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R v Hickey[2016] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Hickey [2016] QDC 119

PARTIES:

THE QUEEN

(Respondent)

v

LUKE DAVID HICKEY

(Applicant)

FILE NO/S:

187/16

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

26 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2016

JUDGE:

Chowdhury DCJ

ORDER:

  1. Application refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where Police undertook a search of a vehicle pursuant to section 160 of the Police Powers and Responsibilities Act 2000 (Qld) – whether the Police had sufficient grounds to undertake such a search –whether the seized property should be excluded as evidence in the exercise of discretion

Police Powers and Responsibilities Act 2000 (Qld), s 29, s 30, s 31, s 159(a), s 160 and sch 6.

George v Rockett (1990) 170 CLR 104

R v Versac (2013) 227 A Crim R 569

R v Ireland (1970) 126 CLR 321

R v Day & Anor [2008] QSC 358

R v Pohl [2014] QSC 173

R v Swain [2012] QSC 233

R v P & Anor [2016] QSC 49

COUNSEL:

CW Wallis for the Respondent

J Godbolt for the Applicant

SOLICITORS:

Office of the Director of Public Prosecutions for the Respondent

Legal Aid Queensland for the Applicant

  1. [1]
    By application filed in the District Court of Queensland on 4 May 2016, the applicant seeks to exclude evidence of dangerous drugs and other items found in his car during a search by police in the early hours of 28 July 2015.
  1. [2]
    The events leading up to the disputed search are set out in the statement of Constable Nicola Wood (Exhibit 1) and the statement of Constable Kieren Sparks (Exhibit 2). In short, at about 11.30pm the two Police officers were travelling outbound on Wymmun Road at Cannon Hill when they observed a black Holden Commodore station wagon, registration, 207 VTR, travel across Wynnum Road into an adjoining road. Police checks identified that the vehicle was registered to the applicant, and that he was wanted for questioning in relation to three outstanding matters. The Police turned their vehicle around with a view to intercept the car, however they lost sight of the wagon.
  1. [3]
    A short time later the two police officers observed a gold Holden Commodore sedan, registration, 330 VLR, parked in the middle of a carpark at the Cannon Hill railway station. They approached the driver and sole occupant, Shane Rogers, who consented to a search of his car. Rogers admitted to Constable Wood that he was an intravenous drug user, and she located approximately $1,000 in cash in his wallet. While searching Rogers’ car, Constable Wood observed the applicant’s Commodore wagon travel southbound on the road past the carpark.
  1. [4]
    At about 1.30am on 28 July 2015, the two police officers were conducting patrols in the area of the Colmslie Hotel, at 40 Junction Road, Morningside. Constable Wood observed Rogers’ gold Holden Commodore sedan, and the applicant’s black Holden Commodore wagon parked in the carpark of the Hotel. Both police officers saw Rogers and the applicant in the company of two other persons, one John Jamie Brown, and a woman, Ms Goodson. As the police car arrived at the Hotel, these four persons quickly walked back into the Hotel.
  1. [5]
    Both police officers entered the Hotel and saw the applicant, who was proceeding towards the exit. The Police officers spoke with the applicant, who agreed to accompany them back to the Morningside Police Station in relation to the three outstanding matters for which he was wanted for questioning. Before transporting the applicant back to the Police Station, Constable Wood asked the applicant to empty his short’s pockets onto the rear of the Police car. She observed the applicant remove keys to his Commodore wagon, and a pair of small silver keys from his shorts pockets. While he did that, the applicant was holding a packet of “Twisties” in his left hand. Constable Wood instructed the applicant to place the packet of “Twisties” onto the rear of the car. As he did this, the applicant removed a plastic bag from the “Twisties” packet and ripped it apart, causing clear crystals to spill onto the ground. Constable Wood instructed the applicant to stop doing that, however he continued to spill the crystals onto the ground.
  1. [6]
    Constable Wood and Constable Sparks placed the applicant on the ground and handcuffed him in order to prevent any further destruction of evidence. Importantly, Constable Wood then arrested the applicant for the offence of possession of dangerous drugs.
  1. [7]
    According to the statement of Constable Wood, she then searched the applicant’s Commodore station wagon, and found in the front of the car, between the driver’s seat and the driver’s door, a tomahawk. Underneath the car Constable Wood located what she described as a “grey metal safe affixed to the underside of the driver’s side of the vehicle and removed the safe from the bracket affixing it to the underside of the vehicle”. The small silver keys that had been taken from the applicant proved to fit the lock of the safe.
  1. [8]
    Once the safe was opened, a clip seal bag of 71 white tablets, 90 unused clip seal bags, a used hypodermic syringe, a clip seal bag containing a tablet with OXN 40 imprinted on it, a vial of 10ml testosterone, and a clip seal bag of white powder were found.[1]
  1. [9]
    While the statements of Constable Wood and Constable Sparks are silent on this, it became clear from the evidence given at the pre-trial hearing that before the search of the applicant’s wagon was commenced two other Police officers arrived, Constable Shane Hall, who was not called at the hearing, and Sergeant Peter Rowland, who was called at the hearing. His statement was Exhibit 4.
  1. [10]
    In evidence in chief, Constable Wood said that she called for another police crew because she had one male under arrest who was not being cooperative with police, and because she knew there were at least three other associates in the Hotel, and she did not know how many other associates were around.[2]She said that police prefer to have two people with offenders in custody at all times, describing it as “best practice”.
  1. [11]
    Constable Wood said that she did not seek to obtain a warrant to search the applicant’s car, because “we were concerned that any delay in searching the vehicle would cause evidence to be lost, because we knew that he had at least three associates at the Hotel. We weren’t sure if they would be able to have access to the vehicle if we left the vehicle. We were also aware that Mr Hickey has a family home in Norman Park and therefore potentially grew up in the area. So we weren’t sure how many other associates he would have in the area that would be able to attend the location and who may interfere with the evidence”.
  1. [12]
    Constable Wood said that it would have been difficult to obtain a warrant at that time in the morning because they would have had to have secured the vehicle, and found a Justice of the Peace at that time in the morning.
  1. [13]
    In cross-examination, Constable Wood did not think there was any other conversation with any of the other police who arrived about obtaining a search warrant. She said that the applicant’s car was entered by police before the steel safe was found underneath it. She said that the search of the applicant’s car took place only a few minutes after the arrival of the two other Police officers.
  1. [14]
    She admitted that one of the applicant’s associates, Mr Brown, was in fact asked to come to the underground carpark and to watch the search. She accepted that none of the associates at the Hotel tried to interfere with the applicant’s car or with Police.[3]
  1. [15]
    Constable Wood made it clear that she was not exercising the power to search a vehicle without a warrant pursuant to either ss 29 or 31 of the Police Powers and Responsibilities Act 2000.
  1. [16]
    Constable Wood conceded that she did not ask the applicant for his consent to search the vehicle, commenting that the applicant was not being cooperative with Police. She said that if she required a search warrant she would have made inquiries to see if any Justice of the Peace or on call magistrate was available; however she did not make any such inquiry because she believed she was entitled to make an emergent search.[4]
  1. [17]
    Constable Wood agreed that the Morningside Police Station from which she operated was only a few hundred metres away from the Colmslie Hotel. She said that only her crew and the crew containing Sergeant Rowland and Constable Hall were working from their station that morning. While she had the ability to radio for other crews to assist, at that time in the morning there weren’t many crews working.
  1. [18]
    Constable Kieran Sparks in his evidence said that he and Constable Wood discussed searching the applicant’s motor vehicle after he had been arrested and placed in the back of the vehicle. Between 10 and 15 minutes after the applicant was placed under arrest the second Police crew of Sergeant Rowland and Senior Constable Hall arrived. He said that he determined it was necessary to do an emergent search of the vehicle for the following reasons:

“We located Mr Hickey and he’d – during the course of speaking with him he destroyed or pulled apart a packet full of what looked like ice to us and had thrown it in front of us. One of the associates we’d come across earlier in the night had a large quantity of cash on him and told us that he did not know Mr Hickey so they had come together at the Hotel anyway. And when we located them they quickly dispersed from where we when we drove into the Hotel. So we believed there was going to be a supply of drugs from Mr Hickey to his other associate, Mr Rodgers… Mr Hickey had shown to us that he would destroy the evidence. He did it right in front of us – a metre away from us – while we were standing there. He had a number of associates there who had access to the car – or we didn’t know if they had access to the car. He lives locally. We have an unknown number of associates in the area. We believed we couldn’t secure the car properly without evidence possibly being destroyed by someone at that time.”

  1. [19]
    Constable Sparks considered that four Police officers were not enough to secure the vehicle with the number of associates around, at that time of night, and also to look after a person in custody. Significantly, he said that he and Constable Wood had discussed obtaining a warrant. That would have involved having to contact an on call magistrate, type up the warrant, travel to the on call magistrate and swear out the warrant, return and execute it.[5]
  1. [20]
    Constable Sparks said that the safe which was attached to the underneath of the applicant’s car wasn’t permanently fixed; with some difficulty it was able to slide out of its brackets by pulling on it.
  1. [21]
    In cross-examination, Constable Sparks conceded that at the time the decision was made to do the emergent search of the applicant’s vehicle, the applicant was handcuffed and in the back of the Police car, and was no threat to any other evidence at that time. He accepted that the Police had the keys to the car. Constable Sparks accepted that if other Police were needed he could use the Police radio to call for assistance. He commented that they had sought that assistance, and only one crew arrived to assist. In re-examination, Constable Sparks said that he had never sought a warrant in the early hours of the morning from an on call Justice of the Peace or magistrate; he said that he was not aware how long that process may take.
  1. [22]
    Sergeant Rowland in his evidence said that on the early morning in question he was travelling in a Police car known as the “cover car”, which is a car that is able to provide fast response to emergent situations should other Police cars be committed to other tasks. He recalled receiving a call to assist Constable Wood and Constable Sparks with an emergent search of a car in the carpark of the Colmslie Hotel. He believed that he had been called on his mobile phone and asked to attend, and that they had advised what they had located on the applicant, and what their suspicions at the time were.
  1. [23]
    When he and his partner, Constable Hall, arrived, the applicant had been handcuffed but was outside of the Police vehicle. He spoke with the applicant briefly, and arranged to rearrange his handcuffs which were causing the applicant some discomfort.
  1. [24]
    Sergeant Rowland recalled that there was a search of another Commodore vehicle before the search commenced of the applicant’s Commodore wagon. He said that on his arrival he spoke with Constable Wood and Constable Sparks, and they advised they had a suspicion about the car from their previous knowledge of a car that evening, from what had occurred at the Colmslie Hotel, and that there had been an attempt by the applicant to dispose of material that appeared to be dangerous drugs. He did not recall discussing obtaining a search warrant at that time. He believed that an emergent search would be conducted due to the circumstances.
  1. [25]
    He was asked in evidence-in-chief if there were means of obtaining a warrant at 1.30am in the morning. He told the Court that the process was that there was an on call magistrate that could be contacted. He described it as a “fairly lengthy process in that – depending on the magistrate that you speak with and it would involve the officers involved being – availing themselves to a computer to go and type up the warrant and have it faxed or delivered to the on call magistrate to be signed”.
  1. [26]
    Sergeant Rowland said that while the applicant’s car was being searched, he did not see anyone approach that vehicle. He recalled that a civilian, John Jamie Brown, was standing nearby. In cross-examination, he accepted that after his arrival the Commodore belonging to Mr Rodgers was searched first, and that there might have been about 15 minutes or so before the applicant’s car was searched by Police. He said that the applicant was clearly in police custody, and he had a Police officer standing guard near him while the other police searched the car. He accepted that a request could have been made for other police to arrive, commenting that whether or not other Police were available was another question.
  1. [27]
    Sergeant Rowland confirmed that he was not involved in the making of the decision to search the applicant’s car; that decision was made by Constable Wood and Constable Sparks. He considered that on the basis of what they told him he thought that was a reasonable course of action. He added that police resources were scarce at that time of morning, and that police actions may have been different during a day shift when resources were plentiful.
  1. [28]
    He accepted the proposition that proceeding by way of an emergent search was an easier process, and more convenient to police, than seeking to apply for a search warrant. He said to apply for a warrant would have involved the arresting officers being the applicants to the warrant. They already had the applicant in custody, it would mean they would be off the road for some time and, in his experience, it was problematic to seek a warrant at that early time of morning.
  1. [29]
    Sergeant Rowland conceded that he did not make any inquiries whether other crews were available to assist.

The relevant law

  1. [30]
    Ordinarily a police officer has to obtain a search warrant from a Justice of the Peace or magistrate before they can commence to interfere with a citizen’s property, and search for suspected evidence of the commission of an offence. There are a number of exceptions in the Police Powers and Responsibilities Act 2000, and in this case the Police in their evidence specifically relied on their power to search to prevent the loss of evidence contained in s 160 of the Act. Relevantly, that section states as follows:

“(1) This section applies if a Police officer reasonably suspects–

  1. (a)
    a thing at or about a place, or in the possession of a person at or about a place is evidence of the commission of a part two offence; and
  1. (b)
    the evidence may be concealed or destroyed unless the place is immediately entered and searched.

….

 (3) A Police officer may enter the place and exercise search warrant powers, other than the power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.”

  1. [31]
    A “part two offence” includes an indictable offence: see s 159(a) of the Act.
  1. [32]
    At the hearing, counsel for the prosecution also relied on the power of the Police to search without a warrant granted by s 29 of the Act. Relevantly, that states as follows:

“(1) A Police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exists may, without a warrant, do any of the following–

(a) stop and detain a person;

  1. (b)
    search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.

(2) The Police officer may seize all or part of a thing–

  1. (a)
    that may provide evidence of the commission of an offence; or
  1. (b)
    that the person intends to use to cause harm to himself, herself or someone else; or

(c)if s 30(b) applies, that is an antique firearm.” 

  1. [33]
    Under s 30 of the Act, prescribed circumstances for searching a person without a warrant include that the person has something that may be an unlawful dangerous drug. Importantly, none of the Police officers who gave evidence relied onthis section as a source of their power to search the applicant’s car.
  1. [34]
    The arguments advanced by the prosecution was that the safe which was attached to the underside of the applicant’s car was still in his possession at the time the search of the car commenced. However, by that time the applicant had been arrested, and was in police custody. The police had taken the keys to the car and also the silver keys to the safe. At that point the car was no longer in the applicant’s custody or in his control. Therefore the search of the applicant’s car, and the subsequent seizure of drugs found in the safe, cannot be justified by s 29 of the Act.
  1. [35]
    In order to exercise the powers under s 160 of the Act, a police officer must reasonably suspect that evidence may be concealed or destroyed unless the place is immediately entered and searched. Under Schedule 6 of the Act, “place” includes a vehicle and “reasonably suspects” is defined as “suspects on grounds that are reasonable in the circumstances”.

Factual findings

  1. [36]
    On the whole I found the three Police officers to be honest witnesses. There were some inconsistencies, but none were so great as to affect the general credibility or reliability of these witnesses. In my view the police officers exaggerated the risk that any evidence that might be in or on the applicant’s car would be concealed or destroyed. There is no doubt that before his arrest the applicant had attempted to destroy the crystals he had on him. However he was quickly placed under arrest, handcuffed, and placed in the back of a police car well before the search of his car commenced. It seems the police officers’ primary concern was that “associates” of the applicant would somehow approach the car and interfere with any potential evidence therein. Another, perhaps lesser, concern was that somehow the applicant might be able to contact some relatives who lived in a close by suburb to attend the scene and interfere with evidence in or on the car.
  1. [37]
    These concerns are at odds with the decision of the Police to allow one of the applicant’s associates, John Jamie Brown, to be present at the search of the applicant’s car. Curiously, the Police had proceeded to search a Commodore sedan belonging to Mr Rodgers before proceeding to search the car of the applicant. There is no suggestion by any police officer that any of the associates, or indeed anyone else, tried to approach the applicant’s car, nor try and interfere in any way with the actions of the Police that early morning.
  1. [38]
    In my view any consideration of seeking a warrant from an on call magistrate or Justice of the Peace was quickly rejected by the police. No effort was made to enquire whether an on call magistrate could hear a search warrant application quickly; no effort was made to call another crew to come and assist in securing the vehicle, to allow either Constable Wood or Constable Sparks to go to the nearby Police Station and make out the application for a search warrant.
  1. [39]
    I appreciate the difficulties that police may have in conducting their duties, particularly in the early hours of the morning. But there is nothing in the Act, nor in the common law, to suggest that the rights of citizens to be free from unlawful and unnecessary intrusions into their privacy waxes and wanes depending on the time of day. As the High Court said in George v Rockett (1990) 170 CLR 104, police powers of search “authorised the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect”.
  1. [40]
    On all of the evidence, I am not satisfied that there were grounds that were reasonable in the circumstances to suspect that evidence may be concealed or destroyed unless the applicant’s car was immediately entered and searched.

Should the evidence be admitted in the exercise of discretion?

  1. [41]
    In R v Versac (2013) 227 A Crim R 569, Applegarth J said this at 571-572:

“Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence. Some factors support exclusion, whilst others support admission. The factors include:

(a) whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental noncompliance with the law;

(b) the cogency of the evidence and whether the nature of the illegality effects the cogency of the evidence so obtained;

(c)the importance of the evidence in the proceeding;

(d) the nature and seriousness of the offence;

(e)the nature of the unlawful conduct;

(f) whether such conduct is encouraged or tolerated by those in higher authority in the Police force; and

(g) how easy it would have been to comply with the law.”

  1. [42]
    In R v Ireland (1970) 126 CLR 321, Barwick CJ said this at 335:

“On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there 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.”

  1. [43]
    The balancing exercise that I must perform is well known. Counsel for the applicant in his outline has referred me to decisions of the Supreme Court of Queensland in RvDay & Anor [2008] QSC 358, R v Pohl [2014] QSC 173 and R v Swain [2012] QSC 233. Obviously each case needs to be determined on its own particular facts.
  1. [44]
    In my view, the decision to conduct an emergent search of the applicant’s car was not the result of a deliberate or reckless disregard of the law. Rather, it seems to me that Constable Wood and Constable Sparks made an error of judgment in concluding that evidence might be lost or destroyed if a search was not immediately conducted: see R v P & Anor [2016] QSC 49 at para [69]. It was apparent from the evidence that these officers were very junior officers, and although a senior police officer, Sergeant Rowland, attended it is clear on the evidence that the decision to conduct the emergent search was made by the two junior Constables.
  1. [45]
    The search of the safe which was affixed to the underside of the car by a bracket revealed a variety of dangerous drugs. The quantity is not great, but the variety and the fact that they were contained in a safe in an odd position underneath the car smacks of some commercial aspect to their possession. I doubt that the safe was a factory-fitted option made available by Holden Australia.
  1. [46]
    In all the circumstances, despite the unlawfulness of the search of the applicant’s car, in my view the evidence of the drugs found in the safe has undoubted cogency, it is important evidence in the proceedings, and therefore should not be excluded. The application is refused.

Footnotes

[1]According to the analyst’s certificate, which was Exhibit 5, there were in fact 79 tablets which contained the Schedule 2 dangerous drug N-(2methoxybenzyl)-2, 5-dimethoxy-4- chlorophenethylamine (25C-NBOMe). The clip seal bag of white powder contained the same dangerous drug.

[2]R1-7, l. 26.

[3]R1-15, l. 12.

[4]R1-14, l. 35.

[5]Constable Wood in her evidence did not recall any discussion with any of the other Police about making enquiries to obtain a warrant: see R1-10, l. 35.

Close

Editorial Notes

  • Published Case Name:

    R v Hickey

  • Shortened Case Name:

    R v Hickey

  • MNC:

    [2016] QDC 119

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    26 May 2016

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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