R v Foster[2016] QDCPR 17

DISTRICT COURT OF QUEENSLAND

The application

1. [1]
   There is presently before the court an indictment charging the applicant with nine counts of supplying a dangerous drug and one count of supplying a dangerous drug in an educational institution. In respect of six of the counts of supplying a dangerous drug the drug is cannabis. In respect of three counts the drug is methyl amphetamine. The count of supply within an educational institution is one of supplying cannabis.

2. [2]
   The applicant applies pursuant to s 590AA of the Criminal Code for an order that all evidence obtained by the Queensland Police after entry into certain premises on 9 October 2015^[1] be ruled inadmissible in her trial.

3. [3]
   The evidence was obtained following the execution of a warrant by police at the premises. The grounds upon which the order is sought are:

The evidence

4. [4]
   The particular evidence that would be excluded is evidence contained in text messages downloaded from the applicant’s mobile phone, which tends to prove that the applicant is guilty of the supplying of dangerous drug offences charged on the indictment. The relevant text messages were located upon a cellarbrite examination of the telephone which was conducted at a time after the telephone was seized by police^[3]

The legislative provisions

5. [5]
   Section 5 of the PPRA sets out the purposes of the Act relevantly they include:

1. (a)
   to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;

2. (b)
   to provide powers necessary for effective modern policing and law enforcement;

…

5. (e)
   to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;

6. (f)
   to enable the public to better understand the nature and extent of the powers and responsibilities of police officers.

6. [6]
   Chapter 7, Pt 1 deals with searching places with warrants. Section 150 provides:

“150 Search warrant application

7. [7]
   Section 151 provides:

“151 Issue of search warrant

The issuer may issue a search warrant only if satisfied there are reasonable grounds for suspecting the evidence or property mentioned in section 150(1)—

1. (a)
   is at the place; or

2. (b)
   is likely to be taken to the place within the next 72 hours.”

8. [8]
   Section 154 provides:

“154 Order in search warrant about information necessary to access information stored electronically

9. [9]
   Section 156 provides:

“156 What search warrant must state

3. (1)
   A search warrant must state—

3. (2)
   If the warrant relates to an offence and the offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it, the warrant may also state that a police officer may search anyone or anything in or on or about to board, or to be put in or on, the vehicle.

3. (3)
   If a magistrate or a judge makes an order under section 153 or 154, the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under the Criminal Code, section 205.”

10. [10]
    Section 157 provides:

157 Powers under search warrant

The search warrant

11. [11]
    The search warrant was issued by a Justice of the Peace on 8 October 2015 on the application of plain clothes Senior Constable Philippi sworn that day. That application was made, in terms of s 150(1)(a), to enter and search a place to obtain evidence of the commission of an offence. The details of the offence to which the application related were stated as:

“Section 9 – Drugs Misuse Act – possessing dangerous drugs – that on the 8^th day of October 2015 at Camira in the State of Queensland one MARK DURICIN unlawfully had possession of a dangerous drug namely methyl amphetamine.”

12. [12]
    The description of the nature of the things sought that officer Philippi swore that he reasonably suspected of being evidence of the commission of the offence was “a quantity of methyl amphetamine and any utensils or things used in connection with methyl amphetamine use”.

13. [13]
    The application contained a statement of the “information or evidence being relied on to support a reasonable suspicion that evidence of the commission of an offence… is at the place” as follows:

“On the 10/04/15, an unknown informant has contacted Crime Stoppers and provided the following information.  A suspected drug dealing from the target address of 99 Ishmael Road, Camira.  Informant has previously seen in the region of 15 cars daily at this address, with unknown persons entering the dwelling and staying for no longer than 3-5 minutes.  Informant stated the same cars return every few days and this has been occurring for a period of at least six months.  The informant could not provide any vehicle details of these arriving vehicles.

On the 16/06/15 police received information from an occupant of 99 Ishmael Road, Camira, that persons living with them at the address used and supply methyl amphetamines.  This informant is concerned about the children’s safety at his address.  It is believed this informant, no longer resides there.

QPRIME checks on subject Mark Duricin 19/01/85 – revealed he is a resident of 99 Ishmael Road, since 12/06/15.  Duricin has six previous convictions for possessing dangerous drugs and seven previous convictions for possessing drug utensils or property used in connection with drug possession.  Duricin was recently released from jail after serving one month for one count of possessing drugs.

On 13/09/15, applicant officer observed vehicle 227 KNV (a purple Holden Commodore sedan) idoling [sic] in the driveway of the target address.  A female was seated in the driver’s seat, and she was later identified by a QPRIME check as Tammy Elfenbeine (DOB 11/08/1979).

QPRIME checks reveal Elfenbeine is currently on bail for one count of supplying dangerous drugs (mention date 12/11/2015 at Beenleigh Magistrates Court).

Police reasonably believed the search of 99 Ishmael Road, Camira will result in dangerous drugs and the target being located at the address.”

14. [14]
    Authority was sought to exercise power to search anyone at the place for anything sought under the warrant that can be concealed on the person. The stated reason as to why it was necessary to exercise that power was that:

“Persons in possession of dangerous drugs including methyl amphetamine, can easily conceal this drug on their person”.

15. [15]
    In its terms, the application also sought an order of the kind permitted under s 154(1) PPRA which would require the provision of access information for a storage device and access to the storage device itself for the purposes of examining the storage device to find out if information stored on it may be evidence of the commission of an offence and, if so, to copy that information.  However, notwithstanding the terms of the application sworn by officer Philipi, in his evidence on the application he was adamant that he had made no application for the warrant to contain such an order.  His basis for stating that such an order was not sought was that it was made to a Justice of the Peace, not a Magistrate or a Judge.

16. [16]
    It seems from officer Philipi’s evidence that the application for an order under s 154(1) is included in the pro forma application completed by police in applying for search warrants and whether such an order is actually sought as part of the warrant is determined by, or determines, whether the application is made to a Justice of the Peace on the one hand, or a Magistrate or Judge on the other hand.

17. [17]
    The justice, having been satisfied that there were reasonable grounds for suspecting warrant evidence or property was at the relevant premises, issued a search warrant. The warrant authorised a police officer to exercise powers under the warrant which included:

• power to enter the place stated in the warrant and to stay on it for the time reasonably necessary to exercise the powers authorised under the warrant;
• power to search the relevant place for anything sought under the warrant;
• power to detain anyone at the relevant place for the time reasonably necessary to find out if the person has anything sought under the warrant;
• if the police officer reasonably suspects a person on the relevant place has been involved in the commission of an offence, power to detain the person for the time taken to search the place;;
• power to seize a thing found at the relevant place, or on a person found at the relevant place, that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates.

18. [18]
    It further conferred power upon a police officer “to search anyone found at the relevant place for anything sought under the warrant that can be concealed on the person”.

19. [19]
    The brief particulars of the offence for which the warrant was issued was stated as:

“Section 9 – Drugs Misuse Act – possessing dangerous drugs – that on the 8^th day of October 2015 at Camira in the State of Queensland one Mark Duricin unlawfully had possession of a dangerous drug namely methyl amphetamine.”

20. [20]
    The details of the warrant, evidence or property that may be seized under the warrant were stated to be:

“A quantity of methyl amphetamine.

Any utensils or things used in connection with methyl amphetamine use.”

The execution of the search warrant

21. [21]
    An audio recording of the events immediately preceding and comprising the execution of the search warrant was tendered. These events commenced from 2.14 pm on 9 October 2015.  The recording is approximately one hour and five minutes in length.

22. [22]
    Upon first contact with an occupier at the premises, officer Philippi introduces himself and states that he is “just here with a search warrant in relation to dangerous drugs”.  He provided the occupier, who was not the applicant, with a copy of the search warrant and a Statement to Occupiers setting out the occupiers’ rights and obligations during the search.  He did not state that the search warrant was in relation to obtaining evidence of the commission of the offence particularised in the warrant, however, that information was contained within the warrant itself.

23. [23]
    There were a number of persons present at the premises when they were entered by police. It was quickly established that certain of those persons did not reside at the premises and were visitors. Officer Philippi issued a warning to all the persons present that they had the right to remain silent but that anything which they did say may later be used as evidence. He then said:

“Is there anything in the house that you wish to declare to police in relation to drugs or anything else that’s illegal to make things a bit easier?”

24. [24]
    Immediately following he said:

“So there any, I’ll ask again, anything you wanna declare?”

25. [25]
    Immediately following this last statement, one of the occupiers of the house, a female, and the person to whom the warrant and Statement to Occupier had been given said:

“There’s a bag in the backroom”.

26. [26]
    Shortly afterwards, officer Philipi asked:

“So who actually lives here?”

27. [27]
    One of the persons present, a male, identified the female who had declared the presence of the bag as a person who lived at the premises and identified her as “Kym”.

28. [28]
    A little while later Kym identified herself to officer Philipi. A glass water pipe was located in a cupboard. Cannabis was then located in a Pringles bag.

29. [29]
    Officer Philipi and Kym then seem to have gone into a room identified by Kym as being her friend’s daughter’s room. There glass pipes were located in a makeup case. A used syringe was then found and Kym stated that it is a friend’s. A wooden box containing cannabis and a chop bowl are located.

30. [30]
    Officer Philipi asks Kym the identity of those who live at the premises and she identifies herself and her best mate and one of the other three persons who were present at the time. More cannabis and drug paraphernalia is found including a clipseal bag containing “empties” and scales. Kym identifies those items as belonging not to her but her friend who she names as “Becky”.

31. [31]
    A grinder is found and a clipseal bag containing white crystals in a little metal tin with a straw and two empty clipseal bags. These items are identified by Kym as belonging to Becky.

32. [32]
    During none of this was the applicant present. About twenty eight and a half minutes into the search an unidentified female officer says that someone has just shown up. Officer Philipi says “Oh OK.  Oh well go and grab her then”, at the same time, the female officer says “that could be Becky”.

33. [33]
    Immediately following this a caution is issued to someone in the house, but it is apparently someone other than the applicant because she is cautioned shortly afterwards.

34. [34]
    Immediately following the caution to the unknown person being given, officer Philipi asks “is that your mobile phone – the Samsung?”.  It is apparent that the applicant is present at that time because she is directed to sit down by an unidentified female officer.  Officer Philipi then asks “Kym, is that your mobile phone there?”.  From that, it may be inferred that it was Kym who was previously asked whether the Samsung phone was hers.  To this enquiry Kym responds in the negative and states that it is her partner’s mobile phone.  To this information officer Philipi responds:

“OK.  Oh well we’ll obviously have to have a look at that as well”.

35. [35]
    Kym goes on to identify the phone as belonging to “her new partner as of a couple of months ago”.  She identifies him as Mark and officer Philipi then asks, “Mark.  Is that mark Duricin?”.  This is the first occasion on which Mark Duricin, the person believed to have committed the offence in respect of which the search warrant was issued, is mentioned in the search.  It is 29 minutes and 35 seconds into the search.

36. [36]
    A female officer then says, apparently in relation to the applicant:

“Um she needs some cautions”.

37. [37]
    Officer Philipi then introduces himself to the applicant and says:

“Obviously we’re here for a search warrant, if you haven’t already figured that out”.

38. [38]
    He then proceeds to inform the applicant:

“OK, so like under the search warrant I’ll just give you some, some rights.  You have the right to remain silent.  You don’t have to say anything, make any statement or answer any question unless you wish to do so, however, if you do say anything or make a statement it may be used as evidence.  If we find obviously any evidence of drugs, or anything on your person, obviously you have to speak to a friend or relative

…

Under the search warrant we’ve got powers to obviously search your person, so a female officer will be doing a search of you at some point.”

39. [39]
    The applicant was not shown the search warrant. Nor was she given a Statement to Occupier. Nor was her attention drawn to either document.

40. [40]
    The applicant then confirms that she lives at the premises and gives her name and date of birth.

41. [41]
    Approximately two and a half minutes further into the search (at about 33 minutes and 17 seconds), officer Philipi raises with the applicant that they would like to have a chat with her about what had been found in her daughter’s bedroom. That finding had been made at a time prior to the applicant’s presence at the premises. He goes on to identify certain property that was found. At 36 minutes and 34 seconds into the search officer Philipi says:

“Is there anything else we’re gonna find in this house?  If I have to get a drug dog I will.  I don’t want to but I will if I have to.”

42. [42]
    The female officer then asked about a mobile phone enquiring as to whose it is and officer Philipi says “that’ll be Mark’s I think”.

43. [43]
    Then, at 37 minutes and 54 seconds into the search, officer Philipi says, apparently in reference to another phone:

“Where’s that phone now?  Somewhere around there.  So this is - - that’s your phone.  So this, is your phone here is it Bec?”

44. [44]
    The applicant confirms that the telephone is hers. The female officer enquires of the applicant as to the time at which the applicant’s daughter finishes school, the applicant having earlier stated that she needed to pick the child up from school. The applicant states that it is “like now”.  The female officer says they cannot let the applicant go and officer Philipi says:

“Obviously at the moment, yeah so we’re just gonna have to hang tight until we finish the search.”

45. [45]
    Then, at 39 minutes and 5 seconds into the search, officer Philipi says:

“How would you, just want to try and turn that phone on for me.”

46. [46]
    The applicant then turned the phone on. Within a minute, at 39 minutes and 57 seconds, officer Philipi says:

“Now um the pattern to unlock it.”

47. [47]
    The applicant then unlocked the phone. Immediately following that the applicant is searched. Then, at 40 minutes and 10 seconds, officer Philipi says:

“Obviously yes we’re here for drugs, but obviously it gives the power to search anything, seize anything if we think its related to an offence.  So um I’ll I’ll just be upfront with you now, is there gonna be um any messages on here relating to drugs, drug messages anything?”

48. [48]
    The applicant replied:

“Don’t know.  I don’t think so”.

49. [49]
    46 minutes and 48 seconds into the search the following exchange takes place:

“Officer Philipi: So Mark is the other occupant where - -

Foster: He’s in lockup.

Officer Philipi: He’s still in lockup?  I thought he was out.

Dundas: No, he [indistinct].

Officer Philipi: Wasn’t he just - -

Foster: [indistinct]

Officer Philipi: released?

Foster: That’s what I just got - -

Officer Philipi: Are what - -

Foster: this money, extra [indistinct] for him.

Officer Philipi: I thought he got time served on his last.”

50. [50]
    Shortly after, Dundas indicates that Mark Duricin went to court last week.

The evidence on the hearing of the application

51. [51]
    In his evidence on the hearing of the application, officer Philipi stated that as recorded on the warrant itself, it was executed on Mark Duricin on 9 October 2015 although Duricin was not at the address at the time.

52. [52]
    He stated that he placed a copy of the search warrant in the living room of the premises prior to the applicant arriving. In respect of the applicant’s mobile phone, officer Philipi said:

“I asked about the mobile phone.  She produced it.  I believe it had a pass code, and I explained that other evidence [indistinct] the warrant we can seize.  I looked through the phone, saw that there was - potentially it was evidence, and - so I explained that we’d be seizing it.”

53. [53]
    He could not recall exactly from where the applicant produced the mobile phone, but it was from either her handbag or her pocket. He thought it was possible that it was somewhere in the house but his best memory was that it was on the applicant’s person when she arrived at the premises. He said that he asked the applicant about her phone and then had a quick look through it because there were other phones in the house in the living room.

54. [54]
    He stated that the applicant assisted in gaining access to the phone, which he thought was by his holding the phone down and the applicant entering the pass code or swipe. He had requested for her to do that. As to the seizure of the phone he said:

“Based on the messages, I formed the opinion that offences committed under the Drugs Misuse Act were there, so I said we’ll be seizing it under the warrant, and - and we’ve conducted an examination on that phone at a later date.”

55. [55]
    When cross-examined, officer Philipi agreed that all the property that was seized at the house was seized under the authority of the search warrant. He believed that he was empowered under the authority of the search warrant to seize all the property, and that everything that was seized was authorised under the warrant.

56. [56]
    When asked whether he had at some later time checked the accuracy of what he had been told about Mark Duricin being in jail, he said that he had no reason to do so. Whilst he agreed that it would have been easy for him to have done so he said:

“But we had no evidence against Mark Duricin and he wasn’t arrested.”

57. [57]
    Later, he agreed that in his mind it was irrelevant whether Mark Duricin was in jail or not at the time of the search, his explanation for that being that the“search warrant is for the place”.

58. [58]
    He confirmed that it was his understanding that the search warrant gave the police the power to search for and seize anything if they thought it was related to an offence.

59. [59]
    When asked whether it would have mattered if he had done a search and found that Duricin had in fact never resided at the address and that he would have considered himself able to keep on searching he responded:

“The search warrant is for the place based on information that there were drug offences committed at that location.”

60. [60]
    He confirmed he was aware that he could not access a phone by requiring a pass code unless he had an order in the warrant of the kind contemplated by s 154 PPRA, but rejected the suggestion that the way he spoke to the applicant in relation to the phone was calculated to make her think that she had to provide the codes.  He stated that in his opinion he obtained the applicant’s consent to access her phone.

61. [61]
    The applicant also gave evidence. She stated that she both handed her phone to officer Philipi and opened the phone using the pass code because she felt she had to. She said:

“Yeah, I felt like I had no choice.  I felt like that’s - I’ve never been through a search or anything before so I felt like that’s, you know, what I had to do.”

Ground (a) – invalid warrant

62. [62]
    The first ground advanced by the applicant is that the warrant was invalid because, contrary to s 151 of the PPRA the police and or the Justice of the Peace could not have been satisfied that there were reasonable grounds for suspecting that evidence of the offence stated in the warrant would be found at the nominated premises as at the date of the application for the warrant.

63. [63]
    It is submitted for the applicant that the fact that Mark Duricin had been in prison for a month at the time of the application for the warrant in which it was alleged that he unlawfully had possession of methyl amphetamine at the premises on 8 October 2015 means that no warrant should have been issued. A check of Mark Duricin’s custody status would have revealed that he was in prison and had been there for a month and that there was, therefore, clearly no basis for connecting him to the place as at the date of the offence. The applicant submits that “such a check was an obvious and essential pre-requisite for a QPS officer applying for a warrant”.

64. [64]
    In my view, ground (a) fails. The check which the applicant suggests ought to have been made was not “essential” in the sense that a failure to undertake it rendered the application procedurally deficient such that the issuing of the warrant was not authorised.

65. [65]
    The information which the police had as disclosed in the application for the search warrant linked Mark Duricin with the address. This information was obtained from QPRIME checks. That those checks revealed that information was not challenged on the application. Officer Philipi’s evidence was that QPRIME shows whether a person is in custody most of the time but sometimes court results do not get updated on the police system; although he was not saying that this had occurred on this occasion.

66. [66]
    In my view, it is not to the point that it would have been simple for police after the execution of the warrant to check whether Duricin was in fact in custody. That capacity to check his custodial status after having been told in the course of executing the warrant that he was incarcerated does not affect the state of knowledge of officer Philipi at the relevant time; that is at the time of applying for the warrant. The information contained in the application that Duricin recently had been released may have been inaccurate, but there is nothing to suggest that this was not the information which police had at the time and on which officer Philipi acted. There was no challenge to officer Philipi’s declaration on 8 October 2015 to the information set out in the application being true and correct to the best of his knowledge.

67. [67]
    The information which police had, as revealed in the application: that Duricin was a resident of the premises since June 2015; that he had recently been released from jail; that he had six previous convictions for possessing dangerous drugs and seven convictions for possessing drug utensils or property used in connection with drug possession; and that there was supplying of methyl amphetamine occurring at the address, was sufficient for the justice to whom the application was made to be satisfied that there were reasonable grounds for suspecting that evidence of the commission of the offence identified in the warrant was at the place identified. The issuing of the warrant was thus authorised under s 151 of the PPRA.

Ground (b) – discontinuance of the search

68. [68]
    The second ground advanced by the applicant is that the police should have discontinued the search as soon as it became apparent that the offence founding the warrant could not have occurred. The applicant cites R v Pedersen^[4] in support of the submission.  In my view, Pedersen provides no such support. 

69. [69]
    In Pedersen, a search continued after it had been stated that the person named in the warrant no longer lived at the premises.  This statement was correct and the person named in the warrant had not resided at the address for some months.  Farr ADCJ (as his Honour then was) said at [42]:

“Whether KB was or is not residing at that address at that time was not the matter in issue.  The applicant’s statements to the police on that topic during the course of the search were apparently truthful, but that did not mean that a search pursuant to the authority of the warrant should not have continued.  It would be a foolhardy police officer who decides to not conduct a proper search simply because the occupant of the house gave information which, if correct, would mean that the search would be fruitless.”

70. [70]
    In Pedersen, as here, the warrant had been issued on the basis of police information that the relevant person resided at the address.

71. [71]
    The applicant contends here, though, that the police could easily have obtained objective and unchallengeable evidence of Mark Duricin’s custody status. In my view, that would not mean that Mark Duricin could not have committed the offence founding the warrant. He could still have been in possession of drugs at the premises at that date even if he was incarcerated. It was clear that he had personal possessions at the premises; for example his mobile phone was there (although it was not identified as warrant evidence or property).

72. [72]
    Appreciation of Duricin’s custody status may have meant that the circumstances of “the target” being located at the premises which police had reasonably believed at the time of applying for the warrant would not be realised; but that did not necessarily mean the circumstance of drugs in his possession at the premises would not be realised.

73. [73]
    It should be noted that in the course of the hearing it was observed by me, and conceded by Mr Power for the applicant, that there may have been more merit in this ground had the search not ended shortly after the issue of Duricin being in custody having arisen. This observation, and Mr Power’s concession, was based upon the transcript of the recording of the search which ended shortly after this issue arose.

74. [74]
    Having now considered the entire recording it is apparent that it is only the transcription which ended shortly afterwards. The recording, and therefore the search itself, in fact continued for a further one hour and three minutes after the point at which the transcription ceased. However, no evidence the subject of the application was found during the extended period. That said, it does have some relevance to matters to be addressed in considering ground (c).

75. [75]
    Ground (b) should be dismissed.

Ground (c) – search beyond scope of warrant

76. [76]
    The applicant contends that the search of the house had been proceeding for some 45 minutes before she arrived with her mobile phone.  There was no proper basis under the particular warrant for seizing her phone.

77. [77]
    The applicant refers to the aversion of the common law to general warrants^[5] and contends that the police acted as though they were in a possession of a general warrant.

78. [78]
    The respondent submits that it was not even necessary for the search warrant to name Duricin as the occupier or the offender and that the placement of his name on the warrant did not mean that it was invalid or should not have issued. The respondent seeks support for its position from R v Versac^[6] in which a search warrant was held not to be defective in circumstances in which it did not name the offender, but rather referred to “you” as the person who would commit the offence; the offence was possession of the dangerous drug heroin and the warrant was sought on the basis that the offence would be committed the following day.

79. [79]
    In Versac the drugs were believed to be within the storage unit of which the appellant Versac was the person who had entered into a rental agreement.  The Chief Justice concluded that:

“In a roundabout way, the warrant thereby identified the prospective offender if that was necessary.  I put it that way because at least in some cases, provision of particulars of the offence arguably may not require specification of the name of the offender (which may or may not be known).

The appellant in fact used a number of names.  Specifying his “actual” name was nevertheless not necessary in this case to delineate the scope of the search, which related to evidence of drug activity in a confined space.  In this case, providing brief particulars of the alleged offence did not necessitate naming the alleged offender.”^[7]

80. [80]
    A number of things should be said about the respondent’s reliance on Versac which in my opinion, is misplaced.

81. [81]
    First, Versac is not authority for the proposition that in all cases it is not necessary to name an occupier of premises or offender.  Nor is it authority for the proposition that in any case in which the occupier or offender is nominated as “you” the warrant will be valid.

82. [82]
    Versac concerned a storage unit, not premises at which a number of people may be residing or visiting.  Whoever was the person entitled to possession of the goods within the storage unit, if there were drugs in the unit, would be in possession of them.

83. [83]
    By contrast, in order “to delineate the scope of the search” in this case, it may well have been necessary in providing brief particulars of the offence to identify a particular person as he or she who committed the offence.

84. [84]
    Secondly, Duricin had been named as the offender. The scope of the warrant was, in part, delineated by him having been named as the offender.  The scope of the warrant was further delineated by stating that the offence was for possession of a dangerous drug by him.  The scope was further delineated by stating that the particular dangerous drug was methyl amphetamine.  The scope of the warrant was further delineated by identifying that the property the seizing of which was authorised by the warrant was a quantity of methyl amphetamine and any utensils or thing that is used in connection with methyl amphetamine use.

85. [85]
    The scope of the warrant was clearly delineated. Having been so, it was incumbent on police to conduct the search within that scope. Unfortunately, the evidence establishes that once obtained the police executing the warrant had little if any regard to its scope.

86. [86]
    Officer Philipi’s evidence that a search warrant is for a place based on information that there were drug offences committed at the location, and that it was irrelevant whether the person named as the offender in the warrant was in jail or not, demonstrates that the warrant was being executed without reference to the alleged offence in respect of which it was issued.

87. [87]
    So too, officer Philipi’s statement in the course of executing the warrant that the warrant gave police power to search for and seize anything they think is related to an offence demonstrates that the search was not being conducted within the scope of the warrant.

88. [88]
    That statement by officer Philipi was consistent with his statement at the outset of the search that he was “here with a search warrant in relation to dangerous drugs”, but that statement itself was not consistent with the more limited scope of the warrant.

89. [89]
    Officer Philipi then immediately moved to asking persons present, none of whom were the named offender, if they had anything they wished to declare in relation to drugs or indeed “anything else that’s illegal to make things easier”.  When the applicant arrived officer Philipi in explaining her rights to her again referred to finding drugs “or anything” on her person.

90. [90]
    The power to seize things, as stated on the face of the warrant, was limited to a:

“Power to seize a thing found at the relevant place, or on a person found at the relevant place, that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates”.

91. [91]
    That power, as set out in the warrant, was consistent with s 157(1)(h) of the PPRA.  Officer Philipi’s statement as to the power of seizure was made with an apparent lack of understanding of the scope of that power as conferred by the warrant.  The seizure of the applicant’s phone was not within the scope of the warrant.  It was not authorised.

92. [92]
    There is a further aspect of the execution of the search warrant, and indeed the warrant itself, which demonstrates that the search was beyond the scope of the warrant. When first entering the premises and having introduced himself, officer Philipi stated:

“OK, so just for the purpose of the warrant, you’re obviously all detained under the warrant just for a search. Um you’re not free to move around anywhere, don’t obstruct us.”

93. [93]
    This statement was apparently directed to all persons present at the premises and was followed by a general warning of the right to remain silent. It is clear that the applicant was likewise detained when she arrived at the premises later on. The general detention of all those persons may have been in accord with the power set out at the third dot point on page 1 of the warrant as set out above. That power, as set out in the warrant, was in accordance with s 157(1)(e) of the PPRA.

94. [94]
    However, it is quite apparent that the detention of the persons at the premises generally, and the applicant specifically, was for the purpose of, and for the duration of, the premises being searched. Such detention would have been in accord with the power set out in the fourth dot point on page one of the warrant as set out above, which purported to confer the lawful exercise of the following power:

“If a police officer reasonably suspects a person on the relevant place has been involved in the commission of an offence, the power to detain the person for the time taken to search the place.”

95. [95]
    It is apparent that it was under that purported power that the applicant was being detained because at 38 minutes and 18 seconds into the search, when the applicant had raised having to go and pick up her child from school an unidentified police officer had said, “well we can’t let you go, because…” to which officer Philipi had added, “obviously at the moment, yeah, so we’re just gonna have to hang tight until we finish the search”.

96. [96]
    In their written submission the Crown submits:

“the search warrant contained the relevant powers pursuant to s 157 (1)(a) to (k) of the PPRA. Relevantly to this application the search warrant referred to “…if the police officer reasonably suspects a person on the relevant place has been involved in the commission of an offence, power to obtain the person for the time taken to search the place”.

97. [97]
    However, a close examination of the warrant and the PPRA reveals that the power purportedly set out in the warrant was not a power authorised by s 157 of the PPRA.  The relevant search warrant power is that conferred by s 157(1)(f).  It provides:

“If the warrant relates to an offence and the police officer reasonably suspects a person on the relevant place has been involved in the commission of the offence, the power to detain the person for the time taken to search the place.” (emphasis added)

98. [98]
    The offence which the police officer must suspect the person to be detained to have been involved in is the offence to which the warrant relates. There is no identified basis for any reasonable suspicion on the part of the police executing the warrant that the applicant was involved in the commission of the offence of possession of dangerous drugs by Duricin to which the warrant related. Indeed, it is clear from the manner in which the warrant was executed, and officer Philipi’s evidence as to his understanding of the scope of the warrant, that no consideration was given to the necessary suspicion of connection required by s 157(1)(f) before detention can be authorised to permit a search of the place.

99. [99]
    The power of detention purportedly conferred under the warrant, under which the applicant was evidently detained, was not a power authorised by the PPRA.  The warrant was invalid to the extent that it purported to confer that power.  The exercise of the power was beyond the scope of the lawful powers under the warrant.

100. [100]
     The respondent contends that the applicant’s phone and access to it by provision of the access code were given to officer Philipi with the applicant’s consent and, therefore, “this will be an answer to any allegation of unlawfulness of a search”.  That quote comes from the judgment of Dalton J in R v Bossley^[8] which was referred to by Durward SC, DCJ in R v Varga.^[9]  Varga was a case concerning s 154 of the PPRA which permitted the issuer of a search warrant to include in the warrant the power to require the person in possession of access information for a storage device to give the police access to the information stored on the device.  The warrant in question did not contain such a power, but the accused had been co-operative and volunteered the access information.  It was found that the search of the mobile phone was lawful and the evidence obtained admissible.

101. [101]
     However, the reasoning in Varga and Bossley does not apply in this case.

102. [102]
     In Varga the relevant part of the search of the phone to which the defendant consented was that which occurred during the execution of the warrant at the premises at which he resided.  The police had located the accused’s mobile phone in his bedroom.  At that time one of the police officers said “we’ll take your phone at the same time”.  Importantly, and in distinction from this case, the warrant evidence or property which could be seized under the powers conferred by the warrant included:

“(c) any document or thing, whether in written or electronic form, used to record the possession and supply of dangerous drugs, namely cannabis, including but not limited to laptop computers, computers, mobile phones.”

103. [103]
     There was no pass code, but the accused did volunteer some access information. Having done so the police discovered some text messages which suggested that the accused may have been involved in supplying dangerous drugs. At that point the police said that they were going to take the accused back to the police station for an interview and to have the contents of the phone downloaded. The police were able to take the phone because they had the power to seize it under the warrant having formed, on the basis of the text messages they had seen, the reasonable belief that there may be evidence stored on the phone in relation to the offence of supplying dangerous drugs, and it being within the warrant evidence or properly identified in the warrant.

104. [104]
     The evidence in this case does not establish that having been given both the phone and the access information by the applicant the police present at the search then found incriminating messages (or other information) on the phone. Having inaccurately stated that police conducting the search had power to search and seize anything if they thought it was related to an offence, officer Philipi asked the applicant whether there were “any messages on here relating to drug, drug messages or anything”, to which the applicant replied “don’t know.  I don’t think so”.  Nothing set out in the remainder of the transcript of the recording of the search suggests any drug related messages were located at that time. 

105. [105]
     As set out above, officer Philipi gave evidence on the hearing of the application that the phone was seized after forming the opinion based on messages that offences against the Drugs Misuse Act had been committed.  Given that evidence, and the absence of the identification of any such texts in the transcript of the recording of the search, I have listened to the entire audio recording of the search subsequent to the point at which transcription ceased.  I accept that officer Philipi’s evidence was his best recollection of the events of the day.  However, having listened to that recording, there is nothing on it which suggests that incriminating text messages were found and that this prompted the seizure of the phone.  Indeed the recording suggests to the contrary. 

106. [106]
     At about 1 hour and 30 minutes into the recording a phone is heard to ring.  Immediately following after the applicant makes an enquiry of a female officer to which the female officer responds by asking the applicant what she wants it (the phone).  The applicant responds that she wants to just send her mum a text.  At that point, officer Philipi says in an apparent reference to her phone “probably should seize yeah probably should”.  The applicant then makes an enquiry as to whether she would get her phone number back to which a female officer responds “generally if there is nothing on your phone then more than likely get your phone back”.

107. [107]
     A few minutes later, about 1 hour and 34 minutes into the search, when it is evident from the recording that the property to be seized is being collated and included in a field property receipt, a female officer enquires “so these three phones as well?”.  Officer Philipi responds “um we’re probably going to have at least examine them”.  He then explains to the applicant (and perhaps others) that “we’ll return to the office and examine them and the second we’re done with them we will bring them back to you, simple”.  He says “obviously based on what we’ve found is the evidence.  So that’s my role I’m just going to go back and start looking at them and as soon as I can get rid of them I will”.

108. [108]
     In context, the reference to the police obviously having obtained evidence does not appear to have been a reference to evidence obtained from the applicant’s mobile phone; but rather, to the evidence gathered through the search more generally. That appears so because there is a subsequent discussion between officer Philipi and a female officer as to what charges would be included in notices to appear which were being issued to various people at the premises including the applicant. In respect of another person, but not the applicant, a supply of cannabis charge was to be included.

109. [109]
     My conclusions in this regard are consistent with the basis upon which the application was otherwise conducted by the respondent. Apart from the evidence given by officer Philpi in the hearing, the application was conducted on the basis that the incriminating text messages were discovered upon the later cellarbrite examination and analysis performed by officer Nunn.^[10]  That examination and analysis was performed not as a consequence of any consent provided by the applicant at the time of the search.  It was conducted as a consequence of the seizure of the phone.  That seizure was not consented to by the applicant. Nor did she consent to the subsequent examination.

110. [110]
     The distinction, in my opinion, is that referred to by Lord Denning MR in Ghani v Jones,^[11] where it was said:

“The second thing to notice is that the police officers kept the passports and letters without the consent of the holders.  Mr Leonard suggested that they took them with consent.  This is a little far-fetched.  Here were two police officers asking a Pakistani for the passports of himself and his wife.  Of course he handed them to them.  It would look bad for him if he did not.  He bowed to their authority.  Even if he consented to their looking at the passports, he did not consent to their keeping them.  Even if he did consent to their keeping them, it was only for a while: and he could withdraw it at any time.  As in fact he did.  So it is all the same.  They detained the passports without his consent.” [Original emphasis]

111. [111]
     Furthermore, at the time at which the consent to searching the phone at the premises was given by the applicant, it was given when she was being detained pursuant to powers which officer Philipi clearly believed he had, but which he did not, and which were misrepresented on the face of the warrant.

112. [112]
     Nor was the seizure of the mobile phone which led to its later examination and analysis authorised under any power conferred by the warrant. The mobile phone was not identified as warrant evidence or property.

113. [113]
     In all of these circumstances, the relevant evidence was unlawfully obtained.

Bunning v Cross discretion

114. [114]
     The Crown submits that in the event of the court finding that the search was unlawful the evidence should nevertheless be ruled admissible upon a favourable exercise of the Bunning v Cross^[12] discretion.  It contends that any unlawfulness was inadvertent and not deliberate or reckless.  The offence is a serious one and it is in the interest of justice that offenders engaged in drug distribution are prosecuted.

115. [115]
     The exercise of the Bunning v Cross discretion requires a balancing of competing requirements of public policy: on the one hand “the desirable goal of bringing to conviction the wrongdoer,” and on the other hand “the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.”

116. [116]
     In R v Versac^[13] Applegarth J observed of the exercise of the discretion:

“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:

117. [117]
     The factors which weigh in favour of the admission of the evidence in this case are the nature and the seriousness of the offences, the importance of the evidence in the proceeding and the cogency of the evidence. The messages extracted from the phone provide cogent evidence of the supplying charges. The cogency of that evidence is not affected by the unlawful conduct.

118. [118]
     It is also quite apparent that the evidence is important to the Crown case against the applicant. Although it has not been identified on the application as to what other evidence makes up the Crown case, given that the applicant was not charged with the offences until the analysis of the phone was performed, it may readily be inferred that the evidence is of considerable importance to the Crown case.

119. [119]
     For the purpose of considering whether the discretion ought be exercised in favour of allowing the evidence in, I am content to assume both cogency and importance. Supplying dangerous drugs is a serious offence, although the submission suggests that these offences are not at the higher level of the seriousness of such offences.^[14]

120. [120]
     Notwithstanding these matters favouring the inclusion of the evidence, I am of the view that factors favouring its exclusion outweigh them, and to a considerable extent.

121. [121]
     The obtaining of this evidence, was, in my view, in reckless disregard for the law. The circumstances which I have detailed above demonstrate that in the performance of this search the police officers had little if any regard to the purpose for which the warrant was issued; viz a search for evidence of the suspected offence.  That offence was the possession by Mark Duricin of the dangerous drug methyl amphetamine.  Similarly, little or no regard was had to the extent of, and limits to, the seizure powers conferred by the warrant.  So too, little or no regard was had to the powers of detention conferred under the warrant which on its face were in terms which were inconsistent with and in excess of the powers of detention under s 157(1)(f) of the PPRA which could be conferred under the warrant.

122. [122]
     Compliance with the law would have been easy. A warrant alleging an offence by persons at the address other than Duricin might have been sought on the information known to police. Mobile phones could readily have been included amongst the things sought in the application for the warrant and thus amongst the warrant evidence or property that may be seized under it. The warrant could easily have included a detention power which reflected the law. Indeed it is quite disturbing that a warrant would be issued in a form in which the power of detention is not in accord with the law and in fact misrepresents and overstates the power which may lawfully be conferred.

123. [123]
     These matters satisfy me that the discretion to allow evidence to be admitted should not be exercised in this case.

Disposition

124. [124]
     The orders will be:

1. Application allowed;

2. All evidence obtained by the Queensland police after entry into the dwelling at 99 Ishmael Road, Camira on 9 October 2015 is inadmissible in the trial of R v Rebecca Foster.