Beazley v Chevathun[2018] QDC 28

DISTRICT COURT OF QUEENSLAND

HER HONOUR:   This is an appeal by the prosecution pursuant to section 222 of the Justices Act 1886 against an order of the learned Magistrate made at Aurukun Magistrates Court on 18 August 2017.  On 18 August 2017, the respondent was acquitted, following a summary trial, of one charge of prohibition on possession of liquor in a restricted area pursuant to section 168B(1) of the Liquor Act 1992 (Qld).

The circumstances of the offence

The following summary of the circumstances of the offence is taken from the appellant’s outline of submissions.  On 4 April 2017, the respondent and a number of other people were travelling in a vehicle towards Aurukun on the Aurukun Access Road.  Constable Beazley and Acting Senior Constable Trezise were conducting mobile patrols in a marked police car on that road.  At about 12.45 am, Constable Beazley saw the vehicle the respondent was travelling in approaching the police vehicle on the Aurukun Access Road and he activated the police lights, signalling the vehicle to stop.  At that time, they were approximately five kilometres from Aurukun and were within the area which has been declared a restricted area under schedule 1A of the Liquor Regulation 2002 (Qld). 

The officers stopped the vehicle for the purpose of monitoring or enforcing the Alcohol Management Plan in place in Aurukun pursuant to section 60(1) and 60 (3)(c) of the Police Powers and Responsibilities Act 2000 Queensland.  The vehicle the respondent was travelling in, and the police vehicle stopped, on the side of the road.  Constable Beazley approached the vehicle and had a conversation with the driver.  He informed the driver and occupants of the vehicle that they had been stopped for the purpose of monitoring and enforcing the Aurukun Alcohol Management Plan and asked whether they wished to declare anything before a search of the vehicle was conducted.  Each of the occupants, including the respondent and the driver, indicated, either verbally or by shaking their heads, that they did not wish to declare anything. 

Constable Beazley then asked them to leave the vehicle and had them wait on the side of the road.  Constable Beazley then asked each person, including the respondent, whether they wished to declare anything prior to a search being conducted.  He then asked each person, “Do you understand that it’s an offence to bring alcohol into the restricted area of Aurukun?”  Each person, including the respondent, indicated that they understood.  Constable Beazley then searched the vehicle.  His evidence was that the basis upon which the vehicle was searched was section 60(4) of the Police Powers and Responsibilities Act 2000. 

Constable Beazley’s evidence was that he relied upon the following matters in forming a reasonable suspicion within the meaning of section 60(4), which caused him to search the vehicle: 

1. (1)
   the time of night, being about 12.45 am, which was an unusual time for vehicles to be travelling on the road into Aurukun;

2. (2)
   the Aurukun Access Road is the only way in and out of Aurukun;

3. (3)
   he time of day, being 12.45 am, was a short time after most licensed premises in Weipa closed, Weipa being the nearest town that had alcohol for sale; and

4. (4)
   in his experience, this was a time that vehicles came into Aurukun with liquor on board.

A search of the vehicle (captured on his body-worn camera) resulted in a 700 ml bottle of rum and a 700 ml bottle of vodka being found in the vehicle.  Constable Beazley spoke with the respondent, who confirmed that the bottle of rum belonged to her.  He then gave her a notice to appear in relation to the liquor offence.

The hearing 

At the summary hearing, both police officers gave evidence and were cross-examined.  The DVD of the body camera footage, the photograph of the rum and the field property receipt were tendered as exhibits.  The respondent did not give or call evidence. 

The respondent’s solicitor submitted at the hearing that the search of the car was unlawful and that the facts relied upon by Constable Beazley were not sufficient to found a reasonable suspicion for the purposes of section 60(4) of the Police Powers and Responsibilities Act 2000.  He further submitted that if the Magistrate found the search was unlawful, she ought to exercise her discretion to exclude the evidence pursuant to the general principles in Bunning v Cross.^[1]

The Magistrate’s decision 

In her decision, the learned Magistrate framed the issue in this way:

It’s not in dispute that the defendant owned up to possessing a bottle of rum seized from a motor vehicle stopped within the Aurukun Alcohol Management Plan area.  The issue is whether the alcohol was obtained as a result of a lawful or unlawful search of the vehicle in which the defendant was travelling and, if an unlawful search, whether I ought, in my discretion, to exclude the product of the search, namely the bottle of rum.

After setting out the relevant legislative provisions, she said:

The power for a police officer to search the vehicle is predicated on the officer reasonably suspecting the exercise of the power may be effective for the purpose of monitoring or enforcing a liquor provision, so that, effectively, the police officer must reasonably suspect that the search would prevent liquor being brought into the community or that it will detect liquor unlawfully in the community.

She then summarised the evidence of Constable Beazley before concluding:

The basis of his suspicion that a search of the vehicle would be effective for monitoring or enforcing a liquor provision is that the vehicle was travelling in a direction from Weipa in the early hours of the morning.  There was nothing specific about the vehicle itself, nothing specific about the occupants of the vehicle, other than that the vehicle and its occupants were travelling as if they might have come – as if they’ve come from Weipa and they were travelling in the early hours of the morning.  In my view, something more than that is required for an officer to reasonably form a suspicion that the search of the vehicle would be effective for monitoring or enforcing the liquor provision. 

I think it is akin to the decision in R v Bosely [R v Bossley [2012] QSC 292].  People do illegally transport alcohol from Weipa into Aurukun.  That does not mean that you can reasonably suspect that a search of every vehicle travelling along that road will be effective for monitoring or enforcing a liquor provision.  To then narrow it down to say that every vehicle travelling along that road within a specific timeframe can reasonably be suspected of containing alcohol is too long a bow to draw.  There must be something more specific in relation to the particular vehicle that is the subject of the search … I do not think that because a vehicle is travelling on the Aurukun Access Road, in the direction of Aurukun, toward Aurukun, at 12.45 am can reasonably give rise to a suspicion that there is alcohol in that vehicle. And, on that basis, I find the search was not lawful.

She then went on to consider the exercise of the discretion whether to exclude the evidence obtained in the search and said:

It is important that the powers which police have to intrude upon a person’s civil liberties are not lightly disregarded.  The offence is not one of the most serious offences.  If it is a first offence, it is a fine only offence.  In balancing the need to ensure that people who offend are held accountable with the need to ensure that police officers do not exceed their lawful powers when intruding into persons’ private lives, in the circumstance of this case, the balance favours the exclusion of the evidence.  On that basis, the evidence of the finding of the alcohol is excluded. And the charge will be dismissed.

Grounds of the appeal 

The grounds of appeal identified in the notice of appeal are that the learned Magistrate erred: 

1. (1)
   in determining that the officers did not have the requisite suspicion to enliven their powers pursuant to section 60 (1) and (4) of the PPRA;

2. (2)
   in giving weight to the decision of R v Bossley [2012] QSC 292;

3. (3)
   in determining that the search of the vehicle was unlawful;

4. (4)
   in exercising the discretion to exclude the evidence obtained during the search of the vehicle;

5. (5)
   in law in failing to act in accordance with the evidence placed before the court; and

6. (6)
   in law in dismissing the charge against the defendant.

For convenience, the appellant grouped those grounds into the following three issues or grounds:  first, the learned Magistrate erred in finding that Constable Beazley did not have a reasonable suspicion pursuant to section 60(4), second, the learned Magistrate erred in placing disproportionate weight on the decision of R v Bossley and thus erred in excluding the evidence obtained during the search, and, third, the learned Magistrate erred in dismissing the charge.  The third ground obviously follows from the first and second.

Nature of the appeal 

Relevantly, an appeal under section 222 of the Justices Act 1886 (Qld) is by way of rehearing on the original evidence before the Magistrates Court.  In this case, there was no application to adduce fresh evidence.  For an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.  See Allesch v Maunz (2000) 203 CLR 172 at [22] to [23], followed in Teelow v Commissioner of Police [2009] QCA 84 at [4].  The rehearing requires this court to conduct a real review of the evidence before it and make up its own mind about the case.  See Fox v Percy (2003) 214 CLR 118 and the Court of Appeal decisions that have applied it.

The legislative regime 

It is necessary to set out the relevant legislative provisions relied upon.  Section 60(1) of the Police Powers and Responsibilities Act 2000 (Qld) states:

A police officer may require the person in control of a vehicle, other than a train or a vehicle being pulled by an animal, to stop the vehicle for a prescribed purpose.

“Prescribed purpose” is defined in section 60(3).  Before I go to that definition, I pause to observe that there is no requirement for a reasonable suspicion in s 60(1).  In section 60(3), the prescribed purposes include, in subsection (c), “for monitoring or enforcing a liquor provision”. 

“Monitor” is defined in section 60(6): “a liquor provision means check whether the provision is being complied with”. 

”Liquor provision” itself is defined in section 60(6) as meaning “any of the following provisions”, relevantly “the Liquor Act 1992, section 168B”.

Section 60(4) states:

For monitoring or enforcing a liquor provision, the police officer may exercise any of the following powers if the officer reasonably suspects the exercise of the power may be effective for the purpose” –

…

(b) search the vehicle and anything in it.

The phrase “reasonably suspects” is defined in schedule 6 of that Act to mean “suspects on grounds that are reasonable in the circumstances”. 

Therefore, it can be seen that there is a power under s 60(1) to stop a vehicle for monitoring or enforcing a liquor provision in the same way that there is a power to stop a vehicle for enforcing a transport Act or conducting a breath test.  That power does not require the officer to reasonably suspect something. 

In contrast, the power in s 60(4) to search a vehicle for monitoring or enforcing a liquor provision does contain a requirement that the officer reasonably suspect that the exercise of the power of search may be effective for the purpose of monitoring or enforcing a liquor provision.

Turning to the Liquor Act 1992, section 168B states that:

A person must not, in a restricted area to which this section applies because of a declaration under section 173H, have in possession more than the prescribed quantity of a type of liquor for the area, other than under the authority of a restricted area permit.

The maximum penalty for a first offence under that section is 375 penalty units. 

Section 173H(1) of the Liquor Act states:

A regulation may declare that a restricted area is an area to which section 168B applies.

The Liquor Regulation 2002, Schedule 1A, section 1, declares the area of the Shire of Aurukun to be a restricted area for the purposes of the Act. Under s 2, the prescribed quantity of liquor for the restricted area is zero.

Returning briefly to the Police Powers and Responsibilities Act 2000, section 29 deals with the police power to search a person without a warrant and it requires a police officer to reasonably suspect that any of the prescribed circumstances for searching a person without a warrant exist.  Section 30 of that Act sets out the prescribed circumstances for searching a person without a warrant.  Section 31 of that Act deals with searching a vehicle without a warrant.  It too includes a requirement that a police officer must reasonably suspect that any of the prescribed circumstances for searching a vehicle without a warrant exist.  The prescribed circumstances for searching a vehicle without a warrant are set out in section 32.

The appellant’s submissions 

I have had regard to all of the matters raised in the written and oral submissions on behalf of the appellant.  The appellant submitted at paragraphs 5.1 to 5.19 of that written outline, in effect, that the learned Magistrate erred in law by misconstruing the test in section 60(4) of the Police Powers and Responsibilities Act.  This submission seems to be made on two bases.  First, that the learned Magistrate, in parts of the transcript, used the words “would be effective” or “will be effective” rather than the words “may be effective” as referred to in section 60(4), lines 2 and 3. Second, that the learned Magistrate erred in finding that the grounds relied upon by Constable Beazley were not sufficient to constitute a reasonable suspicion for the purposes of section 60(4). 

The appellant further submitted that the learned Magistrate erred in placing undue weight on R v Bossley [2012] QSC 292 because that case concerned the reasonableness of a police officer’s suspicion within the meaning of section 29 of the Police Powers and Responsibilities Act rather than a reasonable suspicion within the meaning of section 60(4), which is the subject of this case.  The appellant submitted that:

A reasonable suspicion within the meaning of section 60(4) is wholly different to that of sections 29 and 31.

See paragraph 5.18.7 of the appellant’s written outline of submissions. 

The appellant further submitted at paragraph 5.24 of that outline:

As outlined above, R v Bossley was concerned with the reasonableness of a police officer’s suspicion within the meaning of section 29.  As has been submitted above, what is required by section 60(4) is wholly different to that of section 29.  Section 29 requires that a reasonable suspicion be in relation to the existence of a prescribed set of circumstances, effectively particular offences such as possession of unlawful drugs.  Section 60(4) does not require a police officer to reasonably suspect that an offence, for example, possessing alcohol in a restricted area, is or may be occurring.  Section 60(4) merely requires a police officer to reasonably suspect that such a search may be effective for the purpose of monitoring or enforcing a liquor provision.  As submitted above, this is an important distinction, and given this distinction, what forms the basis of a reasonable suspicion under section 60(4) may not necessarily form the basis of a reasonable suspicion under section 29.

and at paragraph 5.29:

“that what is required of a police officer in forming a reasonable suspicion within the meaning of section 60(4) is a considerably lower threshold than what is required by sections 29 and 31”. 

Finally,  the appellant submitted that the suspicion held by Constable Beazley formed on the grounds identified earlier was reasonable within the meaning of section 60(4) because it was more than idle wondering on his part, applying the test articulated by the High Court in George v Rockett (1990) 170 CLR 104, 112 - 116. 

The respondent’s submissions 

I have had regard to the written and oral submissions on behalf of the respondent. In the respondent’s written outline and orally, it rejected the appellant’s submission that the reasonable suspicion required under section 60(4) was a considerably lower threshold than what was required by sections 29 and 31.  It submitted that there was no authority for that proposition and that it did not follow as a matter of statutory construction. 

The respondent further submitted that the four grounds relied upon by Constable Beazley in forming a reasonable suspicion did not, as a matter of fact, provide a basis for reasonable suspicion. 

The respondent relied on the Supreme Court decision in R v Purdon [2016] QSC 128.  The respondent accepted that section 60(4) required the police officer to hold a reasonable suspicion that a search of the vehicle may be effective for the purpose of monitoring or enforcing a liquor provision on the basis that “monitor” meant check whether the provision is being complied with.  So much is uncontroversial. 

The respondent submitted that the real issue was whether the appellant had a reasonable suspicion.  It relied upon consideration of that phrase in the case law, in particular the following propositions: 

1. (1)
   The facts which can reasonably ground a suspicion may be quite insufficient to reasonably ground a belief yet some factual basis for a suspicion must be shown, George v Rockett (1990) 170 CLR 105;

2. (2)
   Reasonable suspicion is not arbitrary.  Some factual basis for the suspicion must be shown, relying on R v Rondo [2001] NSWCCA 540; 

3. (3)
   There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce a suspicion in the mind of a reasonable person. Suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced: (George v Rockett);

4. (4)
   It is more than a hunch or pure conjecture and cannot be legally reasonable if it is arbitrary, irrational or prejudiced, or not supported by a sufficiently firm factual foundation: Goldie v Commonwealth of Australia (2002) 117 FCR 566;

5. (5)
   When a statute prescribes that there must be reasonable grounds for a state of mind, including suspicion and belief, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person (R v Bossley).

I accept that those are the relevant principles in considering a reasonable suspicion as developed in the case law. 

The respondent relied upon the fact that Constable Beazley’s evidence was that he formed the intention to stop and search the vehicle when he first saw the headlights.  I will turn to those parts of the transcript in due course. The respondent submitted that the appellant simply could not have formed the requisite reasonable suspicion prior to any interaction with the respondent. 

Finally, with respect to whether the learned Magistrate erred in placing disproportionate weight on the decision in R v Bossley and erred in excluding the evidence obtained during the search, the respondent submitted that it was entirely open for the learned Magistrate to exclude the evidence obtained in the search when all of the relevant considerations were appropriately weighed up.

It relied on the decision of Applegarth J in R v Versac [2013] QSC 046 at [6].  I accept that that case sets out the relevant factors in the exercise of the public policy discretion to exclude evidence.  They include whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance; the cogency of the evidence; the importance of the evidence; the nature and seriousness of the effect; the nature of the unlawful conduct; whether such conduct is encouraged or tolerated by those in higher authority or in the police; and how easy it would have been to comply with the law. 

The respondent therefore submits that the appeal ought be dismissed.

I should add that the respondent also submits that the appellant is wrong when it says in effect that there are two standards of reasonable suspicion, one for the purposes of section 60(4) and one for the purposes of sections 29 and 31.  It submits that that construction of the Act would be inconsistent with section 5, the purposes of the Act. Those purposes are directed towards providing consistency in the nature and extent of police powers and responsibilities, as well as fairness to persons against whom police exercise their powers, and towards standardising the way police powers and responsibilities are to be exercised.

Discussion 

I turn to the appellant’s submission that the learned Magistrate misconstrued the test in section 60(4) by referring in parts of the transcript to “would be effective” or “will be effective”, rather than “may be effective”. When regard is had to the whole of the transcript of the decision and the hearing, it is clear that her Honour did not misconstrue the test in considering section 60(4).  Although she did at times refer in discussion to “would” or “will”, she also referred at different times to “may” be effective and quoted the actual words of the subsection.  To rely upon a slip in the use of the word “would” or “will” in her ex tempore reasons for decision is, in my view, to elevate those words to a status they do not in fact enjoy in the reasons.  In my view, that submission is not made out.

I next turn to the appellant’s submission that the meaning of “reasonable suspicion” for the purposes of section 60(4) is wholly different to that in sections 29 and 31. For the reasons which follow, I reject that submission.

Pursuant to schedule 6 of that Act, the phrase “reasonably suspects” means “suspects on grounds that are reasonable in the circumstances”.  That definition clearly applies to section 60(4).  Sections 29 and 31 also contain the phrase “reasonably suspects” with respect to a requirement for the police officer to hold.  What must be reasonably suspected differs for each section: in s 60(4), it is that the search may be effective for the purpose of monitoring or enforcing a liquor provision; in s 29, it is the prescribed circumstances (eg. that the person has evidence of the commission of an offence against the Liquor Act); and in s 31, it is the prescribed circumstances (eg. that there is something in the vehicle that may be an unlawful dangerous drug). However the meaning of “reasonably suspects” does not change in each of those sections.

There is no basis on the plain words of section 60 to adopt a different meaning for “reasonably suspects” than that which appears in the words of the definition in schedule 6.  There is no basis for the implication of a term into section 60(4) that what is required to form a reasonable suspicion is a considerably lower threshold than is required by sections 29 and 31, as the appellant contended.  There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion.  As Dalton J said in R v Bossley at paragraph 14:

The meaning of “suspicion” in this context is discussed by the High Court in George v Rockett.  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 a 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.

In R v Purdon [2016] QSC 128 at 18, Henry J observed:

As I observed in R v Jaudzems [2014] QSC 074, (citing George v Rockett): This is consistent with the well-established principle regarding reasonable suspicion, that there must exist               some factual basis to reasonably ground the suspicion, although it is unnecessary that there exists proof of the fact reasonably suspected.

So the question is: were the grounds relied upon by Constable Beazley reasonable in the circumstances?  That is, to form a reasonable suspicion that the search of the vehicle may be effective for monitoring or enforcing a liquor provision.

In this case, the grounds relied upon are the four grounds identified earlier in these reasons.  I will not repeat them again here.  The second ground relied upon, that the Aurukun Access Road is the only way in and out of Aurukun, has a neutral character.  The fact that the road is the only road that any person going to Aurukun must travel on does not, in my view, support the reasonable suspicion required for the purposes of section 60(4).  Any person travelling to Aurukun for any purposes whatsoever, innocent or otherwise, must travel on that road.  So it seems to me that the second ground relied upon by Constable Beazley is neutral and cannot reasonably support the suspicion necessary to found a lawful search under s 60(4).

When grounds 1, 3 and 4 are considered together, it is clear that the basis on which Constable Beazley is said to have formed a reasonable suspicion is that there was a vehicle travelling to Aurukun at 12.45 am.  It is, in my view, significant that no other facts were relied upon by Constable Beazley in this case.  He gave evidence-in-chief about this issue.  He was cross-examined about this issue.  It is clear from the evidence that there was absolutely nothing about the way in which the vehicle was being driven, the conduct of the occupants of the vehicle after the stop, anything said by the occupants of the vehicle after the stop, or anything observed by the police to be in or on the vehicle after the stop, that is relied upon by the police as forming a reasonable suspicion. Nor do the police rely upon the fact, for example, that if a random breath test had been administered, the results of such a test may have formed the basis of a reasonable suspicion.

Any one or more of the matters I’ve just referred to, alone or in combination, depending on the circumstances of the case, may have helped found a reasonable suspicion, but none of them is present in this particular case.  In fact, Constable Beazley’s unequivocal evidence was that he formed a reasonable suspicion, indeed the intention, to stop and to search the vehicle at the moment he saw its headlights in the distance coming the opposite way.  See:  TS 1-3, lines 10 to 17; TS 1-3, lines 45 to 47; TS 1-4, lines 1 to 10; TS 1-8, lines 10 to 30.  That was confirmed in the appellant’s submissions before the learned Magistrate.  See TS 1-14, lines 8 to 14.

Constable Beazley explicitly relied upon section 60(4), and not upon on any other power under the Police Powers and Responsibilities Act, to search the vehicle.  See TS 1-9, lines 10 to 15; TS 1-9, lines 25 to 27; and TS 1-10, lines 12 to 16. 

To follow through that contention to its logical conclusion, it would mean that every vehicle travelling on the road to Aurukun at that time of night would, as a matter of course, be subject to a reasonable suspicion for the purposes of section 60(4) and could be searched.  There could be, in my view, be any number of innocent reasons why persons may be returning to Aurukun at 12.45 am that have nothing to do with the unlawful carriage of alcohol.

In considering whether the facts are sufficient to constitute a reasonable suspicion in this case, I have had regard to the objectives of the legislation (the Indigenous Communities Liquor Licences Bill 2002) when it was originally introduced, which were to prevent harm in Indigenous community areas caused by alcohol abuse and misuse and associated violence.  I’ve also had regard to the fact that that legislation amended the Police Powers and Responsibilities Act to provide for the power to stop vehicles for the purpose of monitoring or enforcing sly grogging offences.  As I’ve already pointed out, there is no requirement for a reasonable suspicion in the power to stop under section 60(1).

However, the power to search in section 60(4) was expressly circumscribed by the legislature.  It requires that the police officer reasonably suspect that the exercise of the power to search may be effective for monitoring or enforcing a liquor provision.  In my view, the mere presence of a vehicle on the road to Aurukun at 12.45 am, of itself and without any other facts, is not a ground that is reasonable in the circumstances to found the requisite suspicion.  It follows, in my view, that the grounds relied upon by Constable Beazley were not grounds that were reasonable in all the circumstances to search the vehicle.  I find that the search was unlawful.  I find that the learned Magistrate did not err in finding that the search was unlawful.

The discretion to exclude 

Having found the search unlawful and the fruits of the search unlawfully obtained, it remains then for me to consider whether the public interest is served by excluding the evidence.  That is, whether the public interest in the conviction and punishment of the respondent outweighs the undesirability of me giving the court’s approval to the unlawful search by permitting the evidence of what was found to be relied upon.  Here, on a first offence, the penalty is a fine only.  There is evidence at the hearing that it was the respondent’s first offence.  Even taking into account that there is a significant public interest in enforcing the alcohol management plan at Aurukun, that must be balanced against the police power to search any motor vehicle intercepted by them and to intrude on a person’s civil liberties in doing so. That includes the civil liberties of community members who may be travelling into Aurukun without carrying any alcohol in their vehicle. 

Balancing those considerations, it is, in my view, more important that the court not permit this illegal search in all the circumstances of this particular case than it is for Ms Chevathun to be convicted and punished for this offence.  In forming that view, I’ve had regard to the relevant factors in the exercise of the discretion to exclude the evidence, particularly the matters identified in R v Versac referred to earlier. 

I find that the search was unlawful and the evidence obtained as a result of the search should be excluded.

I make the following orders: 

1. the appeal is dismissed; 

2. the decision of the learned Magistrate is confirmed.