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- Unreported Judgment
R v Bennett QDC 108
DISTRICT COURT OF QUEENSLAND
R v Bennett  QDC 108
ROBERT ANTHONY BENNETT
1370 of 2015
s 590AA Pre-trial hearing
10 May 2016 (delivered ex tempore)
10 May 2016
The application is dismissed.
A J Edwards for the applicant
D Kinsella for the respondent
Bosscher Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: All right. Now, as I indicated earlier, it is probably preferable to get this matter resolved today so I intend to give some ex tempore reasons but I reserve the right to tidy them up if I consider it necessary in due course.
- This proceeding is concerned with an application brought on behalf of the defendant. The application is characterised in his outline of submissions in the following way:
The applicant seeks the following order. That all evidence obtained as a result of the searches conducted on 24 July 2014, together with all questioning by police of the same date be excluded from evidence. The basis for such an order is illegality of the search of the vehicle (from which all other questioning and searches flowed) and judicial discretion on public policy grounds.
- Should that application be successful, that would mean that evidence of items located in the vehicle owed and driven by one Holt would be excluded, as would evidence located at the premises of the applicant pursuant to a search warrant, and also excluded would be admissions made by the applicant in the course of the search, in the course of the execution of the search warrant. It seems tolerably clear that in the event that all that evidence was excluded, the Crown would be struggling to find a case against the applicant. The background leading up to this application was evidenced by Officer Bodley who gave evidence today and it seems to be in line with the facts contained in the submissions prepared by both counsel.
- His evidence was to the effect that on the evening of the 24th of July 2014, he and three other police officers were in an unmarked police vehicle carrying out, among other things, random breath tests, roadworthy inspections and checking of licences within the Fortitude Valley area. The applicant was a passenger in a motor vehicle pulled over by those officers. One officer says that the reason for the vehicle being pulled over was to conduct a random breath test. As I understand it, another officer says it was to conduct a roadworthy inspection. Nothing really turns on those discrepancies and in that regard, it is not in dispute that the motor vehicle was lawfully pulled over by the police on that evening. It is also clear from the video evidence that a thorough roadworthy investigation of that vehicle was then carried out.
- At all times, the driver, Holt, and the applicant were calm and cooperative, at least at first. Constable Bodley also gave evidence that it was police protocol that when approaching an occupied motor vehicle, police officers would carry out a check of the inside of the motor vehicle to ensure that there were no weapons or hidden persons or other threats to safety contained within the motor vehicle. Obviously, at night, that would require the operation of torches. The video footage tendered shows, among other things, the driver of the motor vehicle assisting the police in carrying out the roadworthy inspection and the applicant being seated in the front passenger seat of the vehicle.
- During the course of the roadworthy investigation, Officer Toft expresses the view that he considered that the driver appeared nervous. And I would observe here that at the time this roadworthy inspection was being carried out, the police were aware of some intelligence concerning drugs but the nature and extent of that intelligence was not expanded upon during the course of this proceeding. What can also be seen in the video evidence is Officer Toft and also, perhaps to a lesser extent, officers Bodley and Rickards looking into various parts of the motor vehicle with the aid of their torches. That is particularly so, as I have already indicated, in respect of the Officer Toft.
- It is not entirely certain when Officer Toft discovered what was described as a clear, clip sealed plastic bag containing white powder, but on the evidence before me, it would suggest that it was some nine and a half to 10 minutes after the motor vehicle was first pulled over. In my view, the reporting of that clip seal bag more likely than not coincided with its discovery and, in my view, that would have been well after it had been ascertained that there were no hidden threats in the motor vehicle. And, of course, by this time, the driver of the motor vehicle had been out of the car for some time, assisting the police in opening the bonnet of the motor vehicle and the boot of the motor vehicle among other things.
- I should also point out that at this stage, apart from the driver opening his door to get out of the vehicle, neither the applicant nor any of the police officers opened any doors or windows of the vehicle. That is the clip seal bag was apparently observed by Officer Toft by using his torch and looking through the car windows. Also, as I have said, the evidence would suggest that that bag was discovered some nine to 10 minutes after the subject motor vehicle had been pulled over for the roadside test.
- Section 31 of the Police Powers and Responsibilities Act 2000 authorises the searching of a motor vehicle without a warrant in certain circumstances. That section relevantly provides:
(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 –
- (a)stop a vehicle;
(b)detain a vehicle and the occupants of the vehicle;
- (c)search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.
- Following Officer Toft reporting the discovery of the bag of powder, the police then went on to conduct a full search of the motor vehicle and by that, I mean, the applicant was asked to step out of the motor vehicle and a full physical inspection of the inside of the motor vehicle occurred. That search was carried out on the basis that the police had a reasonable suspicion that illegal drugs were located therein. On the evidence before me, the basis for that reasonable suspicion was the nervousness of the driver, together with the bag with the white powder contained in it against the backdrop of the drug intelligence to which I have already referred. As a consequence of that physical search of the motor vehicle, a bag belonging to the applicant was located, which, among other things, contained a small quantity of testosterone and an oestrogen blocker. Somewhat ironically, it would seem that the white powder seen in the plastic bag contained no illicit substance.
- That search then had a cascading effect in that it also revealed a mobile phone which contained a number of texts which the police thought to be suspicious and by that, although I do not have specific details, it seems tolerably clear that they were thought to be drug-related. As a consequence of that, the police then obtained a warrant to search the applicant’s premises. That search revealed among other things four glass jars, two of which contained a yellow liquid. The defendant admitted that the liquid was steroids. One of those jars weighed 578.8 grams and the other 434.5 grams. It also revealed two by one litre bottles, another plastic bottle labelled benzylate, another bottle containing benzyl alcohol. There were also a number of other items located, including a clip seal bag of white powder, but it contained no dangerous drugs. Of some significance was that a nine-page document containing instructions about how to combine prescribed liquid chemicals with testosterone powder to formulate consumable steroids was also located.
- Upon being questioned by the police, the defendant applicant also informed the police that grape seed oil which had been located on the premises was used to mix with various forms of testosterone to make more consumable as a steroid. Other items were found, including a glass beaker, glass jars and electronic scales. The defendant admitted to using the beaker to measure quantities of liquids and steroids and he also admitted to using the scales to measure quantities of the testosterone.
- Some diazepam was also located, some 15 pills, to which the applicant admitted that he did not have a prescription. As a consequence of the search of the motor vehicle, and of the applicant’s dwelling, together with, no doubt, a number of admissions made by the applicant, he is now charged with the following offences: one count of possessing dangerous drugs – that arises out of the drugs located in the vehicle – one count of producing a dangerous drug, one count of possessing instructions for producing a dangerous drug and one count of possessing property suspected of having been used in connection with the commission of a drug offence and another count of possessing a dangerous drug. Those last three charges are all associated with the search of the applicant’s premises and, as I have already said, no doubt, together with a number of admissions made by the applicant.
- While I agree with Mr Edwards’ submission that that offending is by no means at the upper end of the scale, counts 2 and 3 are still quite serious offences, in my view, although at this stage, I would note that in the schedule of fact provided to me, at least at this stage, there is no suggestion of any material commerciality being associated with any of the conduct of the applicant. However, the existence of the text messages might suggest otherwise. But nothing turns on that for the purposes of this application. There is no suggestion that the search warrant of the premises or the admissions made during the records of the interview were of themselves inherently tainted in any way. The applicant’s case hinges very much on the conduct of Officer Toft and, more particularly, whether that conduct amounted to an unlawful search.
- Indeed, in this regard, Mr Edwards quite candidly stated that if I were to reach the conclusion that Officer Toft’s conduct did not amount to an unlawful search, then “That’s the end of it for me”. Put very shortly, Mr Edwards’ argument is that up until the discovery of the plastic bag containing the white substance, there were no grounds which could be said to sensibly ground a reasonable suspicion for the purposes of an emergent search of the vehicle. It was clearly the discovery of the white powder, together with the nervousness of the driver, that were the grounds for that reasonable suspicion. And, in my view, it would appear that quite clearly the discovery of the white powder was the more significant matter.
- Mr Edwards’ submission is to this effect, that there were no reasonable grounds for the police to hold any reasonable suspicion up until the discovery of the white powder, but the problem for the police is that the discovery of that white powder was itself the product or end result of an unlawful search conducted by Officer Toft. That search being him continuing to, in effect, circumnavigate the vehicle, peering into the vehicle from various angles with his torch. That, of course, means that the first question that needs to be resolved in this matter is whether Officer Toft’s conduct amounted to a search of the motor vehicle without any lawful basis for doing so.
- As I have already said, even armed with the police intelligence, the nervousness of the driver would not have been sufficient to warrant an emergent search of the vehicle. Indeed, that seems clear from the conduct of the police themselves. Had they thought that was enough, they, no doubt, would have conducted a search of the inside of the vehicle well before they actually did. The second thing to note is that, as I have already observed, Officer Toft was continuing to shine his torch into and look into the motor vehicle well after it would have been established that no threat existed. However, at no time did he enter or otherwise physically interfere with the vehicle.
- A search is, for the purpose of this proceeding anyway, unhelpfully defined in schedule 6 of the Act. I do not consider it necessary to repeat that definition. As I have said, it is unhelpful in the context of this application. In my opinion, the evidence reveals that it was more likely than not that Officer Toft’s suspicions were aroused by the appearance of the driver, together with the police intelligence and he was looking for something to confirm those suspicions, to the extent of justifying a full search of the interior of that motor vehicle. It was submitted on behalf of the Crown that for there to be a “search”, there must be some degree of overtly invasive conduct which infringes the rights and liberties of the person concerned. And here, the addition of illumination by the torch was not sufficient. In this regard, in paragraphs 47 and 48, the Crown submited as follows:
The applicant’s argument overlooks the following key matters:
- the definition of search contained in schedule 6, whilst not exhaustive, does illustrate a component of invasiveness or trespass;
- the purpose of the legislation is to safeguard the rights or liberty of the individual in circumstances where there is legislative or regulatory intervention;
- the fact that the item was in plain albeit given it was night time, there was use of a torch, characterises the requisite conduct as simple observation or looking through a window. If the event had occurred in daylight, the argument would become farcical;
- there was no intrusion into the car, be it by opening a door or window, nor the entry into the vehicle whether by reaching inside or boarding. The corollary of these matters illustrate the normalcy and the propriety of the Act. The question to be proffered is ‘what right has been encroached requiring safeguard?’
- While I agree with some of those submissions, I cannot accept all of them for a number of reasons. First, I do not consider that a search must necessarily involve some overt act of invasiveness, such as the opening of a door or a window. Second, the use of a torch goes beyond simple observation or looking through a window. Third, it was not daylight, but night time and the bag was clearly not in plain sight. As I have already said, it would appear to have taken Officer Toft some nine to 10 minutes to locate the bag after fairly regular inspections of the inside of the vehicle by him with the torch. That said, in my view, it does not necessarily follow that Officer Toft’s conduct amounted to a search. In this regard, what constitutes a search for the purposes of this proceeding has to be considered in context.
- As I have already said, there was little doubt in my mind that Officer Toft was actively looking for something to confirm or at least support suspicions that he already held, however, at no time did he take any steps to enter the motor vehicle or even to have the doors or windows opened, things that he could have done if, at the time, he held a reasonable suspicion or had been in possession of a search warrant. The powers available under a search warrant pursuant to section 157 of the Police Powers and Responsibilities Act are extensive and potentially extremely intrusive.
- On balance, I have reached the conclusion that while Officer Toft was carrying out investigative activities, he had not conducted a search of the motor vehicle. He was clearly looking inside with the assistance of a torch, but he was not searching it. He was, if I could put it in these terms, carrying out extensive ongoing investigations but not conducting a search.
- That finding really is the end of the application, however I consider it appropriate to deal with the discretionary arguments raised by both counsel, even if only briefly. In the event that I am wrong about the search point, I would still have refused the application. In Bunning and Cross, a case referred to by both counsel, 1978 141 CLR 54 at page 72 it was relevantly said:
Evidence of relevant facts or things ascertained or produced by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring conviction to those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
- Later in Bunning and Cross, Stephen and Aickin JJ identify six matters which might be relevant in the consideration of this question. It is not meant to be an exhaustive list, but those matters were:
- Was the unlawful act inadvertent, that is, the result of a mistaken belief that the act was lawful or a deliberate disregard of the law?
- Does the nature of the illegality affect the cogency of the evidence so obtained?
- How serious was the misconduct of the investigator? Obviously, the more serious, the greater the public interest in discouraging such conduct.
- Was the illegal act the result of a process of deliberate cutting of corners to make the task of the police easier?
- How serious is the offence charged? The more serious the offence, the greater the public interest in identifying the offender, as against the public interest, in appropriate evidence gathering.
- Does an examination of the legislation indicate a deliberate intent on the part of the legislature to prevent such misconduct?
- Also in this regard, particularly, when looking at the conduct of the officers, in The Queen and Williamson 2009 QSC 434 Byrne SJA was concerned with circumstances where, among other things, the police had entered a shed without a warrant. His Honour observed at paragraph 38 to this effect: In considering the conduct of the police officer, it might be appropriate to consider whether it was a lapse of insight by an officer involved. Might the act have been more likely to be exuberance overbearing judgment or simply a lapse of judgment rather than a calculated and callous disregard of the law.
- As to the questions posed in Bunning and Cross to which I have referred, it was submitted on behalf of the applicant that the conduct of the police amounted to a deliberate course of unlawful conduct including the deliberate cutting of corners all in breach of a legislative framework designed to deter and, in fact, prevent such conduct. It was accepted that the cogency of the evidence was not diminished by the conduct and that, while broadly speaking, all drug offences are serious, this offending fell at the lower end of the scale.
- As I have already indicated, I consider counts 2 and 3 to be potentially materially more serious than contended for by Mr Edwards. As to the conduct of Officer Toft, if he had, in fact, carried out a search, it was one that involved no physical entry or other intervention or interference with the motor vehicle and, in my view, would fall into the category of it more being an error of judgment or an instance where exuberance had overborne judgment, to adopt the language of Byrne JA. In my opinion, for the reasons given, even if the conduct had amounted to a search, the conduct would not warrant the exclusion of the evidence sought to be excluded. The search was not one deliberately carried out with calculated disregard of the law. Accordingly, the application is dismissed.
- Published Case Name:
The Queen v Robert Anthony Bennett
- Shortened Case Name:
R v Bennett
 QDC 108
10 May 2016