R v Swain[2012] QSC 233

SUPREME COURT OF QUEENSLAND

1. The applicant, Mike Charles Swain, seeks a ruling under s 590AA of the Criminal Code that evidence obtained as a result of a search of his vehicle conducted on 12 December 2008 be excluded from any trial of the charge that on that day he unlawfully had possession of the dangerous methylamphetamine.

2. At the hearing of the application, neither of the police officers who had been sought for cross-examination was able to attend. Both parties were content to proceed on the basis of the police officers’ written statements.

3. At 11.40pm on 12 December 2008, Constable Mitchell and three other police officers were conducting a foot patrol along Warner Street, Fortitude Valley. Constable Mitchell saw a maroon Suzuki Swift parked in a “police parking only” zone. The defendant was seated in the driver’s seat and he was the only occupant of the car.

4. Constable Mitchell’s written evidence was as follows:

“5.I then approached the vehicle and as I looked toward the defendant, I noticed that he was looking toward me. The defendant then immediately looked away and appeared extremely agitated and nervous.

…

7.I could see that the defendant was very nervous as his hands were shaking and his voice was breaking and had a discernible stutter.

8.I then said words to the effect of, ‘Because of the high levels of drug activity in the area and your nervous behaviour, I have a reasonable suspicion you may be in possession of a dangerous drug. I am now detaining you for the purpose of a search, ok?’ The defendant replied in the affirmative.”

5. A search was then undertaken of the applicant’s vehicle and of the applicant himself.

6. Another of the police officers present, Sergeant Marcum, gave the following evidence.

“5.I approached the vehicle with Constable MITCELL (sic). I saw the defendant looking at myself and MITCHELL. The defendant turned his head away as if looking away from us whilst looking back towards us with quick eye movements. The [defendant] appeared very nervous, he was sweating and he was twitching restlessly in his seat.

6.I saw MITCHELL approach the driver’s side door of the vehicle and spoke to the [defendant], as I took up a cover position to his right. MITCHELL introduced himself to the [defendant] and asked for the [defendant]’s details. Which the [defendant] supplied.

7.I recall the [defendant]’s level of tension had increased significantly, his hands were shaking, his voice broke and the ‘amphetamine reverb’ to it. By that I refer to the colloquialism for the vibration and change in tone often found in the voice of a person under the influence of a strong stimulant drug. I saw that the [defendant] had dried spittle in the corner of his mouth, and formed the opinion that he was under the influence of a strong stimulant drug.

8.I recall at this point MITCHELL detained the [defendant] for the purpose of a search of himself and his vehicle of evidence of drug offences in accordance with the PPRA.

9.I recall similarly saying to the [defendant] after the search of his person, words to the effect of, ‘Mate, I'm Sergeant MARCUM from Fortitude Valley Police. Do you understand you are detained for a search of yourself and your vehicle. I suspect you have drugs or evidence of drug related offending on you or in your vehicle. I'm going to assist in this search ok?’ …”

7. Section 31 of the Police Powers and Responsibilities Act 2000 (Qld) (‘the PPRA’) relevantly provides:

“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—

1. stop a vehicle;

2. detain a vehicle and the occupants of the vehicle;

3. search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained. …”

8. For the purposes of the PPRA, section 32 provides that “prescribed circumstances” for searching a vehicle without a warrant relevantly includes that there is something in the vehicle that “may be an unlawful dangerous drug”.  The term “reasonably believe” is defined in schedule 6 of the PPRA to mean “believe on grounds that are reasonable in the circumstances”.

9. It appears from the statements that the search which was undertaken of both the applicant and his car was based upon the belief held by Constable Mitchell. Sergeant Marcum also expressed a view about his suspicion but that, according to his statement, occurred after the applicant had already been detained for the purpose of a search.

10. In any case, the grounds upon which the suspicion was formed do not constitute grounds that were reasonable in the circumstances. The mere fact that someone is parked in a police parking area and that the person appears nervous is insufficient to ground a reasonable suspicion even if the area in which the car is parked is one which is known for having drug transactions occur. The additional material from Sergeant Marcum is not shared by Constable Mitchell and, upon analysis, could just as easily be indicia of a person who is nervous. A person who has parked his vehicle in a police parking only area may well become very nervous when approached by police. But that in itself does not give rise to a reasonable suspicion.

11. I find that the police were not entitled to engage section 31 of the PPRA to search either the defendant or his vehicle.

12. So far as it is necessary, I also find that, on the facts contained within the statements by the police, the search should not have been carried out; the discretion which arises to reject evidence where competing public requirements must be considered and weighed against each other requires that an order be made excluding any evidence arising from the search of the vehicle in any trial which might take place on the basis of the current charge.