R v Westcott[2014] QDC 278

DISTRICT COURT OF QUEENSLAND

The application

1. [1]
   The applicant, Westcott, is charged with thirteen drug offences including one count of unlawfully trafficking in the dangerous drug, cannabis.

2. [2]
   The applicant seeks the exclusion of the evidence seized from a search of a vehicle on 30 July 2013 in Townsville, on the basis of an exercise of discretion to exclude evidence unlawfully obtained.

Factual circumstances

3. [3]
   At about 1.15 p.m. on 30 July 2013, Plain Clothes Constable Hilton (“Hilton”) was driving in Annandale when he saw a silver Holden Commodore sedan registration 761SEZ travelling in the opposite direction. He recognised the driver as a juvenile whom he knew to be unlicensed. He intercepted the vehicle for the purpose of a driver licence check.

4. [4]
   Whilst at the driver’s window, Hilton observed a green canvas bag (“the bag”) sitting on the floor of the vehicle at the feet of the applicant, who was seated in the front passenger seat. Hilton said in his statement of witness that:

“At the time I was in possession of current intelligence holdings relating to Westcott and as a result reasonably suspected that at the time he was in possession of dangerous drugs.”

5. [5]
   He detained the applicant and the juvenile for the purpose of a search.

6. [6]
   Upon a pat down search of the applicant, a clipseal bag containing about 3 grams of cannabis was located. In a search of the bag he located two boxes of clipseal bags, a set of digital scales, two apple i-phones and a silver purse containing cash in the sum of $1,170.00.

7. [7]
   A more thorough, personal search of the applicant at the roadside resulted in the applicant producing a clipseal bag of cannabis from his underwear weighing about 28 grams. The applicant was interviewed at the police station and the mobile telephones, upon subsequent examination, were found to contain drug related text messages. He was charged with drug offences and subsequently indicted upon them.

The issue

8. [8]
   The charges are based upon the items seized during the roadside search and the examination of the contents of the mobile telephones. The issues are whether Hilton had formed a “reasonable suspicion” that there was a dangerous drug in the vehicle, before the search occurred; and if not, whether the evidence ought to be excluded in the exercise of a discretion.

The hearing

9. [9]
   I heard evidence from Hilton on the voir dire, including listening to an excerpt from a field tape recorder that he was operating at the time. The applicant gave his name to Hilton when requested. Hilton shortly afterwards spoke with the applicant:

“Hilton: Okay. So you did have something down the front of your pants?Just a little bit of cannabis hey? You were always gonna be searched mate, okay, but good try … go and jump in the shade. Is there anything else in the car? That’s it? All you had?”

10. [10]
    In evidence Hilton said that he had intelligence information, acquired over a period of eight weeks and specifically in respect of the applicant, that included information that the accused carried drugs in a canvas bag or satchel in his car and sold drugs from the bag.

11. [11]
    He said when he was speaking to the occupants of the vehicle he saw a bag on the floor at the applicant’s feet. He then immediately connected that observation with the intelligence information and formed a reasonable suspicion.

12. [12]
    He was challenged in cross-examination on two matters relevant to the issues: firstly, on the basis of the statement that the applicant had got into trouble two weeks ago (when other police officers had apprehended the applicant and placed him on drug diversion - an event that Hilton did not participate in or know about at the time), in the context of his knowledge of the initial information and the fact that he had been looking for the applicant over several weeks – instead of referring to the actual basis that was “reasonable suspicion” when he spoke to the applicant, prior to the search of the vehicle; and secondly, when at the vehicle he would not have had time to form a “reasonable suspicion” that preceded the subsequent search of the vehicle and the bag.

Submissions

13. [13]
    Mr Greggery submitted that the statement “you were always gonna be searched mate …” indicated that a search was inevitable whether a “reasonable suspicion” was formed or not.

14. [14]
    He submitted that the evidence of Hilton was unconvincing and inconsistent in a number of respects and listed those matters in a further written submission that he provided to the court. That list included both matters the subject of the challenge in cross-examination and specifically the following:

• Hilton accepted that he could have made the usual statement to Westcott “I have received confidential information which causes me to have a reasonable suspicion that you are in possession of dangerous drugs”, but could not explain why he did not do so.

• Hilton made a telephone call to the police station immediately after conducting the search to confirm dates and content of the intelligence but there was no pressing need to do so, if in fact he was clear in his recollection about the nature of the intelligence.

• Hilton could not explain why his statement made three months after the event did not refer to the evidence he gave about the nature of the information necessary to found his claimed reasonable belief.

15. [15]
    Mr Greggery also referred to Hilton allegedly making an inducement to the applicant subsequently at the police station, by using the expression doing the applicant “a favour”:

“Hilton: What I need you to do, I am doing you a favour here, I’m not putting you in the cells downstairs. Okay? I’m putting you in an interview room until I come back and have a chat to ya. Do not hop up. Do not wander around. Do not leave this room. Okay? If you do basically I’ll slot you straight over to the watch-house. Okay? No worries. This is a police station, mate, you can’t wander around. I’ll come and see you in a minute. Okay. You got a contact number for mum? She got a car? Does she drive? Okay.”

16. [16]
    Mr Stone submitted, in effect, that the forming of the “reasonable suspicion” and doing so quickly was not remarkable in the circumstances. He submitted that the evidence of Hilton was frank and convincing and established that a “reasonable suspicion” was formed prior to the search.

Authorities

17. [17]
    I was referred to a number of authorities by counsel. However, in view of my finding on the evidence and Mr Greggery’s concession that if I accepted the evidence of Hilton then Hilton had formed a “reasonable suspicion” before the search was conducted, I do not need to refer to them.

Findings on the Evidence

18. [18]
    I accept the evidence of Hilton. He spoke in a plain and open manner to each of the occupants of the vehicle. He did not have to give any reason for the forming of a “reasonable suspicion” when speaking to the applicant. He referred to the applicant’s recent “trouble” in the context of it arising out of a drug matter. He would have been unwise to refer to the intelligence information because it was based on informant information. Indeed, he is not permitted to do so. In court he was advised to take care, in effect, not to commit a breach of sections 119 and 120 of the Drugs Misuse Act.

19. [19]
    His telephone call to the police station verified the information. There is nothing inconsistent with that and it is not a matter that could reasonably be said to undermine his evidence of having formed a “reasonable suspicion” in the way that he said it occurred. He also sought assistance from other police officers.

20. [20]
    The statement about doing a “favour”, made in the police station, was made in the context of the general conversations between Hilton and the applicant, and is not a statement of inducement. Hilton could have used a better figure of speech perhaps, but the use of the word “favour” does not have any unlawful context here.

21. [21]
    I disagree with Mr Greggery’s submission that the evidence of Hilton was unconvincing and inconsistent. I find it quite the opposite.

Conclusion

22. [22]
    It follows that Hilton had formed a “reasonable suspicion” prior to the search of the vehicle. The evidence from the search is admissible. There is (as Mr Greggery further conceded, in the event of a finding in the terms that I have expressed) no basis upon which the evidence could or should be excluded on an exercise of discretion.

Orders

23. [23]
    1. Application dismissed.