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R v Morrison

 

[2020] QSCPR 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morrison [2020] QSCPR 19

PARTIES:

R

v

SHAUN ANDREW MORRISON

(applicant)

FILE NO:

Indictment No 542 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application pursuant to s 590AA of the Criminal Code to exclude evidence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2020

JUDGE:

Applegarth J

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where police observed empty clip-seal bags on the passenger seat of the applicant’s vehicle while conducting a licence check and breath test – where police detained and searched the vehicle and located dangerous drugs – whether the presence of empty clip-seal bags on the passenger seat of the vehicle gave rise to a reasonable suspicion that there may have been an unlawful dangerous drug in the vehicle – whether the evidence of dangerous drugs found in the vehicle should be excluded in the exercise of the public policy discretion

Police Powers and Responsibilities Act 2000 (Qld) s 31, s 32

George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited
R v Fuentes (2012) 230 A Crim R 379; [2012] QSC 288, cited
R v P & Anor (2016) 258 A Crim R 9; [2016] QSC 49, cited
R v Versac (2013) 227 A Crim R 569; [2013] QSC 46, cited
R v Watson [2017] QSC 4, cited

COUNSEL:

D R Wilson for the applicant

R J Hood for the respondent

SOLICITORS:

Wallace O’Hagan Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    At about 6.50 pm on 20 June 2019, a police officer observed the applicant’s car exit the car park of the Aspley Hotel.  The officer and his partner decided to pull the applicant over for a licence check and a breath test.  As the officer was conducting the breath test he noticed at least 10 small clip-seal bags on the front passenger seat.
  2. [2]
    In his six years of conducting general duties, the police officer had been involved in many cases of street-level drug offences.  To his mind, clip-seal bags “indicate drug use or possible drug supply”.  The drugs that he had been involved with, mainly methamphetamine or “ice”, were usually carried in the kind of small clip-seal bags that were on the passenger seat of the vehicle.  Having seen the clip-seal bags, the officer decided to detain the car and its occupant for a search.  He conducted a search of the vehicle, while his partner searched the applicant.  The officer’s search of the vehicle located illicit drugs. 
  3. [3]
    At the conclusion of the search the applicant was arrested.  He declined to participate in a recorded interview.  He has been charged on indictment with:
    1. (a)
      two counts of possessing a dangerous drug in excess of two grams; and
    2. (b)
      two counts of possessing a dangerous drug.
  4. [4]
    Application is made for an order that the evidence obtained during the search of the vehicle be excluded from admission at trial.  The respondent contends that the search was authorised by s 31(1)(c) of the Police Powers and Responsibilities Act 2000 (Qld).  The applicant contends that there was insufficient evidence for the officer to form a reasonable suspicion that there may be an unlawful dangerous drug present in the vehicle. 

The issues

  1. [5]
    Two issues arise:
  1. (1)
    Did the presence of the empty clip-seal bags on the passenger seat give rise to a reasonable suspicion that there may be an unlawful dangerous drug in the vehicle?
  1. (2)
    If not, should evidence of the fruits of the unauthorised search be excluded in the exercise of the public policy discretion?

Additional facts

  1. [6]
    On the evening of 20 July 2019 Senior Constable Kal and his partner, Constable Grimwade, were tasked to perform plainclothes duties in an unmarked police car.  They first observed the applicant in the car park of the Aspley Hotel.  As they were doing a lap of the hotel, the applicant’s Ford Falcon exited the car park.  The officers decided to pull the applicant over for a licence check and a breath test.
  2. [7]
    While Officer Kal was completing the breath test he observed at least 10 empty clip-seal bags on the passenger seat of the vehicle.  He told the applicant what he saw and advised the applicant that he was being detained for the purpose of a search.
  3. [8]
    The applicant’s car was not stopped because of a reasonable suspicion that there were drugs inside it.  It was stopped for a licence check and a breath test.  However, having stopped the car and observed the small empty clip-seal bags on the passenger seat, Senior Constable Kal decided to exercise the power to search the vehicle on the basis that he had a reasonable suspicion that there were drugs inside it. 
  4. [9]
    Officer Kal is stationed at the Hendra Criminal Investigation Branch.  Before that he served for about six years in general duties, mostly at the Boondall police station.  During his time as a general duties officer he was involved in drug related investigations, mostly street-related offences.  As noted, based on that experience, clip-seal bags indicate to him drug use or possible drug supply.  The small clip-seal bags that he observed on the passenger seat of the applicant’s vehicle were the same or a similar size to the clip-seal bags in which he had previously seen methylamphetamine or ice carried.
  5. [10]
    In his evidence, Officer Kal said that the small clip-seal bags that he saw on the passenger seat were possibly five centimetres by five centimetres.  He said they were the same or a similar size to the clip-seal bags depicted in photo 2 and photo 16 of Exhibit 2.  In his evidence he agreed that clip-seal bags can be purchased from grocery stores and used for different purposes such as sealing snacks for children. 
  6. [11]
    Incidentally, the random breath test for which the applicant’s vehicle was intercepted was a test for alcohol.  A different kind of test is required to test for the presence of drugs in a driver’s system, and Officer Kal was not trained to administer that test.
  7. [12]
    The search of the applicant’s car found three clip seal bags containing crystalline substances inside a pouch in the centre console, and eight clip seal bags and a cryovac bag containing crystalline substances in a black box under the driver’s seat.
  8. [13]
    Five of the clip seal bags contained quantities of methylamphetamine ranging from 0.225 grams to 2.275 grams.  Purity ranged between 56.1% and 77.4%.  The total weight of the substances containing methylamphetamine was 6.711 grams, of which 4.683 grams was pure methylamphetamine (Count 1).
  9. [14]
    Six of the clip seal bags contained quantities of MDMA ranging from 0.317 grams to 3.507 grams.  The cryovac bag contained 13.961 grams of substance.  Purity of the substance ranged between 73.2% and 74.9%.  The total weight of the substances containing MDMA was 23.978 grams, of which 17.654 grams was pure MDMA (Count 2).
  10. [15]
    In the black box under the driver’s seat Officer Kal also located:
  • A clip seal bag with a brown pill weighing 0.293 grams containing MDA (Count 3); and
  • A clip seal bag containing 2.19 grams of cannabis (Count 4).
  1. [16]
    Officer Kal also located a set of electronic scales inside a bag on the back seat of the car and a set of electronic scales in a black box under the driver’s seat.  A glass pipe was found under the steering column of the car.

The power to search

  1. [17]
    Section 31(1) of the Act contains three distinct powers if a police officer “reasonably suspects any of the prescribed circumstances for searching a vehicle” without a warrant exist.  The first is a power to stop the vehicle.  The second is a power to detain the vehicle and its occupants.  The third power, contained in s 31(1)(c), is to search the vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants were detained.  Although the vehicle was originally stopped for the purpose of a licence check and breath test, it is accepted that the vehicle and its sole occupant, the applicant, were detained for the purposes of a search for unlawful dangerous drugs.
  2. [18]
    The power to search a vehicle pursuant to s 31(1)(c) exists if the police officer “reasonably suspects” any of the prescribed circumstances stated in s 32.  Relevantly, it is a prescribed circumstance for searching a vehicle without a warrant that there is something in the vehicle that “may be an unlawful dangerous drug”.[1]  Schedule 6 of the Act defines “reasonably suspects” as meaning “suspects on grounds that are reasonable in the circumstances”.
  3. [19]
    In R v Watson,[2] Henry J observed:

“This definition accords with the well-established common law principle regarding reasonable suspicion that there must exist some factual basis to reasonably ground the suspicion but it is unnecessary that there exist proof of the fact reasonably suspected.[3]  It ought be borne in mind that reasonable suspicion is not the same as reasonable belief, and that facts which may be insufficient to reasonably ground a belief may, depending on the circumstances, be sufficient to reasonably ground a suspicion.[4]

  1. [20]
    Earlier, in R v Fuentes,[5] Dalton J also emphasised that a suspicion and a belief are different states of mind.  Citing George v Rockett,[6] her Honour observed:

“A suspicion is a state of conjecture or surmise.  It is more than idle wondering.  It is positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence.  Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief.  Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist.  There must be sufficient factual grounds reasonably to induce the suspicion.[7]  The facts must be sufficient to induce the suspicion in the mind of a reasonable person.[8]  The suspicion must be reasonable, as opposed to arbitrary,[9] irrational or prejudiced.”

  1. [21]
    The statutory definition of “reasonably suspects” in the context of s 31 directs attention to the presence of an actual suspicion by the relevant officer and whether that officer’s suspicion is based on grounds that are “reasonable in the circumstances”.  The circumstances must be sufficient to induce a “reasonable suspicion” in the mind of a police officer in those circumstances.

Was the officer’s suspicion reasonable?

  1. [22]
    In this case, there is no dispute that the officer, based on his experience, and having seen the numerous small empty clip-seal bags, suspected that there may be an unlawful dangerous drug in the vehicle.  The issue is whether his suspicion was reasonable.
  2. [23]
    The applicant submits that simply observing some clip-seal plastic bags on the passenger seat of a vehicle is insufficient to found a reasonable suspicion in the circumstances.  Emphasis is placed on the fact that the Act confers an invasive power to detain an individual and search their private property.  The applicant acknowledges that the presence of some feature observed by the police officer, in addition to the empty clip-seal bags, might readily found a reasonable suspicion.  However, the exercise of the power in this case was based purely on the observation of the clip-seal plastic bags.  According to the applicant’s counsel, something more was required when such an item may have a completely innocent explanation.
  3. [24]
    The respondent submits that the use of clip-seal plastic bags is a ubiquitous feature of drug-related offending in general, and that police officers who are experienced in the investigation of drug-related offending are well qualified to apply their experience in forming an opinion as to whether the presence of clip-seal bags in a particular circumstance is suspicious.  The required reasonable suspicion is that of a police officer exercising the relevant power, not an average person lacking experience in the use of clip-seal bags by drug users and drug dealers.  According to the respondent, police are entitled to apply their experience and knowledge of criminal activity in evaluating the particular circumstances.  In this case the circumstances are of a person alone in a car, exiting the car park of a hotel at around 7 pm who has numerous clip-seal bags scattered on the front passenger seat.  Those circumstances are different to a parent travelling to a kindergarten in the morning with empty clip-seal bags which might be used for a child’s lunch or snack.  The ubiquitous nature of clip-seal bags in relation to drug offending is submitted to have permitted the officer to form a reasonable suspicion in the circumstances.  The respondent is not required to prove that the officer reasonably believed that there were drugs in the applicant’s car.  It is sufficient if he had a reasonable suspicion that dangerous drugs may be present in the vehicle.
  4. [25]
    The ubiquitous use of clip-seal bags by methamphetamine users and drug dealers does not make it reasonable to suspect that most people with unused clip-seal bags in their cars are in possession of dangerous drugs.  One should distinguish:
    1. (a)
      the probability that a clip-seal bag in the possession of a suspected or known drug user is possessed for a drug-related purpose; and
    2. (b)
      the probability that a clip-seal bag in the possession of an individual who is not a suspected or known drug user is possessed for a drug-related purpose.

Thankfully, users of methylamphetamine are a relatively small percentage of the general population and of motorists, even motorists of the applicant’s age.  To suspect that, without more, a motorist with a number of small clip-seal bags in their car may be in possession of an unlawful dangerous drug would be unreasonable because of this fact, and also because of the use of clip-seal bags for legitimate purposes.

  1. [26]
    It remains, however, necessary to not elevate the statutory requirement of a reasonable suspicion that there is something in the vehicle which may be an unlawful dangerous drug to a requirement of a reasonable belief.  Accordingly, it may take little in addition to the presence of clip-seal bags to give rise to the required reasonable suspicion.  The appearance and the demeanour of the motorist may be a factor in the circumstances.  Roadside or other inquiries that reveal a criminal history or criminal intelligence which links the person to drug use may be another.  The presence of the person at or leaving a place known to be a location at which drug deals happen is another matter.  The presence of those or other matters may make it more likely that the empty clip-seal bags are in the person’s possession for drug-related purposes than if those circumstances did not exist. 
  2. [27]
    The respondent in this case does not rely upon any of those matters.  For example, it was not said that the applicant’s presence at the hotel or departure from the hotel’s car park formed part of the basis of the officer’s suspicion.
  3. [28]
    The fact that there may be legitimate reasons why a person like the applicant may have small empty clip-seal bags in a car does not necessarily mean that it would be unreasonable to suspect that the clip-seal bags may be related to drugs.  The possibility or even the probability that the bags have a legitimate use does not preclude the existence of a reasonable suspicion that they are drug-related.  All depends upon the particular circumstances.  However, I incline to the view that the presence of empty clip-seal bags in the circumstances of this case was not sufficient to ground a reasonable suspicion that there may be unlawful dangerous drugs in the car and to exercise the invasive power to conduct a search of private property without a warrant.
  4. [29]
    The insufficiency of the mere presence of clip-seal bags, given their potential use for legitimate purposes, may be illustrated by an example.  The remote possibility that empty clip-seal bags in the car of an elderly motorist returning from church or a veteran’s golf tournament may be used for a drug-related purpose may cause an unduly suspicious police officer to suspect that the car contains dangerous drugs.  However, without more, that suspicion would not be a reasonable one.  To conclude otherwise would expose practically any motorist in possession of small empty clip-seal bags on a car seat to the invasion of privacy and inconvenience of a warrantless search of their car.  In the case of a younger motorist, the possibility may be slightly higher that the empty clip-seal bags are for a drug-related purpose.  However, without more, the suspicion that there may be drugs in the car would be unlikely to be reasonable.  In this case, the officer did not point to the applicant’s age, his demeanour, his antecedents or the location from which his vehicle left as grounding, in addition to the clip-seal bags, his suspicion. 
  5. [30]
    Having harboured the suspicion which he did, it would not have been too much to expect the officer to at least ask the applicant why he had so many small clip-seal bags on his front passenger seat.  The applicant might have exercised his right to remain silent.  He may have acted nervously or given an unconvincing answer.  He may have given a convincing answer.  In my view, it was reasonable to at least ask the applicant why he had so many clip-seal bags on his passenger seat.
  6. [31]
    I conclude that in circumstances in which the respondent relies simply on the presence of the empty clip-seal bags and where the officer did not ask the applicant why he had so many clip-seal bags on his passenger seat, the officer’s suspicion was not based on grounds that were reasonable in the circumstances.  I conclude that the search was not authorised by s 31(1)(c) of the Act. 

Should the evidence be excluded in the exercise of the discretion?

  1. [32]
    It is convenient to repeat what I stated in R v P & Anor:[10]

[61] The public policy discretion to exclude unlawfully obtained evidence weighs competing public interests.  One is “the desirable goal of bringing to conviction the wrongdoer.”[11]  Another is “the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.”[12]

[62] The discretion “is necessary to protect the processes of the courts of law in administering the criminal justice system.”[13]  This judicial integrity principle holds that courts should not admit the tainted fruits of unlawful conduct, lest the administration of justice be brought into disrepute.[14]  The discretion also serves the policy of deterring unlawful conduct by those entrusted with powers of law enforcement.[15]

[63] Although Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence, as Henry J observed in R v Toon,[16] these factors are illustrative, and the focus must be on the case at hand.  Some factors support exclusion, whilst others support admission.  Depending on the circumstances at hand, the factors may include:

  1. (a)
    whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
  1. (b)
    the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
  1. (c)
    the importance of the evidence in the proceeding;
  1. (d)
    the nature and seriousness of the offence;
  1. (e)
    the nature of the unlawful conduct;
  1. (f)
    whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
  1. (g)
    how easy it would have been to comply with the law.[17]
  1. [33]
    Counsel for the applicant invited me to find that the conduct of the police would most appropriately be described as a reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance.  I decline to do so.  This is not a case in which a police officer, acting in reckless disregard of the law, did not turn his mind to whether he had the power to search a vehicle.  He did, and believed that he had the power to search the vehicle because of what he thought was a reasonable suspicion that drugs may be in it.  After some hesitation, I have found that he did not in fact have the power because the grounds for his suspicion were insufficient to make it reasonable.  The officer made what I consider, in retrospect, to be a mistaken assessment that sufficient grounds existed to conduct the search.  He acted in good faith.  He did not act in ignorance of, or in disregard of, a legal requirement.  Instead, he made a mistaken assessment of whether the facts satisfied a known legal requirement.[18] 
  2. [34]
    The evidence obtained from the search is cogent.  The unauthorised nature of the search does not affect its cogency.
  3. [35]
    The evidence is important in the proceeding.  The proceeding against the applicant depends entirely upon it.  If the evidence was to be excluded, the proceeding would have to be discontinued.
  4. [36]
    The offences are serious, particularly the counts of possession in amounts that exceeded two grams.
  5. [37]
    There is no suggestion that the conduct of unauthorised searches is encouraged or tolerated by those in higher authority in the police force. 
  6. [38]
    In retrospect, it would have been relatively easy for the officer to make further inquiries of the applicant, and possibly of others, so as to have additional grounds for his suspicion that the car may contain unlawful dangerous drugs.
  7. [39]
    Ultimately, weighing the relevant factors and considering the competing public interests which are relevant to the exercise of the public policy discretion, I consider that the balance strongly favours reception of the evidence.

Conclusion

  1. [40]
    The officer suspected that the applicant’s car may contain unlawful dangerous drugs.  His suspicion was based on the presence of several small, unused clip-seal bags on the passenger seat of the applicant’s car, and the officer’s knowledge that clip-seal bags are commonly used by drug users and those who deal in dangerous drugs.  There was no additional matter founding a suspicion that the applicant was involved in drugs or that there may be drugs inside the car. 
  2. [41]
    A suspicion is not rendered unreasonable simply because, in retrospect, one can identify something more that might have been done to have additional grounds for it.  It was strongly arguable that in the circumstances, including the officer’s experience of the use of clip-seal bags to hold drugs, that the empty clip-seal bags made his suspicion reasonable.  However, the absence of something more and the omission to at least ask the applicant about the clip-seal bags lead me to conclude, after some hesitation, that the officer’s suspicion was not reasonable in the circumstances. 
  3. [42]
    The officer acted in good faith.  He honestly believed that he had sufficient grounds to search the car and did not act in reckless disregard of the law or of the applicant’s rights.  The relevant factors, when balanced, strongly support admission of the evidence.  I decline to exclude the evidence.  The application is refused.

Footnotes

[1]  The Act, s 32(1)(c).

[2]  [2017] QSC 4 at [22].

[3] George v Rockett (1990) 170 CLR 104, 115.

[4]  Ibid.

[5]  [2012] QSC 288; (2012) 230 A Crim R 379 at [21].

[6]  (1990) 170 CLR 104.

[7]  At 113.

[8]  At 112.

[9]  At 112.

[10]  [2016] QSC 49; (2016) 258 A Crim R 9 at [61] – [63].

[11] Bunning v Cross (1978) 141 CLR 54 at 74.

[12]  Ibid.

[13] Nicholas v The Queen (1998) 193 CLR 173 at 217. 

[14] R v Lobban (2000) 112 A Crim R 357 at 367 [39] – [40]; Pollard v The Queen (1992) 176 CLR 177 at 203; Ridgeway v The Queen (1995) 184 CLR 19 at 32; R v Swaffield (1998) 192 CLR 159 at 175-180, 190-191, 212. 

[15] Ridgeway v The Queen (supra) at 32; R v Swaffield (supra) per Brennan CJ at 176-182.

[16]  [2015] QSC 117 at [17].

[17] R v Versac (2013) 227 A Crim R 569; [2013] QSC 46 at [6].

[18] R v Versac (2013) 227 A Crim R 569; [2013] QSC 46 at [50].

Close

Editorial Notes

  • Published Case Name:

    R v Morrison

  • Shortened Case Name:

    R v Morrison

  • MNC:

    [2020] QSCPR 19

  • Court:

    QSCPR

  • Judge(s):

    Applegarth J

  • Date:

    31 Jul 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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