Letasha May Spilsbury v The Queen
[2017] QDCPR 36
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- Unreported Judgment
- Letasha May Spilsbury v The Queen[2017] QDCPR 36
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Letasha May Spilsbury v The Queen[2017] QDCPR 36
Letasha May Spilsbury v The Queen[2017] QDCPR 36
DISTRICT COURT OF QUEENSLAND
CITATION: | Letasha May Spilsbury v The Queen [2017] QDCPR 36 |
PARTIES: | LETASHA MAY SPILSBURY (Applicant) v THE QUEEN (Respondent) |
FILE NO/S: | 179/17 |
DIVISION: | Criminal |
PROCEEDING: | Application pursuant to s 590AA Criminal Code |
ORIGINATING COURT: | District Court at Toowoomba |
DELIVERED ON: | 1 December 2017 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 13 November 2017 at Toowoomba |
JUDGE: | Lynch QC DCJ |
ORDER: | In relation to the trial of Letasha May Spilsbury on two charges of unlawfully supplying dangerous drugs:
|
CATCHWORDS: | CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE IMPROPERLY OBTAINED – where applicant charged with two offences of supplying a dangerous drug – where police intercepted applicant’s vehicle on the basis that it was an unregistered vehicle – where police then conducted search of the applicant’s vehicle on the basis of police observations of the applicant – where body worn camera was activated after search of the vehicle – whether the police formed a reasonable suspicion that there was an unlawful dangerous drug in the applicant’s vehicle – whether the police search was authorised under s 31 and s 32 Police Powers and Responsibilities Act – whether evidence obtained in the course of police search of vehicle and seizure of mobile phone should be excluded in the exercise of judicial discretion Criminal Code 1899, s 590AA Evidence Act 1977, s 130 Police Powers and Responsibilities Act 2000, s 29, s 30, s 31, s 32, Schedule 6 Bunning v Cross (1978) 141 CLR 54 R v Ireland (1970) 126 CLR 321 R v Toon [2015] QSC 117 |
COUNSEL: | J. Jacob for the applicant S. Petrie for the respondent |
SOLICITORS: | Bouchier Khan for the applicant Director of Public Prosecutions for the respondent |
Application
- [1]The applicant is charged on indictment before the District Court at Toowoomba with two offences of supplying a dangerous drug.
- [2]This is an application pursuant to s 590AA of the Code for a pre-trial ruling that all evidence obtained as a result of the search of a vehicle being driven by Letasha May Spilsbury on 5 September 2016, be excluded from the trial on those counts.
- [3]I have reached the view that the searches of the applicant’s car and phone were unlawful and that evidence obtained in the course of those searches should be excluded from the trial. These are my reasons for so finding.
Evidence
- [4]The charges allege that on 3rd and 4th of September 2016, at Toowoomba or elsewhere in the State of Queensland, the applicant unlawfully supplied the dangerous drug methylamphetamine to another person.
- [5]On 5 September 2016, police officers acting Sergeant Mahoney and Constable Bratt of Goombungee Police Station were driving in a marked police vehicle in Toowoomba. They observed the applicant who was driving a white Mitsubishi vehicle bearing Northern Territory registration plates. They saw the vehicle waiting to turn from Chamberlain Street into Ruthven Street. Constable Bratt says he performed a registration check that indicated the vehicle was unregistered, he then advised Sergeant Mahoney who turned the police vehicle in order to intercept the applicant. That occurred in Chamberlain Street. The applicant was the sole occupant of the Mitsubishi.
- [6]Constable Bratt says he then spoke to the applicant who produced a Northern Territory driver licence. The first statement of Constable Bratt dated 30 November 2016 (admitted as Exhibit 4), reads as follows:
I observed that (the applicant) was overly co-operative whilst speaking to her in relation to her vehicle. I formed a reasonable suspicion that there may be dangerous drugs in the vehicle and subsequently detained Spilsbury for the purpose of a person and vehicle search.[1]
Constable Bratt records in his first statement that he then searched the vehicle and located a small cloth case between the front passenger seat and the console. This case contained a glass pipe, a clip seal bag containing white crystal substance, several straws and pieces of foam.[2] Constable Bratt’s statement continues: “I also observed a mobile phone that Spilsbury stated belonged to her which Sergeant Mahoney searched through”.[3] Constable Bratt then located a small set of scales in the vehicle glovebox. His statement records that he then spoke with Sergeant Mahoney.[4]
- [7]Constable Bratt’s first statement says he then spoke with the applicant and activated his body worn camera whilst he did so. The recording is in evidence as Exhibit 9. Constable Bratt also arranged for photographs to be taken of text messages located on the mobile phone seized from the applicant. These are in evidence as Exhibit 8.
- [8]Constable Bratt prepared a second witness statement dated 7 September 2017 (admitted as Exhibit 6). In this statement, Constable Bratt describes that when he approached the applicant’s vehicle he observed she was “moving in her seat, and appeared to be reaching around the front area of the vehicle”. Constable Bratt also describes that he regarded her reaction to receiving a ticket for driving an unregistered vehicle as “not normal” and suspicious because she was “very happy”.[5] He also described seeing a butane lighter in the vehicle which he knew to be “the usual method of heating methylamphetamine pipes.” He says he asked the applicant “What do you use this for?” and she became quite nervous and replied “Oh, it’s just for cigarettes”. Constable Bratt says he observed several BIC brand lighters in the car door and said to the applicant “But you have these” however the applicant did not respond.[6] Constable Bratt also describes that when the applicant was answering Sergeant Mahoney’s questions she seemed nervous and quite guarded in her answers and appeared to be thinking carefully before answering simple questions.[7] Constable Bratt also claimed the applicant kept “glancing away” towards the passenger side of the vehicle whilst speaking to police.[8] Constable Bratt says for these reasons he “formed reasonable suspicion that there may have been dangerous drugs in the vehicle” and that the applicant “appeared to be under the effects of a dangerous drug”.[9] Constable Bratt says he therefore requested other police attend to conduct a roadside drug test and this was done.[10]
- [9]Constable Bratt was the only witness to give evidence on the hearing of the application. In evidence Constable Bratt acknowledged the applicant may have challenged whether her vehicle was still registered in the Northern Territory when first spoken to.[11] Constable Bratt said he had not met the applicant previously, that he received no intelligence relating to the applicant even after running a check of her name, and that she had no relevant criminal history.[12] Constable Bratt said the applicant told him she was a smoker when he asked about the butane lighter and may have shown him a packet of cigarettes; he acknowledged finding cigarettes in her car.[13] Constable Bratt said although he saw the applicant moving about in her vehicle he could not say what she was doing but suspected she may have been hiding something.[14] Constable Bratt said it was he who detained the applicant for search and that he did not hear Sergeant Mahoney ask the applicant whether there were any drugs in the car.[15] Constable Bratt said that the applicant was detained and then directed to exit the vehicle for the search and she retained possession of her phone when she exited; she was not directed to relinquish the phone.[16] Constable Bratt also gave evidence that his search of the vehicle located a plastic bag that contained 0.367 grams of substance that was tested and found to contain methylamphetamine in an unknown concentration.[17]
- [10]The witness statement of acting Sergeant Mahoney dated 11 December 2016, was admitted as Exhibit 5. Sergeant Mahoney records that as he approached the applicant’s vehicle, she:
… was moving frantically about the vehicle moving items. I saw that the occupant was glancing back frequently as we approached and it appeared to me that she was hurriedly putting items out of plain sight before we arrived in a position to observe the items.[18]
Sergeant Mahoney says that he subjected the applicant to a breath test and that the applicant “was nervous as she had a slight tremble in her hands and voice” and “ was moving her phone frequently from her hands to her lap and next to her and back into her hands and so on”.[19] Sergeant Mahoney’s statement then says the applicant appeared short of breath and that she had stopped moving items when he was in a position to see into the car.[20] Sergeant Mahoney says he then asked the applicant “Are there any drugs or drug utensils in the car?” and the applicant replied “Um, I don’t think so” and looked about the car. Sergeant Mahoney says he found this behaviour very suspicious.[21] Sergeant Mahoney says he then asked the applicant where she had come from and she was “apprehensive” when answering that she had visited a friend in the street and was travelling to pick up her child from day care.[22] Sergeant Mahoney says the applicant then “continued to fidget with her phone” and was “continuously glancing” at items on the passenger’s side of the car. He then believed they were items she had recently moved.[23] Sergeant Mahoney says he then “formed the suspicion that there were drugs and or drug utensils in the vehicle”.[24]
- [11]Sergeant Mahoney says he stayed with the applicant whilst Constable Bratt searched the vehicle. Sergeant Mahoney says the applicant was attempting to use her phone so he became suspicious, seized it and then searched the messages.[25] A file note of a conversation with Sergeant Mahoney was admitted by consent (Exhibit 7). That file note records Sergeant Mahoney as describing that he seized the applicant’s phone because she was using it “covertly and shadily” such that he believed she was attempting to contact someone to warn them of something; he thought by text message. The file note also records Sergeant Mahoney as describing the applicant telling him she was trying to contact her mother to pick up her child but his view was that that reason did not match up with her demeanour.
- [12]The text messages located on the applicant’s mobile phone are the basis of the charges of supplying dangerous drugs. The text messages are depicted in photographs taken of the applicant’s mobile phone (Exhibit 8). A message sent from the applicant’s phone on Saturday at 6.37pm includes “Hey it’s Tash … for two it 150 and I can come up you that all good”. An apparent reply to that message reads “No worries! That would be awesome thank you!” and provides an address. A later apparent exchange of messages from 8.02pm on Saturday show arrangements as to meeting times. These messages are the basis of count 1. A message sent to the applicant’s phone on Sunday at 4.30pm includes “Hey Tash it’s Brooke again, was wondering if I could get another 2 p this afternoon at all?”. An apparent reply to that message sent from the applicant’s phone reads “Hey I’m out in crows nest for the night I can see if I can race back in…”. A later message to the applicant’s phone sent on Sunday at 7.45pm reads “Thank you for your help this evening! Much appreciated.” The apparent reply from the applicant’s phone reads “All good Hun sorry I wasn’t in there he my best mate so luckily he was in town.” The apparent reply to that message reads “All good! It all worked out well and yeah he seems pretty cool.” These messages form the basis of count 2.
Submissions
- [13]The applicant submits the search of the vehicle and the applicant’s phone were unlawful, not being authorised under sections 31 and 32 of the Police Powers and Responsibilities Act 2000 (PPRA). The applicant submits that in consequence, the evidence of the discovery of drugs and drug related items located in the car and the text messages located on the phone should be excluded in the exercise of the public policy discretion.
- [14]The applicant submits those provisions authorise the search of the applicant’s car and/or phone only where a police officer “reasonably suspects” that “there is something in the vehicle that … may be an unlawful dangerous drug”. The applicant submits that the claimed grounds upon which the suspicion was formed were not reasonable in the circumstances and the search was thus not authorised.
- [15]The applicant submits that the various bases for suspicion provided by Constable Bratt are simply not reasonable. The applicant submits that Constable Bratt at first only claimed a reasonable suspicion based upon the applicant being overly co-operative. The applicant submitted that this developed to include the other matters set out in his second statement. As to these matters, the applicant pointed out that Constable Bratt conceded that when questioned, the applicant insisted her vehicle was still registered in the Northern Territory, that she told him she was a smoker, that he found cigarettes in her car, and that he did not hear Sergeant Mahoney ask the applicant whether there were any drugs in her car before he detained the applicant for the purpose of the search. It was submitted that Sergeant Mahoney’s claimed bases for reasonable suspicion as to the presence of drugs were also not reasonable.
- [16]The applicant submitted the evidence did not show any basis for a reasonable suspicion which might have authorised the search of the car or the phone. Alternatively, the applicant submitted that, even if the search of the car were authorised, the search of the phone remained unauthorised and unlawful. It was submitted that the terms of s 31(1)(c) of the PPRA permitted the search of an item within the vehicle only for the purpose for which the person was detained. In this case, it was argued, since the applicant was detained in order to determine whether there were dangerous drugs in the car, a search of the content on the phone could not have been relevant to that purpose.
- [17]The applicant submitted that pursuant to s 130 of the Evidence Act 1977, or applying the test identified in Bunning v Cross,[26] evidence of the items located in the car or the messages on the phone should be excluded. In particular, it was submitted the evidence showed, at best, a reckless disregard of the law relevant to a power to search which amounted to a clear violation of the legislative intent. It was submitted that whilst the charges are to be regarded seriously, the current allegations were not of themselves serious examples of these types of offences. It was submitted that public policy considerations weighed in favour of excluding the evidence.
- [18]The respondent submitted that the matters noted by Constable Bratt were sufficient to justify a reasonable suspicion of the presence of dangerous drugs in the vehicle. It was submitted his search of the vehicle was therefore authorised pursuant to s 31 of the PPRA. The respondent also submitted that since the search of the vehicle was lawful, the search of the phone by Sergeant Mahoney was also lawful pursuant to s 31(5)(a) which permitted seizure of “all or part of a thing … that may provide evidence of the commission of an offence”.
- [19]Alternatively, the respondent submitted that even if the search of the vehicle was not authorised pursuant to s 31 of the PPRA, the seizure and search of the phone by Mahoney was lawful pursuant to s 29 of the PPRA. It was submitted that pursuant to ss 29 and 30, Sergeant Mahoney’s search was justified because he reasonably suspected the applicant had something that may be evidence of the commission of a seven year drug offence, such as possession or supply of a dangerous drug. The circumstances said to give rise to Sergeant Mahoney’s reasonable suspicion were that he saw the applicant moving around in her car, she appeared short of breath, she appeared nervous, she had a slight tremble in her hands, she was moving her phone between her hands, she did not categorically deny the presence of drugs in her car, she was looking away, and she was apparently trying to use her phone. The respondent submitted the seizure and search of the phone was lawful.
- [20]The respondent also submitted that, even if the search of the car and phone were not lawful, the court would nevertheless admit the evidence of those searches in exercise of the public policy discretion. It was submitted the police officers acted in good faith and without reckless disregard for the law. It was submitted the seriousness of the charges and the undiminished cogency of the evidence weighed in favour of its admission.
Consideration
- [21]Constable Bratt, in his first statement, explained only that his suspicion relied upon his view that the applicant was “overly co-operative” when being issued with a traffic offence notice. This could not logically found a reasonable suspicion there were drugs in the applicant’s vehicle so as to justify his search. In his later statement, Constable Bratt asserted his suspicion was based upon the applicant moving about in her car, her being “very happy” about receiving a traffic ticket, his seeing a butane lighter, her appearing nervous when questioned, and her glancing away.
- [22]In evidence, Constable Bratt denied hearing Sergeant Mahoney ask the applicant whether there were drugs in the car or hearing her alleged response “I don’t think so”. That alleged statement could not therefore have founded any reasonable suspicion by Constable Bratt. Constable Bratt acknowledged in evidence the applicant actually challenged the claim her car was unregistered; which would seem contrary to his opinion she was overly co-operative and very happy. In addition, Constable Bratt accepted the applicant said she was a smoker when questioned about the lighters and he acknowledged finding cigarettes in her car.
- [23]That someone might appear nervous when questioned by police is hardly surprising and not of itself a reasonable ground to suspect they possess drugs. Constable Bratt also claimed the applicant looked like she was drug affected and arranged for another officer to attend and test her. It is to be assumed she was not in fact drug affected since no further evidence as to this issue was led. On the evidence then, most of the bases for Constable Bratt’s suspicion as to the presence of drugs in the car are diminished in significance.
- [24]However, even accepting these observations were actually made by Constable Bratt, I am not satisfied they provide a basis for a reasonable suspicion. The term “reasonably suspects” requires that a person “suspects on grounds that are reasonable in the circumstances”.[27] The combination of features here do not amount to grounds that are reasonable for suspecting the presence of drugs in the car. At most they might show the applicant to be a nervous person, prone to moving about, particularly when stopped and questioned by police officers. Such a reaction might be expected even of a citizen who has absolutely nothing to hide. The presence of multiple cigarette lighters is unexceptional.
- [25]Sergeant Mahoney’s observations should be regarded in a similar way. He too claimed the applicant was moving around, looking away, seemed nervous, was short of breath, appeared apprehensive, kept moving her phone in her hands, attempted to use her phone, and her demeanour did not match her claim she had been trying to contact her mother about collecting her child. His observations of the applicant appearing nervous or fidgeting are of themselves of no moment. That the applicant was short of breath may have been from nerves or due to the breath test. In his statement, Sergeant Mahoney says he permitted the applicant to use her phone to contact her mother to arrange for her child to be picked up. This makes his suspicion as to her demeanour difficult to understand. Although Sergeant Mahoney expresses his own opinions as to the reasons for the apparent nervousness or behaviour of the applicant, collectively they do not amount to grounds for a reasonable suspicion that there were drugs in the car or on the applicant’s person.
- [26]Sergeant Mahoney also claims the applicant did not categorically state there were no drugs in the car when asked. However, her answer does not of itself raise grounds for reasonable suspicion as to her possession of drugs. For example, she may not have been the only user of the vehicle or may have had knowledge that a drug user had recently been in the car. Even taken together with the other matters relied upon by Sergeant Mahoney, I am unpersuaded any reasonable basis existed for suspecting the presence of dangerous drugs.
- [27]On the account of Constable Bratt, after he had made the observations relied upon, formed his suspicion, and searched the applicant’s car, he activated his body worn camera and recorded his conversation with the applicant. On Sergeant Mahoney’s account of things, all of his relevant observations of, and conversations with the applicant, also occurred prior to Constable Bratt activating the recording device. I have watched this footage. Of significance is that none of the things allegedly observed by the officers and which aroused their suspicion, or any of the conversations they relied upon, were put to the applicant for her to comment upon. This is surprising if they were the matters which legitimately gave rise to suspicion. No explanation is provided as to why the device was not activated from the outset. Instead of providing the court a recording of all relevant events and conversation which might confirm the observations of the police officers, the court is asked to simply accept their account of things as accurate. This includes assertions that reasonable suspicion was based upon opinions such as the applicant appearing nervous, or apprehensive, or fidgeting, or glancing away. In this case the court is asked to accept these opinions in circumstances where one of the police officers has completely altered his account as to why he formed the necessary suspicion.
- [28]It follows from these observations that I am not satisfied any basis existed to form a suspicion on grounds that are reasonable in the circumstances. In particular, I am not satisfied the search of the vehicle was authorised by ss 31 and 32 of the PPRA. I am not satisfied the seizure and search of the phone was authorised by any of sections 29, 30, 31, and 32 of the PPRA. Accordingly, I find the search of the vehicle and the seizure and search of the phone was unlawful.
- [29]The test established in Bunning v Cross requires weighing of the competing public interests of, on the one hand, seeing offenders convicted and punished and, on the other, ensuring that those whose task it is to enforce the law themselves follow it.[28] Although offences of supplying schedule 1 dangerous drugs are serious offences in themselves, the allegations against the applicant are at the lower end of the scale of seriousness. Whilst the cogency of the evidence is not in this case affected by the unlawfulness of the search, that is but one matter to be taken into account. Here the nature of the breach of the provisions of the PPRA is significant. At best, the conduct indicates a reckless disregard for the law; i.e. that a proper basis must exist to exercise intrusive powers against citizens. At worst, it might demonstrate a deliberate disobedience of provisions designed to protect the public from oppressive action by persons in authority. In the present circumstances I am inclined to conclude the police action was reckless rather than deliberate. Clearly, it is the legislature’s intention that the provisions of the PPRA should be followed by police officers. As has been remarked elsewhere, it is expected police officers will have a thorough understanding of a relevant law when purporting to exercise powers under it.[29]
- [30]In the circumstances I conclude the unlawfully obtained evidence should be excluded.
Orders
- [31]It is ordered:
In relation to the trial of Letasha May Spilsbury on two charges of unlawfully supplying dangerous drugs-
- All evidence obtained as a result of the search of a vehicle being driven by Letasha May Spilsbury on 5 September 2016 is excluded;
- All evidence obtained from examination of the mobile phone of Letasha May Spilsbury seized on 5 September 2016 is excluded.
Footnotes
[1] Exhibit 4, at paras [6]-[7].
[2] Exhibit 4, at para [9].
[3] Exhibit 4, at para [10].
[4] Exhibit 4, at para [10].
[5] Exhibit 6, at para [4].
[6] Exhibit 6, at paras [5]-[9].
[7] Exhibit 6, at para [9].
[8] Exhibit 6, at para [10].
[9] Exhibit 6, at para [11].
[10] Exhibit 6, at paras [11]-[12].
[11] Transcript of proceedings 1-7 lines 31-32; 1-8 lines 10-12 (13 November 2017).
[12] Transcript of proceedings 1-7 line 37 to 1-8 line 5 (13 November 2017).
[13] Transcript of proceedings 1-8 lines 16-35 (13 November 2017).
[14] Transcript of proceedings 1-9 lines 22-39; 1-12 lines 1-6 (13 November 2017).
[15] Transcript of proceedings 1-10 lines 24-31 (13 November 2017).
[16] Transcript of proceedings 1-10 lines 33-41 (13 November 2017).
[17] Transcript of proceedings 1-11 lines 15-30 (13 November 2017).
[18] Exhibit 5, at para [10].
[19] Exhibit 5, at para [11].
[20] Exhibit 5, at para [12].
[21] Exhibit 5, at para [12]-[13].
[22] Exhibit 5, at para [14].
[23] Exhibit 5, at para [15].
[24] Exhibit 5, at para [16].
[25] Exhibit 5, at paras [18]-[19].
[26] (1978) 141 CLR 54..
[27] PPRA (2000) schs 6, Dictionary; see also George v Rockett (1990) 170 CLR 104 as to the meaning of suspicion.
[28]R v Ireland (1970) 126 CLR 321, at 335; Bunning v Cross supra, at 75.
[29]R v Toon [2015] QSC 117 at [28].