R v Ford[2022] QDCPR 21

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defendant pursuant to section 590AA of the Criminal Code 1899 (Q) to exclude evidence from his trial of a search of his vehicle on 4 September 2018 and his admissions when questioned.
2. [2]
   It is submitted the search of the applicant’s vehicle and the questioning was unlawful and the court should exercise its discretion to exclude the evidence.

Charges

3. [3]
   The defendant is charged with the following counts:

   1. (a)
      Count 1- Supplying methylamphetamine on 3 September 2018.
   2. (b)
      Count 2- Possession of methylamphetamine on 4 September 2018.
   3. (c)
      Count 3- Possession of tick sheets, scales, a straw and empty clip seal bags used in connection with the crime of supplying a dangerous drug and possessing a dangerous drug on 4 September 2018.   

Facts

4. [4]
   Senior Constable Emes on 4 September 2018 was rostered to work from 8pm on 4 September 2018 until 4am on 5 September 2018. 
5. [5]
   At about 11.30pm on 4 September 2018, the defendant was driving a white Toyota Landcruiser on Hursley Road, Toowoomba. He was intercepted by police for the purpose of an RBT and licence check. Their interactions were recorded on body worn cameras.
6. [6]
   It is necessary to refer to this footage.

Emes:  How are you going mate how are ya?

Ford:  Good thanks yourself?

Emes: Oh not too bad mate. Just doing RBT and licence check buddy got a licence?

Ford: Yeah

Emes: Mate any alcohol tonight?

Ford: No

Emes: No, any illicit drugs or medication from a doctor or dentist?

Ford: Nup.

Emes: Where you heading tonight mate

Ford: Just going to the servo, then going to work

Emes:  Where you work at Travis

Ford: Agrifresh

[Conducting licence checks- has the licence in his hand and appears to be looking at QLiTE]

Emes: When’s the last time you took any illicit drugs mate

Ford: Hey?

Emes: When’s the last time you took any illicit drugs?

Ford: Oh ages ago.

Emes: What’s ages ago mate

Ford: Oh about a month ago

Emes: Month ago. What do you normally use mate?

Ford: Oh ice.

Emes: Ice

(At this point officer Callaghan administered the RBT)

Callaghan: Had any drinks in the last 12 hours?

(Gives instructions on how to blow into breath testing device)

Emes: What are you doing about the tyre situation mate, on the passenger side, they’re bald-

Ford: Yeah I –

Emes: This one here’s nearly down to that –

Ford: Yep

Emes: Mate they’re more or less defective tyres. How do you normally use your ice, inject or smoke

Ford: Smoke

Emes: Smoke. So there’s not going to be anything in the car mate when we search it? Not going to be no ice pipes, no utensils, nothing like that mate?

Ford: [indistinct] utensils

Emes: Righto. Righto look what time is it, what time do you start work mate

Ford: 1 o’clock

Emes: 1 o’clock. I’ll try and make this as quickly as possible ok. So we got ah we got 23:35 ok, I’m going to detain you for the purposes of a search for you and your vehicle ok in relation to drug related matters. Just hang tight I’ll explain this all to you mate and we’ll go from there ok Travis. So before we go any further just explain to you, you have the right to remain silent, means you don’t have to say anything, answer any question, or make any statement unless you wish to do so. However if you do say something or make a statement may later be used as evidence. Do you understand that right?                         

7. [7]
   Officer Emes’ evidence in chief was given by way of police statement.
8. [8]
   In his statement Emes says he approached the defendant to conduct an RBT along with a licence check and then says:

“After having a brief conversation with the defendant I conducted inquiries on my police QLiTE. I observed the defendant’s body language when queried about his drug use and frequency. Because of my conversation with the defendant along with his replies I formed a reasonable suspicion that a drug offence was occurring.”

9. [9]
   During the search of the vehicle, police located the following items:

3. (1)
   Count 2 – Possessing a dangerous drug

3 x clip seal bags containing a total of .874 grams of a substance containing methamphetamine

3. (2)
   Count 3 – Possessing anything used for the commission of a crime A notebook with drug related writing in it (referred to as a tick sheet) 3 x glass pipes, one set of scales, a cut plastic straw, an empty clip seal bag.

10. [10]
    The defendant made full admissions in relation to this property.
11. [11]
    When questioned about an entry in the notebook which read “Dirk 50 … to pay on 5^th” the defendant told police it referred to the supply of a point of methamphetamine to Dirk the day before (Count 1 supplying a dangerous drug). He’d arranged the supply over the phone and got nothing out of it.
12. [12]
    In evidence the officer said that at the time of the interception he did not know the vehicle or the driver.^[1] He conducted a check on the police database on the defendant. His suspicion was formed from what he set out in his statement and what the defendant told him.^[2] This was in particular when he said he had used amphetamine a month prior. The reason he would have asked the questions was that there was information on the defendant.^[3] Because of the replies of the defendant this is how he formed the suspicion that a drug offence was occurring, including an alteration in his body language.^[4] He was aware of his obligations under the PPRA regarding searches without a warrant. He agreed that when he asked whether there would be anything in his car he had formed the suspicion.^[5] There was likely to have been information on the QliTE device that perhaps he was a drug user.^[6] Apart from his checks the fact he had used the drug a month prior further aroused his suspicion.^[7] He had a suspicion after looking at the QliTE device.^[8] He agreed that when he asked  the defendant when was the last time he used illicit drugs he had some information from the QliTE device.^[9] He said he was not investigating a drug offence but it was a usual question which he asked.^[10] He did not consider he was investigating a criminal or drug offence at that stage.^[11]  He was unsure why he did not give the warning earlier.^[12] If he denied there was a utensil in the vehicle he would not have searched it.^[13] He considered if he had to caution everybody he would not get his job done. The question he asked about the last time he used illicit drugs was a general query he asks when doing an RBT or licence check.^[14]

Submissions

Defence

13. [13]
    The defence submits that police failed to give cautions as required by s 397 of the Police Powers and Responsibilities Act 2000 (Q) (“PPRA”). It is further submitted that the vehicle was unlawfully searched. It is submitted the evidence therefore was improperly obtained and should be excluded.
14. [14]
    In oral submissions the defence submits that the warning should have been given after the QLiTE search. It is submitted the questioning after that point was not for a drug driving offence.
15. [15]
    It is also submitted that there were no grounds for a reasonable suspicion here because the admission of drug use was not temporally connected to the events in question. The facts mentioned in the officer’s statement were not sufficient to ground the search. It is submitted the decision to search was made prior to the defendant’s disclosure of the utensils. 
16. [16]
    It is submitted that an application of Bunning v Cross would lead to the exclusion of the evidence as:

• It is low level offending which would result most likely in a community-based order.
• The offender has no criminal history.
• The illegality here was reckless and he routinely does this.
• The court should not condone this behaviour. 
• There is a public policy reason why the evidence should not be admitted.

Crown

17. [17]
    The Crown on the other hand submits that the defendant was not in the company of the police officer for questioning of the indictable offence but more rather for an RBT and licence check. It is submitted that the question “when was the last time you used illicit drugs”? was an orthodox question for an officer performing an RBT to ask. It is submitted that s 31 of the PPRA allowed the police officer to search the vehicle as there was a reasonable suspicion based on the answers given by the applicant. Even if the questioning and searching was unlawful it was not deliberate or reckless and the principles expressed in Bunning v Cross would favour the admission of the evidence.
18. [18]
    In oral submissions the crown submitted:

• The accumulation of factors leads to a reasonable suspicion here.
• Even if the warning should have been given after the QliTE search it should be borne in mind there is a blurred line between the investigation of traffic matters and drug matters.
• There was no recklessness and the officer was honest.
• The offences are still serious, involving schedule 1 drugs.
• There is a public interest in offenders being prosecuted.    

Statutory framework

19. [19]
    It should be firstly noted that s 7 of the PPRA states that the parliament’s intention is that police officers comply with the legislation.
20. [20]
    Section 397 of the PPRA protects the right of a person to refuse to answer questions unless required to answer by law.
21. [21]
    Section 415 of the PPRA provides that Part 3 of the Act applies where a person is in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.
22. [22]
    If it applies then the officer must, before the relevant person is questioned, caution the person in the way required under the Responsibilities Code that is including the right to silence.^[15]
23. [23]
    Crucially nothing in the part applies where the officer is exercising the power of search or where the police officer is exercising a power under Chapter 18A including under the Road Use Management Act section 80.^[16]
24. [24]
    If the caution is required the failure to administer such a caution does not make what follows inadmissible but may lead to the discretionary exclusion of the evidence.^[17]
25. [25]
    As to vehicle intercepts, a police officer may require the person in control of a vehicle to stop the vehicle for a prescribed purpose and the person must comply with the requirement unless the person has a reasonable excuse.^[18] Conducting a breath or saliva test is a prescribed purpose.^[19] There is no doubt that the interception was lawful here.
26. [26]
    Also, section 54(1) of the PPRA provides that it is lawful for a police officer to make any reasonably necessary inquiry, investigation, examination or test for establishing whether or not an offence against the Road Use Management Act has been committed. That has application here because section 79(1) and (2AA) of The Transport Operation (Road Use Management) Act 1995 (Q) (“TORUM”) provides for the offence of drug driving.
27. [27]
    As to searching without warrant, ss 29(1) and 31(1) of the PPRA provide that a police officer may search a person or a vehicle without a warrant if the officer reasonably suspects any of the prescribed circumstances exist. Section 30 provides “the prescribed circumstances” for searching a person without a warrant and includes that the person has something that “may be an unlawful dangerous drug.”^[20]
28. [28]
    Section 32 provides the “prescribed circumstances” for searching a vehicle without a warrant and includes that there is something in the vehicle that “may be an unlawful dangerous drug” or that “may have been used, is being used, is intended to be used or is primarily designed for use … for the administration of a dangerous drug.”^[21]
29. [29]
    The police officer conducting the search must have personally formed a reasonable suspicion of a prescribed offence.^[22] “Reasonably suspects” is defined in Sch 6 of the PPRA as meaning “suspects on grounds that are reasonable in the circumstances.”
30. [30]
    This term has been considered in a number of cases.
31. [31]
    It is first to be noted that the question to be answered is one of law only. In the context of search warrants, the “question is whether, having regard to the information put before the issuer, it was open to him or her to reach the requisite state of satisfaction.”^[23] 
32. [32]
    In George v Rockett^[24]it was held “When a statute prescribes that there must be reasonable grounds for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person … it follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind”. 
33. [33]
    Further the High Court said:^[25]

• A suspicion and a belief are different states of mind. 
• A suspicion is a state of conjecture or surmise where proof is lacking
• “…[It] is more than a mere idle wondering whether it exists or not; it is positive feeling of apprehension or mistrust, amounting to a slight opinion but without sufficient evidence.”

34. [34]
    Also as Holmes J (as her Honour then was) noted in Dobbs v Ward^[26] facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief.
35. [35]
    As Dalton J noted in R v Bossley^[27]:

“Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist.  There must be sufficient factual grounds reasonably to induce the suspicion.  The facts must be sufficient to induce the suspicion in the mind of a reasonable person.  The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced.”

Factual findings

36. [36]
    I now turn to the factual findings in this matter.
37. [37]
    One should bear in that the officer was answering questions about the matter some three and a half years after the events in question. I was told that the reason for the delay was at one point the defendant failed to appear. In light of the delay there were points at which the officer could not assist (e.g. what flags were on the QLiTE) which is understandable given the passage of time.  
38. [38]
    I considered the body cam footage to be of most assistance here. Overall though I considered the officer’s evidence generally consistent with the body cam footage.
39. [39]
    On the evidence the officer became suspicious of the defendant’s involvement with drugs at the time he checked QLiTE. Shortly after this he started questioning the defendant about drugs. However, on my assessment this was a fluid situation moving quickly and I consider it more likely than not that at that stage the officer was still exercising a power under section 54 of the PPRA. The question about when he last used illicit drugs was not directed towards his supply of them, the possession of them or the possession of implements. It was directly relevant to whether the defendant was operating a motor vehicle with drugs in his system contrary to section 79(1) of TORUM.
40. [40]
    I do not consider he needed to warn the defendant at that stage.
41. [41]
    Also, in light of section 415(2)(a) of the PPRA up until the warning was given the officer was exercising a power of search and therefore warnings were not required then.
42. [42]
    Additionally, having considered the tape recording it was doubtful the defendant was a “suspect” until he made the admission of utensils being in the car. All he had said prior to that was he had used ice about a month prior. In R v Duggan^[28] Ann Lyons J considered the police could ask some initial questions directed to determining whether a crime had been committed. Once the defendant admitted he had killed someone the warning should have been given. In the present case the warning was given upon the defendant’s admission there were utensils in the car.    
43. [43]
    However even if I am wrong as to the application of the statutory provisions, I do think there was a blurred line between questioning about a drug driving offence and a drug offence of itself. At worst for the officer there was really a hybrid reason to the questioning.
44. [44]
    I considered the officer acted honestly and he did not try and deceive the court.
45. [45]
    I also consider the officer decided to search the car after the defendant said there were utensils in his car. I accept his evidence that he would not have searched it if the defendant told him there were no such items in the car. The use of the word “when” was a turn of phrase used at the time. I have formed this view as the officer, when he decided to search, told the defendant that he would make it as quick as possible bearing in mind he had to start work at 1am. It seems clear to me he made the decision when said “Righto Righto”. He was clearly analysing what he had been told.  By this time, he had the following information:

• Information from QLiTE.^[29]
• Admissions the defendant used ice in the past.
• The demeanour of the defendant.
• The admission there were utensils in the car

46. [46]
    I find that all of these facts combined to create a reasonable suspicion on the part of the officer justifying the search.

Disposition

47. [47]
    If it be considered there was some illegality here namely with regard to the absence of an earlier warning or with regard to the search, I now turn to consider the Bunning v Cross factors.
48. [48]
    Stephen and Aickin JJ considered the following factors should be considered:

    1. (a)
       Whether there was a mistake on the part of the police as compared to a deliberate disregard of the law.
    2. (b)
       The cogency of the evidence.
    3. (c)
       The ease with which the law may have been complied with.
    4. (d)
       The nature of the crime charged.
    5. (e)
       The intent of the legislature. 
49. [49]
    One factor of course is the that the legislature intends that police comply with the PPRA. But there are a number of counter balancing factors here.
50. [50]
    First it must be borne in mind that the defendant was not initially in the company of the police officer for the questioning of an indictable offence. The fact is, as the police officer stated at the outset, police were performing an RBT and licence check. Section 60 of the PPRA provided the police the power to do this. Further section 54 of the PPRA allowed the police to make relevant inquiries.
51. [51]
    The defendant was first asked if he had any alcohol that evening and he said he had not. He was then asked, quite reasonably in my view, whether he’d had any drugs.
52. [52]
    The police officer then asked the defendant about his reason for travel and about his work.
53. [53]
    It was then that the officer asked the applicant “when was the last time you used illegal drugs.” I agree with the prosecution submissions that there was a blurred line between the investigation of a traffic matter and a drug matter. It was a relevant question as to whether he driven with drugs in his system. 
54. [54]
    Any unlawfulness here was not deliberate or reckless. As I have said I consider the officer acted honestly. Also, the encounter was a quick one and things moved on swiftly from the initial interception.  
55. [55]
    The evidence was untainted by the unlawfulness. I find this because even after the warning the defendant continued to make admissions. I consider it likely the defendant would still have given the same answers even with a warning.
56. [56]
    The failure to give the warning in my view does not affect the cogency of the evidence here. There was real evidence located in the car and the defendant made admissions about this after the warning.
57. [57]
    It is not as if the officer gave no warning at all- he did.
58. [58]
    Even though it may be argued the charges are at the lower end of the scale, I do consider these to be relatively serious charges. They involve a schedule one drug and it may be observed that methylamphetamine causes untold damage in our community. The maximum penalty for supplying a schedule 1 drug is 20 years’ imprisonment^[30] and the maximum penalty for possessing a schedule 1 drug is 15 years’ imprisonment.^[31]    
59. [59]
    The evidence is essential to prove relatively serious charges against the defendant. There was no evidence that the conduct of the officer is the product of any systemic cultural issues.
60. [60]
    The features all weigh in favour of the admission of the items seized in the search on 4 September 2018 and the answers given by the defendant.
61. [61]
    I next turn to the exercise of the fairness discretion. The defence argument is fairly much on the same grounds as mentioned previously.
62. [62]
    With respect to the general fairness discretion, I note in Swaffield v R^[32] the plurality said that the issue is not whether the police acted unfairly but whether it would be unfair to use the statement against the accused. Unfairness is concerned with the accused’s right to a fair trial. One issue to be considered it the issue of reliability but this is not the “sole touchstone”. However unreliability is an important aspect of the discretion.^[33]
63. [63]
    Likewise in Tofilau v The Queen^[34] it was said that unreliability is an important aspect of the unfairness discretion. It was also noted that the focus remains on the fairness of using the statement rather than on disciplining the police or controlling investigative methods.^[35] 
64. [64]
    I also note in EM v The Queen^[36] it was noted that when one considers “unfairness” it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice and such investigations must not be unduly hampered.
65. [65]
    In this case I do not consider the evidence to be unreliable. It provides real evidence which has not been fabricated. I also do not consider there is a risk of a miscarriage of justice if the evidence is not excluded.
66. [66]
    I finally turn to the public policy discretion. The focus of the public policy discretion is whether there is a deliberate or reckless disregard of the law by those who seek to enforce it.^[37] This is because it is undesirable for the courts to approve or encourage unlawful conduct of the police.^[38]
67. [67]
    For the reasons I have already given I do not consider that the officer acted deliberately or recklessly in breach of the law.
68. [68]
    The defence relied on the case of R v Aloia^[39] where Henry J excluded evidence of a search. I consider that case to be different. First it was clear from the start that the purpose of the questioning was relating to a drug offence. Second, the only information aside from the computer information was that the defendant was drinking quickly. Third in this case the defendant made admissions to using drugs and said there were utensils in the car. On the other hand, in Alioa the defendant made no disclosure of drugs or drug related items prior to the search, the drug test was negative and the defendant asked to see the search warrant.  
69. [69]
    I thought the case was more akin to Bain v Police^[40] In that case like the present, the police pulled the defendant over for an alcohol test. The police computer system revealed that the defendant was noted as a drug dependent person with an expired licence. On questioning the defendant denied there was anything of moment in the car and admitted to using speed a couple of times a week- the last use about 8 hours prior. The car was searched and drugs items and stolen jewellery was found. The court found that the officer did have the power to ask questions about drug use and there was a reasonable suspicion sufficient to allow the search. Even if there was some illegality the judge would have admitted the evidence in the exercise of the discretion.   
70. [70]
    Balancing all of these factors, I consider, in the exercise of my discretion, the evidence should not be excluded.

Conclusion

71. [71]
    For the reasons given, I dismiss the application.