GJK v Commissioner of Police[2021] QDC 288

DISTRICT COURT OF QUEENSLAND

 Introduction

1. [1]
   This is an appeal by the appellant, GJK, against her conviction at the Townsville Magistrates Court on 11 June 2021 in respect of the following offence:

“That on the 12^th day of June 2020 at Townsville in the Townsville Division of the Townsville Magistrates Courts District in the State of Queensland one GJK possessed property namely Australian currency that may reasonably be suspected of being tainted property.”

2. [2]
   The appellant was fined the sum of $1,000, the property $9,610.00 the subject of the offence was forfeited to the State of Queensland and a conviction was recorded.^[1]

Grounds of appeal

3. [3]
   The grounds of the appeal are as follows:

1. The magistrate was in error to find the vehicle was lawfully stopped and intercepted.
2. The magistrate committed an error when determining the vehicle search was lawful; including taking into account irrelevant factors in determining a reasonable suspicion was held by intercepting police.
3. The verdict of guilty is unreasonable and not supported by the weight of the evidence.^[2]

Background

4. [4]
   The appellant was the driver of a Holden Commodore SS sedan on 12 June 2020, surveilled by police, parked outside the address of a woman who was the subject of significant police intelligence holdings relating to the supply and possession of dangerous drugs. The car itself belonged to a male person for whom there was also recent intelligence connecting him to the illicit drug scene in Townsville. The appellant was intercepted and her licence was checked. The appellant was nervous, but did not appear intoxicated, and was herself the subject of police intelligence holdings in respect of illicit drug supply. The appellant was detained, the vehicle was searched without warrant, and $9,610 in Australian currency was located behind the plastic panelling of the centre console. That money is the subject of the charge.^[3]

The law – appeals

5. [5]
   The appeal proceeds pursuant to Justices Act 1886 (Qld) (‘JA’) s. 222, and is a rehearing.^[4]
6. [6]
   In McDonald v Queensland Police Service [2017] QCA 255, [47], Bowskill J stated:

“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [citations omitted]

7. [7]
   In Forrest v Commissioner of Police [2017] QCA 132, Sofronoff P stated:^[5]

“…an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”

Evidence

8. [8]
   The appellant has provided a useful summary of the evidence in the following terms:-

Discussion

Ground 1 - The magistrate was in error to find the vehicle was lawfully stopped and intercepted

9. [9]
   The appellant submits that the learned magistrate erred in finding that it was lawful for the police to stop the vehicle. 
10. [10]
    By agreement, the trial commenced with the learned magistrate indicating that he would hear from the witnesses and make a determination on the admissibility or otherwise of the lawfulness of the search of the car.^[6]  The learned magistrate indicated that he would hear the evidence, make a determination on admissibility and accordingly avoid having a voir dire and then a separate hearing (a process to which the appellant’s counsel agreed).^[7]
11. [11]
    The evidence in respect of the vehicle interception came from Senior Constable Alex Fisher and Senior Constable Carlos Louwrens.  Relevantly, after seeing the female appellant walk from the address at [address redacted], enter the vehicle and then depart from that address, Senior Constable Fisher said that he:

“activated the emergency warning lights and sirens giving the driver a direction to stop.  The vehicle pulled over fairly quickly to the left-hand shoulder of the road.”^[8]

12. [12]
    Senior Constable Fisher “observed GJK to be the driver and the sole occupant of the vehicle” and stated that “she produced a driver’s licence confirming …her identity.”^[9]
13. [13]
    In further evidence-in-chief, Senior Constable Fisher identified that the Holden Commodore:

“was parked outside of …[address redacted] and… one of the occupants of that address at the time was a Ms LT… [who] had significant intelligence holdings relating to supply and possession of dangerous drugs and methylamphetamine.”^[10]

14. [14]
    Senior Constable Fisher did not recognise the person walking towards the vehicle from the address.^[11]
15. [15]
    In cross-examination, Senior Constable Fisher confirmed that when he first saw the car, he knew who owned it and that the owner was not the appellant.^[12]
16. [16]
    Senior Constable Fisher confirmed that at the point of surveilling the car, he did not go and obtain a search warrant and further, he agreed that he did not have a reasonable suspicion at that time that there were unlawful dangerous drugs in the car.^[13]
17. [17]
    Senior Constable Fisher agreed that a female person with slim build got into the car and the car was then surveilled through until interception.^[14]
18. [18]
    It was put to Senior Constable Fisher in cross-examination that at the point of interception, he did not hold a reasonable suspicion that there were unlawful dangerous drugs in the car. Senior Constable Fisher responded:

“… the pure fact that that vehicle was at that address began to build my suspicion.  I knew it wasn’t the owner of the car.  So it’s some person driving that car from that address began to build my suspicion that there may be dangerous drugs in the car.”^[15]

19. [19]
    Senior Constable Fisher agreed that prior to interception, the car was driven a short distance; it stopped fairly quickly after the activation of lights and sirens; there was nothing in the manner of driving that gave any form of reasonable suspicion that there were drugs in the car; the appellant’s driver’s licence was handed over almost immediately; the appellant appeared nervous, her hand was shaking and she was speaking quickly but there was no dilation of the pupils nor excessive perspiration, nor did she appear to be intoxicated by a dangerous drug or alcohol; and no breath test or roadside drug test was performed.^[16]
20. [20]
    Senior Constable Carlos Louwrens was also in the police vehicle that intercepted the appellant. When asked in evidence-in-chief, “What was the initial reason for intercepting the vehicle?” he responded, “Just for a licence check to identify the driver.”^[17]  No evidence was called from the third police officer in the vehicle, Constable Maria Balaam.^[18]
21. [21]
    The learned magistrate, in concluding that the vehicle was stopped lawfully, gave his reasons as follows:-

“…the initial question to be answered here is whether or not the interception was unlawful, and, again, it’s a simple matter that wasn’t appropriately addressed, I don’t think, in the taking of the evidence.  I mean, these are experienced officers, and I am sure they won’t make the mistake again. They simply had to say that they stopped the vehicle to do a licence check.  Now, that’s a sufficient reason under the Act, because it’s the Traffic Act.  They can [indistinct].  So even though that wasn’t overtly said at the time or was specifically said during the course of the evidence, inferences need to be drawn from what happened at the time of the interception.

Senior Constable Fisher gets out of the car.  The first thing he does is take the licence from Ms GJK.  Senior Constable Louwrens says ‘Well, we were stopping the car to get the identity of the vehicle.’  Now, it really doesn’t matter what the identity was if she’s driving.  The inference might be drawn from the police perspective is that get the identity and check their licence [sic].  That’s the submissions made by Senior Constable Obermeyer [police prosecutor].  But I suppose the best way to draw an inference as to what was in the mind of the individual who was to form a suspicion, that is to say, Fisher, was what he did once the vehicle was stopped, and the first thing he did was go and check the licence, and so on that basis I’ve come to the conclusion that the vehicle was stopped for that purpose and as a consequence the stopping or the interception of the vehicle was lawful.”^[19]

22. [22]
    The appellant’s submission is that the learned magistrate drew an inference that was not open on the evidence, and accordingly erred in concluding that the police officers had a power to stop the vehicle.
23. [23]
    It should be noted that Senior Constable Louwrens explicitly stated that the purpose for which the police stopped the vehicle was:

“just for a licence check to identify the driver”.^[20] 

24. [24]
    Senior Constable Fisher gave no specific reason for stopping the car, but, as previously noted, did not observe anything about the appellant’s manner of driving nor any apparent intoxication by a dangerous drug or alcohol, when the car was intercepted. The appellant provided her driver’s licence as soon as Senior Constable Fisher walked over to the car.
25. [25]
    The prosecution at the trial submitted that “the basis of the interception was to identify the person who was driving the vehicle, which is permitted under s 60 of the [Police Powers and Responsibilities Act (Qld) (‘PPRA’)].”^[21]
26. [26]
    Section 60(1)-(3) of the PPRA provides:

27. [27]
    The prescribed purposes pursuant to PPRA s. 60(3)(a)-(k) are a comprehensive and exclusive catalogue of the powers of a police officer to require the person in control of a vehicle to stop the vehicle.  PPRA s. 60(2) mandates compliance, unless the person has a reasonable excuse and prescribes a relevant penalty.
28. [28]
    As the appellant’s counsel submits, correctly, in my view, the purposes for which a police officer may stop a vehicle are limited to those purposes set out in PPRA s. 60, and it is clear from the evidence at this trial that the purpose of stopping the vehicle was to “identify the driver, and not any of the other purposes referred to in PPRA s. 60(3).” I note, for completeness, that the liquor enforcement provisions of s. 60(4) are not relevant to this appeal.
29. [29]
    The respondent’s submission on this appeal acknowledges that the prescribed purposes for the application of PPRA s. 60 apply, but submits that the validity of the search has to be considered with respect to PPRA s. 31.
30. [30]
    PPRA s. 31 provides:

31  Searching vehicles without warrant

3. (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. (a)
   stop a vehicle;

2. (b)
   detain a vehicle and the occupants of the vehicle;

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

3. (2)
   Also, a police officer may stop, detain and search a vehicle and anything in it if the police officer reasonably suspects—

1. (a)
   the vehicle is being used unlawfully; or

2. (b)
   a person in the vehicle may be arrested without warrant under section 365 or under a warrant under the Corrective Services Act 2006.

3. (3)
   If the driver or a passenger in the vehicle is arrested for an offence involving something the police officer may search for under this part without a warrant, a police officer may also detain the vehicle and anyone in it and search the vehicle and anything in it.

3. (4)
   If it is impracticable to search for a thing that may be concealed in a vehicle at the place where the vehicle is stopped, the police officer may take the vehicle to a place with appropriate facilities for searching the vehicle and search the vehicle at that place.

5. (5)
   The police officer may seize all or part of a thing—

1. (a)
   that may provide evidence of the commission of an offence; or

2. (b)
   that the person intends to use to cause harm to himself, herself or someone else; or

3. (c)
   if section 32(1)(b) applies, that is an antique firearm.

3. (6)
   Power under this section to search a vehicle includes power to enter the vehicle, stay in it and re-enter it as often as necessary to remove from it a thing seized under subsection (5).

31. [31]
    The difficulty with the respondent’s submission is that, to the extent that there was any evidence as to the purpose of stopping the vehicle, it came from Senior Constable Louwrens, namely that the vehicle was stopped to identify the driver. There was no evidence on which the learned magistrate could have concluded that police were exercising power under PPRA s. 31, and as identified above, the prosecutor at trial did not submit that police were exercising a power under PPRA s. 31.
32. [32]
    It follows, in my view, that there was no initial power to stop the vehicle and so the vehicle was unlawfully stopped by police. The learned magistrate, in his reasons, has effectively sought to elide the explicit evidence of Senior Constable Louwrens and to excuse the failure of Senior Constable Fisher to identify any prescribed purpose under PPRA s. 60. 
33. [33]
    The decision of Henry J in R v Purdon [2016] QSC 128 is a recent and helpful example of a search and seizure which occurred after a police interception which was not undertaken for any of the prescribed purposes under PPRA s. 60(3).  The test, as Henry J articulated it in that case, is whether:

“The public interest in the conviction and punishment of [the appellant] outweighs the undesirability of [the court] giving curial approval to the unlawful search by nonetheless permitting the evidence of what was found to be led.”^[22]

34. [34]
    As Henry J identified:

“It might at one level be thought it is not a particularly serious breach of the rules regulating police conduct for an unlawful search of a person in a motor vehicle intercepted by police to occur, because of the fact that police can so easily, through lawful means, intercept motor vehicles and stop and detain the occupants.”^[23]

35. [35]
    However, Henry J goes on to note:

“…the very ease with which police can lawfully do so gives good reason for the maintenance of particular vigilance by the courts where the police act without a lawful basis for doing so.  If that does not occur, there is a real risk that police will pay lip service to the rules with which they must comply in detaining and searching vehicles and persons.”^[24]

36. [36]
    Henry J then concluded:

“Weighing up the competing considerations leads readily to the conclusion that, in this instance, it is more important that the court not be seen as giving curial approval to this unlawful search than it is that Mr Purdon be convicted and punished for his apparent drug offence.”^[25]

37. [37]
    In my view, in this appeal before me, the learned magistrate should have concluded that the stopping of the vehicle was unlawful, that the search which then followed was similarly unlawful, and that the evidence as to the location of the $9,610.00 in cash in the vehicle should have been excluded, in accordance with the reasoning of Henry J in R v Purdon [2016] QSC 128, which in turn applied Bunning v Cross (1978) 141 CLR 54.
38. [38]
    It follows that the appeal should be granted on this ground, and it becomes unnecessary to consider the further grounds in the appeal. 

Orders

39. [39]
    I make the following orders:

1. Appeal granted.
2. Set aside the verdict of guilty and enter a verdict of not guilty in respect of the charge of possessing tainted property pursuant to the Criminal Proceeds Confiscation Act 2002 (Qld) s. 252.
3. Set aside the sentence imposed on 11 June 2021.
4. Set aside the order forfeiting the property.

Costs

40. [40]
    I will hear the parties on costs.