Background
In this case the accused was charged with possession of a large quantity of methylamphetamine tablets. The accused had been standing out the front of a nightclub in Canberra when, upon seeing police officers, fled from the scene. The officers made chase of the accused, arresting and searching him. During the search the tablets were discovered.
In deciding the accused’s guilt or innocence, the issue before the Court was whether evidence of the tablets were obtained in contravention of the law, and if so, where they should be admitted as evidence.
Decision
The accused was found guilty.
Reasoning
In determining whether the accused was arrested in contravention of the law, his Honour first addressed the testimony of the arresting police officer.
The police officer relied on s 4(1) and (2) of the Intoxicated People (Care and Protection) Act 1994 (ACT)) which provides that:
(1) If a police officer believes, on reasonable grounds, that a person in a public place is intoxicated and is, because of that intoxication—
(a) behaving in a disorderly way; or
(b) behaving in a way likely to cause injury to himself, herself or another person, or damage to any property; or
(c) incapable of protecting himself or herself from physical harm;
the officer may take the person into custody and detain the person.
2) The police officer may take the person into custody only if the officer is satisfied that there is no other reasonable alternative for the person’s care and protection.
The police officer also relied on s 5(1) of the Intoxicated People (Care and Protection) Act 1994 (ACT)), which provides that a police officer may search a person taken into custody under s 4(1) and take possession of any articles found in the person’s possession. After noting the police officer’s reasons as to why the accused was arrested and searched, Justice Gray determined the police officer had reasonable grounds to believe the accused met the s 4(1) criteria.
His Honour then went on to consider whether the police officer could have been satisfied that there was no other reasonable alternative for the persons care and protection than to arrest the accused (s 4(2) of the Intoxicated People (Care and Protection) Act 1994 (ACT))). In reasoning that the arrest and search contravened s 4(2) of the Act, his Honour stated that: (at 9).
[f]undamentally…I had no evidence before me of the condition provided by s 4(2) of the Act for Mr. Kain [the accused] to be lawfully taken into custody, namely that the police officer had the satisfaction require [sic] by that subsection” (at 9).
This meant that “[t]he evidence of the drug on Mr. Kain’s person was obtained as a consequence of him being taken into that unauthorised custody”(at 10).
His Honour then considered whether the Court should exclude the illegally obtained evidence (s 138 Evidence Act 1995 (Cth)). Section 138(3) of the Evidence Act 1995 (Cth) provides non-exhaustive discretionary considerations the Court may take into account when determining whether to admit such evidence.
In doing so, Justice Grey stated it was important to consider whether the police officers actions were inconsistent with the right to liberty and security of person as enshrined under Article 9 of the ICCPR and s 18 of the HRA. He believed it was important because there was a lack of evidence indicating that the police officer had no other alternative than to arrest the accused (per s 4(2) of the Intoxicated People (Care and Protection) Act 1994 (ACT))). Justice Grey noted that: (at 18)
…as originally enacted, s 4 of [the Act] did not have a requirement for satisfaction as to there being no other reasonable alternative for the person’s care and protection before a person could be taken into custody (as was also the case with the predecessor of s 4, s 351 Crimes Act 1900 (ACT)).
As 18(2) of the HRA provides that “[n]o-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law”, Justice Gray questioned whether s 4 of the Intoxicated People (Care and Protection) Act 1994 (ACT)) was compatible with the right to liberty in s 18 HRA, in accordance with s 30 HRA. His Honour concluded that:
Section 4 of [the Act] establishes procedures for the deprivation of liberty in the particular circumstances for which it provides. It may be regarded as compatible with the right not to be deprived of liberty; no submission was made in this case to the contrary.
His Honour determined that the police officers arrest was inconsistent with the right to liberty and security of person, because the police officer had not satisfied the s 4(2) requirement. Despite this contravention, Justice Gray concluded that he did “not regard this as a significant factor which would militate against the admissibility of the evidence” (at 23). This was because no court action had been taken against the police officer by the accused, which he believed followed from “an overall assessment that may be made of the seriousness of the contravention in the circumstances of this case”(at 23). His Honour then held that on a balance of the considerations, the evidence should be admitted.
Justice Grey went on to discuss the elements of the crime and to find the accused guilty, without further mention of the HRA.
Comment
Justice Gray’s application of the s 18 HRA right to liberty and security of person to the construction of s 4 of the Intoxicated People (Care and Protection) Act 1994 (ACT)) is interesting. Despite concluding that the police officer contravened the accused’s s 18 right, his Honour determined that little weight should be accorded to it when looking at the totality of the case.
His Honour’s approach seems to follow the reasoning of Justice Connoly in R v Okwechime [2007] ACTSC 56, a case that similarly involved the arrest and subsequent search of two accused who were then found to have ecstasy tablets on their person. In deciding whether to admit evidence of the ecstacy tablets, Connoly J agreed with the defendant that
courts should be vigilant to protect individual civil liberties and be very … suspicious of police powers to search without a warrant.” This was “if anything magnified by the impact of the Human Rights Act.” However, this was not a case where police were acting on a mere hunch. Rather, this was a situation in which police could be legitimately criticised if they did not take further action ... (at 15–16) |
Home
