R v Aloia

In this application to exclude evidence, Justice Henry made important comments about the use of intelligence on police database in forming a “reasonable suspicion”. While his Honour accepted that the unlawfulness of the search was not deliberate, the undesirable effect of the Supreme Court being seen to tolerate the circumstances which prompted the unlawful search (that is, the officer’s failure to apply his independent mind to the circumstances of the case, and instead deferring to an entry in the police database), outweighed the public interest in convicting and punishing the applicant.

Henry J

3 February 2022

The applicant’s car was intercepted by police who were investigating allegations that the vehicle had major defects. Police inspected the vehicle and administered roadside drug and alcohol tests upon him. [3]. The results were negative. [7]. Following a conversation with the applicant, in which the Constable observed the applicant to be drinking “rapidly” (interpreted as a sign of nervousness), the Constable ran checks on the applicant in the police system. The system showed three drug related occurrences and an entry stating, “Drug user – search at every opportunity”. [7], [13]. Police searched and detained the applicant. The search revealed that he had MDMA secreted down his pants. [3], [9].

One “curious” feature of the case was the evidence for the Constable’s reasonable suspicion. When asked by the applicant to show his search warrant, the Constable informed the applicant that he did not need one due to his having formed a “reasonable suspicion”. [9]. The Constable did not state to the applicant what it was that he had a reasonable suspicion of. [13]. Nor was the Constable clear about this in evidence. At most it could be said that he thought there were “possibly” drugs in the car. [14]. As to the foundation of that suspicion, it was said to include the police records and the applicant’s conduct in drinking from a can quite rapidly. [16], [17].

The basis of the application

The applicant applied for the evidence of the dangerous drugs found during that search, as well as statements made in the course of that search, to be excluded. [3] While it was not disputed that the police were entitled to intercept and inspect the vehicle, as well as to administer roadside alcohol and breath tests upon him, he argued that the search of the vehicle was unlawful, and in consequence, the evidence obtained as a result of it ought be excluded. [3], [4], [6].

Justice Henry’s reasons

To exclude the evidence (as his Honour did), Henry J was required to consider two questions: first, whether the search was unlawful, and second, if it was, whether public policy favoured the exclusion of the evidence in the exercise of the discretion. [3].

The search was unlawful

The lawfulness of the search turned upon whether the Constable had a reasonable suspicion within the meaning of s 29(1) Police Powers and Responsibilities Act 2000. [10]–[12].

His Honour was not persuaded that the applicant’s drinking from a can was a reliable indicator of nerves. [17]. It followed that the “only potentially viable foundation for the requisite reasonable suspicion” was information learned from the Constable’s checks of police information about the applicant. [22]. That information fell into two categories: First, the entry “Drug user – search at every opportunity”. Second, the occurrence records which showed drug related entries. [23].

Having received submissions from the parties on the authorities dealing with a suspicion based upon police intelligence, his Honour observed that, “the unremarkable principal [sic] emerging from those cases is that police intelligence information may found a reasonable suspicion of a prescribed circumstance, though whether it has the force to do will depend upon the individual circumstances of each case”. [25].

In this case, the “highpoint” of the police information was that the applicant was known to have used drugs on some occasions in the past. [28]. The bare fact that the applicant had used illicit drugs in the past and was once caught having possession of them did not provide reasonable grounds to suspect that he was in possession of illicit drugs there and then. [30].

Further, his Honour observed that the requisite reasonable suspicion needed to be that the applicant “has” something that may be an unlawful dangerous drug: it is insufficient that the person “may have” something that may be an unlawful dangerous drug. This subtle distinction protects the public against the misuse of mere knowledge of a person’s previous drug use as a basis for police intervention. [29].

The evidence ought be excluded

As to whether the evidence ought be excluded on public policy grounds, his Honour observed: [33]:

1. The applicant’s possession of an aggravated weight of unlawful drug was a serious offence (albeit not unusually grave).
2. The unlawfulness of the search was not deliberate. It was likely an “ill-considered reaction” to the entry on the police database: “Drug user – search at every opportunity”.
3. However, that feature was concerning: “Police in the field need to know an instruction of that kind… does not negate their obligation to obey the law…. It is critical to laws designed to protect citizens … that police apply their independent minds in making an assessment which must be made by them”.

In the result, the undesirable effect of the Court being seen to tolerate that conduct outweighed the public interest in conviction and punishment of the applicant. [34]. The application was granted. [36]. The evidence was excluded. [35].

Z Brereton of Counsel