R v Johnstone[2022] QDCPR 63

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application pursuant to s 590AA of the Criminal Code 1899 (Q) by the defence to exclude evidence obtained as a result of a search of a motor vehicle conducted by police on 19 July 2021.

2. [2]
   The defendant submits that the search and/or interception of the vehicle was illegal. It is submitted that the true purpose of the interception was to conduct a search for evidence of offences contrary to the Drugs Misuse Act. It is submitted that at the time of the intercept there was no reasonable suspicion of the commission of an offence and as a result the interception and/or search was illegal and therefore the evidence should be excluded. It is submitted that the police allegation that the vehicle was intercepted for a licence check was a mere ruse and that evidence should not be accepted.

3. [3]
   The prosecution on the other hand submits that the police evidence should be accepted. It is submitted by the prosecution that there was a power to intercept the vehicle for a licence check which the police did. It is further submitted that after a number of dealings with the occupants of the car, a reasonable suspicion of the commission of an offence arose and therefore the police were entitled to search the car. In those circumstances, there is no illegality in what occurred here.

Background

4. [4]
   The defendant is charged with 11 counts of suppling methylamphetamine and one count of possessing a mobile phone used in connection with those supplies. The evidence of these charges comes from the phone taken from him after the relevant vehicle was intercepted.

5. [5]
   It is uncontroversial that on 19 July 2021, Senior Constable Adam Drury, Senior Constable William Pittaway and Senior Constable Warren Davies were attached to the Townsville Tactical Crime Squad. At about 9.20pm they were conducting surveillance of an address 2/67 Bamford Lane, Kirwan. The evidence reveals that the reason for this surveillance was the address was connected with a man called Matthew Gallagher who was wanted in relation to a return to prison warrant. There was also an arrest warrant with respect to other offences. Intelligence revealed that Gallagher was regularly attending that unit and was actively suppling methylamphetamine throughout Townsville.

6. [6]
   While they were conducting the surveillance, a white Holden Commodore sedan, 862UAF, stopped in front of the unit block. A male exited the address and walked up to the passenger side of the vehicle and a brief conversation with the passenger leaning into the car. The vehicle then left that location.

7. [7]
   The vehicle was then followed and intercepted along Ross River Road. Drury in his statement alleges that the vehicle was intercepted for the purpose of a licence check. This is challenged by the defence.

8. [8]
   Officer Drury in his evidence said at the time the vehicle left Bamford Lane, whilst there was some sort of indication that possibly something in relation to drugs had happened, he hadn’t formed a reasonable suspicion at that point in time.^[1] He said they followed the vehicle for quite a long distance, perhaps 10 kilometres and they observed the vehicle speeding. This is why it took so long to get into a position to intercept the vehicle because of its speed. The officer gave evidence that the licence check was conducted and he recalled Constable Pittaway having difficulties getting the correct name of the defendant who was in the passenger seat. At that point, he detained the occupants in the vehicle for a search in relation to dangerous drugs as the driver had lied about where they had been (she alleged she had gone to a service station to buy cigarettes). The passenger’s movements were quite erratic and he seemed to be under the influence of drugs.

9. [9]
   In cross-examination, the officer said that prior to intercepting the vehicle he did not know that Mr Gallagher was not in the vehicle. He denied the proposition that the vehicle was not speeding away from the police car. He accepted that a part of the reason they stopped the vehicle was to identify who the driver was and the identity of the passenger.^[2] He denied that the licence check was a ruse or an excuse to pull the car over so he could interact with them.^[3] He said that a valid driver’s licence was definitely of interest and he would have taken action if that was not the case. He said that the reason it was pulled over included three reasons, namely the manner of driving, the possibility of a wanted person being there and the possibility of a drug exchange occurring.^[4]
10. [10]
    Officer Pittaway, in his evidence, said that the vehicle departed from the address at speed. He also agreed there was no reasonable suspicion for a search at the time the Holden was at the Bamford Lane address.^[5] The point of interception at Aitkenvale about two to three kilometres away. He said that the ultimate decision to intercept the car was Senior Constable Drury’s. He said that his interactions with the passenger raised a suspicion in him because a false name was given to him. The defendant was initially calm and polite but then escalated in nervousness which led the officer to think he was providing a false name.^[6]
11. [11]
    In cross-examination, he confirmed that Drury made the decision to intercept the vehicle for the purpose of a licence check.^[7] He agreed at that point there was no reasonable suspicion sufficient to search the car.^[8] He considered the driver was driving erratically prior to the intercept and a traffic offence had been committed.^[9] He said that the reason he used to a torch to look in the side, front and back of the vehicle was to ensure there were no weapons located there. He said he disagreed that the true purpose of stopping the car was to figure out who was in the car.^[10] He said they were conducting a licence check of the driver and verification of the identity of the person driving the car comes part and parcel with conducting a licence check.^[11]

12. [12]
    Officer Davies gave evidence that after the Commodore left the Bamford Lane address it exceeded the speed limit and the route it took was erratic including cutting corners a lot.^[12] They thought the behaviour was unusual so they were going to intercept the vehicle for a traffic offence.^[13] He agreed in cross-examination that it was about four kilometres before they intercepted the vehicle. He persisted with his allegation that the vehicle was driving erratically. He thought it was Officer Drury’s decision to stop the vehicle for a licence check. In fact, the licence was handed to him by Drury and he did the licence check.^[14] He denied that the true reason for the interception was to identify the occupants of the car as opposed to identification whether the driver had a valid licence.^[15]
13. [13]
    Mr Marley submitted that I would not accept the officers’ evidence here. He submitted I should not accept that the vehicle was driving erratically or speeding prior to the intercept and submitted that they were not intercepting the vehicle for the purpose of a licence check.

14. [14]
    Ms Shepperd on the other hand submitted that I should accept the police evidence as they were truthful and reliable.

Findings

15. [15]
    Having considered the evidence and having observed the witnesses, I believe the police witnesses. Any inconsistencies were minor and can be explained by the effluxion of time. I accept there were a number of reasons going through Drury’s mind at the time of the intercept took place. I do accept that the vehicle was speeding and/or driving erratically. Indeed, this was acknowledged by the driver in the field tape. There was therefore a breach of the traffic laws. That was one of the reasons the officer decided to intercept the vehicle amongst others. Section 60 of the Police Powers and Responsibilities Act 2000 (Q) (“PPRA”) permits a police officer to require a person in control of a vehicle to stop the vehicle for a prescribed purpose. The prescribed purposes include the enforcement of a transport act and/or to check whether the person is complying with a transport act. I consider that the officers were acting under that power. I consider it is permissible for there to be a combination of reasons to exercise a power under the PPRA provided one of them is a legal one. I did not consider the use of that power was a mere ruse.

16. [16]
    As I indicated earlier, I also consider that there were other reasons for the stop as explained by Officer Drury in his evidence. As the conversation continued, I am of the opinion that the police did reasonably suspect the commission of a drug offence thus justifying a search under s 31 and 32 of PPRA.

17. [17]
    There were a number of reasons why such a suspicion was reasonable as follows:

• Firstly, there was the intelligence concerning the address.

• Secondly, there was the brief conversation outside of the address.

• Thirdly, the driver of the Commodore lied about where they had been.

• Fourthly, there was the provision of the false name by the defendant.

• Fifth, there was the way in which the defendant acted in a nervous manner.

18. [18]
    When one places those facts together, I consider a reasonable suspicion was reached here. “Reasonably suspects” is defined Sch 6 of the PPRA as meaning “suspects on grounds that are reasonable in the circumstances.” This a question of law. 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.^[16]
19. [19]
    In George v Rockett^[17], 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 reasoning process … It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind.”

The High Court said^[18]:

• 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 wandering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence.

20. [20]
    In my opinion, the facts in the mind of Drury were sufficient to create this reasonable suspicion.

21. [21]
    In circumstances, based on my factual findings, I do not consider that the reason for the intercept was a mere ruse. In those circumstances, in this case, the police were acting lawfully in intercepting this vehicle and conducting the search.

22. [22]
    In the circumstances, the cases of R v Hinds-Ravet^[19] and GJK v Commissioner of Police^[20] may be distinguished. In those cases the police were not truly acting under section 60.

Conclusion

23. [23]
    I dismiss the application.