Verified. Both the citation and the neutral citation are confirmed from multiple authoritative sources including AustLII.
R v Rondo (2001) 126 A Crim R 562
Verified citations: (2001) 126 A Crim R 562; [2001] NSWCCA 540 Court: NSW Court of Criminal Appeal Decided: 24 December 2001 Bench: Spigelman CJ, Smart AJ, Simpson J Result: Appeal allowed — conviction quashed, acquittal entered
Background Facts
The appellant was driving a sports car when a police vehicle drew alongside and one of the officers asked him whether it was his car. When the appellant replied that it was not, the police required him to stop. It was alleged that as an officer approached the vehicle, he saw the appellant reach across and appear to place something in the glovebox. The vehicle was then searched and $860 in cash was found in the centre console and some cannabis leaf was found in the glovebox.
The appellant gave an explanation for his possession of the money and told the officers that he bought the cannabis at a local hotel. The officers also alleged that the appellant offered them a bribe. The conversations were not tape-recorded. The appellant was arrested and taken to a police station. The police officers suspected that the cannabis came from the appellant’s home and that he had more there. One of the officers made a telephone application for a warrant to extend the investigation period with respect to the appellant’s custody. An application was also made for a warrant to search the appellant’s home. The justice issued both warrants.
The subsequent search of the home located 224 grams of cannabis leaf and 59 to 63 cannabis plants. Rondo was convicted at trial by jury of supplying a prohibited drug and cultivating a prohibited plant. He appealed.
The Central Issue — Was the Initial Stop Lawful?
The primary ground of appeal was that the initial stopping of the vehicle was unlawful — and that everything which followed was tainted by that initial illegality.
On the information available to the police officer, it was not open to him to “reasonably suspect” any of the matters referred to in s 357E of the Crimes Act 1900 (NSW). Hence the stopping of the appellant and his vehicle was unlawful.
Smart AJ’s analysis of why the stop was unlawful is direct:
The evidence that the police had to support stopping the vehicle was that a young fresh-faced man was driving a smart fast open coupe with some panel damage along Epping Road and when asked if the car was his, he replied “No”. He was not asked to whom it belonged. The mere fact that the appellant was driving a car which he did not own or lease or hire is not sufficient to give rise to a reasonable suspicion. Many late teenagers and young adults drive cars belonging to a parent or a sibling.
The Propositions on Reasonable Suspicion — The Core of the Case
Smart AJ’s statement of the law on reasonable suspicion at paragraph [53] is the most cited passage in the judgment and has become the leading authority on the point across Australian jurisdictions:
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. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. 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 reliability.
Additionally from the headnote: reasonable suspicion is not arbitrary — some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material, but the material must be of sufficient quality that it could reasonably found a suspicion in the mind of a reasonable person.
The Cumulative Illegality Finding
The case did not rest on the unlawfulness of the stop alone. The Court identified a cascade of procedural unlawfulness:
Unlawful stopping of vehicle — subsequent search — admissibility of admissions made to police and not tape-recorded — application for detention warrant not complying with Act — invalidity of detention warrant — grounds specified for issue of search warrant insufficient — invalid search warrant — cumulative effect of unlawful acts resulting in evidence being inadmissible — exercise of discretion under s 138 of the Evidence Act flawed.
Each defect standing alone might not have been fatal. But the cumulative effect of the unlawful stop, the untaped admissions, the defective detention warrant application, and the insufficient grounds for the search warrant collectively rendered the trial judge’s exercise of discretion under s 138 of the Evidence Act 1995 (NSW) flawed. The trial judge had not taken the unlawful stop into account in exercising that discretion. That failure vitiated the exercise of discretion.
Because the evidence should have been excluded, the conviction could not stand. The Court declined to order a new trial — given the number of procedural defects, the already-served suspended sentence, and the nature of the case, entering an acquittal was the appropriate outcome.
Section 138 of the Evidence Act 1995 (NSW) — The Discretion
Section 138 of the Evidence Act 1995 relevantly provides: evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The key insight from Rondo on s 138 is this: the discretion to exclude is not merely mechanical. The trial judge must identify and weigh all the circumstances of the obtaining of the evidence — including any prior illegality that set the chain of events in motion. Failure to consider the unlawful stop as a factor in the chain was an error that infected the entire discretionary exercise.
Has Rondo Been Overturned?
No. Rondo has not been overturned. It remains the leading authority in NSW and is widely cited across Australian jurisdictions on the meaning of reasonable suspicion. It has been consistently applied, followed, and referred to in subsequent decisions across NSW and other State courts for over two decades.
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — LEPRA — which came into force after Rondo and replaced s 357E of the Crimes Act 1900 — adopted substantially the same “reasonable suspicion” threshold for police stop and search powers. The Rondo propositions on the meaning of reasonable suspicion have been directly applied to LEPRA provisions in every subsequent relevant case.
It has been distinguished in specific factual circumstances — where the specific information available to the officer was found sufficient to ground reasonable suspicion — but the propositions themselves are undisturbed and continue to be cited as authoritative.
Significance in the Context of This Series
Rondo is directly relevant to the principles running through this entire series in several respects.
Authority must be specifically grounded. The same principle that runs from quo warranto through the Chapter III discussions and the Johnston case runs through Rondo: the exercise of power over a person — stopping them, searching them, detaining them — requires specific, identifiable lawful authority grounded in sufficient factual basis. Institutional assumption of the right to act is not enough.
Tainted process taints all that follows. The cumulative illegality finding in Rondo is important beyond the criminal law context. Where a chain of consequential acts begins with an unlawful act, the unlawfulness runs through the chain. Each subsequent step that depends on the prior unlawful step inherits the taint. Applied to the enforcement proceedings discussed throughout this series: where the foundational act — the levy, the notice, the assessment — is defective, all that follows from it is infected.
The rights of the individual against institutional process. The Court’s willingness to acquit a person who was, on the evidence, actually in possession of drugs — because the process by which that evidence was obtained was systematically unlawful — reflects a fundamental principle: the integrity of the legal process is not a technicality. It is a right. The protection of that right, even when the defendant is guilty, is what protects the innocent.
Nemo debet bis puniri pro uno delicto — no one ought to be punished twice for one offence.
But equally: no one ought to suffer the consequences of lawful enforcement process where the process was unlawful from the start. Rondo holds the line on that principle, firmly and on authoritative record.
Last Updated 5 months ago
Views: 189