was properly taken in accordance with s 230, then, as a result of Mr Lee’s discharge following a finding that the warrant had been defective, the photograph was covered by the s 231 requirement to destroy it (in the absence of any other pending investigations or proceedings) as soon as practicable after it became clear that there would be no appeal.
40. If, as is possible given the defects in the warrant or other aspects of the warrant operation, Mr Lee was not in lawful custody, then the photograph should not have been taken without his consent, and I have already found (at [8] above) that Mr Lee submitted rather than consented to being photographed. Whether the photograph should have been immediately destroyed or destroyed under s 231 depends on the interpretation of s 231.
41. If the reference in s 231 to “identification material ... taken under s 230” is interpreted to cover material purported to be taken under s 230 by a police officer who believed that his or her actions were permitted by s 230, then the disposal requirements would be the same as those applying to other material taken under s 230. In this case the photograph should have been destroyed not long after Mr Lee was discharged (see [39] above).
42. An alternative reading of s 231 is that it does not apply to material taken in a mistaken belief that the taking was authorised by s 230. I am inclined to prefer this reading, that s 231 does not apply to material honestly but mistakenly taken in reliance on s 230, because the interpretation suggested in [41] above would enable police to retain such material in various circumstances, and for various periods, even after it became apparent that s 230 had not authorised the taking of the material. This would provide an incentive for police to take such material in circumstances where their powers to do so were unclear.
43. Rather, I consider that where material is taken in breach of s 230(2)(b) while a person is in what both the police and the person wrongly believe to be lawful custody, and there is no other basis on which the identification material could be said to have been taken, the material should be destroyed immediately after the breach is recognised. Although there does not appear to be an express provision requiring that, I consider that it can be inferred, from the restrictions imposed by s 231 on the retention of lawfully obtained material, that unlawfully obtained material should not be retained in any circumstances. It would be quite inappropriate if police could take people into what was innocently but wrongly believed to be lawful custody, take identification material, and then, in contrast to the position where the person had been held lawfully, retain that material without limit after it emerged that the person had been held unlawfully. A person should not have less protection in such circumstances than he or she would have under ss 230 and 231 if held in lawful custody, and I note that the Explanatory Statement for the Crimes (Amendment) Bill (No. 3) 1994, which inserted the predecessors of ss 230 and 231, says that the predecessor of s 231, s 349ZQ, “is intended to prevent the indefinite retention of identification material relating to persons who have not been convicted of an offence”.

Scope for taking identification material apart from s 230 of the Crimes Act

44. I refrain from drawing any conclusions in relation to identification material taken in circumstances not covered by any of the cases dealt with in s 230 (see [34] above), namely without consent but also without the person being required to consciously “submit” to the taking of the evidence, for instance where the material is taken without the person’s knowledge by taking photographs in a public place or taking fingerprints from items known to have been used by the person.
45. Counsel for the DPP referred me to the Surveillance Devices Act 2004 (Cth), and to s 37 in particular. That section permits the use of optical surveillance devices (which relevantly include cameras), without warrant, by an officer of the AFP “for any purpose ... that is within the functions of the Australian Federal Police set out in s 8 of the Australian Federal Police Act 1979”, as long as that use does not involve entry onto premises, or interference with any vehicle or thing, without permission. The functions of the AFP set out in s 8 of that Act include “the provision of police services in relation to the Australian Capital Territory ... or laws of the Commonwealth”. However, the significance of this legislation was not argued, so I make no finding whether the Surveillance Devices Act would authorise the AFP, either without limit in the ACT or for purposes more specifically linked to the provision of particular police services in the ACT, to take photographs in public places without the subject of those photographs being aware that they were being photographed. Counsel for the DPP submitted that “the fact of the matter is, there is no difference between [the] situation [in which Mr Lee was photographed] and somebody taking a photograph using a telephoto lens across the street and using that as the basis to identify someone that’s under surveillance”. It is, however, clear, that there are significant differences, relating to both the impact on the person and the likely quality and value of the photograph, between a photograph taken by police lawfully but without a person’s knowledge and a photograph taken of a person who has submitted to being photographed in the mistaken belief that this is required by law.

46. I find that the photograph of Mr Lee should not have been retained by police; this finding does not require me to determine whether or not Mr Lee was actually in lawful custody at any time during the warrant operation (see [38] to [44] above), nor to make any finding about the exact date on which the photograph should have been destroyed, except that the date should have been well before the photograph was handed out to police in late 2006. One uncertainty about the exact date is that any requirement to destroy the photograph “as soon as practicable” after the charge against Mr Lee was dismissed, if that was the applicable requirement, might have been affected by a foreshadowed appeal.

Conclusions—evidence affected by impropriety

47. Accordingly, I find:
(a) first, that the photograph was evidence obtained in consequence of an impropriety (being the warrant operation in reliance on a defective search warrant); and
(b) secondly, that the photograph should not have been retained until the time when it was used in the surveillance operation; this retention involved an impropriety and may have involved a contravention of s 230 or 231 of the Crimes Act; and
(c) thirdly, that certain evidence emerging from the surveillance operation was obtained wholly or partly in consequence of the impropriety (or possibly the contravention of law) constituted by retaining the photograph for later use.

48. The evidence emerging from the surveillance operation that appears to rely on the photograph of Mr Lee and that may be affected by an impropriety as found in [47(c)] above is as follows:

(a) Mr (formerly Constable) Richards’ identification of the person driving the Ford Telstar at some time after 9.38 am but before about 10.00 am as Mr Lee;
(b) Senior Constable Knight’s identification of the person who drove the Ford Telstar into Blandon Place after 9.30 am but before about 10.00 am as Mr Lee;
(c) Constable Wiggins’ identification of the person sitting in the Ford Telstar on Ginninderra Drive shortly after 11.00 am as Mr Lee.

Should the evidence be admitted?

49. As indicated above, 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, but if an impropriety or contravention leading to the obtaining of evidence is established, the respondent must then persuade the court to exercise its discretion under s 138 to admit the evidence in spite of the impropriety or contravention (Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612 at [33]).
50. Section 138(3) of the Evidence Act (set out in the Appendix) sets out the matters that need to be considered by a court in deciding whether evidence should be admitted despite a finding that it was obtained directly or indirectly through an impropriety or a contravention of an Australian law. I shall consider each of those matters separately, referring for convenience only to the impropriety but noting that there may also have been a specific contravention of an Australian law.
51. One of the difficulties in this case is that the two police officers who claimed to identify Mr Lee as the driver of the Telstar before 10.00 am on 27 November 2006 claimed to have some familiarity with Mr Lee (including presumably knowledge of his appearance) separately from having been given the photograph but arising from previous work involving Mr Lee.
52. It may be that even without having been given copies of the photograph those officers would have claimed to be able to identify Mr Lee as the driver of the car. On the other hand, evidence of those previous dealings might also be inadmissible in any trial for the current offences. On the basis of the evidence given by the police officers at the committal hearing, it would not be feasible to attempt to distinguish the identification evidence to the extent that it depended on the use of the photograph from the identification evidence that depended on previous knowledge of Mr Lee. The fact that the evidence might have been obtainable even without the impropriety is relevant in the consideration of the s 138(3) matters, but I do not see that it can operate to take the evidence completely out of the scope of s 138.

Evidence of Constable Wiggins

53. The evidence given by Constable Wiggins that relied on the photograph is not covered by this application, since it relates to a time after 11.00 am on 27 November 2006. Nor, I suspect, is it useful to the prosecution case, because I assume that the person driving the white Ford Telstar when it was stopped by police was identified as Mr Lee by a more reliable method (perhaps a driver licence check) than by a police officer comparing the person he saw with a photograph he had been given. Accordingly, I will not make any order about that evidence.

Probative value and importance of the evidence (pars 138(3)(a) and (b))

54. The evidentiary value of the photograph by itself is limited. It would, however, be an important element in an attempt to establish the connection between the person observed in the Telstar before 10.00 am on 27 November 2006 and the accused Mr Lee. The probative value of the identification of the driver of the Telstar as Mr Lee by Mr Richards and Senior Constable Knight also seems to me to be relatively low, having regard to:
(a) the circumstances in which each of those witnesses claimed to have identified the driver as Mr Lee; and
(b) the fact that each of the witnesses indicated that he expected the driver to be Mr Lee even before he was able to see the driver’s face.
55. Counsel for the DPP indicated that the importance of the evidence is high and that without this evidence the prosecution would be unlikely to go ahead. However, it is not clear that this indication was given by reference to a careful specification of the evidence that is really in question. Given the apparently limited probative value of that evidence, the suggestion that the evidence is fundamental to the prosecution case must raise questions about the overall strength of that case.

Nature of offence and of subject-matter of proceeding (par 138(3)(c))

56. The offence, trafficking in heroin, is a serious offence. It carries a maximum penalty including imprisonment for up to 10 years. The particular sale of heroin alleged in this charge involved a small quantity of heroin, but this does not mean that the offence should not be taken seriously. It is in the nature of trafficking offences that proof of such offences can be hard to come by, and police need to pursue even the less serious examples of the offence in the hope of deterring anyone seeking to profit from the illegal sale or supply of inherently dangerous substances.

Gravity of the impropriety or contravention (par 138(3)(d))

57. Both improprieties, namely the execution of a defective search warrant, and the taking and retention of the photograph in circumstances where it should never have been taken or should have been destroyed, are significant, to the extent that they relate to legal requirements expressly established to protect members of the community from inappropriate police investigation techniques.
58. The law relating to search warrants carefully confines and constrains police powers. Sections 230 and 231 of the Crimes Act provide explicit protections against the taking of identification evidence except in carefully defined circumstances, and explicit limitations on the retention of identification evidence taken from people who are not in the end convicted (even where that evidence was obtained lawfully to start with). These are important protections for all members of the community, and also provide an important part of the justification for giving police quite wide powers to search, or to take identification material, in other circumstances. It would be in no one's interests to treat these protections as optional, especially in a case such as this where no excuse or even explanation has been provided for the police failure to dispose of the photograph once it became apparent that the basis for retaining it had either never existed or had ceased to exist.

Whether impropriety or contravention was deliberate or reckless (par 138(3)(e))

59. I am prepared to accept that the impropriety affecting the photograph, to the extent that it resulted from the original reliance on a defective warrant, was not deliberate or even reckless. It is possible that the retention of the photograph after Mr Lee was discharged because of the defects in the warrant was inadvertent rather than deliberate or reckless. However, the use of the photograph in the surveillance operation, which appears to have begun more than a year after that discharge, was clearly a deliberate act by police officers, and that use of the photograph without considering its provenance seems to have been reckless at best.

Whether impropriety or contravention was contrary to or inconsistent with a right recognised by the International Covenant on Civil and Political Rights (par 138(3)(f))

60. Article 9.1 of the International Covenant on Civil and Political Rights is as follows:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

61. Article 9.1 is reflected in s 18 (1) and (2) of the Human Rights Act 2004 (ACT).
62. Mr Lee’s detention pursuant to a defective warrant appears likely to have been inconsistent with his right not to be subject to arbitrary detention. The impropriety constituted by the operation conducted in reliance on the defective search warrant (see [47(a)] above) seems to have involved a possible contravention of or inconsistency with Article 9.1.
63. I note also that Article 17 (relevantly “no one shall be subjected to arbitrary or unlawful interference with his privacy”) and s 12 of the Human Rights Act may be relevant to requiring a person to submit to having his photograph taken where there is no lawful basis for that requirement. However, in the absence of any argument about the right to privacy, I refrain from reaching any conclusions about whether that right includes the right not to be forced to submit to being photographed in some circumstances.

Whether any other proceeding taken or likely to be taken in relation to the impropriety or contravention (par 138(3)(g))

64. No information was provided suggesting that action taken under the defective warrant, or any impropriety or contravention constituted by the retention of the photograph, had been or would be the subject of any other proceeding.

Any difficulty in obtaining the evidence without impropriety or contravention (par 138(3)(h))

65. Counsel for the DPP conceded that there was no inherent obstacle to conducting surveillance of Mr Lee without the use of the photograph, but made general observations to the effect that aspects of police procedure, and the need for a surveillance operation to be clandestine, made it difficult, for instance, to conduct a seamless surveillance that did not need to rely on evidence identifying the subject at different points in the chain of events. Counsel for Mr Lee suggested that police could lawfully have obtained, for surveillance purposes, the photograph taken for Mr Lee’s driving licence, but he was not able to support this suggestion with any reference to relevant legislation or practice; nor did counsel for the DPP offer any useful refutation of the suggestion.
66. As far as I can see, unbroken surveillance of the Telstar from the time it was observed in Birtles Street until the time when it was stopped on Ginninderra Drive and the driver was properly identified as Mr Lee would have obviated the need for police officers to rely on identification evidence to connect the driver of the Telstar before 10.00 am that day with the driver of the car when it was stopped on Ginninderra Drive later that morning. There may be reasons why this would have been impossible, perhaps related to the observations of counsel for the DPP mentioned in [65] above, but no such reasons were articulated at the hearing.

Conclusions

67. Counsel for the DPP referred me to R v Haughbro (1997) 142 FLR 415, and in particular to the comments of Miles CJ at 425 that:

... it is obvious that views differ as to what constitutes impropriety. It is also obvious that the Australian Federal Police and the New South Wales Police did not regard it as improper to engage in a certain amount of deception in order that suspected criminals may be apprehended. In that regard, it is unlikely that they differ from any other police force in the modern world. This is not the place in which to engage in a philosophical discussion as to whether ends justify means, but it is clear that most people, without pretending to hold a rigid or well-found position, would regard some deception as justified in order to properly investigate serious crime. Community attitudes, in my view, would also tolerate a certain amount of law breaking to the same end.

68. This is not a case in which the police entrapped a person, or participated in the commission of an offence themselves. In one sense the impropriety in this case may be less serious than the kind of impropriety that involves police engaging in, or provoking, criminal activity. In another sense, however, a breach of clear rules that have been laid down by the legislature to permit certain kinds of police investigation in certain circumstances, while prohibiting certain other kinds of investigative activity in order to protect the civil liberties of members of the community, may be more objectionable. This is because it undermines the protections that benefit all members of society and particularly those innocent members who may find themselves wrongly suspected of criminal activity. Certainly it does not seem to me that Miles CJ's comments require me to accept as tolerable police activity that can only be justified by a warrant that turns out to have been seriously defective or that seems to be directly inconsistent with specific provisions of the Crimes Act 1900 enacted to protect innocent members of society.

69. Without wishing to underestimate the seriousness of the offence with which Mr Lee has been charged, or to overestimate the impropriety in this case, I have concluded that this is a case in which the evidence attributable to the improper taking and retention of Mr Lee’s photograph should be excluded. It is more important to emphasise the need for police officers to act within the constraints of the law in relation to the exercise of warrant powers and the taking and retention of identification material than to support this particular prosecution of Mr Lee. In reaching that conclusion, I rely in particular on three things: the community interest in ensuring that police recognise and respect the limits on their investigative powers as the trade-off for the fairly broad powers they are given; the limited probative value of the evidence concerned (R v Peter Blundell [2007] ACTSC 94 (15 November 2007)); and the lack of any explanation for why the surveillance operation was so dependent on an improperly obtained photograph.
70. If the effect of my decision is that police are more rigorous in collecting evidence against suspected drug dealers, and go on to achieve more convictions, then the whole community will benefit.
71. The evidence to be excluded is:
(a) the photograph of Mr Lee;
(b) Mr (formerly Constable) Richards’ identification of the person driving the Ford Telstar at some time after 9.38 am but before about 10.00 am as Mr Lee; and
(c) Senior Constable Knight’s identification of the person who drove the Ford Telstar into Blandon Place after 9.30 am but before about 10.00 am as Mr Lee.
72. Although the application to exclude evidence does not extend to any in-court identification of Mr Lee as the person observed by any of those police officers driving the white Ford Telstar, I note that an in-court identification not supported by evidence of an earlier identification may be of little probative and much prejudicial value (see Alexander v The Queen (1981) 145 CLR 395 at 426-427 per Mason J—although in this case, the problem is not that the witness has no prior knowledge of the accused but that the witnesses will be constrained in giving evidence of that prior knowledge).
73. The evidence excluded does not include evidence from any of the police officers about the progress of the Ford Telstar through the streets of Belconnen.

Orders

74. The order is that in the trial of Huy Huu Lee on charge [CC2007/2927] of trafficking in a controlled drug other than cannabis, namely heroin, the following evidence is not to be admitted:
(a) the photograph of Mr Lee;
(b) Mr (formerly Constable) Richards’ identification of the person driving the Ford Telstar at some time after 9.38 am but before about 10.00 am as Mr Lee; and
(c) Senior Constable Knight’s identification of the person who drove the Ford Telstar into Blandon Place after 9.30 am but before about 10.00 am as Mr Lee.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 27 August 2009

Counsel for the applicant: Mr S Gill
Solicitor for the applicant: Ken Cush and Associates
Counsel for the respondent: Mr A Doig and Mr M Thomas
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 1 August, 23 October 2008, 21 May 2009
Date of judgment: 27 August 2009
APPENDIX
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.

Crimes Act 1900 (ACT)

230. Taking fingerprints, recordings, samples of handwriting or photographs

(1) In this section and in sections 231 and 232:

identification material, in relation to a person, means prints of the person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting or photographs (including video recordings) of the person, but does not include tape recordings made under the Commonwealth Crimes Act, section 23U or 23V.

(2) A police officer shall not—

(a) take identification material from a person who is in lawful custody in respect of an offence except in accordance with this section; or

(b) require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.

(3) If a person is in lawful custody for an offence, a police officer of the rank of sergeant or higher, or for the time being in charge of a police station, may take identification material from the person, or cause identification material from the person to be taken, if any 1 or more of the following paragraphs apply:

(a) the identification material is prints of the person’s fingers or photographs of the person;

(b) the person consents in writing;

(c) the police officer believes on reasonable grounds that it is necessary to do so to—

(i) establish who the person is; or

(ii) identify the person as the person who committed the offence; or

(iii) provide evidence of, or relating to, the offence;

(d) the police officer suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.

(4) A police officer may use the force that is necessary and reasonable in the circumstances to take identification material from a person under this section.

(5) Subject to this section, a police officer shall not take identification material from a suspect who—

(a) is incapable of managing his or her affairs; and

(b) has not been arrested and charged;

unless a court orders that the material be taken.

(6) In deciding whether to make such an order, the court shall have regard to—

(a) the seriousness of the offence; and

(b) the age or any disability of the person; and

(c) any other matters as the court thinks fit.

(7) The taking of identification material from a person who is incapable of managing his or her affairs shall be done in the presence of—

(a) a parent or guardian of the person; or

(b) if the parent or guardian of the person is not acceptable to the person—another person (other than a police officer) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.

(8) Despite this section, identification material may be taken from a person who—

(a) is not a suspect; and

(b) is incapable of managing his or her affairs;

if a court orders that the material be taken.

(9) In deciding whether to make an order, the court shall have regard to the matters set out in subsection (6).

(10) Despite this section, identification material may be taken from a person who—

(a) is at least 18; and

(b) is capable of managing his or her affairs; and

(c) is not a suspect;

if the person consents in writing.

(11) A police officer may only take identification material from a person under 18 in accordance with the Children and Young People Act 1999, section 84 (Identifying material).

231. Destruction of identification material

(1) If—

(a) identification material is taken under section 230; and

(b) a period of 12 months has elapsed since the material was taken; and

(c) proceedings in respect of an offence to which the identification material relates have not been instituted or have been discontinued;

the material shall be destroyed as soon as practicable.

(2) If identification material has been taken from a person under section 230 and—

(a) the person is found to have committed an offence to which the identification material relates, but no conviction is recorded; or

(b) the person is acquitted of such an offence and—

(i) no appeal is lodged against the acquittal; or

(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;

the identification material shall be destroyed as soon as practicable, unless an investigation or proceedings in relation to another offence to which the identification material relates is pending.

(3) On application by a police officer, a magistrate may, if satisfied that there are special reasons for doing so in relation to particular identification material, extend—

(a) the period of 12 months referred to in subsection (1); or

(b) that period as previously extended under this subsection.