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IN THE MAGISTRATES’ COURT OF VICTORIA AT SUNSHINE

CRIMINAL DIVISION

Case No. F13001010

DAMON ABBEY

Informant v JASON TODERO

Accused

MAGISTRATE: MAGISTRATE MACCALLUM

WHERE HELD: SUNSHINE MAGISTRATES’ COURT

DATE OF HEARING: 7 JULY 2016

DATE OF DECISION: 14 OCTOBER 2016

CASE MAY BE CITED AS: VICTORIA POLICE V TODERO

MEDIUM NEUTRAL CITATION: [2016] VMC030

REASONS FOR DECISION – VOIR DIRE

APPEARANCES:

Counsel Solicitors

For the Prosecution SC ALEX AUSTEN SUNSHINE PROSECTIONS UNIT

For the Accused PHILLIP BLOEMAN WITH

GORJAN NIKOLOVSKI JUSTIN MARCUS, BEHAN LEGAL

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HER HONOUR:

Introduction

1. It is submitted by the Defence that the police in this case have acted outside their

powers of entry, arrest and seizure of stolen power tools and other items, and that

the Prosecution should therefore be not permitted to rely on the evidence collected

by the police in relation to these charges. The Defence must satisfy the Court on

the balance of probabilities1 that the entry to the premises, the ensuing arrest of the

Accused and seizure of the items the subject of the charges was unlawful.

2. The Defence requests that the discretion established pursuant to section 138 of the

Evidence Act 2008 be exercised to exclude the evidence relied on by the

Prosecution in support of these charges. The exercise of this discretion is only

enlivened if it is established that the evidence was obtained by police as a

consequence of impropriety or illegality.

3. It is conceded by the Prosecution that if the Defence is successful in its submission,

there will be a dismissal of the charges.

The Charges

4. The Accused Jason Todero, is charged with having committed the following

offences:

a. at Coburg between 1 July 2015 and 20 August 2015 stealing a Paslode Nail

Gun, being property belonging to unknown and valued at $1000;

b. at Essendon between 1 July 2015 and 20 August 2015 stealing a Makita

radio, a drill and a hand angle grinder being property belonging to unknown

and valued at $500;

c. at Diggers Rest on or about 1 September 2014 to 31 December 2014

stealing a DeWalt cordless drill being property belonging to unknown and

valued at $350;

d. at Essendon between 1 July 2015 and 20 August 2015 stealing one Yarra

Tram Jacket being property belonging to Yarra Trams and valued at $350;

1 Evidence Act 2008, s.142; DPP v Pringle [2015] VCC 702, page 3 of 12, onus of proof lies with the Defence with respect to establishing unlawful conduct or impropriety by police.

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e. at Deer Park between 1 July 2015 and 20 August 2015 stealing one

registration plate (XIT 827) being property belonging to unknown and valued

at $35;

f. at Caroline Springs on 20 August 2015 possessing a drug of dependence,

namely, methylamphetamine;

g. at Caroline Springs on 20 August 2015 using a drug of dependence, namely,

methylamphetamine.

5. For the purposes of the voir dire, the following matters are conceded:

a. the identity of the Accused;

b. the address of the Accused;

c. the date and time of the entry by police of the Accused’s premises, his arrest,

the search of his person, and the seizure of the items the subject of the

charges.

6. It is conceded, therefore, that at approximately 8.55 am on 20 August 2015, four

police officers attended 3 Lauricella Place, Caroline Springs, arrested the Accused

in the bungalow in which he was living, and seized the items which are the subject

of the charges. Entry to the premises and seizure of the items was conducted

without warrant.

7. It is also conceded that police presence at the Accused’s bungalow on 20 August

2015 arises from a different crime for which the Accused was being investigated by

police, namely, the theft of power tools from a motor vehicle on 26 March 2015 at

Heidelberg Heights. Subsequent to this theft, through fingerprint identification, the

Accused’s left palm and left thumb prints were found on the external tool box of the

vehicle. The Accused was ultimately never charged with this crime, on the basis

that there was insufficient evidence.

8. Prior to his arrest, the Accused was of interest to police and he had been arrested

and interviewed in relation to another alleged theft from a motor vehicle of power

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tools on 20 July 2015 in Hillside. He was released pending summons and ultimately

not charged with any offences arising from this incident.2

9. On 20 August 2015, on the basis of the information contained in the two LEAP

reports from the reported thefts on 26 March and 20 July 2015, and the positive

preliminary latent Fingerprint Identification Report linking the Accused with the

Heidelberg Heights theft, four police officers (each of whom are the Prosecution

witnesses in this hearing) entered the Accused’s premises without a warrant to

arrest him for the theft of the power tools from Heidelberg Heights.

Submissions of the parties

10. In summary, the Prosecution asserts that the entry and search of the premises was

conducted lawfully pursuant to sections 459A of the Crimes Act 1958.

11. The Defence objection to the lawfulness of the Informant/police’s actions is to be

understood in two stages:

a. entry into the premises;

b. the arrest of the Accused and seizure of the items the subject of these

charges after entry into the premises.

Stage 1: Entry into the premises

Stage 1 – first question for determination

12. The first question to be determined on this voir dire is did the Informant/police have

the power to lawfully enter and arrest the Accused within his premises? The answer

to this question is dependent on the answer to the threshold question of whether the

Informant/police held a belief on reasonable grounds that the Accused had

committed a serious indictable offence in Victoria.

13. The Defence submits that the entry and arrest were unlawful because prior to entry

there were no reasonable grounds for the police to believe that the Accused had

committed a serious indictable offence, namely theft from a motor vehicle. The

Defence submits that the entry to the Accused’s premises was unlawful for the

following reasons: 2 Transcript of proceedings, Victoria Police v Todero (Magistrates’ Court of Victoria, F13001010, Magistrate MacCallum, 7 July 2016) pages 130-131.

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a. there was no signed and jurated statement from the Complainant of a theft or

identification of what was stolen;3

b. the fingerprint of the Accused located on the outside of the Complainant’s

vehicle was itself not sufficiently probative for police to even form a

suspicion;

c. the extraneous material of a prior uncharged incident could not rationally

inform a suggestion that the Accused committed the theft being investigated;

and

d. the Court should infer that police conduct amounted to an unauthorised

search for the stolen items without a warrant.4

14. The Defence submitted as a consequence that the arrest and entry were contrary to

the powers conferred on police under section 459A of the Crimes Act 1958.5

15. I have considered all of the evidence before the Court in this matter, the legal

submissions, the case law and legislation relied on by the parties and additional

case law that has considered these questions. I am satisfied that the Informant had

reasonable grounds for believing that the Accused had committed the offence of

theft from a motor vehicle, and that the entry into the premises by police to arrest

the Accused was lawful. I am also satisfied that the police presence on 20 August

2015 was not, as is submitted by the Defence, to enter the Accused’s premises and

search for the stolen items without having first obtained a warrant, but was to arrest

the Accused.

Stage 1 – second question for determination

16. The second question raised on the voir dire is, if any of the evidence obtained by

the Informant/police was improperly or illegally obtained, should it be admitted into

evidence, or should it be excluded pursuant to section 138 of the Evidence Act

2008?

17. The Defence submits that the evidence should be excluded under section 138 of

the Evidence Act 2008 and that the police conduct in this case was at a minimum

3 Defence submissions on Voir Dire, dated 19 August 2016 (Defence submissions), paragraphs 32-37 and 99. 4 Defence submissions, paragraphs 38- 43. 5 Defence submissions, paragraph 62.

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reckless6 as well as contrary to the Accused’s rights as recognised by the ICCPR

and the Charter of Human Rights and Responsibilities Act 2006 (`the Charter’).7

The Prosecution submitted that the Informant/police have not acted in an improper

or unlawful manner, but if the Court finds that some impropriety occurred, the

desirability of admitting the evidence outweighs the undesirability of admitting it.8

18. As I have answered the first question in relation to the evidence concerning `Stage

1’ in the affirmative, it is not necessary to consider the second question.

Stage 2: After entry into the premises

Stage 2 – first question for determination

19. The first question for determination in relation to Stage 2, is were the power tools,

number plates and Yarra Tram jacket lawfully seized by police?

20. The Defence submits that once inside the premises, the items the subject of the

charges were not lawfully seized. The Defence submits that:

a. there is an insufficient evidentiary basis for the formation by the

Informant/police of a belief on reasonable grounds that a serious offence has

been committed, based on the authority in Ghani v Jones as applied in

Goldberg v Brown [2003] VSC 104 and the evidence should be excluded

pursuant to section 138 of the Evidence Act 2008;

b. the Accused was not cautioned by the Informant in relation to the possession

of stolen items and the Prosecution ought to be precluded from relying on

any answers or failure to answer questions as part of establishing

reasonable grounds when no caution had been properly administered.9

21. In R v Willis [2016] VSCA 176, the Court of Appeal has recently held that the onus

is on the Defence to prove facts giving rise to alleged breaches of section 464A of

the Crimes Act 1958. Once that onus is discharged, it is for the Prosecution to

6 Defence submissions, paragraph 83. 7 Defence submissions, paragraphs 87-96. 8 Written Submissions for the Prosecution, dated 5 August 2016 (Prosecution submissions), page 12, and paragraph 1. 9 Defence submissions, paragraphs 32-34 and 99.

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satisfy the court that the desirability of admitting evidence outweighs the

undesirability of admitting it.10

22. The Defence relies in respect of this submission on the arguments that it has raised

in relation to section 138 of the Evidence Act 2008 for the entry into the premises.

23. The Prosecution submits that the Informant/police lawfully seized the items the

subject of the charges in accordance with the authority in Ghani v Jones and as

applied in Goldberg v Brown [2003] VSC 104.

24. For the reasons I have set out below, the Defence have not satisfied the Court on

the balance of probabilities that the seizure of the items the subject of these

charges was unlawful, or that the Accused was not lawfully cautioned. It is therefore

not necessary to consider the further submissions by the parties in relation to

sections 138 and 139 of the Evidence Act 2008.

Evidence led by the Prosecution

25. The Prosecution called four witnesses:

a. The Informant, Detective Senior Constable Damon Abbey;

b. Detective Sergeant Andrew Beames;

c. Detective Senior Constable Tristan Barlow; and

d. Detective Senior Constable Chris Elzink.

26. The Prosecution relied on the following exhibits:

a. Preliminary Latent Fingerprint Identification Report 1251/156 dated 23

November 2015 (hereafter referred to as the Fingerprint Identification

Report);

b. Victoria Police LEAP Incident Report and Case Progress dated 5 March

2016, regarding incident number 150098687;

c. Police field incident notes of Informant Abbey, dated 20 August 2015;

d. Victoria Police Brief of Evidence, containing 14 photographs of seized items;

10 R v Willlis [2016] VSCA 176 at paragraphs 104, 110-111.

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e. Victoria Police Exhibit Log completed by Detective Senior Constable Chris

Elzink for search conducted at the Accused’s premises on 20 August 2015;

and

f. Victoria Police LEAP Incident Record Inquiry dated 20 July 2015, regarding

incident number 150225888.

Evidence led by the Defence

27. The Defence called no witnesses and did not tender any documentary exhibits.

Each of the Prosecution witnesses was cross-examined by the Counsel for the

Accused.

Relevant legislation and case law

28. At the hearing, the parties agreed on the application and interpretation of the

relevant legislation and case law. Further authorities were relied on by each of the

parties in their written submissions.

29. The powers of police officers to apprehend offenders without warrant is contained in

the Crimes Act 1958.

458 Person found committing offences may be arrested without warrant by any person

(1) Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates' Court to be dealt with according to law or deliver to a police officer to be so taken, any person—

(a) he finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely—

(i) to ensure the attendance of the offender before a court of competent jurisdiction;

(ii) to preserve public order;

(iii) to prevent the continuation or repetition of the offence or the commission of a further offence; or

(iv) for the safety or welfare of members of the public or of the offender;

(b) when instructed so to do by any police officer having power under this Act to apprehend that person; or

(c) he believes on reasonable grounds is escaping from legal custody or aiding or abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend that person in the circumstances of the case.

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(2) For the purposes of paragraph (a) in subsection (1) offence means offence at common law or a contravention of or failure to comply with a provision of an Act of Parliament and unless otherwise by Act of Parliament expressly provided does not include a contravention of or failure to comply with a rule regulation by-law or other law made under an Act of Parliament.

(3) A person who has been apprehended without warrant pursuant to the provisions of paragraph (a) in subsection (1) in respect of any offence punishable on summary conviction (not being an indictable offence that may be heard and determined summarily) and taken into custody shall be held in the custody of the person apprehending him only so long as any reason referred to in the said paragraph for his apprehension continues and where, before that person is charged with an offence, it appears to the person arresting that person that the reason no longer continues the person arresting that other person shall, without any further or other authority than this subsection, release that person from custody without bail or cause him to be so released and whether or not a summons has been issued against him or a notice to appear has been served on him with respect to the offence alleged.

(4) In subsection (3), notice to appear has the same meaning as in the Criminal Procedure Act 2009.

459 Powers of police officer or protective services officer to apprehend offenders

(1) In addition to exercising any of the powers conferred by section 458 or by or under any other Act a police officer, or a protective services officer on duty at a designated place, may at any time without warrant apprehend any person—

(a) he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily); or

(b) he believes on reasonable grounds has committed an offence elsewhere which if committed in Victoria would be an indictable offence against the law of Victoria (including any indictable offence which may be heard and determined summarily).

Note

There is a presumption in favour of proceeding by summons if an accused is a child—see section 345 of the Children, Youth and Families Act 2005.

(2) If a protective services officer arrests a person under subsection (1), the protective services officer must hand the person into the custody of a police officer as soon as practicable after the person is arrested.

(3) In this section, designated place has the same meaning as it has in the Victoria Police Act 2013.

459A Entry and search of premises

(1) A police officer may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he—

(a) believes on reasonable grounds—

(i) to have committed in Victoria a serious indictable offence;

(ii) to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence; or

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(iii) to be escaping from legal custody; or

(b) finds committing a serious indictable offence—

enter and search any place where the police officer on reasonable grounds believes him to be.

(2) In order to enter a place pursuant to subsection (1), a police officer may, if it is necessary to do so, use reasonable force.

(3) In this section serious indictable offence has the same meaning as it has in section 325.

30. ̀ Serious indictable offence’ is defined in section 325(6) of the Crimes Act 1958 as

`an indictable offence which, by virtue of any enactment, is punishable on first

conviction with imprisonment for life or for a term of five years or more.’ The crime

of theft is punishable upon first conviction with level 5 imprisonment (10 years

maximum) and therefore falls within the operation of section 459A.

Evidence of the Informant

31. The Informant gave evidence that on 20 August 2015 he was performing general

criminal investigation duties involving the processing of outstanding fingerprint

identification reports. He said that on his immediate team were the other police

officers who were witnesses in this proceeding. That morning there were several

fingerprint identification reports, one of which belonged to the Accused. The

Informant’s task was to process the fingerprint identification reports and he was

specifically tasked with actioning the Accused’s fingerprint identification report.11

32. The Informant said that a fingerprint identification report consists of a LEAP incident

number and a `leader number’ which is a reference to the report of a crime.12 It

nominates the victim of a crime, the address where the crime was carried out as

well as the suspect. The Fingerprint Identification Report tendered in evidence

states that the victim’s name is Troy Shanley and refers to the offence of theft from

a motor vehicle attended on by police on 27 March 2015 at 21 Swanston St,

Heidelberg West. The Fingerprint Identification Report states that the left palm print

and the left thumb print of the Accused were located on the external tray tool box of

the victim’s motor vehicle.

33. The Informant said that on receiving the Fingerprint Identification Report of the

Accused, he investigated the LEAP database which enabled him to access the

11 Transcript, page 3. 12 Transcript, page 4.

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details of the incident as reported by the police member who attended to investigate

the theft from motor vehicle at Heidelberg Heights.13 The LEAP incident report was

tendered (LEAP Report March 2015). That document records a report of a theft of

power tools valued at $5000 from a motor vehicle, at 21 Swanston St, Heidelberg

Heights. It states that the victim’s vehicle was parked at the front of his address on

the road.

34. The LEAP Report March 2015 states that between 10pm and 7am unknown

persons forced entry into the toolbox in the tray of the victim’s vehicle and took

various power and hand tools valued around $5,000. The tools included power

drills, saws, screwdrivers and other tools. There were no identifying features on any

of the tools. The vehicle and the toolbox were both locked. No entry into the vehicle

itself was made. The report stated that there was no CCTV footage available or

witnesses or suspects’ names, but the victim suspected his ‘junkie’ neighbours may

have done it. The report states that there were no signs of forced entry, but forensic

evidence was recovered and the incident could not be investigated further until the

results were returned.

35. The Informant said during cross-examination that he had access to other police

intelligence (referred to by the Informant as `intel holdings’) in relation to the

Accused as well as the LEAP Report March 2015.14

36. At the conclusion of the voir dire, the Prosecution informed the Court that it had not

anticipated that the Defence case was to be focussed on the issue of the

reasonableness of the Informant/police’s belief. The Prosecution informed the Court

that it had specifically, therefore, not called relevant evidence which the Court

needed to hear in determining this issue. The Court gave the Prosecution leave to

re-open its case and to recall the Informant. The Informant then gave further

evidence about the other information held by police in relation to Mr Todero

recorded on the LEAP database. The prior incident concerned an alleged theft from

a motor vehicle at 21 Silvana Way, Hillside, reported on 20 July 2015 (Leap

Record Inquiry 20 July 2015). The Informant said that he had access to this

information prior to arresting the Accused.15

13 I note that the Fingerprint Identification Report refers to Heidelberg West, not Heidelberg Heights, but nothing turns on this. 14 Transcript, page 27, line 10. 15 Transcript, page 125.

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37. The LEAP Record Inquiry 20 July 2015 was tendered. The summary of the alleged

offence states that unknown offenders at approximately 05:00 hours on 20 July

2015 opened the back of the victim’s hardtop canopy on his vehicle which was

located in the driveway of the victim’s residence at the above address. The victim

states that he believed the offenders had picked the lock as there was no damage

to the vehicle. The offenders removed numerous Makita power tools valued at

approximately $3000. The victim had invoices of all tools purchased and all tools

had identifiable features. CCTV footage was available. The victim viewed the CCTV

footage which showed a male with gloves on break into his vehicle. The report

states that police were called back to the address by the victim who stated that the

same male person whom he had seen in the CCTV footage was present in the

street. The victim stated that he was going to keep the male there until the police

arrived. When police arrived the male was identified as Jason Todero. Police

reviewed the CCTV footage and confirmed that Mr Todero and his vehicle were a

good likeness to the images in the CCTV footage and Mr Todero was arrested. Mr

Todero provided a no comment interview and was released pending summons. The

Informant said he had no involvement in the investigation of the alleged offence.16

Further, the brief for this offence was not authorised,17 but the Informant did not

come to know this until within a month of the hearing.18

38. The Informant had viewed the Fingerprint Identification Report, the LEAP Report

March 2015 and the Leap Record Inquiry 20 July 2015 (hereafter referred to as

`the two LEAP Reports’) on the morning before the arrest. Upon viewing those

documents he decided to attend the address of the Accused for the purposes of

arresting him in relation to the offence of theft from the motor vehicle at Heidelberg

Heights.19 It is clear from his evidence that the Informant had formed a view as to

the reasonableness of the grounds for the arrest at this point in time, based on

these three pieces of information.

39. The Informant said that he made inquiries as to the Accused’s whereabouts. He

was at that time recorded as living at an address in Macleod. The Informant said

that all four officers attended that address to locate and arrest the Accused.20 On

16 Transcript, page 127, lines 7-9. 17 Transcript, page 128, lines 20-22. 18 Transcript, page 131, lines 7-9. 19 Transcript, page 8. 20 Transcript, page 10, lines 13-14.

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attending the address at Macleod the Accused’s father answered the door. He told

the Informant that the Accused no longer lived at that address and told them that he

was living with his mother at Caroline Springs. Later that morning the Accused’s

father called police and provided them with the address. The Informant then

attended another job in Preston in relation to an unrelated incident and then headed

to Caroline Springs in order to locate the Accused.

40. Once they arrived at the Caroline Springs address the Informant observed multiple

cars parked outside the address including a white van with a missing window. The

Informant said that Accused’s father had told him that the Accused was driving a

white van21 and was residing in a bungalow at the back of the premises.22 The

Informant went to the door of the bungalow and knocked waiting for approximately

30 seconds. No one answered the door and he could not hear anything. There were

no windows to look through. He said that he opened the unlocked door and from the

doorway he observed a male with long dark hair sleeping in the bed. That male

person matched the photograph and description of the Accused. The Informant

entered with the other police officers, woke up the Accused, confirmed his identity

and informed him that he was under arrest for theft from a motor vehicle.23

41. The Informant arrested the Accused24 and provided him with his caution and

rights25 which he did not want to exercise.26 The caution was given in relation to the

alleged offence of theft from motor vehicle at Heidelberg Heights. The Informant

then conducted a pat down search and located in the pockets of the Accused a

small zip lock bag containing 1.5 to 2 g of methylamphetamine. He gave evidence

that the pat down search was an `evidence and safety’ search conducted under the

common law.27

42. The Informant said he had noticed when he entered the premises various power

tools around the apartment and on the table next to the bed.28 He said that after

administering the caution,29 he asked the Accused where they came from. The

21 Transcript, page 9, line 31. 22 Transcript, page 10, lines 2-3. 23 Transcript, page 10, lines 12-31. 24 Transcript, page 11, line 7. 25 Transcript, page 11, lines 8-12. 26 Transcript, page 11, lines 18-20. 27 Transcript, page 11, lines 16-17. 28 Transcript, page 12, lines 1-2. 29 Transcript, page 12, lines 14-17.

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Informant read from his notes of that conversation, which he made on the same day

as the conversation:

“C & R: ‘Yes”

search of Todero conducted:

located quantity of ice in jean pocket approx. 1.5 grams.

Located within plain sight, large number of power tools.

I/S (I said): “Do you work in a trade?”

H/S (He said): “Yeah”

I said: “Which trade?”

He said: “I am a qualified landscaper”

He said: “So what is the go with all of these tools?”

He said: “I got them off Gumtree”.

I said (pointed to Paslode Nailgun): “How much did this one cost you?”

(No response)

I said: “I believe it to be stolen, so we will be seizing it. As for these other tools, I

believe them to be stolen also. So they will be coming along also.”30

43. The Informant said that the reason why he formed the view that the tools were

stolen was because they were investigating the theft of tools from a motor vehicle

and the Accused’s fingerprints were located on that vehicle from which a large

quantity of power tools had been stolen. When they attended the premises, the

tools were scattered all about in the bedroom. The Informant was of the view that

the tools in the bungalow did not look to be tools related to the Accused’s trade as a

landscaper. He said that no search of the bungalow was undertaken as all tools

were in plain sight.31

44. In cross-examination, the Informant confirmed that:

30 Transcript, page 12, lines 8-25. 31 Transcript, pages 12-13, 15, 37.

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a. he did not have responsibility for the initial investigation at Heidelberg

Heights;

b. in deciding to locate the Accused, the only documents that he had in his

possession were the Fingerprint Identification Report and the two LEAP

Reports;

c. he was tasked with actioning the Fingerprint Identification Report in relation

to the Accused;

d. the Accused had no prior convictions;

e. there were no particular identifying features of the tools, no suspects or

CCTV footage;

f. the LEAP Report March 2015 stated that the tools had been taken from an

unlocked car and that no inquiries had been made of the neighbours of the

victim and that no statement had been taken from the victim;

g. the Accused was not charged with the theft from the motor vehicle at

Heidelberg Heights, but was a targeted suspect in the investigation (meaning

that he was going to be arrested on that day);32

h. police did not receive an itemised list of power tools from the Complainant;

and

i. no statement was taken from the Complainant in relation to the theft.

45. The Informant also confirmed that the tools located in the Accused’s bungalow,

were not from the Heidelberg Heights theft.

46. The Informant said that at the point he started questioning the Accused about the

power tools in the apartment, he already had a belief that the tools were stolen,33

but he wanted to give the Accused the benefit of the doubt and allow an opportunity

for a lawful explanation to be given.34 At the point when the Accused could not tell

him the purchase price of the tools and became evasive in his answers, the

32 Transcript, page 27. 33 Transcript, page 36, lines 7-10. 34 Transcript, page 36, lines 7-11.

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Informant formed the view that the tools were stolen and would be seized so that

enquiries could be made.35

47. The Informant said that he did not caution the Accused again in relation to the drugs

found on the Accused’s person after the pat down search was done. Nor did he

caution the Accused again in relation to the tools that were located in the house.36

He said that he considered that one caution was sufficient.37

48. The Informant said that he did not expect to find the stolen property in the

apartment of the Accused as the theft had occurred six months earlier. He was not

there to conduct a search for the stolen goods. The sole purpose of police

attendance was to affect the arrest of the Accused and question him in relation to

why his fingerprints were located on the vehicle.38 The Informant conceded that

there were other explanations for why the Accused’s fingerprints were on the

toolbox but said that the purpose of the interview is to find this out.39 He agreed that

based on the Accused’s responses in the record of interview he formed the view

there was insufficient evidence to proceed with the charge. 40

49. The Informant said that he was aware that the Accused had not been working.

50. The Informant confirmed in re-examination that:

a. owing to the absence of CCTV footage or other evidence, there was no

person of interest in relation to the crime until the Fingerprint Identification

Report was generated;41

b. the Fingerprint Identification Report combined with the information in the two

LEAP Reports led to the formation of his belief on reasonable grounds that

the Accused was the person that police needed to speak to; 42 and

c. he suspected that the tools in the bungalow were from the Heidelberg

Heights theft, because that is the reason why police were in attendance on

that day.43

35 Transcript, page 36, lines 17-24. 36 Transcript, page 35, lines 27-31. 37 Transcript, page 34, lines 14-22. 38 Transcript, page 38 line 20; page 39, line 4. 39 Transcript, page 39, lines 29-40. 40 Transcript, page 40, lines 4-9. 41 Transcript, page 42, lines 11-19. 42 Transcript, page 42, lines 20-26.

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Evidence of Detective Sergeant Andrew Beames

51. Detective Sergeant Beames gave evidence that he was supervising the other three

officers on the day and they were tasked with the execution of forensic identification

files, being files containing fingerprint and DNA identifications. He confirmed that

Detective Abbey had the conduct of the matter concerning the Accused. They

visited two addresses related to this incident. The first was at Macleod. He said that

at that address they had spoken to the father of the Accused and the father told

them that the Accused, whom they considered to be suspect, was not there at the

time. Detective Sergeant Beames said he was familiar with the content of the

Fingerprint Identification Report related to the Accused. The other three officers

were in attendance and the visit lasted for 10 minutes. The father of the Accused

said that he may have been at his mother’s house in the western suburbs. After

visiting the father’s house they then went to another address to perform an

unrelated task. About an hour later they went to Caroline Springs, where they had

been told by the Accused’s father that the Accused was residing. They arrived there

at approximately 8:55 AM on 20 August 2015.44

52. Detective Sergeant Beames said he observed a white Toyota van registration

number QQL290 parked in the street out the front and it was missing a large

passenger window. All four officers went to the right-hand side of the house where

the Accused’s father had told them that there was a self-contained unit where the

Accused was living. Detective Sergeant Beames said that he entered through an

unlocked door following the other three detectives into a single room apartment. He

observed the Accused to be asleep in bed. Detective Sergeant Beames said that he

observed a number of power tools in immediate view.45

53. Detective Sergeant Beames said he and the other officers were in attendance in

relation to the alleged theft of items from a motor vehicle. He said that although he

could not specifically recall it, he thought Detective Abbey was the officer who had

arrested the Accused as he had the carriage of the matter. Detective Sergeant

Beames went and spoke to the Accused’s mother at the principal residence. The

other members remained in the self-contained unit with the Accused. Detective

43 Transcript, page 44, lines 5-10. 44 Transcript pages 46-48. 45 Transcript pages 48-49.

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Sergeant Beames said that he then went about seizing the exhibits and updating

the family.46

54. Detective Sergeant Beames said that all officers together made the decision to

seize the tools.47 He said that he had formed the belief that some of the items were

stolen because the Accused had no reasonable explanation for the quantity of

power tools in the apartment, the Accused was in bed at 8:55 AM on a Thursday,

had no employment, looked in poor physical shape and acknowledged regular use

of ice.48 Detective Sergeant Beames had 30 years’ experience as a police officer

and based his suspicions on his experience. The Accused was placed under arrest

and the items were taken back to the Heidelberg Heights police station. Detective

Sergeant Beames had no further involvement with the matter.

Cross-examination of Detective Sergeant Beames

55. In cross-examination, Detective Sergeant Beames said that police practice upon

receiving fingerprint reports is to arrest the person and then question them.

56. Detective Sergeant Beames said that every situation is different and sometimes a

person under investigation has an explanation and ordinarily, a person may not be

arrested until there has been `a bit of conversation’. Conversations can take place

by telephone or by attendance. He said in this case they did not telephone the

Accused.

57. Detective Sergeant Beames denied, when it was put to him, that it was best police

practice to take statements from complainants for all crimes. He said the vast

majority of reported crimes are burglaries and thefts from motor vehicles. These are

high volume crimes for which statements are rarely taken due to limited resources.

He further said that he was not aware of any requirement in the Victoria Police

Manual to take a statement from all victims at the earliest opportunity.49

58. Detective Sergeant Beames confirmed that upon entry to the apartment and seeing

the tools lying around it that he thought the tools were stolen. He said that initially

he did a double take and thought to himself `there’s a lot of tools here’. After the

conversation with the Accused and his inability to provide an explanation for how he

46 Transcript, page 50. 47 Transcript, page 50, lines 22-26. 48 Transcript, page 51, lines 1-17. 49 Transcript, pages 57-59.

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came to have the tools, he formed the view that it was highly likely that some or all

of them were stolen.50 His view was influenced by the acknowledgement by the

Accused of the extent of his ice use, which was disclosed directly to Detective

Beames.

59. He said he could not recall when he had the conversation with the Accused about

his drug use and whether this was before or after the tools had been seized. He

said there were a number of tools to be logged and seized and ongoing

conversations.

60. Detective Sergeant Beames said that he could not recall knocking at the door of the

bungalow prior to entry. He said that police practice is to try the door handle first if

they want the element of surprise. He said there would not have been much delay

before entry when he got to the door but he would not have noted in his notes

whether or not they knocked first.51 He also said for low level crimes such as this

one, police do not have time to run the risk of calling first, and then chasing a

suspect `through the western suburbs for days on end trying to get them for a fairly

straight forward matter’.52

Re-examination of Detective Sergeant Beames

61. In re-examination Detective Sergeant Beames clarified that police did not always

obtain the fingerprint identification report and automatically arrest. He said

sometimes there was a prior phone call or a conversation, it depends on what they

know about a suspect. He said sometimes there is an innocent explanation and

they take into account whether the person is working and if they have no prior

criminal history.53

Evidence of Detective Senior Constable Tristan Barlow

62. Detective Barlow gave evidence that he had 10 years police experience. On 20

August 2015 his duties commenced around 5:45 AM. There were several

outstanding investigations for fingerprints and DNA and he and his colleagues were

executing these. Detective Abbey was allocated a file. Detective Barlow had no

knowledge of that file. They left the office in the morning and went to the Accused’s

50 Transcript, page 60. 51 Transcript, pages 61-62. 52 Transcript, page 63, lines 4-8. 53 Transcript, page 63.

20

father’s house in MacLeod. They knocked on the door and were invited in by the

father and looked around the house for the Accused. The Accused was not there.

Detective Sergeant Beames spoke to the father who was cooperative. Detective

Barlow did not know what was said as he was outside at the time but thought it was

about the whereabouts of the Accused. They got back in the car and went to arrest

someone in Preston from an unrelated incident.

63. At some stage during the morning Detective Sergeant Beames received information

from the father of the Accused that the Accused was at his mother’s house in

Caroline Springs. They went to Caroline Springs and observed the premises to

have two separate living quarters and a white van was parked out the front.

64. Detective Barlow said that Detective Abbey went to the door and checked it. The

door to the bungalow was unlocked.54They walked in.55 He was behind him. When

the door opened they saw a bed set. They could see everything in the room from

the doorway and the Accused was sleeping in a double bed.

65. Detective Barlow said that Detective Abbey was leading the way.56 Detective Abbey

woke the Accused, told him he was under arrest because his fingerprints had been

recovered from an incident in Heidelberg Heights.57 The Accused was placed under

arrest by Detective Abbey who then conducted a search of the Accused. A small

quantity of drugs was located in a deal bag. He said it was Detective Abbey’s

decision to arrest the Accused and that he had no role in the arrest, he was present

as a support.58 He had a brief précis of the file and he understood that fingerprints

had been recovered identifying the Accused and connecting him with a theft in

Heidelberg Heights.

66. Whilst the Accused was being arrested, Detective Barlow looked around and

observed several tools lying in open sight on the floor and around the bed.59 There

was a short conversation between Detective Abbey and the Accused but the

Accused stopped talking after he made a reference to `Gumtree’.60 The tools were

54 Transcript, pages 65-69. 55 Transcript, page 69, lines 18-22. 56 Transcript, page 69, line 31. 57 Transcript, page 70, lines 1-12. 58 Transcript, page 70, lines 20-24. 59 Transcript, page 70, lines 16-20. 60 Transcript, page 71, lines 13-16.

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seized. Detective Barlow assisted in securing the Accused and moving the tools to

the police car.

67. Detective Barlow said that he was of the belief that the tools had been stolen as

they were all high-value tools, the Accused had ice in his pocket and commonly ice

addicts steal tools in order to support their habit.61 He said that Detective Sergeant

Beames went back and forth to the mother’s house but the other three officers

stayed with the Accused. Detective Barlow acted as security (in relation to the

Accused) and labour (carrying the tools). When they returned to the police station

he logged the items into the police property database and the tools are still in police

possession.62

Cross-examination of Detective Barlow

68. In cross-examination, Detective Barlow said he had no independent recollection of

whether there was a knock on the door by Detective Abbey, but he could not say

one way or another.63 He said that in his notes he would not mention if there was a

knock or not.64 He said he did not know that the Accused had no prior history nor

did he know much about him, he was merely following the lead of Detectives Abbey

and Beames.65 Detective Barlow said the Accused was only given one caution on

arrest for theft of power tools from a motor vehicle.66 Detective Barlow said that the

formation of his belief that the Accused had stolen the tools was not only based on

the Accused’s lack of response to the question as to where the tools came from, but

also the fact that the Accused had ice in his pocket, that they were present to

execute a fingerprint file and the high resale value of the tools.67

69. Detective Barlow said that his common-law powers to seize the tools arose from his

understanding of the authority in Ghani v Jones.68

61 Transcript, page 71, lines 24-29. 62 Transcript, pages 71-72. 63 Transcript, page 78. 64 Transcript, page 78. 65 Transcript, page 80. 66 Transcript, page 80, lines 10-16. 67 Transcript, page 80. 68 Transcript, page 81.

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Evidence of Detective Senior Constable Christopher Stewart Elzink

70. Detective Elzink gave evidence that he has been in the police force since 2002. On

20 August 2016 he was assisting with the execution of fingerprint identification

reports. The Accused was a person in whom the police were interested and were

trying to locate. The Accused’s file was allocated to Detective Abbey who had the

carriage of it. Detective Elzink said that he was assisting with the arrest.69 He knew

it related to theft of power tools from a motor vehicle in March 2015 at Heidelberg

Heights.70 That information had been obtained from the LEAP database.71 He and

the other officers went to the first address in Macleod and made inquiries about

where the Accused was and spoke to the Accused’s father. The Accused’s father

was cooperative and told them the Accused was not there. They then followed up

an unrelated matter and a phone call came through from the Accused’s father to

Detective Beames who told them that the Accused was residing at an address in

Caroline Springs.

71. All four officers attended Caroline Springs and they went to the western side of the

property which appeared to be a garage remodelled to a living area.72 There were

two cars in the driveway. His understanding was that the Accused was wanted for

an interview in relation to theft from a motor vehicle and if present he was going to

be arrested. This was his belief outside the premises.73

72. Detective Abbey was the first officer to reach the door of the bungalow where they

understood the Accused to be residing. Detective Abbey knocked at the door and

there was no answer. He tried the door handle and it was unlocked. From the

doorway Detective Elzink could see a bed at the far end with a couch and a coffee

table and power tools lying around.74 The Accused was asleep. They entered the

bungalow. The Accused was woken, advised as to why the police were there and

arrested. Detective Abbey gave the Accused his caution and read him his rights.75

All the officers were present when this occurred. The Accused was then searched

by Detective Abbey and the drug `ice’ was found on his person. The Accused was

then queried in relation to the power tools at the premises and asked where he got

69 Transcript, page 83. 70 Transcript, page 84. 71 Transcript, page 84. 72 Transcript, page 85. 73 Transcript, page 87, lines 1-9. 74 Transcript, page 86. 75 Transcript, page 87, line 15.

23

them. He told the officers he got them from Gumtree. When asked how much he

had paid for a particular tool, he did not answer or could not answer, and then the

Accused refused to answer further questions.76

73. Detective Elzink said that he believed that the tools were stolen. His reason for that

view was that they were lying around the living area and also the Accused had ice

on him and commonly power tools are given in exchange for drugs. He said he then

compiled an exhibit log. He took time to log all of the items seized and took them

back to the police vehicle. The tools remain in police custody. The Accused was

taken back to the police station for interview and Detective Elzink was the

corroborating police officer on the interview. At the time of the arrest of the

Accused, he believed that the grounds for arrest were founded on the Fingerprint

Identification Report.

74. In cross-examination, Detective Elzink said that Detective Abbey would have

knocked on the door before entering, that this was the general practice. Although he

did not recall it specifically, he said the police always give a person a reasonable

chance to come to the door.77

Assessment of the evidence of the Informant and the other police officers

75. All Prosecution witnesses were reliable and honest witnesses. Each witness was

subjected to cross-examination and maintained their version of events in cross-

examination. There was no evidence before the Court of contamination or collusion

between witnesses.

76. I have no reason to doubt the evidence of the Informant that the events on the day

of the arrest of the Accused transpired as he described them. There were some

inconsistencies in the evidence of the other officers. Mostly these were minor, save

for the evidence of Detective Sergeant Beames who stated that the officers entered

the bungalow of the Accused without knocking. Aside from this issue, which I will

address more directly later, the evidence of each of the officers was highly

consistent.

76 Transcript, page 87. 77 Transcript, page 92.

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Could the Informant have formed a belief on reasonable grounds that the Accused had

committed a serious indictable offence?

77. The issues raised on this voir dire reflects the tension that exists between:

“….two competing interests: that which the community has in the detecting and investigation of crime and in the efficient gathering of reliable evidence and its presentation in court; and that of the individual in resisting unnecessary harassment and invasion of privacy by State investigating authorities.”78

78. All Prosecution witnesses supported the Informant’s evidence that it was the

Informant who had responsibility for the execution of the Fingerprint Identification

Report generated in the name of the Accused, and that it was the Informant who

arrested the Accused.79 It is therefore, the Informant’s belief that is material in the

determination of this question. Importantly, the Informant’s belief must be examined

at the point in time before he entered the premises of the Accused.

79. Section 459A of the Crimes Act 1958 requires that police have reasonable grounds

for believing a person to be at a place before they enter that place and search for

him or her. All police officers gave evidence that they believed that the Accused

was living in the bungalow behind his mother’s home at 3 Lauricella Place, Caroline

Springs. They all said that they received that information from his father. I am

satisfied that the belief of the police that the Accused was living in the bungalow at

his mother’s house at the above address was a belief held on reasonable grounds.

80. The next question for determination is could the Informant have formed a belief on

reasonable grounds prior to entry of the Accused’s premises that the Accused had

committed a serious indictable offence based on:

a. the Fingerprint Identification Report;

b. the LEAP Report of 5 March 2015; and

c. the LEAP Record Inquiry of July 2015?

81. The Defence have cited to the Court various authorities which support the position

that statutes which interfere with rights require strict interpretation.80 Although some

78 Loughnan v Magistrates’ Court of Victoria Sitting At Melbourne & Anor [1993] 1 V.R. 685 at 689. 79 Transcript, page 44, lines 23-25. 80 Defence submissions, paragraphs 45-49.

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of the authorities cited apply with respect to the interpretation of search warrants, I

consider them to have sound application in this case.

82. Both parties rely on the authority in George v Rockett81 as setting out the test for the

relevant hierarchy of states of mind that a person may hold.82 In that decision, the

High Court held that:

“When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to

induce that state of mind in a reasonable person.”83

83. Later in the same decision, the High Court held at paragraph [14]:

“Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (1970) AC 942, at p 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay (its) debts as they became due" as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at p 303):

`A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.’

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.” (Emphasis added)

81 (1990) 170 CLR 104. 82 The Defence submissions refer in detail to other authorities which have applied that proposition, at paragraphs 50-56. 83 (1990) 170 CLR 104, at 488.

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84. The New South Wales Court of Appeal decision in R v Rondo,84 although it

concerns the interpretation of the applicable legislation in New South Wales with

respect to the meaning of the phrase `reasonable suspicion’, provides further

guidance.

“53 These propositions emerge:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.”

85. The principles of law that may be distilled from these judgments are as follows.

a. For the formation of a reasonable belief, there must be the existence of facts

which are sufficient to induce that state of mind in a reasonable person.

b. Suspicion is a state of conjecture or surmise where proof is lacking.

c. A suspicion is a positive feeling of actual apprehension or mistrust amounting

to an opinion, but without sufficient evidence.

d. The objective circumstances need not establish on the balance of

probabilities that the subject matter in fact occurred or exists as the assent of

belief is given on more slender evidence than proof. Belief is an inclination of

the mind towards assenting to, rather than rejecting, a proposition and the

grounds which can reasonably induce that inclination of the mind may,

depending on the circumstances, leave something to surmise or conjecture.

e. The material relied on must have some probative value.

84 [2001] NSWCCA 540, at 53.

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f. Assessing `reasonableness’ requires the Court to have regard to the source

of the information and its content, seen in the light of the whole of the

surrounding circumstances.

86. The assessment of whether there are reasonable grounds for belief must be judged

against “what was known or reasonably capable of being known at the relevant

time.”85

87. The Court of Appeal in Loughnan v Magistrates’ Court of Victoria Sitting At

Melbourne (Loughnan’s case)86 considered the interpretation of the applicable

procedure under s 464S of the Crimes Act 1958 for an accused to provide a blood

sample, and what information needed to be advanced to show reasonable grounds

for belief. Section 464S(1) provided that a police member may request a suspect to

give a sample of blood, but only if there are reasonable grounds to believe that the

taking of blood would confirm or disprove the Accused’s involvement as a suspect

in the commission of that offence. The Court of Appeal held that the Court need not

be satisfied, even at the prima facie stage, that suspect has committed the offence,

but only that there are reasonable grounds to believe that the suspect committed

the offence. The Court of Appeal held that the types of factual information relied on

by police and which are said to give a police officer reasonable grounds for his or

her belief, comprises information that is put forward not as evidence of its truth but

as information that gives rise to a belief and would generally be inadmissible at any

trial of the suspect.

“…where what is in question is the existence of reasonable grounds for a belief that the suspect committed the offence, the evidence put forward by the applicant will usually consist in large part of information which has been disclosed in consequence of police investigations. This information will ordinarily take a variety of forms and relate to a wide variety of facts or matters, and much of it will usually be contained in written statements. The information which the applicant has would, generally speaking, be inadmissible at any trial of the suspect if it was sought to prove through the applicant what his information was. But it is not hearsay for the purposes of his attempt at proof of the matters mentioned in para (b) of subs (3). The information is put forward not as evidence of its own truth, but simply as information: as part of the material which it is said gives the police officer reasonable grounds for belief.”87

88. The Court of Appeal continues:

85 Ruddock v Taylor (2005) 222 CLR 612 at [40]. See also R v Rondo, above. 86 [1993] 1 VR 685 at 692, per Brooking, Phillips and Byrne JJ. 87 Loughnan’s case, at page 692.

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“In each case information put forward by the applicant, whether it be matter of fact or opinion, is put forward simply as information, as constituting the basis for a reasonable belief or as constituting reasonable grounds, and accordingly is not hearsay.”88

89. Loughnan’s case specifically considered whether or not hearsay evidence could

form the evidentiary basis of such an application. It may also be relied on as

authority for a more general proposition, that the distinguishing feature of

information and facts relied on by police to justify an arrest in such circumstances

as are presently before the Court, is that the information relied on by police forms

part of the investigative process which often occurs at an early stage. The function

of this information is not for a determination of whether or not there is likely to be

sufficient evidence to justify a trial.89

90. Kyrou J in Slaveski v Victoria90 summarises the legal considerations which apply to

section 459 of the Crimes Act 1958, which engages the same test (a belief on

reasonable grounds).

“In George v Rockett, the High Court cited with approval the definition of ‘suspicion’ proffered by Kitto J in Queensland Bacon Pty Ltd v Rees: ‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”’.

The Court held that ‘[b]elief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.’ While belief is a more certain state of mind than suspicion, it need not be informed by actual proof. As their Honours said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.

The information upon which the police officer formed his or her belief may take a variety of forms and relate to a wide variety of matters. When the reasonableness of that belief is in issue, the fact that the information may be inadmissible as hearsay at a later trial of the arrested person is irrelevant because it is put forward, not as evidence of its own truth, but as part of the material that is said to have given the police officer reasonable grounds for the belief.

The police officer must believe that a particular indictable offence has been committed, and not just an indictable offence in some general sense.” (Authorities omitted.)

88 Loughnan’s case, at page 692. 89 See lines 35-50 of Loughnan’s case, at page 693, citing Wigmore on Evidence. 90 [2010] VSC 441, at paras 99-102.

29

91. There can be no doubt that the evidence upon which the Informant relied to effect

the arrest of the Accused would be insufficient to satisfy the Court beyond

reasonable doubt that the Accused had committed the Heidelberg Heights theft. I

am satisfied, however, that it was sufficient to give rise to a belief on reasonable

grounds justifying his arrest in this case.

92. As stated by the New South Wales Court of Appeal in R v Rondo, the relevant

inquiry is made at the time police entered the bungalow to arrest the Accused. The

Court must consider the material that the Informant had access to in light of all of

the circumstances having regard to the sources of the information and their content.

In this case, the sources of the material relied on by the Informant were the reports

of the investigating officers as recorded on LEAP as well as the Fingerprint

Identification Report, which was also generated by police. The Fingerprint

Identification Report identifies that the Accused’s fingerprints were found on the

external tray tool box of the vehicle.

93. I consider the presence of the Accused’s fingerprints at the scene of the crime to be

of significant probative value, and that when combined with the information held by

police from the two LEAP Reports, was enough to give rise to a belief on

reasonable grounds that the Accused had committed the Heidelberg Heights theft.

These sources of information in combination are objective facts sufficient to induce

the state of mind of a belief on reasonable grounds in a reasonable person.

94. The Defence submits that the Court should look behind this information and is

critical of the Informant for not making further general inquiries in relation to the

circumstances of the offending. The Defence submit in particular that:

a. the Informant had no prior knowledge of the alleged offences as he was not

responsible for the initial investigations of either matter;

b. the Informant did not investigate any innocent explanations for the presence

of the fingerprint on the tool box (e.g. leaning on the tool box or knowing or

working with the victim);

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c. the Informant did not take into consideration that the Accused has no prior

convictions;91

d. the Informant did not investigate the neighbours of the victim of the

Heidelberg Heights theft whom the victim suspected committed the theft; and

e. the Informant did not receive from the victim a list of items said to be stolen

and therefore was not aware of the exact tools said to have been stolen.92

95. Importantly, the Court of Appeal in Loughnan’s case also held that the Court’s

finding of a belief on reasonable grounds does not preclude the existence of other

possibilities, based on different material. For this reason, the Defence’s argument

that the Informant should have made further general inquiries before arresting the

Accused must be rejected.

“That reasonable grounds exist for believing that the suspect has committed the offence is not necessarily inconsistent with the fact that other possibilities exist too, based upon further and different material. The conclusion on the issue of guilt may depend upon the ultimate acceptance or rejection of the evidence that is gathered at the investigative stage, yet acceptance or rejection of evidence in that sense, as ultimately true or correct, forms no part of the task confronting the court under s464U(3)(b). That was a fundamental misconception in the plaintiff's submissions.

Thus, for the purposes of subs(3)(b), it may be enough that certain information has been gathered, if the court is satisfied by reference to that information that there are reasonable grounds for the belief that the suspect was the offender. If the court is so satisfied, it is irrelevant under subs(3)(b) that there are other objective facts or other information received which, if accepted, suggest that he was not the offender. A useful example of this was provided by the submission made to us. Counsel said that the plaintiff had learnt of a statement obtained by the police from a neighbour of the deceased woman, to the effect that she heard raised voices at the deceased's home at about 8.15 am on the day the body was found. The plaintiff, we were told, wished not only to put that statement before the magistrate, but also to lead evidence from his mother that he, the plaintiff, was at home with her at that time of the day. All this seems to us irrelevant to the question for the magistrate, which is the existence and sufficiency of the grounds that are relied upon by the applicant to sustain the belief asserted. The inquiry is not into the existence or not of other grounds for that belief or of grounds for some other and different belief.”93

Further legal authorities that have considered the difference between suspicion and

belief

96. The Defence relies on further authorities which have considered the legal difference

between suspicion and reasonable belief in support of its argument. In my view,

91 Defence submissions, paragraph 6. 92 Defence submissions, paragraph 7. 93 Loughnan’s case, at 696.

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these authorities may be confined to their facts. The Defence submissions cite

Neave JA (as she then was) in R v De Simone94 where her Honour held that an

Intergraph message to police alleging that `a shoplifter’ was being aggressive could

not have on its own provided the basis for a belief on reasonable grounds that the

person had committed the offence of theft and that it was necessary for the police to

make enquiries about the circumstances of the alleged offending. It is noted

however, that Vincent and Weinberg JA disagreed with her Honour.95 The

statement by Neave JA in her minority judgment cannot be interpreted to cast a

general duty on police to make enquiries about the circumstances of the alleged

offence. Further, the facts in this case are very different from those presently before

the Court and may be distinguished for that reason. Each case will be different and

whether or not a belief on reasonable grounds can be formed will depend on what

details the information contains.

97. The Defence also relies on the case of DPP v Bella Bernath.96 In this case Mullaly

J held that the following evidence was insufficient for the police to found a suspicion

on reasonable grounds enlivening search powers under section 82 the Drugs

Poisons and Controlled Substances Act 1981:

a. at 2am in the morning police officers observed a man and a woman in a car

in an industrial estate;

b. there was no obvious lawful reason as to why they were there;

c. police did not accept their explanation that they were having sexual

intercourse as they were fully clothed;

d. when the details of the female occupant were checked, she had outstanding

warrants for some offences related to the possession of illegal items;

e. the co-accused appeared nervous; and

f. information about the name that was provided to police, George Bernath,

indicated that there were prior matters for drug matters and possession and

94 (2008) VSCA 216, paragraphs 36-37. 95 Ibid, paragraphs 2, 102-106 per Vincent and Weinberg JA. 96 County Court, unreported, 29 June 2012.

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traffic matters, as well as an outstanding warrant (although this evidence was

held by the Court to be unclear).97

98. Judge Mullaly held that the above information was not enough for the police to form

a reasonable suspicion, but in so holding, specifically excluded the evidence of the

police that the co-accused had volunteered that she had two crack pipes in the car.

His Honour said that if “the evidence of the pipes is added to the mix, it would have

the effect of making the suspicion held by the police officer based on reasonable

grounds when combined with the other factors.”98

99. The Defence submit that Mullaly J’s statements should be interpreted to mean that

his Honour did not take into account the past minor prior convictions for drug related

offending and the outstanding warrant in relation to drugs.99 The Defence submits

that given there was no indicia of recent drug use observed by police officers at the

scene, “the circumstances of a prior interview with police (and release without

charge) cannot be said to have any probative value other than that of suspicion.”100

The Defence submit therefore that the fact that the Accused was interviewed and

released pending summons for a similar crime “cannot in any rational manner bear

upon the likelihood of the Accused having committed the offence for which the

police attended the premises.”101

100. I disagree that Judge Mullaly’s ruling can be accurately interpreted in this

manner. His Honour specifically states that the existence of the above facts in the

absence of the ice pipes was insufficient for there to be a reasonable suspicion, but

if he had admitted this evidence `to the mix’, which includes the information about

the past and current criminal history of the suspects, he would have found that there

existed reasonable grounds.102 Judge Mullaly’s ruling supports the converse

argument that the Court must look at all of the facts available to police at the time of

the arrest or search and must consider the effect of all of those facts in combination.

101. I do not disagree with the Defence submission that the `simple fact of past

conduct of a similar nature cannot rationally inform the mind of police prior to

97 Ibid, pages 176-177. 98 Ibid, page 177, lines 28-31. 99 Defence submissions, page 17. 100 Defence submissions, page 17. 101 Defence submissions, page 17. 102 Bernath’s case, at page 177 (lines 17-31).

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arrest.’103 That is however not the situation which is presently before the Court.

What is at hand is reliance by police on three objective sources of information. The

LEAP reports are both reliable and factual and the Fingerprint Identification Report

is of significant probative value. The combination of all three sources of information

was sufficient to found a belief on reasonable grounds in the Informant that the

Accused had committed the crime of theft of power tools from the motor vehicle.

Failure to provide a jurated statement

102. The Defence is specifically critical of the Informant’s failure to obtain from the

victim of the Heidelberg Heights theft a jurated statement about the theft.104 The

Defence submit that case law, including the High Court authority in George v

Rockett, have established that applications for search warrants to locate stolen

goods must be on oath.105 The Defence relies on the Victoria Police Manual –

Procedures and Guidelines106 in support of its proposition. The Victoria Police

manual stipulates that:

“Justification for searches of properties

Where information is received which justifies a search of a property,

members seeking approval to conduct a property search should take all

reasonable steps to ensure that the information is accurate, recent and has

not been provided maliciously or irresponsibly.

Applications for approval of a search of a property should not be made on

the basis of uncorroborated information from anonymous sources.”

103. This, however, was not according to the police a search of the Accused’s

premises for the tools, it was a search of the premises for the purposes of making

an arrest. The Informant denied, when the matter was put to him in cross-

examination, that he was present to search for the power tools. The four detectives

each gave evidence that they attended the Accused’s premises to arrest him,

having obtained the Fingerprint Identification Report linking him with the Heidelberg

Heights theft. They also gave consistent evidence that when they entered the

premises and arrested the Accused, they could see in plain sight, the stolen goods

103Defence submissions, page 18. 104 Defence submissions, paragraphs 7(g) and 32-37. 105 George v Rockett (1990) 170 CLR 104. 106 Defence submissions, paragraph 36.

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scattered around the bungalow. Each of the officers maintained their evidence

under cross-examination, and their evidence was consistent.

104. The Informant gave evidence in cross-examination that he did not expect to

find any power tools from the Heidelberg Heights theft at the property, as it is his

experience that once stolen, these tools are quickly passed on or sold. The

Informant said that because the police were investigating the Accused for theft of

power tools on 26 March 2015 at Heidelberg Heights, he assumed that the tools in

the bungalow were from that theft. As the proper inquiry is what information was

known to the Informant at the time of entering the premises to make the arrest of

the Accused, it is not relevant that the Informant came to understand later that

these tools were not from the Heidelberg Heights theft.

105. Given the high degree of consistency in the evidence of the detectives in

relation to this issue, and the fact that their evidence was not impugned in cross-

examination, I have no reason to doubt the evidence and I accept it.

106. In addition, Detective Sergeant Beames stated that for high volume crimes

such as thefts and burglaries, statements from complainants are rarely taken. I do

not consider Detective Sergeant Beames’ evidence to be inconsistent with the

Victoria Police Manual with respect to searches of properties. The Victoria Police

Manual extract relied on by Defence requires police to take reasonable steps to

ensure that the information is accurate, recent and has not been provided

maliciously or irresponsibly, and corroborated. It does not require a jurated

statement. The evidence of all police members was consistent in that they were not

present for the purposes of a search for property, they were present to arrest the

Accused on the basis of the information that they had from the two LEAP reports

and the Fingerprint Identification Report. There is nothing to suggest that the

information upon which police acted was not accurate or that it had been provided

maliciously. The police position is that the two LEAP reports were supported by the

Fingerprint Identification Report. As I have said, I consider that information to be

enough to satisfy the requirements of s459A of the Crimes Act 1958.

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107. In any event, the Victoria Police Manual `does not have the force of

statute’107 and a breach of the Victoria Police Manual by an officer `does not, in and

of itself, invalidate any action taken by the officer’.108

Submissions regarding propensity reasoning

108. I disagree with the Defence that the reference in the Prosecution submission

to the similarity between the Heidelberg Heights and Hillside thefts is an argument

advanced in such a way as to engage the rules of evidence concerning tendency

reasoning. That argument may well apply if the Prosecution were seeking to adduce

the evidence at trial. What is in issue is what information the Informant had access

to in forming the requisite state of mind prior to his decision to arrest the Accused.

The Prosecution submission advances the argument that the similarity of the

offending was a further building block in the formation of a belief on reasonable

grounds. I do not consider it relevant or necessary to engage further with the

arguments about tendency evidence raised by Defence, and I also note that these

arguments did not form part of the voir dire.

109. The Defence has, for the above reasons, not satisfied the Court on the

balance of probabilities that the Informant did not hold a belief on reasonable

grounds prior to his entry into the Accused’s bungalow that the Accused had

committed a serious indictable offence. I find therefore, that the Informant/ police

have complied with the requirements of section 459A of the Crimes Act 1958 with

respect to the entry of the premises where the Accused was residing for the

purposes of searching for the Accused, and arresting him.

Prosecution submissions in relation to Informant’s observations on entry

110. The Prosecution submits that the Informant’s policing experience as well as

his observations of the Accused once inside the bungalow was also information that

gave rise to his belief on reasonable grounds that the Accused had committed a

serious indictable offence for the purposes of section 459A of the Crimes Act

1958.109 These additional matters are relevant only to the Informant’s state of mind

and actions after entry. In order for the entry by police into the Accused’s premises

to be lawful and not constitute a trespass, the Informant must have formed a belief

107 Slaveski v Victoria, at paragraph 207. 108 Slaveski v Victoria, at paragraph 208. 109 Prosecution submissions, paragraphs 7(iv) and (v) and 12.

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on reasonable grounds before entry. In my view, for the reasons given above, the

Informant did have a belief on reasonable grounds based on the information that he

had prior to entry. The Informant’s observations after his entry to bungalow are

matters to be considered in relation to the second aspect of the Defence

submissions, relating to the lawfulness of the seizure of the items found in the

bungalow. I will now turn to that question.

The lawfulness of police actions after entry into the bungalow; cautioning the Accused

and the seizure of the stolen items

111. The Defence submit that the lawfulness of the seizure of the stolen items

needs to be analysed in separate time frames, before and after the Accused was

questioned.110

112. It is submitted that any belief must have been formed before the Accused

was interviewed, and that no adverse inference can be drawn from his right to

remain silent.111 The Defence submit further that the Accused was never cautioned

with respect to the possession of stolen goods when spoken to by the Informant

about them, and the Prosecution ought to be precluded from relying on any

answers or failure to answer questions as part of establishing reasonable grounds

where no caution has been properly administered.112

113. The Prosecution does not disagree that no negative inference may be drawn

against an accused for exercising his or her right to silence.113 The Prosecution

submits that the Accused was cautioned by the Informant, and that he chose not to

exercise his rights. The absence of any reasonable explanation by him after he

elected not to exercise his rights may, according to the Prosecution, be taken into

account by the police member who is establishing reasonable grounds.

114. In order to address this question, the Court must determine whether on the

balance of probabilities, it is satisfied that the Accused was cautioned in relation to

the theft of the power tools. The relevant provisions of the Crimes Act 1958 with

respect to the cautioning of accused persons is as follows:

110 Defence submissions, page 26, paragraph 98. 111 Defence submissions, page 26, paragraph 99. 112 Defence submissions, page 26, paragraph 99 citing Crimes Act 1958 s 464A and R v Lancaster [1998] 4 VR 550. 113 Prosecution submissions, page 9.

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464 Definitions

(1) For the purposes of this Subdivision a person is in custody if he or she is—

(a) under lawful arrest by warrant; or

(b) under lawful arrest under section 458 or 459 or a provision of any other Act; or

(c) in the company of an investigating official and is—

(i) being questioned; or

(ii) to be questioned; or

(iii) otherwise being investigated—

to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

suspect means a person of or above the age of 18 years who—

(a) is suspected of having committed an offence; or

(b) has been charged with an offence; or

(c) has been summonsed to answer to a charge;

464A Detention of person in custody

(1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—

(a) released unconditionally; or

(b) released on bail; or

(c) brought before a bail justice or the Magistrates' Court—

within a reasonable time of being taken into custody.

(2) If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—

(a) inform the person of the circumstances of that offence; and

(b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.

(3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.

(4) In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered—

(a) the period of time reasonably required to bring the person before a bail justice or the Magistrates' Court;

(b) the number and complexity of offences to be investigated;

(c) any need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation;

(d) any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation;

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(e) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody;

(f) any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence;

(g) any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person;

(h) any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place;

(i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention;

(j) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest;

(k) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody;

(l) any other matters reasonably connected with the investigation of the offence.

Note

Section 78D of the Corrections Act 1986 provides for the application of section 464A in relation to persons detained under that Act.

115. The relevant provisions with respect to the consequences which flow from a

failure to caution an accused person are set out in the Evidence Act 2008 as

follows:

139 Cautioning of persons

(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—

(a) the person was under arrest for an offence at the time; and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if—

(a) the questioning was conducted by an investigating official who did not have the power to arrest the person; and

(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

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(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if—

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or

(b) the official would not allow the person to leave if the person wished to do so; or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if—

(a) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth; or

(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

Analysis and findings

116. Section 464A(2) of the Crimes Act 1958 provides that if a person suspected

of having committed a crime is in custody for that offence, an investigating official

may within a reasonable time referred to in subsection (1) -

(a) inform the person of the circumstances of that offence; and

(b) question the person or carry out investigations in which the person participates

in order to determine the involvement (if any) of that person in the offence.

117. Subsection 464A(3) provides that before any questioning (other than a

request for the person's name and address) or investigation under subsection (2)

commences, an investigating official must inform the person in custody that he or

she does not have to say or do anything but that anything the person does say or

do may be given in evidence. This obligation was referred to in short hand by the

Informant and the other police witnesses, as the Informant giving the Accused his

`caution and rights’.114The Accused’s rights include the requirement to be informed

before any questioning or investigation of the right to communicate with a friend,

relative and legal practitioner.115 The Defence have not raised any issues with

114 Defence submissions, paragraph 99. 115 Crimes Act 1958, s.464C.

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respect to breach of the Accused’s rights pursuant to section 464C of the Crimes

Act 1958.

118. Kyrou J in Slaveski’s case116 has summarised the common law with respect

to communication of the reason for the arrest of an accused person:

“In Christie v Leachinsky, the House of Lords held that the arrester ordinarily must inform the arrestee, at the time of the arrest, of the offence, or the facts that are said to constitute the offence, for which the arrest is effected.

Numerous decisions of Australian courts have referred to Christie with approval.

The arrester need not communicate the reason for the arrest to the arrestee using technical or precise language. The sufficiency of the communication is to be considered as a matter of substance and by reference to the principle that

a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

Provided that the arrestee is informed of the facts that are said to constitute the offence for which the arrest is effected, it does not matter that he or she is later charged with a different offence from that specified by the arrester. As Lord Simonds said in Christie:

if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing.

…..

There are some circumstances in which an arrester is excused from immediately informing the arrestee of the reason for the arrest, including where:

(a) the arrestee prevents the arrester from doing so, for example, by violently resisting the arrest or absconding;

(b) the circumstances are such that the arrestee must know the general nature of the offence for which the arrest is effected, such as where he or she has been given prior notice of the proposed arrest and the reason for it or has been ‘caught red-handed and the crime is patent to high Heaven’; and

(c) the arrestee is unable to understand the reason because of a disability, an inability to speak English or intoxication, provided that the arrester does all that a reasonable person would do in the circumstances.

In these situations, the arrestee must be informed of the reason for the arrest at the earliest reasonable opportunity.

In Victoria, the common law as stated in Christie has been supplemented by legislation. Section 21(4) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) provides:

116 Paragraphs 111-114 and 116-119.

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A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

Section 21 is contained within Part 2 of the Charter, which sets out numerous human rights. Part 2 commenced operation on 1 January 2007. Section 38(1) of the Charter provides that it is unlawful for a ‘public authority’, which includes Victoria Police, to act in a way that is incompatible with a human right contained in Part 2. This section, however, is contained within Division 4 of Part 3 of the Charter, which did not commence operation until 1 January 2008, after the events of this proceeding. (Authorities omitted).”

119. Subsection 464A(2)(a) states that an investigating official may inform the

person of the circumstances of the offence they are suspected of having committed,

and they may question them or carry out investigations. The Court of Appeal in R v

Willis117 supported the submission that although section 464A(2)(a) was couched in

permissive terms, it was mandatory in effect.118 The reason for this is that:

“…any suspect in custody questioned about an offence without first having been adequately informed of the circumstances of the offence would, prima facie, have established that the evidence obtained thereafter was improperly obtained. In other words, the breach of section 464A(2)(a) would, of itself, trigger the possible operation of section

138 of the Evidence Act 2008”.119

120. Subsection 464A(3) provides that an investigating official must before any

questioning or investigation commences advise a person that he or she does not

have to say or do anything but that anything the person does say or do may be

given in evidence. Subsection 464A(3) must be read with the preceding subsections

(1) and (2) such that the information to be provided by an investigating official under

subsection (3) should be in respect of the offence for which the person is being

investigated. Importantly however, case law has established that the investigating

officer may not know the `precise nomination’ of the crime.120 The question

becomes, has the suspect been `told enough at the outset to meet the requirements

of section 464A(2)(a).’121 This position is consistent with the authority in Christie v

Leachinsky, which provides that an Accused must know in substance why he or she

is under arrest.

121. I am satisfied on the balance of probabilities that the Informant told the

Accused that he was under arrest for the crime of theft from a motor vehicle and

that the Informant told him that he did not have to say or do anything but that

117 [2016] VSCA 176 118 [2016] VSCA 176, at paragraph 186. 119 Ibid. 120 R v Lancaster [1998] 4 VR 550, cited in R v Willis [2016] VSCA 176, at paragraph 125. 121 R v Willis [2016] VSCA 176, at paragraph 123.

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anything the person did say or do may be given in evidence. Each of the officers

gave evidence that upon establishing his identity, the Accused was immediately

informed that he was under arrest for the crime of theft of power tools from a motor

vehicle and cautioned. The contemporaneous note of the Informant, states “C & R:

‘Yes”, an abbreviated notation reflecting that the Accused was cautioned and

informed of rights. The contemporaneous note of the Informant supports his

evidence and the evidence of each of the other officers.

122. In relation to the power tools, I accept the Informant’s evidence that he

believed at the time of the arrest and seizure of those items, that they were the

fruits of the Heidelberg Heights theft. I accept that his belief was based on the only

information that the police had at the time. The situation cannot be analysed with

the benefit of hindsight. According to the authority in R v Lancaster, it was not

necessary for the Informant to be more precise than he was when cautioning the

Accused about the offence. R v Lancaster makes it clear that the precise

nomination or details of a crime may not be known to police at the time of the arrest.

What is of the utmost importance is that the Accused understands in substance he

or she is under arrest for an offence, and has the right to remain silent in relation to

that offence. I am satisfied on the balance of probabilities that the Accused was well

aware that he was under arrest for the crime of theft from motor vehicle and that he

had the right to remain silent in relation to that offence.

123. I also accept that the Accused, not electing to exercise his right to remain

silent, engaged in a conversation with the Informant about where he got the power

tools from. All of the officers gave evidence that the purpose of the conversation

was to learn whether the Accused had a reasonable explanation for his possession

of the goods. This explanation was sought by police so that the Accused could be

afforded the opportunity to prevent the ensuing seizure of the goods on the basis

that they were believed to be stolen. The explanations provided were not accepted

by police as there appeared from their point of view, to be a lack of connection

between the nature of the Accused’s trade and the type of tools found on the

premises. Also, the fact that he told police that he was an ice user, that he was not

at work on a weekday and that he could not tell them how much he had paid for a

particular tool gave the officers reasonable grounds to believe that the power tools

were stolen. All of these things quite reasonably, in my view, gave the police

officers further grounds to fortify their belief upon entry, that the tools were the fruits

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of the Heidelberg Heights theft, or `material evidence to prove the commission of

that crime’.122

The seizure of the stolen items

124. The parties agree that the relevant legal test for the lawful seizure of goods is

set out in Ghani v Jones, as applied by the Supreme Court in Goldberg v R:123

“In that case Lord Denning exemplified the relevant principles as follows:

`The decision causes me some misgiving. I expect that the car bore traces of its impact with the brick wall. The police had reason to believe that Lynn and Waterfield were implicated in a crime of which the marks on the car might be most material evidence at the trial. If Lynn and Waterfield were allowed to drive the car away, they might very well remove or obliterate all incriminating evidence. My comment on that case is this: The law should not allow wrongdoers to destroy evidence against them when it can be prevented. Test it by an instance put in argument. The robbers of a bank 'borrow' a private car and use it in their raid, and escape. They abandon it by the roadside. The police find the car, i.e., the instrument of the crime, and want to examine it for finger prints. The owner of the 'borrowed' car comes up and demands the return of it. He says he will drive it away and not allow them to examine it. Cannot the police say to him: 'Nay, you cannot have it until we have examined it?' I should have thought they could. His conduct makes him look like an accessory after the fact, if not before it. At any rate it is quite unreasonable. Even though the raiders have not yet been caught, arrested or charged, nevertheless the police should be able to do whatever is necessary and reasonable to preserve the evidence of the crime." (Authorities omitted) 12. Lord Denning went on to identify principles which can be deduced from authority as follows: "First: The police officers must have reasonable grounds for believing that a serious offence has been committed - so serious that it is of the first importance that the offenders should be caught and brought to justice. Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber). Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable. Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. As soon as the case is over, or it is decided not to go on with it, the article should be returned. Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards."

122 Ghani v Jones¸ cited in Goldberg v R [2003] VSC 104, paragraphs 11-12. 123 [2003] VSC 104, Paragraphs 11-12.

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125. Ghani v Jones is also authority for the proposition that if in the course of

arresting a person for a serious offence, or where a police officer enters a person’s

property pursuant to a warrant, `in the course of their search they come upon any

other goods which show him to be implicated in some other crime, they may take

them provided they act reasonably and detain them no longer that is necessary.’124

126. There is no question that theft from a motor vehicle is a `serious indictable

offence’ within the meaning of section 325(6) of the Crimes Act 1958.

127. In relation to the first limb of the test, I am satisfied that police had

`reasonable grounds for believing’ that a serious offence had been committed by

the Accused, and I refer to and repeat my reasons as given above.

128. Each officer gave evidence that upon entering the bungalow, they each saw

a large number of power tools that were scattered in an unusual fashion around the

bungalow. After the Accused was arrested and cautioned, the police did not accept

the explanation given by the Accused as to the presence of the power tools in his

bungalow. Some of the police officers gave evidence that the Accused was not

working on a weekday, had a physical appearance consistent with that of an ice

user, was found to be in possession of ice and told Detective Beames that he was a

regular user of ice. These matters, quite reasonably in my view, gave rise to a belief

on reasonable grounds in the officers that the items in question were either the

fruits of the crime of theft from a motor vehicle, or material evidence that would

assist in proof of the commission of that crime.

129. I am furthermore satisfied that on the basis of all of the above evidence,

Informant/ police had reasonable grounds to believe that the Accused, who being

the person in possession of the power tools, had himself committed the crime of

theft from motor vehicle, and upon the formation of this reasonable belief, could

lawfully seize the property.

130. As stated above, it is conceded that the power tools the subject of these

charges are not from the Heidelberg Heights theft. However, as set out above, the

relevant inquiry according to Ghani v Jones is that `the lawfulness of the conduct of

the police must be judged at the time, and not by what happens afterwards.’ I am

satisfied, applying the principles in Ghani v Jones, that at the time of seizing the

124 Ghani v Jones (1970) 1 QB 693 at page 706A.

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power tools, the Informant/police believed that the items were the fruits of the theft

on 26 March 2015 at Heidelberg Heights. In all of the circumstances, the belief of

the Informant/police as to this matter is in my view a reasonable one.

131. The stolen number plates and the Yarra Tram jacket that were seized by

police must be separately considered, as it cannot be accepted that the police

reasonably believed these objects had any connection with the Heidelberg Heights

theft. I am of the view that the seizure of these objects was lawful according to

Ghani v Jones which provides authority for the proposition that where police are

investigating offences, if they happen upon the fruits of other crimes, they may

seize them for as long as reasonably necessary to complete their investigations, or

in order to preserve it as evidence.

Further submissions on police impropriety; what can be inferred from the evidence of

‘knocking’

132. The Defence submit that the Court should infer from the evidence that police

did not enter the Accused’s premises to arrest him, but rather to search for the

power tools from the Heidelberg Heights theft without first having obtained a

warrant under section 465 of the Crimes Act 1958. The Defence submitted that the

evidence of the police officers was inconsistent with respect to whether or not the

Informant knocked before entering the premises. It was submitted that the Court

should conclude that the Informant did not knock before entering:

“….as a consequence of such a finding, the court should infer (the only reasonable inference open, it is submitted) that the Police knowingly elected not to conduct themselves in such a manner that would allow the Accused to come to the door, as then the opportunity

for the police to conduct a search of the premises would be lost.”125

133. It is submitted that failing to knock before entering, the police knowingly

conducted themselves in an improper manner.126

134. The evidence of the four officers was inconsistent with respect to whether or

not Detective Abbey knocked before entering the bungalow, and it is not possible to

conclude based on the evidence before the Court that there was knocking, or that

entry to the premises occurred without knocking. Even if this Court were to

conclude that the officers entered the bungalow without knocking, I do not agree

125 Defence submissions, page 12, paragraph 42. 126 Defence submissions, page 12, paragraph 42.

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that this leads necessarily to the inference that police were in attendance for

purposes of an unlawful search for property without a warrant. The evidence given

by each of the police officers, which I have accepted, does not support that

conclusion.

135. For the reasons given above, I am satisfied on the balance of probabilities

that the police entered the bungalow of the Accused to arrest him, not to search for

the power tools from the Heidelberg Heights theft. Given the high degree of

consistency between the police officers as to the purpose of their attendance at the

bungalow, and the absence of any evidence of contamination of this evidence or

collusion, I have no reason to doubt it.

Conclusions

136. For all of the above reasons, the Defence has not satisfied me on the

balance of probabilities that the police acted beyond their powers in entering the

premises of the Accused, arresting him and seizing the items the subject of these

charges. The Defence application is dismissed.