R v Williamson[2009] QSC 434

SUPREME COURT OF QUEENSLAND

1. The applicant is to stand trial on serious drug charges, including carrying on a business of unlawfully trafficking in Methylamphetamine, 3,4 -Methylenedioxymethamphetamine, and cannabis sativa.

2. Invoking the Bunning v Cross (1978) 141 CLR 59 discretion, the applicant seeks the exclusion of evidence about things police officers found inside storage Sheds 20 and 28 at Eyre Street, Wilsonton.

3. Inside Shed 20 was about $4000 in cash, a small quantity of cocaine, more than five kilograms of high grade cannabis packaged for sale in a variety of weights, tablets and substances containing more than 200 grams of Methylamphetamine, 1500 light brown tablets containing in excess of 26 grams of Methylenedioxyethylamphetamine and more than 80 grams of Methylenedioxymethamphetamine, cannabis seeds, a .45 calibre pistol, ammunition and electronic scales (weights are estimated pure).

4. In Shed 28, more than $500,000 in cash was discovered.

5. Largely as a result of surveillance, by 4 December 2006 the police suspected that Shed 20 contained things evidencing illegal drug activity.

6. Detective Sergeant Lange became involved in the investigation on 28 November 2006. He was soon suspicious about the contents of Shed 20.

7. The applicant’s co-accused, Shane Laurie, was known to be closely associated with the applicant. The applicant was believed to have bragged about making his first million dollars through selling drugs.

8. At about 10.30 a.m. on 4 December 2006, Laurie was detected by a surveillance unit at Bridge Street, Toowoomba, conducting a suspicious transaction with a woman.  Both decamped.  Soon afterwards, he was seen in a public telephone booth, apparently in animated conversation on the phone.  Lange, as he wrote later that day when applying, successfully, to a Magistrate for post-search approval, was informed that Laurie’s lengthy conversation “appeared to be intense with arms waving in the air”.

9. On learning of what Laurie had done and concerned that he was trying to dispose of things implicating him in drug offences, Lange directed other officers to intercept him.

10. At 10.55 a.m., Laurie was found by detectives in Ruthven Street.  He was in possession of green leaf material, white powder, sets of keys and mobile phones.  In clear view of the public, Laurie was detained and cautioned.  He was then told, by Lange it seems, that an “emergent” search was to be conducted of Shed 20 and at Laurie’s house at Wonga Street, Harlaxton to prevent loss of evidence.

11. So before reaching the shed complex, Lange had already decided to search Shed 20 as soon as he could.

12. At this stage, Lange had ample grounds to suspect that evidence of serious drug offending might be destroyed or concealed if the police did not get to Shed 20 quickly and secure it.

13. At 11.34 a.m., Laurie was taken by Lange on a 10 minute drive to the Eyre Street storage sheds. 

14. The shed complex comprised four rows of sheds. It was accessible from two directions.

15. Lange went to Shed 20 – the first on the right, closest to the road. He saw that it had two closed padlocks at the base of the lowered roller door - one at each side - securing the shed. Laurie declined to assist an attempt to enter. Lange unsuccessfully attempted to open the locks with keys found with Laurie’s vehicle ignition key.

16. A little while later, two police officers arrived with a second set of keys. In Lange’s presence and under his direction, one of the officers used the keys to open the two padlocks. The roller door was raised and police entered straightaway.

17. The search of Shed 20 was completed at about 3.10 p.m. Shortly afterwards, other keys that had been in Laurie’s possession were used to open the locks on the Shed 28 door. Inside, a bag containing more than $500,000 in bundles of $50 notes was discovered.

18. The applicant was later found to be in possession of keys that could open both Sheds 20 and 28. Surveillance revealed that he had once visited Shed 28.

19. No search warrant was obtained to search Shed 20 or 28.

20. On the day of the searches, however, Lange sought, and obtained, post-search approval to the searches of the sheds.

21. The applicant contends that the searches were not authorised by s.160 of the Police Powers and Responsibilities Act 2000 (“the Act”), which relevantly provides:

“(1)This section applies if a police officer reasonably suspects –

1. a thing at a place is evidence of the commission of a part 2 offence; and

2. the evidence may be concealed or destroyed unless the place is immediately entered and searched.

3. A police officer may enter the place and exercise search warrant powers…”

22. The applicant contends that Lange, the police officer whose suspicion matters for the purpose of s.160, could not, at the moment of entry, then “reasonably” have suspected that anything in Shed 20 or Shed 28 might be concealed or destroyed unless that shed was immediately entered.

23. “Reasonably suspects” means suspects on grounds that are reasonable in the circumstances: see the Schedule 6 definition.

24. Before Laurie was apprehended, Lange had been preparing a draft of an application for a search warrant for Shed 20. The application had not been made earlier for two reasons: Lange thought that there were insufficient grounds to make it; and from a “tactical perspective” he did not want to search the shed precipitately. His attitude to searching Shed 20 changed once Laurie was found with cannabis and methylamphetamine. That meant - and so Lange believed at the time - that there was enough material to obtain a search warrant for Shed 20.

25. Lange arrived at the sheds to find Shed 20 externally locked and secure. He found nothing to suggest that anyone might be inside. He must surely have realised, as was obvious, that with him and at least one other officer there, no one else would try to enter.Or in the highly improbable event that anyone attempted to do so, clearly the police would have been justified in entering immediately to prevent concealment or destruction of the contents.

26. In those circumstances, at the time the police entered Shed 20, there was no basis for a suspicion that things inside that shed might be concealed or destroyed in the absence of immediate entry.

27. The same is true of Shed 28.

28. The two searches were not authorised by s.160. They both were, therefore, unlawful.

29. How had this happened?

30. A search warrant could have been procured easily enough. Laurie’s apprehension in possession of drugs, coupled with material that Lange had gathered together before that day in compiling a draft application for a search warrant, would inevitably have persuaded a Justice to issue a warrant. And the delay in obtaining the warrant would, as Lange believed at the time, have been less than an hour. During that interval, the police presence at the scene certainly would have ensured that no-one interfered with the contents of the sheds.

31. Why, then, did Lange not take a few minutes to complete his draft paperwork and promptly apply for a warrant?

32. The justification for entry without warrant that Lange advanced in his application for post-search approval was that “the circumstances involving covert surveillance and the first customer” – presumably a reference to observations of Laurie that morning with the female – “resulted in a circumstance which prevented Detectives from obtaining search warrants within a reasonable period to prevent the loss of evidence … (and) there were unknown entities having knowledge of the detention of … Laurie”.

33. There was no reference in the application to Lange’s belief that no-one was inside Shed 20 when he got there. Nor did he mention that, from the moment he arrived at the shed, by his presence, he had effectively prevented interference with the contents without any need to enter.

34. In these proceedings, Lange testified that he was troubled by the thought that he could not control whomever Laurie was speaking to on the phone, and that delay in getting to the shed exposed a risk that contents of the shed might be interfered with. So much is understandable. But that there was a risk that others might get to the shed first and hide or destroy its contents when Laurie was detained says nothing about the risk to contents once the police had reached the locked shed.

35. Lange also testified that he was concerned that a methylamphetamine laboratory may have been inside Shed 20.

36. It is at least doubtful that Lange actually held such a concern when entering. In his application to the Magistrate, Lange made no mention of suspecting the presence of a laboratory. And on the first day he gave evidence at the committal proceedings, pressed in cross-examination to explain why he had entered without a warrant, again, nothing was said about a laboratory. Lange first raised that possibility as a justification for the search on the next day of that hearing.

37. In any event, as Mr Power concedes, such a concern could not rationally have justified an apprehension that immediate entry was necessary to prevent destruction or concealment of evidence.

38. How, then, should Lange’s disregard of the legal requirement to enter only with a search warrant be viewed? Was it a lapse of insight by an officer involved in directing a complex operation? Might exuberance have overborne judgment? Or were the searches rather a calculated disregard of the law?

39. Lange’s motivation for entering the sheds without a search warrant is controversial. Mr Power suggests that he was inadvertent - merely failing to appreciate that the police presence made immediate entry to prevent interference with evidence inside the sheds unnecessary. Mr Farr, however, contends that there was a flagrant disregard of the law by Lange.

40. Lange arrived at the sheds having already decided that there was a real risk of imminent concealment or destruction of things that would reveal serious drug offending. Could he have entered Shed 20 as soon as he did because, under the pressures of the moment, he had not grasped that his presence eliminated the risk? Or did he instead regard the bother of obtaining a search warrant as an irksome distraction from swiftly advancing his investigation and decide to enter because he confidently anticipated – correctly, as events transpired – that a Magistrate would grant post-search approval?

41. Lange had no reason to suppose that a Justice might refuse a warrant: quite the contrary. And little inconvenience or delay would have attended completing the draft material and making the application. This might suggest that Lange’s decision to enter Shed 20 was attributable to his failure to appreciate there was no risk to the contents of the locked shed once he was there.

42. However, other considerations indicate that the decision to enter without warrant was a calculated disregard of the law.

43. First, Lange told Laurie when he was detained in Ruthven Street that an “emergent” search would be made of both Shed 20 and Laurie’s house to prevent loss of evidence.  At that time, Lange could not have known that the situation at either place, when eventually the police arrived, would justify that course. 

44. Secondly, no mere rush to poor judgment could explain the decision to enter Shed 28 without a warrant. The shed was opened after 3.00 p.m. There was ample time to reflect on the obvious fact that the continuing police presence near that shed adequately secured its contents from interference.

45. Third, Lange’s explanations in evidence for his decisions – that he did not know who might get to Shed 20 before him and that he was worried about the possibility of an amphetamine laboratory inside – are unpersuasive.

46. This is not an instance of mere oversight or accidental non-compliance with the law: cf Bunning v Cross at p.78; see also Herring v United States USSC 14 January 2009 No. 07-513 (Slip Opinion) at pp 7-9 and 12-13.  Rather, Lange made a deliberate decision not to seek a search warrant.

47. In Ridgeway v The Queen (1995) 184 CLR 19 (at  30-31; 38), Mason CJ, Deane and Dawson JJ said: 

“The trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police…”

"The discretion extends to the exclusion of both … non-confessional evidence and confessional evidence… [I]n its exercise, a trial judge must engage in a balancing process to resolve 'the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and 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'. The basis in principle of the discretion lies in the inherent or implied powers of our Courts to protect the integrity of their processes. In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy' relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty…

“The weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. 

"The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the Courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings

When assessing the effect of illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances.  Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.”

48. See also R v Stead [1994] 1 Qd R 665, at 671 – 672.

49. Perhaps Lange supposed that post-search approval by a Magistrate rendered an otherwise illegal search lawful. If so, he was mistaken. The prospect of judicial oversight under s.162 of the Act may discourage unlawful searches. It may also give some comfort to an officer whose conduct in entering a place without warrant is called into question in disciplinary processes within the Police Service. But such an approval has no significance for the legality of a warrantless search. (As to the object of the regime, see pp 43-44 of the Explanatory Notes accompanying the Police Powers and Responsibilities Bill 2000; cf the Explanatory Notes accompanying the Police Powers and Responsibilities Bill 1997 at 29-30).

50. Should the discretion be exercised to exclude evidence of the things found in the illegal searches?

51. The deliberate disregard of the law by those whose duty it is to enforce it (see Stead at 671, citing Bunning v Cross at 78) is a highly significant factor, favouring exclusion of evidence of what was found in Sheds 20 and 28. 

52. So, too, does the consideration that a search warrant could easily have been obtained, and in circumstances where a delay in entering while the warrant was obtained could not have resulted in concealment or destruction of shed contents.

53. But what was found in the sheds seems vital to the prosecution case.

54. In the circumstances, exclusion of evidence of the shed contents could well let a man guilty of serious crimes go free. (Mr Farr acknowledges, appropriately enough, that a conviction after a trial in respect of this trafficking charge would attract a sentence of at least ten years imprisonment.)

55. Here, then, there is every chance that suppression of the truth would impose substantial social costs.

56. Weighing the pertinent factors, the balance decidedly favours refusal of the application to exclude evidence about the shed contents.

57. The application also sought an order excluding surveillance tapes. However, that aspect of the application was not pursued.

58. In the result, the application will be refused.