R v Harnas[2015] QDC 260

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant (“the defendant”) is charged with three counts of supplying dangerous drugs on two days in April 2014 and one day in September 2014 at Townsville.

Factual circumstances

2. [2]
   In the early hours of 5 October 2014 a vehicle driven by one Jackson Wreghitt was stopped by police in Mt. Low Parkway. The defendant was a passenger in the front seat. Another male was in the back seat.

3. [3]
   The occupants were detained and the vehicle was searched. The defendant’s mobile telephone was seized and Constable Crocker viewed text messages stored in it. The text messages constitute the evidence on which the charge are made.

“Reasonable suspicion”

4. [4]
   Constable Crocker asserted that he had formed “a reasonable suspicion that drugs may be present in the vehicle…” (Statement 28 December 2014); Constable O'Connell asserted that “Crocker informed me that he had formed a reasonable suspicion that drugs may be carried in the vehicle…” (Statement 31 December 2014); the QPrime occurrence sheet records that at 5.33am on 05 October 2014 an entry (made by one or other or by one on behalf of both of them) that “police have formed a suspicion that drugs or utensils may have been located in the vehicle”; and the police brief (QP9) refers to police forming a suspicion but does not state why.

Submissions

5. [5]
   The thrust of the defendant’s submission is that the police did not form a reasonable suspicion; that there was no record of any factual basis for a reasonable suspicion; and the search was conducted because of the presence in the vehicle of a person named Jackson Wreghitt, a “person of interest” to police with respect to drugs and drug distribution. 

Evidence

Constable Crocker

6. [6]
   I heard evidence from Constable Crocker and the defendant on a voir dire. Constable Crocker is a fourth year constable of police. He had activated a digital recorder part way through the search. Neither conversation, referred to above at [4], between the police officers appears in the recording. He denied having a pre-interception interest in the vehicle. He had been told of Jackson Wreghitt’s name and address. He was told to detain and search any vehicle driven by Jackson Wreghitt. The driver’s licence was in that name. He was not sure if the registration of the vehicle was in that name.

7. [7]
   He said that the defendant had pulled a mobile phone out of his pocket and had started to fidget with it. He denied that the mobile phone was flat. The defendant had declared ownership of a small amount of white crystalline substance, some cannabis found under the front passenger seat (in small and separate bags) and a pipe and a set of digital scales, all located in different places in the vehicle in the course of the search. He seized the mobile phone and viewed text messages on it.

8. [8]
   Constable Crocker’s reference to the defendant’s behaviour in the vehicle was in the following context: while he was talking to the defendant, who was seated in the front passenger seat of the vehicle, the defendant “was staring straight ahead and didn’t attempt to make any eye contact with myself.  The defendant then began to fidget with his phone.  The defendant’s behaviour to me was consistent with offenders I had previously dealt with that were wanted or involved in offences and were avoiding interaction with police” (Statement 07 September 2015).

9. [9]
   He had made similar observations about a rear seat passenger who had a small backpack at his side.

10. [10]
    Jackson Wreghitt was the driver of the vehicle. Constable Crocker had some knowledge about him and his family, derived from conversations with his Sergeant, and he had been tasked to gather information about the Wreghitt family.

The defendant

11. [11]
    The defendant said that the police had said they were conducting a licence check and breath test; that the police officers returned to the police car, came back, took other driver’s licences and again returned to the police car; came back and said the car was registered to the name Carl Lubeys; and that Constable Crocker said any car owned by him would be searched.

12. [12]
    The defendant said that the mobile phone remained in his pocket and the battery was flat. He said the police took possession of the mobile phone after the search of the vehicle when he and others were at the roadside and receipts (for property) were being written.

13. [13]
    In cross-examination the defendant said he knew the drugs and related items were in the vehicle. He had not been overly worried because he didn’t think the police would search the vehicle. He agreed that there were “dodgy” messages on the mobile phone.

14. [14]
    The defendant is 20 years of age. His admission that the drugs and related items were his, was the basis of his conviction in the Magistrates Court at Townsville on 24 October 2014 of offences relating to those items. He has no other criminal history.

Legislative provisions and case authority

15. [15]
    The term “reasonably suspects” is defined in Schedule 6 of the Police Powers and Responsibilities Act 2000 (“the PP&R Act”) to mean “suspects on grounds that are reasonable in the circumstances”.

16. [16]
    There are a number of authorities dealing with what circumstances might amount to “reasonable suspicion”.  In R v Bossley [2012] QSC 292 Dalton J at [14] summarised the relevant principles that were first set out in George v Rockett (1990) 170 CLR 104, at 115-116, as follows:

“A suspicion and a belief are different states of mind. 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. The facts must be sufficient to induce the suspicion in the mind of a reasonable person.  The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced.”

See also R v Rondo [2001] NSWCCA 540 at [51].

17. [17]
    In R v Keen [2015] QSC 7, police officers intercepted a vehicle after being briefed about drugs by a senior police officer on information obtained in telephone calls that had been intercepted  by the police. 

18. [18]
    In R v Jaudzems [2014] QSC 74, police officers stopped a vehicle for a random breath test and upon making contact with police communications were informed that the driver of the vehicle was a drug supplier.

19. [19]
    In R v Fuentes [2012] QSC 288, a vehicle was stopped by police for a licence check.  One of the occupants began acting nervously and appeared to be trying to conceal a backpack. When questioned about the backpack the occupant [Fuentes] started breathing shallow and fast. The police searched the backpack because of those circumstances and found a large quantity of tablets.  It was held that the police officers had formed a reasonable suspicion.

20. [20]
    The power to search a vehicle without a warrant is proscribed in s 31 of the PP&R Act in the following terms:

“s 31 Searching vehicles without warrant

1. A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following-

1. …

2. detain a vehicle and the occupants of the vehicle;

3. search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.”

21. [21]
    The prescribed circumstances include a dangerous drug: s 32(c) of the PP&R Act.

22. [22]
    The power to search persons without warrant is prescribed in ss 29 and 30 of the PP&R Act:

“s 29  Search persons without warrant

1. A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following-

1. stop and detain a person;

2. search a person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained”

23. [23]
    One of the prescribed circumstances for searching persons without warrant is that the person has something that may be an unlawful dangerous drug: s 30(a) (ii) PP&R Act.

Discussion

24. [24]
    I accept the evidence of Constable Crocker. I considered him to be frank and plausible in his testimony. I do not accept the evidence of the defendant where it is at odds with that of Constable Crocker.

25. [25]
    Constable Crocker referred, in his first statement, to his having formed a “reasonable suspicion”. He gave the grounds for that reasonable suspicion in his Addendum Statement. 

26. [26]
    I do not consider that any omission to state the grounds in the first written record of the search is necessarily fatal. I accept Mr Walklate’s caveat about “desirability” because of the passage of time potentially effecting memory. However, there is no rule or authority that mandates when grounds should be stated [or whether they are required to be stated in any event]. Each case should be considered on its own circumstances. Here Constable O'Connell also referred to a “reasonable suspicion” in the QPrime current sheet. There is no requirement for a police officer to refer to the grounds at the time that the “reasonable suspicion” is formed by informing the occupants of a vehicle of them.

27. [27]
    I do not consider that there is any merit, in the circumstances of this case, in the submission that Constable Crocker did not activate his digital recorder until part way through the detention of the occupants of the vehicle and the search. Certainly nothing of substance has been made out in that submission.

28. [28]
    By way of observation, in the context of information received in “briefings” conducted by police or information conveyed by a senior police to other police officers about operational matters, a police officer has to be cognisant of not committing a breach of ss 119 & 120 of the Drug Misuse Act 1986 where the information comes from an informant source.

Conclusion

29. [29]
    I am satisfied that the police officers formed a reasonable suspicion on valid grounds and that the seizure of the mobile phone, and the accessing of the text messages, was lawful. The offence is serious. The cogency of the evidence is not affected by the search. The evidence is critical to the proof of the charge.

30. [30]
    In this case there is no need for me to refer to an exclusion of the evidence on the Bunning v Cross principle.

31. [31]
    There has been no unlawful conduct of non-compliance with the PP&R Act by the police officers in the circumstances of this case. The evidence obtained in the search and evidence of the text messages on the mobile phone are admissible.

32. [32]
    The application to exclude the evidence is refused.

Order

1. Application refused.