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The Queen v Steel QDCPR 18
DISTRICT COURT OF QUEENSLAND
The Queen v Steel  QDCPR 18
MARTIN FREDERICK STEEL
Application under s 590AA of the Criminal Code
25 May 2017
14 March 2017
The application is dismissed
CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant’s vehicle was searched without a warrant – where police rely on the power of s 31 of the Police Powers and Responsibility Act 2000 – whether police detained the vehicle or occupants within the meaning of s 31(1) of the PPRA – whether applicant was in the vehicle when arrested within the meaning of s 31(3) of the PPRA – whether the search was lawful.
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – PARTICULAR CASES – where applicant is charged with multiple drug offences – where applicant contends that evidence obtained during a search of applicant’s vehicle was unlawfully obtained – where there has been no deliberate breach – whether the discretion to exclude evidence should be exercised.
Criminal Code Act 1899, s 590AA
Police Powers and Responsibilities Act 2000, s 31(1), s 31(3)
Road Use Management Act 1995, Schedule 4
Bunning v Cross (1978) 141 CLR 54, applied
Cooper Brookes (Wollongong) Pty Ltd v Federal
Commissioner of Taxation (1981) 147 CLR 297, cited
Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, cited
Nicholas v The Queen (1998) 193 CLR 173, cited
Pollard v The Queen  HCA 69, cited
R v Barbaro  QSC 346, cited
R v Keen  2 Qd R 1, applied
R v Lobban  SASC 48, cited
R v Milos  QCA 314, cited
R v N  QSC 91, considered
R v P  QSC 49, considered
R v Pohl  QSC 173, considered
R v Toon  QSC 117, considered
R v Versac (2013) 227 A Crim R 569, considered
Ridgeway v The Queen  HCA 66, applied
The Queen v Swaffield  HCA 1, cited
The Queen v Ireland  HCA 21, cited
Woolford v The Nominal Defendant  1 Qd R 465, cited
M. Whitbread for the respondent/ Crown
J. McInnes for the applicant /defendant
Department of Public Prosecutions for the respondent/ Crown
Derek Legal for the applicant/ defendant
- The applicant Martin Frederick Steel, is charged on indictment with one count of trafficking in a dangerous drug (cannabis) between 25 December 2013 and 20 October 2014, one count of possessing a dangerous drug (cannabis) in excess of 500 grams on 19 October 2014, one count of possessing a dangerous drug (cannabis) on 19 October 2014 and one count of possessing a thing used in the commission of trafficking in a dangerous drug (mobile phones and a set of scales) on 19 October 2014.
- The Crown case is the applicant is one step above a “street level” supplier of cannabis. Without the evidence obtained from one of two mobile phones seized from a search of the applicant’s motor vehicle on 19 October 2014, the trafficking charge will be confined to a period from about 11 August 2014 to 20 October 2014.
- The applicant has applied, under s 590AA of the Criminal Code Act 1899, for a ruling that the evidence obtained from the examination of mobile phones seized from a search of his motor vehicle was unlawful and ought to be excluded in the exercise of the Bunning v Cross discretion.
- In applications about the admissibly of evidence to be used at the applicant’s trial on an indictment, the prosecution bears the onus of proof on factual questions and the standard of proof is on the balance of probabilities.
- At the hearing before me, a summary of the relevant facts for legal argument was tendered without objection.
- It was uncontroversial that around May 2014, operation “Mike Shoaling” commenced, targeting the transportation of dangerous drugs from South Australia and Victoria to Queensland. This operation utilised various methods such as telephone intercepts, covert surveillance, strategic interceptions and tactical search warrants. The principal target of the investigation was Graeme Putt. Through telephone intercepts, it was identified that Mr Putt was supplying bulk quantities of cannabis to the applicant on the Gold Coast. A red Mazda wagon, Queensland registration 781SHZ, known to be used but not registered in the applicant’s name (the red Mazda), was also suspected to be associated with the drug activities.
- For several months leading up to the arrest of the applicant and the search of the red Mazda on 19 October 2014, police had been monitoring communications between Mr Putt and the applicant and had surveillance of “catch ups” between the two men at the Reedy Creek Shopping Centre, Old Coach Road, Reedy Creek.
- On 18 October 2014, Mr Putt called the applicant and arranged a meeting the next morning at the Reedy Creek Shopping Centre. Mr Putt also arranged to meet James Iti (who was transporting cannabis), at the same time and place.
- On 18 October 2014, the police obtained a warrant to search the applicant’s house at 31 Bridgman Drive, Reedy Creek and to compel the disclosure of device access information. There was no warrant for a search of the red Mazda requested or obtained.
- Covert surveillance officers were positioned in the vicinity of the Reedy Creek Shopping Centre to record the meeting between Mr Putt and the applicant on 19 October 2014. Covert surveillance of this meeting reveals Mr Iti arriving with another man, in a white Landcruiser station wagon and reversing the car to park towards bushland adjacent to the carpark. These men left this vehicle and walked into the bakery in the centre where they spoke to Mr Putt. Mr Putt then walked with the men to a gold Kia sedan, and moved this vehicle, reversing in beside the Landcruiser. Mr Putt then removed a large red suitcase from the back of the Landcruiser and placed it in the rear of the Kia sedan, He then removed a package from the rear of the Kia sedan and placed it in the rear of the Landcruiser.
- On 19 October 2014, the applicant was under surveillance departing Bridgman Drive at 10.41am in the red Mazda. At 10.45am, he was observed to attend the Reedy Creek Shopping Centre and reverse park his vehicle on the other side of the Landcruiser. The applicant disembarked from his vehicle and spoke to Mr Putt before Mr Putt opened the rear of the Kia sedan, removed the red suitcase and placed it in the rear of the red Mazda.
- At this time, police drove into the carpark and parked an unmarked police vehicle in front of the Landcruiser. Mr Putt, Mr Iti and the applicant were immediately placed under arrest. The applicant was outside of the red Mazda, at the rear of the vehicle near the boot (which was open), when he was arrested. Shortly after the applicant was arrested, but prior to the red Mazda being formally searched, Detective Senior Constable Gavin Briggs saw two mobile phones on the front passenger seat of the red Mazda and took possession of these phones. The red Mazda and the other two vehicles were formally searched by police shortly afterwards.
Evidence adduced at the hearing
- Two police witnesses, Detective Senior Constable Desmond Hilton and Detective Senior Constable Gavin Briggs were called by the Crown and gave evidence by telephone and were cross examined at the hearing before me. A small portion of the closed-circuit television surveillance of the scene of the arrest was played and admitted into evidence together with a bundle of photographs depicting the carpark, the opened red suitcase (with drugs in it) in the boot of the red Mazda.
- Detective Hilton’s evidence was that as a result of surveillance information leading up to the planned meeting between the applicant, Mr Putt and Mr Iti at the Reedy Creek Shopping Centre on the 19 October 2014, police had set up strategic positions with the intention of finalising the operation by making arrests of these men on this day. Detective Hilton was the lead investigator and his role was to arrest Mr Putt. He also swore the warrant to search the applicant’s house which was obtained the day before, but was otherwise not involved in the arrest of the applicant or the search of the red Mazda. He explained that whilst he could have obtained a warrant to search the red Mazda prior to the search, he did not do so because the vehicle was not registered in the applicant’s name but in the name of a female, who it was only discovered towards the end of the operation, prior to the arrest of the applicant, was the applicant’s former partner. Detective Hilton said that even though the applicant had been seen driving the red Mazda on two earlier occasions, the police did not know for certain he would be driving the red Mazda on the day of his arrest. His evidence was that once it was ascertained that the applicant was driving the red Mazda on 19 October 2014, there was not enough lead time to obtain a warrant. Detective Hilton did not elect to obtain a search warrant once the applicant was in custody because “at that stage I’d elected to go with my powers under the PPRA Act section 31”.
- Detective Hilton explained that prior to the planned finalisation of the operation, there was a briefing with a number of officers (up to 10) drawn from a variety of stations throughout the Gold Coast who had been called in to assist. He was unequivocal in his agreement under cross examination, that it was reasonably suspected that the applicant’s phone would contain evidence to suggest he was involved in drug matters; although he could not recall this issue being specifically discussed at the briefing. He accepted that it would be very likely that “anyone” [such as the applicant] would have had their phone on them in these circumstances but he could not recall it being something he was thinking about at the time.
- Detective Briggs was given the role of arresting the applicant. His evidence was that he was in one of the unmarked police vehicles positioned around the corner from the Reedy Creek Shopping Centre on the day. He was being told what was being observed by a surveillance team at the scene, via police radio communications. When the signal was given, he with other police drove in and intercepted the meeting. His evidence as to the arrest was that he exited his vehicle and approached the applicant [who was standing at the rear of red Mazda at the time] and introduced himself. He immediately placed the applicant under arrest, with the usual cautions, for possession of dangerous drugs.
- Detective Briggs was not involved in the formal search of the red Mazda but his evidence was that after the applicant was arrested, he could see the mobile phones through the passenger side window and so he took the phones from the front passenger seat of the red Mazda and he kept possession of them.
Overview of the issues for determination
- The applicant’s argument, that the seizure of the mobile phones was unlawful, is premised on the contention that the red Mazda was searched without a warrant and s 31 of the Police Powers and Responsibilities Act 2000 (PPRA) is not invoked to authorise the search because:
- (a)the police did not stop or detain a vehicle or its occupants within the meaning of s 31(1); and
- (b)the applicant was not in the vehicle when he was arrested within the meaning of s 31(3).
- The applicant contended that if the search is lawful then I do not need to consider the Bunning v Cross discretion. If the search is unlawful, then the applicant argued that the evidence obtained from the mobile phones ought to be excluded in the exercise of my discretion to exclude unlawfully procured evidence on public policy grounds.
Was the search of the red Madza lawful?
- The starting point is s 31 of the PPRA which provides as follows:
31 Searching vehicles without warrant
(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following—
(a) stop a vehicle;
(b) detain a vehicle and the occupants of the vehicle;
(c) search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.
(2) Also, a police officer may stop, detain and search a vehicle and anything in it if the police officer reasonably suspects—
(a) the vehicle is being used unlawfully; or
(b) the person in the vehicle may be arrested without warrant under section 365 or under a warrant under the Corrective Services Act 2006.
(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.
(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) The police officer may seize all or part of a thing—
(a) that may provide evidence of the commission of an offence; or
(b) that the person intends to use to cause harm to himself, herself or someone else; or
(c) if section 32(1)(b) applies, that is an antique firearm.
(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).
- The existence of a reasonable suspicion and the reasonable grounds required under s 31 was not in issue before me. It was also conceded that the “prescribed circumstances” for searching a vehicle without a warrant existed in the present case.
- The alleged unlawfulness of the search in this case is essentially confined to an argument that, regardless of whether the applicant was detained or arrested, the search of the red Mazda occurred when he was outside the vehicle such that neither s 31(1) or 31(3) of the PPRA can be relied on to justify the mobile phones being seized.
Power to search under section 31(1) of the PPRA
- A detailed consideration of the operation of the power to search a vehicle without a warrant under s 31 of the PPRA was undertaken by Jackson J in the decision of R v Keen. In this case, Mr Keen had been identified as a target of an operation involving covert surveillance. During a police briefing earlier on the afternoon of the search in question, police were told that there was a suspicion that Mr Keen was intending to pick up drugs later that afternoon. Two police officers were brought into the operation with the plan that they would make a traffic interception of the vehicle carrying Mr Keen. Subsequently Mr Keen and another man by the name of Mr Hetet, were located by these police officers standing outside but near the rear of a blue Holden Barina motor vehicle. It was stationary on the tarmac at the rear of a service station near the toilets. Not long before they were intercepted Mr Keen and Mr Hetet had been observed by other police driving in the Barina, the inference being they got out of the car at the service station before the police officers arrived. The men were approached by the police officers who identified themselves. Mr Hetet said that he was the driver of the Barina. Mr Keen and Mr Hetet were told they were detained whilst one of the officers conducted the search of the vehicle. Drugs were located in the vehicle, some of which Mr Keen admitted at the time were his. Other police then attended the scene and both men were arrested.
- Jackson J in Keen held that the search of the Barina was unlawful because it was not authorised by s 31 of the PPRA on the basis that Mr Keen and Mr Hetet were not “occupants” of the Barina when the power was exercised. In making this finding his Honour observed:
 In my view, s 31 is plainly intended to alter the law in a way that would interfere with the right of a person to possession of a motor vehicle free from search. The answer to the question as to the extent of the interference with that right conferred by s 31 is not advanced by resort to the principle of legality. The greatest assistance lies in the context in which s 31 appears in the PP&RA.
 One important contextual factor is that the power to search a vehicle, where the vehicle and the occupants are detained, is an exception to the requirement that in general a search warrant must be obtained to search a place. A police officer may apply for a search warrant of a place under s 150 of the PP&RA. A vehicle is a “place” as defined in the dictionary in Sch 6 for the purposes of that section. So, the PP&RA clearly provides for a search warrant to be obtained to search a vehicle as an alternative power of search to a search empowered under s 31.
Second, s 31 operates in circumstances where the exercise of the power to obtain a search warrant may be inapt because there is not enough time to do so before the vehicle and the things suspected to be in it may be moved. This may explain why the power to search is predicated on exercise of the power to detain the vehicle and occupants. That is, it is a power to facilitate search where the vehicle and its occupants might otherwise decamp.
 Third, s 31 is the only section of the PP&RA which refers to an occupant or occupants of a vehicle. Other sections refer to a “person in control of a vehicle” or similar. A person who is not inside a vehicle may be in control of the vehicle.
 Fourth, if a person outside a vehicle when it is stopped or detained by police is an occupant, the limits of the operation of the section are difficult to identify.
 There may be difficulties within cases where occupants get out of a vehicle, before the vehicle and occupants are detained, when the vehicle is being approached by a police officer, but they are not this case. This case was one where the persons detained were not in the vehicle when SC Cameron arrived at the scene.
 In my view, the applicant and Mr Hetet were not “occupants” because they were not inside the vehicle when SC Cameron approached it before the power to detain the vehicle and them was exercised. [Emphasis added]
- The Crown sought to distinguish the decision of Keen on the basis that, in the present case, there was no issue that the applicant had been an occupant of the red Madza, where in Keen “there had been that break in continuity”. In my view, any distinction is one that makes no difference to the applicability of the ratio in Keen as set out in the preceding paragraph, to the present facts. The break in continuity in Keen was that, not long before they were intercepted, Mr Keen and Mr Hetet had been observed by other police driving in the Barina. By the time the two police officers who ultimately detained and then arrested Mr Keen and Mr Hetet arrived at the scene, both men were out of the vehicle. There does not seem to have been any issue that both men had previously been occupants of the vehicle. Prior to the search, Mr Hetet told police he was the driver and during the search Mr Keen admitted that some of the drugs in the vehicle were his. In the present case even accepting that there is video surveillance showing the applicant getting out of the red Mazda, thus accepting he had been an occupant of the vehicle, the uncontroverted facts before me were that the police officers involved who arrested the applicant and conducted the search, did not see the applicant get out of his vehicle at the time.
- The Crown also suggested that the applicant was still in total control of the vehicle, that he was the only person there and can be seen to have the offending piece of evidence. Even if I was to accept these matters as true, they are not, upon the analysis in Keen, relevant to my determination in the present case.
- In my view, the facts of the present case fall squarely within the ambit of those in Keen. The applicant was not seen in the red Mazda by those approaching the vehicle and conducting the search. This is not one of the “difficult” cases flagged by Jackson J in Keen, where the occupants get out of a vehicle when the vehicle is being approached by a police officer. This is a case, as was the case in Keen, where the person detained was not in the vehicle when police arrived at the scene. The decision of Keen is binding on me. Accordingly, on the present facts, the applicant was not an “occupant” within the meaning of s 31(1) of the PPRA because he was not inside the vehicle when Detectives approached the red Mazda, before the power to detain the vehicle and him was exercised.
Power to search under section 31(3)
- This is not the end of my consideration of the unlawfulness of the search in this instance. The applicant raised a further point which was not ventilated in Keen. The applicant’s written and oral arguments point to the legislation being unclear as to whether s 31(3) of the PPRA contains a standalone power to search where the driver or a passenger in the vehicle is arrested or if this section operates as a qualification of s 31(1).
- In Keen, Jackson J identified one internal contradiction in the way s 31(1) is expressed namely that by its express terms, the power to search does not depend on the prior exercise of the power to detain. His Honour ultimately considered that the exercise of the power to detain the vehicle and its occupants, is made a condition of the exercise of the power to search.
- There is also some internal contradiction or as the applicant submits, uncertainty, in the way s 31(3) is expressed. On one view, the power to search in s 31(3) is connected to s 31(3) by there being a reference to the driver or a passenger in “the vehicle” being arrested. The reference to “the vehicle” suggests a reference back to ‘the vehicle” which has been detained in accordance with s 31(1).
- Given the ambiguity upon an ordinary reading of the section, some assistance is gained from the explanatory notes to the Police Powers and Responsibilities Bill 2000 which lead to the Police Powers and Responsibilities Act 2000 being enacted on 23 March 2000. Section 29 of this Act was in identical terms to s 31 in the current PPRA. Relevantly the explanatory notes to this Bill provided as follows [as to the former s 29 (3)]:
Also, subclause (3) provides that if the driver or passenger is arrested for an offence involving something the vehicle and anyone in it maybe be detained and the vehicle and anything in it searched without warrant. [Emphasis added]
If a police officer sees a person wanted for a stealing offence travelling in a vehicle the police officer may stop the vehicle, arrest the person and detain the vehicle and its occupants for the purpose of searching the vehicle and its contents.
- The use of the word “also” in the explanatory notes, suggests that the power in [the former] s 29(3) is in addition to the power in [the former] s.29 (1) and (2).
- The PPRA does not define the term “detained” but it was accepted by the parties that a person who has been arrested in one sense is “detained”. Although, of course, a person detained is not necessarily always arrested. In my view, the distinction between detained and arrested is recognised by the use of these terms separately in s 31(1) and 31(3) of the PPRA. The obvious intent being that once the police have a reasonable suspicion of the prescribed circumstances, they should not be required to arrest a person in order to perform a search. The use of the expression “detained” in s 31(1) (c) plainly allows for a search with a lesser interference to an individual’s liberty. The use of the expression “arrested” in s 31(3) suggests that parliament intended there to be a separate power to search a vehicle without a warrant when a person was arrested. To read the power in s 31(3) otherwise would render it redundant.
- On the above analysis, I am inclined to the view that parliament intended that there be a separate power to search a vehicle without a warrant under s 31(3) in circumstances where an occupant (i.e. the driver or a passenger) is arrested and the vehicle is detained. For example it may be, using the above example from the explanatory notes, it is not the driver but another occupant (i.e. a passenger) who is arrested. Under s 31(3), the police can arrest the passenger and detain the driver and the vehicle for a search without a warrant.
- The applicant submits that assuming s 31(3) provides an alternative power to search in addition to s 31(1), the search in the present case is still unlawful because the applicant was not “in” the vehicle when police arrived at the scene and arrested him. The applicant contends for this interpretation because the section provides expressly that the driver or a passenger in the vehicle be arrested; and that parliament could have referred to the driver “of” or the passenger ‘of” the vehicle but did not.
- The Crowns written outline does not make any reference to the decision in Keen but submitted the argument that s 31(3) requires the driver to be arrested in the vehicle is an incorrect interpretation of the section and has no practical application. In oral argument, this submission was developed along the lines that as long as the applicant has some authority and control of the vehicle (and in this case he did because the surveillance evidence was that he drove the red Mazda to the Reedy Creek Shopping Centre), it did not matter that he was not “in” or “occupying” the vehicle, when he was arrested.
- There is force in the applicant’s argument that the search under s 31(3) is unlawful.
- In my view, the reference to “the driver or a passenger in the vehicle” being arrested in s 31(3), is a reference to an occupant of the vehicle being arrested. In Keen, Jackson J, in concluding that the applicant was not an occupant, did so on the basis that he was not inside the vehicle when the police arrived. This was despite there being evidence from other police that the applicant had been seen in the vehicle shortly beforehand. His Honour analysed the use of the word occupant as used in s 31(1) as follows:
 The ordinary meaning of the expression “occupants of a vehicle” extends to all those in the vehicle, namely the driver and any passengers. However, the scope of the expression becomes more difficult when the person or persons are no longer in the vehicle. For example, the persons in a stationary vehicle may get out, either voluntarily or under instruction from the police officer who has approached the vehicle and detained them for the purpose of exercising the power of search. If they were in the vehicle when the police officer approached the vehicle, in my view, those persons are occupants of the vehicle under s 31. The contrary view would make s 31 unworkable. The Court is “to adopt a construction that will avoid a consequence that appears irrational or unjust.”
 Can a person outside the vehicle at the time that the person and the vehicle are approached by police who is then detained be an occupant? The prosecution relies on the fact that not long before they were intercepted the applicant and Mr Hetet had been observed by other police driving in the Barina. The inference is that they got out of it at the service station, although that was before SC Cameron and SC Hurtz arrived there.
 The word “occupant” might have a different meaning depending on the context where it is used. In some contexts, a person who lives in a house might be described as an occupier or occupant, notwithstanding that they are outside it temporarily. But it would not be a common usage of language to describe a person who is not in a vehicle as an occupant of the vehicle. If a person who is outside the vehicle can be an occupant, where is the line to be drawn? For example, if the vehicle is parked and the person goes elsewhere to attend to business but intending to return within minutes, is he or she an occupant? What if it is hours, or longer? What if the vehicle is parked overnight in a garage, or driveway, or on the street? [Emphasis added]
- In construing s 31(3), I am to avoid a consequence that appears irrational or unjust. In my view, given the finding by Jackson J as to the meaning of occupant in 31(1), I ought to construe s 31(3) in a similar way, to avoid inconsistency and confusion in relation to the conducting of searches of vehicles without a warrant.
- It is unlikely that parliament would have intended that the outcome of the power under s 31 was that police could not search a vehicle without a warrant where a person had been detained out of the vehicle, but could lawfully search a vehicle in the same circumstances, if they arrested the person. There was no evidence from the police, in the present case, that there was any difference in the power to search a vehicle without a warrant based on whether a person was arrested or detained.
- This interpretation is consistent with the objectives of the legislation as contained in the Explanatory Notes to the 2000 Bill which provided as follows:
“Objective of the Legislation
The Police Powers and Responsibilities Bill 2000 ("the Bill") completes the process of consolidation of police powers which commenced with the passing of the Police Powers and Responsibilities Act 1997 ("PPRA 1997") but due to time limitations was not completed.
The legislation has a number of objectives which are—
- to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;
- to provide powers necessary for effective modern policing and law enforcement;
- to provide consistency in the nature and extent of the powers and responsibilities of police officers;
- to standardise the way the power and responsibilities of police officers are to be exercised;
- to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Bill; and
- to enable the public to better understand the nature and extent of the powers and responsibilities of police officers.
Additionally, the Bill seeks to rectify any technical defects contained in the PPRA 1997.
Consequently, the Bill provides a central reference point for police and the general community, enabling them both to understand the nature and extent of police powers. This consolidation results in the added benefit of consistency both in the extent of police powers and in the respective safeguards”. [Emphasis added]
- It follows, in my view, that the applicant was not “a driver or a passenger in the vehicle” within the meaning of s 31(3) of the PPRA, because he was not inside the vehicle when police approached the red Mazda, before the power to arrest him and detain the vehicle was exercised.
- If I am wrong about the power under s 31(3) being a standalone power, it follows, given my earlier findings, that the applicant was not an occupant of the vehicle when the power to detain under s 31(1) was exercised, the pre-condition to s 31(3) [i.e. that the vehicle and the occupants of the vehicle have been detained], is not enlivened.
Conclusion on the lawfulness of the search of the vehicle
- Upon the above analysis, in my view, the search was unlawful because it was not authorised by s 31(1) or 31(3) of the PPRA.
The discretion to exclude unlawfully obtained evidence
- Having reached the view the search was unlawful, the question for my determination remains whether the evidence obtained from the mobile phones seized in the search ought to be excluded from evidence. The applicant does not seek to have any other evidence obtained in the search excluded in the exercise of my discretion.
- The relevant principles are not controversial. What is required is the weighing of competing public interests. One is “the desirable goal of bringing to conviction the wrongdoer.” Another is “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.”
- Justice Applegarth identified and summarised the relevant principles in R v Versac. The discretion “is necessary to protect the processes of the courts of law in administering the criminal justice system.” This judicial integrity principle holds that courts should not admit the tainted fruits of unlawful conduct, lest the administration of justice be brought into disrepute. The discretion also serves the policy of deterring unlawful conduct by those entrusted with powers of law enforcement.
- A number of relevant factors have been identified by Australian courts in the exercise of the public policy discretion to exclude evidence. Some factors support exclusion, whilst others support admission. The factors include:
- (a)Whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
- (b)The cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
- (c)The importance of the evidence in the proceeding;
- (d)The nature and seriousness of the offence;
- (e)The nature of the unlawful conduct;
- (f)Whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
- (g)How easy it would have been to comply with the law.
- The weight given to competing factors depends on the circumstances.
- Barwick CJ described the nature of the balancing exercise in Queen v Ireland as follows:
On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.
Should the mobile phone evidence be excluded?
- The applicant submits the balance favours exclusion of the mobile phone evidence in this case for a number of reasons, including that:
- (a)Police need to be careful when using highly invasive powers and should be familiar with the limits of those powers;
- (b)When a drug transaction is long anticipated there is no excuse for failing to refresh ones understanding of the provisions of the relevant legislation and to giving thought to the obtaining of a warrant;
- (c)The phones taken in the search were not on the applicant’s person and the applicant was not at the time of his arrest in the car containing the phones. There was therefore obviously no risk of loss of the evidence which the phones might contain;
- (d)The offence of trafficking is a serious one but this particular case involves a second schedule drug cannabis; and it is not alleged that the applicant was at the apex but rather was one level above a street dealer;
- (e)The case against the applicant will not fail entirely if the phone evidence is excluded;
- (f)The search of a phone is a significant breach of privacy more so than most items a person is likely to have in their immediate possession, and the courts should insist on adherence to proper processes;
- (g)Police who fail to take reasonable steps to comply with legislative requirements should not be able to take any comfort from an expectation that laxity on their part will be mirrored on the part of the court; and
- (h)In the particular circumstances of this case, because the police had precise information about the expected timing and nature of the activities at the Reedy Creek Shopping Centre and there was a possibility that the applicant’s mobile phones would be located in his car after his arrest, the proper course was to have obtained a warrant beforehand.
- The Crown contended that, if the search is unlawful, I ought not to exclude the evidence obtained from the mobile phones because the conduct of the police, in not obtaining a warrant was due to a misunderstanding of the operation of s 31 of the PPRA and was not dishonest or deliberate.
- The evidence before me was that the police considered they had the power to search without a warrant based on their general understanding of their powers under s 31 of the PPRA.
- Detective Hilton gave evidence that in arresting the applicant, he was relying generally on the powers under the PPRA to stop and detain and search a person’s vehicle. He considered that if a police officer had a reasonable suspicion that a vehicle might have drugs in it, that was sufficient to allow a search of the vehicle. When asked under cross examination about whether he considered there was any difference between the sole occupant being outside the vehicle at that time, he said:
Given – no. It’s not something I considered an issue at the time, given his proximity. He was – in my mind, he was still at the vehicle, he was still in control of the vehicle, he hadn’t left the vehicle. In fact, he simply got from the driver’s seat and moved to the back of the vehicle, where he was interacting with someone else, and things were being moved between the vehicle. So, you know, my understanding at that time, and still is, that he was in control of that vehicle, and that’s the definition of a driver.
- His later evidence was that, in hindsight, he could have obtained a warrant beforehand or afterwards, but he did not do so as he relied on s 31, as he believed he had the power to detain and search the red Mazda on his reasonable suspicion that there were drugs in the vehicle. His evidence was that the anticipated reliance on s 31 was not discussed at the briefing, but that it was discussed after the arrest had been made, when he requested Detective Sergeant Goulding to supervise or conduct searches of the vehicles involved, under s 31.
- It was reasonable to expect the applicant would be attending the meeting in the red Mazda and that he would have his mobile phones with him. It was also reasonable for the police to have known that the arrest would take place when the applicant was somewhere out of his car, after the drugs had been exchanged. Indeed that appears to have been the plan as executed by the police. A search warrant for the applicant’s house and any devices located there was obtained the day before.
- In these circumstances, there was, in my view, no satisfactory explanation as to why an attempt at least was not made to obtain a warrant for a search of the red Mazda before the search of the vehicle.
- It was not argued by the applicant that the search was unlawful because the vehicle was not detained. Whilst there was no evidence before me that the applicant was told his vehicle was being detained for a search, it was accepted by the applicant’s counsel during oral argument, that there was a physical impediment to the vehicle leaving because police vehicles had driven in front of it. There was no evidence before me as to what happened with the keys to the red Mazda. Or what happened to the vehicle after the applicant was arrested and taken into custody. There was a suggestion by the Crown during oral submissions that the vehicle was impounded, but this did not accord with the applicant’s instructions to his counsel that the red Mazda was left at the Reedy Creek Shopping Centre for a few days. Relevantly, there was no evidence whatsoever that there was any concern about evidence being destroyed. In my view, there was no satisfactory reason (apart from a lack of understanding of the limits on the power to search under s 31 of the PPRA), for the mobile phones not to have been secured and a warrant then obtained to search their contents.
- Detective Briggs could not recall the topic of the specific power to be relied on to search the vehicles being raised at the briefing. His evidence was that whilst no one was in the vehicle when he removed the mobile phones, he considered he had power to seize the phones because the vehicles had been detained for a search in relation to the investigation of drug trafficking. The following exchange took place before me:
All right. Did that circumstance seem important to you that there was no one in the vehicle when you removed an item from it?‑‑‑It would have been a different story if the vehicle was locked and there was no one staying there. The vehicle was open and the driver was standing at the rear of the vehicle.
All right. Now, he was not occupying the vehicle, was he?‑‑‑No, he was not.
And he was not in the vehicle, was he?‑‑‑No, he was not.
Okay. But your understanding was it didn’t matter because he was still in de facto control of the vehicle; is that correct?‑‑‑That’s correct. [Emphasis added]
- Later, under cross examination, Detective Briggs said his understanding of the power to search a vehicle without a warrant was that if a vehicle was locked and unattended or some other person or the owner was not present at the time, a warrant was required. He also said that if the person has just been observed in the vehicle, getting out of the vehicle or staying beside the vehicle, then the vehicle could be searched in the presence of that person. Detective Briggs said that he had performed other similar searches relying on this power.
- In Keen, Jackson J considered that the unlawful search of the Barina did not involve a deliberate or reckless disregard for the law by the police. His Honour referred to the unlawfulness being based on the proper construction of the meaning of s 31 which had not been previously considered (to his knowledge). The following comments of Jackson J in Keen are particularly apposite to the issue of police knowledge of the limits on their powers under s 31:
 Although the police conduct may not be characterised as reckless, an unauthorised search of a vehicle does involve serious disregard of the statutory constraints on the exercise of an invasive power of search. The law provides such constraints in relation to obtaining a search warrant, or the exercise of the power to search a vehicle without warrant. It is an important policy consideration that the constraints are to be upheld and observed by the police. It is, therefore, important that the power under s 31 to search a vehicle without warrant is to be exercised only where there are occupants of the vehicle and when the vehicle and its occupants have been detained.
 There is no evidence in the present case that the failure to recognise that the applicant and Mr Hetet were not occupants was a matter of an established or systemic failure of police procedure. The appropriate procedure is one for which police officers in higher authority than SC Cameron would be responsible. The only instances of a similar problem brought to the Court’s attention were the unlawful searches in Versac and Pohl. If it emerges that there are continuing or systemic failures by police to observe the limit on the power to search under s 31 that there must be occupants of the vehicle, the Court may take that into account in exercising the discretionary power to exclude evidence unlawfully obtained. There was no evidence of that kind in the present case. [Emphasis added]
- In Keen, the evidence was vital to a successful prosecution. In refusing to exclude the evidence, his Honour considered that the public interest in bringing a wrongdoer to justice and the factors favouring admission of the evidence, outweighed the factors supporting its exclusion.
- The decision of Keen was decided on 15 February 2015, over two years ago. This of course was after the search conducted in the present case.
- The recent decision of R v P concerned (amongst other facts and issues) a search of a parked van without a search warrant. One of the men near the van when police arrived identified himself as the owner of the van and was detained so that the van could be searched without a warrant. Applegarth J noted with reference to Keen, that contrary to the evidence of the police officer involved, s 31(1)(b) and (c) did not authorise a search of the van without warrant because “the vehicle and its occupants had not been detained”. In exercising his discretion to exclude the evidence obtained from the van his Honour said relevantly:
 If, as I have found, senior and experienced police were ignorant of the law governing searches of unoccupied vehicles, then their ignorance is seemingly attributable to a lack of education and training of officers.
 The issue about the limit on the power to conduct a search without warrant of a vehicle under s 31 is hardly novel. A series of decisions of this Court have involved the same or similar issues: Versac, Pohl, Toon and Barbaro.
- Later in in R v P, Applegarth J said:
Their conduct in undertaking a warrantless search without giving any proper regard to whether the search was illegal seemingly is the result of a system in which police officers do not know any better. The respondent did not lead any informative evidence about what steps had been taken in recent years to educate or re-educate police officers about the limits of their power to conduct warrantless searches of vehicles. The need to search vehicles, both occupied and unoccupied, is a routine part of police work. The limit on the power to search under s 31 is not an obscure point of law. That experienced police officers should conduct unlawful searches of vehicles because, seemingly, they know no better may explain their conduct. However, it places the focus on those in higher authority in the police force who apparently tolerate such unlawful conduct. That such conduct is apparently tolerated by those in higher authority in the police force is a factor which supports exclusion. [Emphasis added]
- In the present case, and despite decisions such as Keen and R v P, both Detective Hilton and Detective Briggs revealed a current lack of knowledge and a misunderstanding of their power to search a vehicle without a warrant within the confines of s 31. They both made reference to the applicant being in “defacto control” of the vehicle – an issue that is not relevant to the power to search a vehicle without a warrant under s 31 of the PPRA.
- Ordinarily, the failure by police to observe the limits of their powers to search a vehicle without a warrant is a factor favouring the exclusion of the evidence. Whilst I am concerned about the present understanding of the police involved in relation to their powers to search a vehicle without a warrant, it is difficult to be too critical of them in this case, as their conduct was carried out at a time when the meaning of “occupant” under s 31 of the PPRA had not been decided by a Court. In my view, the unlawful search of the red Mazda in the present case did not involve a deliberate or reckless disregard for the law by the police involved. However, I would expect that further failures by police to observe the limit on their power to search under s 31, may be taken into account in exercising the discretion to exclude unlawfully obtained evidence.
- The unlawful seizure of the mobile phones involved an invasion of the applicant’s property and privacy rights and supports the exclusion of the mobile phone evidence. Such an invasion of rights must be balanced against competing policy considerations. The evidence obtained from the mobile phones seized is not vital to a successful prosecution of the applicant for this offence or the 3 other offences for which he has been charged. It is however plainly cogent to the length of the trafficking period in this case. Trafficking in drugs is a serious offence which supports the admission of the evidence.
Conclusion in relation to the discretion to exclude the phone evidence
- On balance and in the particular circumstances of the present case, I consider that the public interest in bringing a drug offender to justice and the factors favouring admission of the mobile phone evidence, outweigh the factors supporting its exclusion.
- Accordingly, I dismiss the application.
- The application is dismissed.
 During the course of the hearing before me Counsel for the applicant identified that only one phone was found to contain relevant evidence and nothing turned on whether the phones were referred to in the singular or the plural, but that the application is to exclude the evidence obtained from both of the mobile phones seized.
 R v Keen  2 Qd R 1 at pages 4 and 5 per Jackson J.
 This document is part of the Crown’s six page written outline.
 The evidence that the phones were seized in this way as opposed to in the subsequent search of the car came out under during the cross examination of Detective Senior Constable Briggs. It was accepted by the parties that this fact made no material difference to my considerations as to the lawfulness of the search and the seizure of the phones.
 The disc of the footage is exhibit 6 and the bundle of photos is exhibit 5.
 Section 32 PPRA lists the prescribed circumstances for exercising the powers in s 31, including if the person has something that might be a weapon, or drugs, or stolen property, or evidence of an offence for which the maximum penalty is seven years or more and it may be concealed or destroyed, or housebreaking or vehicle stealing implements, or items with which the person intends to cause harm to self or others, or if the person has or is committing specific offences or has evidence of specific offences.
 An argument that the search was not for one of the prescribed circumstances set out in s 32 PPRA was maintained in paragraph 13 b. of the written outline filed on behalf of the applicant but was abandoned by counsel for the applicant during the course of the hearing.
  2 Qd R 1;  QSC 7.
 R v Keen (supra) at pages 8 and 9.
 Sections 41(k), 56(2), 58(5), 60, 61(2), 62(1), 67(1), 67(2), 68(1), 68(2), 124(2),124(3), 125(1)(a),125(10(b),125(1)(d),125(2)(b) and 125A(2).
 PPRA Sch 6; Road Use Management Act 1995 Sch 4.
 T1-50 line 4.
 R v Keen (supra) at pages 6 and 7.
 This amendment took effect on the 1st of July 2006 by virtue of the Police Powers and Responsibilities and Other Acts Amendment Act 2006.
 Although the word “also” does not appear at the beginning of s 29(3).
 Submission on behalf of the respondent Crown at [paragraph 21].
 See for example in a different context, Woolford v The Nominal Defendant  1 Qd R 465, 476.
 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, ; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321.
 R v Versac (2013) 227 A Crim R 569;  QSC 46 at  to  ; R v Pohl  QSC 173 at  – ; R v Milos  QCA 314,  –  and .
 Bunning v Cross (1978) 141 CLR 54 at 74.
 R v Keen (supra) at  to .
 Nicholas v The Queen (1998) 193 CLR 173 at 217.
 R v Lobban  SASC 48; (2000) 112 A Crim R 357 at 367  – ; Pollard v The Queen  HCA 69; (1997) 176 CLR 177 at 203; Ridgeway v The Queen  HCA 66; (1995) 184 CLR 19 at 32; The Queen v Swaffield  HCA 1; (1998) 192 CLR 159 at 175-180, 190-191, 212.
 Ridgeway v The Queen (supra) at 32; The Queen v Swaffield (supra) per Brennan CJ at 176-182.
 Bunning v Cross (supra) at 78-80; See also summary by Applegarth J in R v Versac (supra) at .
 Ridgeway v The Queen (supra) at 39.
 The Queen v Ireland  HCA 21; (1970) 126 CLR 321 at 335.
 T 1-27 lines 12-17.
 T 1-38 lines 1-11.
 T 1-39 lines 22-23.
 R v Keen (supra) at page 13.
 R v Keen (supra) at pages 12 and 13.
  QSC 49 at  - .
 Ibid at . Although the issue is not one that arises for my determination in the present case, Applegarth J considered that s 160 did not provide authority to conduct the search which was undertaken because there was no reasonable suspicion that evidence may be concealed or destroyed. A post search approval under s 161 was also found not to render the unlawful search lawful  to .
 Ibid at  – .
 R v Verscac  QSC 46.
 R v Pohl  QSC 173.
 R v Toon  QSC 117.
 R v Barbaro  QSC 346.
 R v P supra at 105.
 R v Keen (supra) at page 13.
 R v N  QSC 91  – .
- Published Case Name:
The Queen v Steel
- Shortened Case Name:
The Queen v Steel
 QDCPR 18
25 May 2017