[2022] NTSC 1
SUPREME COURT OF THE NORTHERN TERRITORY
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
Burns J
FILE NO: 21942050
Crown: P M Strickland SC with J Poole
Accused: J D Edwardson QC with L Officer
AC v R [2016] NSWCCA 21; Aravena v R (2015) 91 NSWLR 258; Armstrong v R [2017] NSWCCA 323; BD v The Queen [2017] NTCCA 2; BP v R; R v BP [2010] NSWCCA 303; DAO v The Queen [2011] NSWCCA 63; El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10; Elomar v The Queen [2014] NSWCCA 303; Festa v The Queen (2001) 208 CLR 593; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; Ibrahim v Pham [2007] NSWCA 215; IMM v The Queen [2016] HCA 14; KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165; Middendorp v The Queen [2012] VSCA 47; O'Keefe v R [2009] NSWCCA 121; Papakosmas v R (1999) 196 CLR 297 at 325; [1999] HCA 37; Patel v R (2012) 247 CLR 531; [2012] HCA 29; Qualiteri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95; R v Allen [2020] NSWCCA 173; R v BD (1997) 94 A Crim R 131; R v Cook [2004] NSWCCA 52; R v Ford [2009] NSWCCA 306; R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315; R v MM [2014] NSWCCA 144; R v PWD [2010] NSWCCA 209; R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509; RH v R (2014) 241 A Crim R 1; [2014] NSWCCA 71; Saoud v R [2014] NSWCCA 136; Sokolowskyj v R [2014] NSWCCA 55; SSN v R [2012] NSWCCA 163; Taylor v The Queen [2020] NSWCCA 355; The Queen v Hoffmann [2021] NTSC 31; The Queen v Rolfe [2021] HCA 38; The Queen v Rolfe (No 5) [2021] NTSCFC 6; Townsend v Townsend [2001] NSWCA 136; Washer v Western Australia (2007) 234 CLR 492, referred to.
Bessell v Wilson (1853) 118 ER 518; ( Botton v Winn unreported, Supreme Court of Victoria, 18 December 1987); Dillon v O'Brien (1887) 16 Cox CC 245; Director of Public Prosecutions v Tupper (2018) 55 VR 720; Elomar v The Queen [2014] NSWCCA 303; Field v Sullivan [1923] VLR 70; Leigh v Cole (1853) 6 Cox CC 329; Lindley v Rutter [1981] QB 128, referred to.
Criminal Code Act 1983 (NT) s 43BD, s 156, s 160, s 161A, s 208E
Evidence (National Uniform Legislation) Act 2011 (NT) s 55, s 56, s 97, s 101, s 135, s137
Interpretation Act 1978 (NT) s 17
Police Administration Act 1978 (NT) s 5, s 25, s 126, s 148B
Evidence (National Uniform Legislation) Act 2011 (NT) s 138
Interpretation Act 1978 (NT) s 62
Police Administration Act 1978 (NT) s 144
EVIDENCE — Admissibility — Tendency evidence — Evidence (National Uniform Legislation) Act 2011 (NT), s 97 — Whether tendency evidence of significant probative value — Whether evidence supports proof of the alleged tendency — Whether proof of tendency makes more likely the elements of the offences charged — Whether probative value of the evidence outweighs any potential prejudicial effect on the accused — evidence inadmissible
EVIDENCE — Admissibility — Police powers of search and seizure — Whether evidence obtained lawfully — Police Administration Act 1978 (NT) s 144 — Temporal proximity of search and seizure — Whether search and seizure must be incidental to arrest — — evidence admissible
(Delivered on 20 January 2022)
The accused Zachary Rolfe is awaiting trial on a charge (Count 1) that on 9 November 2019 he murdered Charles Arnold Walker (the deceased) (contrary to s 156 of the Criminal Code Act 1983 (NT) (‘the Code’)). The indictment against the accused contains two alternative charges to the charge of murder: Count 2 alleges that he engaged in conduct that caused the death of the deceased, being reckless or negligent as to causing the death of the deceased (contrary to s 160 of the Code) and Count 3 alleges that he engaged in conduct involving a violent act to the deceased, namely discharging a firearm causing the death of the deceased (contrary to s 161A(1) of the Code).
The Crown case, expressed very briefly, is that the accused, who is a member of the Northern Territory Police Force, shot the deceased three times while arresting him in company with Constable Adam Eberl at Yuendumu on 9 November 2019 thereby causing his death. The Crown does not rely on the first shot in order to establish the charges, only on the second and third shots.
The accused has entered pleas of not guilty to all charges and his trial is due to commence on 7 February 2022.
The Crown served on the accused an amended notice (‘the notice’) dated 3 December 2021, pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘the ENULA’), notifying him that the Crown intends to adduce tendency evidence against him at his trial. The notice was further amended by the Crown at the hearing of the application. The accused objects to the Crown leading the proposed tendency evidence.
In addition, the Crown proposes leading evidence at the trial of two text messages downloaded from the accused's mobile phone. The Crown submits that the content of these messages should also be considered in determining whether the proposed tendency evidence should be admitted. The accused objects to the admission of this evidence for either purpose on the ground that it was unlawfully obtained. It is convenient to address this issue first.
The accused was arrested on 13 November 2019 and was taken to the Darwin City Watch House (‘the Watch House’). Following his arrest, police allowed the accused to collect his personal belongings, including his mobile phone, and retain them on the journey to the Watch House. The accused was accompanied into the area of the front counter of the Watch House by Detective Senior Sergeant (subsequently, Superintendent) Kirk Pennuto, Detective Senior Sergeant Mark Malogorski and Detective Acting Senior Sergeant Wayne Newell. They arrived at the Watch House at about 5.45pm. At the front counter, Detective Pennuto said to the accused, “Put your stuff up there for us, please”. At that time the accused was holding his mobile phone in his hand. He placed the mobile phone, together with his other personal belongings, on the counter of the Watch House. He then underwent a physical search. All of those items, including the mobile phone, were secured in a clear plastic bag by Constable Abdul Khan. An arrest card was completed by another police officer which recorded all of the property taken from the accused into the possession of Constable Khan and secured inside the security bag, which was then sealed. The plastic security bag containing the personal property of the accused was then placed in a box and taken into a room behind the counter. The accused was then placed in a cell.
The arrest card is a printed document with spaces for hand written notations. None of the Crown witnesses called on the voir dire were able to remember who had completed the hand written notations on the bottom half of the document which included a list of the accused's personal property. Next to the entry fields “Mobile phone” and “Others” are two items that have been scratched out in what appears to be ink. The evidence did not reveal the nature of those entries or who scratched them out. The inevitable inference is that the entry which has been scratched out next to the entry field “Mobile phone” is an entry evidencing the fact that the accused's mobile phone was part of the property placed in the secure property bag and then stored in the room behind the counter. This is consistent with what is seen in the video of the processing of the accused at the Watch House. It is clear from that video that the accused's mobile phone was placed in the property bag, which was then placed in a box and removed from the area of the front counter.
At about 6.10pm that same day, another police officer involved in the investigation into the death of the deceased, Detective Andrew Kren, attended the Watch House and removed the accused's mobile phone from the accused's personal property in the Watch House. The accused was not present when this occurred. The mobile phone was subjected to analysis which revealed, amongst other things, the two text messages the Crown seeks to adduce in evidence. It is this seizure of the accused's mobile phone that the accused says was unlawful, with the consequence that the text messages themselves were obtained unlawfully by the Crown.
The Crown submits that the seizure of the accused's mobile phone was permitted by s 144 of the Police Administration Act 1978 (NT) (‘the PAA’) (emphasis added):
Search of persons in lawful custody
(1) A member of the Police Force may search a person in lawful custody, including the clothing the person is wearing and any property in the person's immediate possession, and may use the force that is reasonably necessary to conduct the search.
(2) A member may seize any weapon or other article capable of being used to inflict injury on a person or assist an escape from custody, or anything relating to an offence, found as a result of a search under subsection (1).
(3) Subsection (1) does not authorise a member to require a person to remove any clothing that he is wearing unless the member has reasonable grounds for believing that the removal and examination and detention of such clothing may afford evidence of the commission of an offence, and the person is provided with adequate clothing to replace the clothing removed.
(4) Any search carried out pursuant to subsection (1) shall, wherever practicable, be carried out by a member of the same sex as the person searched.
(5) Nothing in this section shall be taken to prevent the search of the person of a person, or of property under the control of a person and the removal from that...
