R v Pohl[2014] QSC 173

SUPREME COURT OF QUEENSLAND

1. Luke George Pohl (“the applicant”) has been charged with possessing the dangerous drug cocaine in a quantity in excess of 2.0 grams. The applicant seeks the exclusion of evidence concerning the discovery of the cocaine on the grounds that the police search which uncovered the cocaine was unlawful and the Court ought to exercise the discretion to exclude such evidence from the applicant’s trial.

Background

2. On the evening of the 1^st December 2012 at approximately 7pm Plain Clothes Senior Constable Michael Simmonds (“Simmonds”) and Plain Clothes Senior Constable David Paddock (“Paddock”) entered the rear of the Wallaby Hotel, Mudgeeraba. With them were several other police officers, including officers from the Coomera Dog squad. 

3. The entry of the officers into the hotel was preceded by two hours of static police surveillance from the hotel car park.^[1] The surveillance began when the police received an anonymous tip that the Wallaby Hotel was the chosen location for a Mr Matthew Jones to buy two kilos of the drug known as ‘ice’ that afternoon.^[2] It was known to the police that Jones was part of an outlaw motorcycle gang. Simmonds and Paddock entered the hotel to find Jones.

4. As officers entered the hotel, three males quickly decamped from the public bar. These three were pursued by officers, some on foot, Simmonds in an unmarked police car. While this chase was underway Paddock remained at the hotel and reviewed the CCTV footage of the hotel on that afternoon. Paddock identified a man he believed to be Jones drinking in the front outdoor area in the company of two other people. Paddock continued to review the footage to confirm that the person identified as Jones had arrived in a Holden sedan. The CCTV footage also confirmed that the applicant had arrived in a white utility, and had parked in the rear car park.

5. At approximately 7.10pm men matching the description of those that fled the hotel were spotted at the Mudgeeraba Shopping Centre. Simmonds approached the group and asked one of the men what his name was. When the man stated that his name was Matthew Jones, Simmonds arrested him for possessing a dangerous drug. The applicant, seen that afternoon outside the hotel with Jones, was arrested by Simmonds for supplying a dangerous drug. Pat down searches of Jones and the applicant were conducted by Simmonds. No drug items were found on either man.

6. The three men were transported back to the Wallaby Hotel. Here Simmonds and other officers commenced a search of the white Holden Commodore, the vehicle that Jones had arrived in, as seen by Paddock in the CCTV footage. No property of interest was located in this search. Paddock conducted a pat down search of the third man, Stokes, locating a clip seal bag of cannabis.

The search

7. Paddock conducted a further pat down search of the applicant and located a key ring and two mobile phones. The key ring contained two car keys and various other keys. Upon questioning, the applicant stated to Paddock that he lived at Ancona St, Carrara and he had walked to the hotel. The applicant said that he was the owner of a black BMW. Paddock knew from his review of the CCTV footage that the applicant had not walked to the hotel and Paddock also knew that the walk from Ancona St was very long. Due to the conflicting stories and the fact that no drugs were found in Jones’ possession, Paddock formed the view that the drugs were stored in the vehicle that he had seen on the CCTV footage, the vehicle the applicant arrived in. 

8. Simmonds, Paddock and the applicant walked to the rear car park of the hotel, where the officers, using one of the remote keypads found in the applicant’s pocket, located and unlocked a white Holden Rodeo. Paddock stood at the driver’s side of the car with the applicant while Simmonds started searching inside the car on the front passenger side. Simmonds located two heat sealed plastic bags inside a sunglasses case. The case was in the glove box of the car. Both bags contained two white blocks, which Simmonds believed to be cocaine. At the moment he found the drugs Simmonds told Paddock to “grab him”, referring to the applicant. Paddock then told the applicant “you are under arrest” and placed hand cuffs on him. Subsequent analysis of the contents of the two heat sealed bags revealed cocaine with a total pure weight of 32.861 grams. Further searching of the vehicle revealed a wallet containing the applicant’s driver’s licence and a type of IOU with the applicant’s name written on it.

The post-search approval order

9. Three days later, on 4 December 2014, Paddock completed an application for a Post-Search Approval Order (“PSOA”), for the search performed by Simmonds.^[3] The application was heard at the Southport Magistrate’s Court and approved by a Magistrate just after 2pm the same day.

10. Paddock gave evidence that the application set out the grounds upon which it was believed that the police officers were exercising an emergent search.^[4] The grounds were embodied in the application. In summary, the application asserted that a number of enquiries, conducted after receiving the anonymous tip, confirmed that Jones had an extensive criminal and drug history and links to various outlaw motorcycle gangs including the Finks. Upon viewing the CCTV footage the officers saw the three men flee the hotel on police arrival.^[5] Paddock confirmed in evidence before me that these were the grounds that justified the execution of an emergent search, being the links to a CMG unit and ‘on the grounds of what had occurred at the hotel’.^[6] It is unclear what grounds were relied upon by the Magistrate to found the approval of the application.   

Was the search unlawful?

11. It was argued by the applicant that the evidence of the cocaine should be excluded from evidence at his trial. For this submission to be successful, it must be found that the search of the Holden Rodeo was unlawful, and second, the discretion to exclude the cocaine as evidence should be exercised.

12. The applicant submitted that the lack of a search warrant authorising the search, and lack of consent to the search, means that the search was unlawful. The respondent did not dispute the lack of warrant and consent.^[7]

13. The respondent in its written submissions argued that the search was lawfully conducted and the evidence admissible by reason of s 29(1) and s 31(3) of the Police Powers and Responsibilities Act 2000 (Qld) (“the PPRA”).  Following the evidence given before the court by the two police officers involved in the search, Paddock and Simmonds, counsel for the respondent properly conceded that the respondent would no longer press the arguments based on ss 29 and 31 of the PPRA.^[8] Both parties then agreed that this matter falls to be decided on the discretionary basis.^[9]

Should the discretion to exclude unlawfully obtained evidence be exercised?

14. Once a Court is seized of criminal proceedings it is imbued with the discretion to allow or exclude unlawfully procured evidence on public policy grounds.^[10] These grounds, or public policy principles, are articulated in The Queen v Ireland^[11] and Bunning v Cross.^[12]

15. Barwick CJ in The Queen v Ireland identified the public policy principles as:

“On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price”.^[13]

16. These principles must be balanced against each other to determine whether to admit or exclude the evidence. This was restated by Stephen and Aickin JJ in Bunning v Cross as “the desirable goal of bringing to conviction the wrongdoer” as pitted against “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”.^[14]

17. In R v Versac [2013] QSC 46, the facts of which were not dissimilar from the present case, Applegarth J observed:

“[5]The discretion “is necessary to protect the processes of the courts of law in administering the criminal justice system.”^[15] This judicial integrity principle holds that courts should not admit the tainted fruits of unlawful conduct, lest the administration of justice be brought into disrepute.^[16] The discretion also serves the policy of deterring unlawful conduct by those entrusted with powers of law enforcement.^[17]

[6]Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence. Some factors support exclusion, whilst others support admission. The factors include:

1. whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;

2. the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;

3. the importance of the evidence in the proceeding;

4. the nature and seriousness of the offence

5. the nature of the unlawful conduct;

6. whether such conduct is encouraged or tolerated by those in higher authority in the police force; and             

7. how easy it would have been to comply with the law.

[7]Although fairness is relevant to the public policy discretion, it is not its focus. Instead, considerations of public policy are engaged, and fall to be applied in the particular circumstances of the case. The weight given to competing factors depends on those circumstances. For example, the particular circumstances may deprive the principle of deterrence of much weight. The unlawful conduct may have been the subject of disciplinary procedures, counselling or other remedies which sanction wrongful conduct or deter its repetition. If this is not the case, exclusion of the evidence may be appropriate to both uphold the judicial integrity principle and to deter such conduct in the future. If such unlawful conduct is tolerated by those in higher authority, then the case for exclusion will be stronger.^[18]”

18. I respectfully adopt those observations by Applegarth J, and now proceed to deal with the factors usefully identified by his Honour.

Was there a deliberate or reckless disregard of the law by the police?

19. The first factor to consider is whether the unlawful search of the Holden Rodeo involved a deliberate or reckless disregard for the law by PSCS Simmonds. The applicant in its written submissions stated that the conduct of Simmonds in searching the vehicle was ‘…at best, a reckless disregard of the law, and at worst, a deliberate disregard’.^[19]

20. Both Simmonds and Paddock gave evidence^[20] that in performing the search without a warrant they were exercising the power conferred by s 160 of the PPRA, an emergent type search. Section 160 of the PPRA provides:

“160Search to prevent loss of evidence

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

1. a thing at or about a place, or in the possession of a person at or about 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…”

21. By schedule 6 of the PPRA “reasonably suspects means suspects on grounds that are reasonable in the circumstance”. The applicant submitted that the evidence given by the officers did not found any reasonable suspicion that the evidence might be destroyed unless the place was immediately searched.^[21]

22. Simmonds gave evidence that he was concerned that the cocaine ‘could have been concealed by the car being taken’.^[22] Simmonds stated that although there were other officers around the Wallaby Hotel, ‘if something else had happened at the pub during the time of me typing up and explaining it to a warrant, those officers would have had to respond to that incident, therefore leaving the car unguarded’.^[23]  Based on information that the applicant was an associate of the Finks, Simmonds did not believe it was safe to leave two officers there while he went away to type up a search warrant.^[24] Simmonds agreed, however, with the proposition that the scene could have been secured and the vehicle left in situ without any interference to it.^[25]

23. Paddock, who was minding the applicant while Simmonds searched the car, gave evidence that his reasons for the emergent search were embodied in the Post-Search Approval Order application that he had written.^[26]

24. Paddock elaborated in evidence that Jones, the applicant’s companion who had also been searched and arrested, was known to them as a ‘senior member of a CMG unit – CMG gang’.^[27] It was Paddock’s concern that if they were to leave Jones at the scene, as they had no reason to detain him, the members of the CMG may retrieve the drugs prior to police arrival.^[28] Paddock, like Simmonds also accepted that there were other police officers that he could have called to secure the scene.^[29]

25. The evidence of Simmonds and Paddock does not, in my view, justify a conclusion that there was any proper basis for a suspicion that ‘the evidence may be concealed or destroyed unless the place [was] immediately entered and searched’. I accept that each of them had a concern that, if they left the vehicle unattended, other outlaw gang members might have attended and removed, or interfered with, the vehicle or the drugs in the vehicle. But it is clear that there were measures available to secure the scene while a search warrant was obtained. At best, I think the officers were acting on an erroneous assumption that the search without warrant was justified under s 160 of the PPRA. If that is the case, then I would be disinclined to conclude that they had acted with a ‘deliberate disregard’ for the law.

26. The conduct of the officers does, however, bespeak a ‘reckless disregard’ for the law. In DPP v Nicholls (2001) 123 A Crim R 66, Adams J described this as:

“…a serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of a subject will be substantially prejudiced.”^[30]

In evidence before me, both officers confirmed their awareness of the emergent search procedures. Importantly, both officers confirmed that the vehicle could have been secured, and that they were aware of the procedure by which a search warrant could have been quickly obtained. Despite that knowledge, the search of the vehicle was deliberately undertaken. In the circumstances, this amounted to a “reckless disregard” for the law, and is a factor which carries significant weight in the circumstances of this case.

The cogency of the evidence

27. The cogency of the evidence was not affected by the unlawful search. In the similar case of R v Versac Applegarth J observed that, a finding that the officers acted with reckless disregard for the law, should not, unlike the situation in Bunning v Cross,^[31] result in a finding that the cogency of the evidence has no part to play in the exercise of discretion.^[32] I would adopt a similar approach here. This factor should bear some weight towards the admittance of the evidence.

The importance of the evidence in the proceeding

28. The evidence obtained in the unlawful search on 1 December 2012 is the only evidence for the alleged offence. Without its admission there can be no trial. This fact supports the public policy principle of ‘the desirable goal of bringing to conviction the wrongdoer’^[33] and bears weight for the admission of the evidence.

The nature and seriousness of the offence

29. The seriousness of the alleged offence further supports the admission of evidence. The more serious the offence, the more likely it is that the public interest requires the admission.^[34]  The offence of possessing a dangerous drug in excess of 2.0 grams is a serious one, especially as in this instance the quantity was more than 15 times the limit of 2.0 grams.

The nature of the unlawful conduct

30. On their evidence before me, Paddock and Simmonds gave no thought to securing the vehicle to enable them to obtain a search warrant, despite acknowledging that this could have occurred. Based on their knowledge about the applicant, Jones, and the transaction that was happening at the hotel, it is clear that once they found no evidence on Jones, the police officers simply searched the applicant’s vehicle, believing he must have the drugs. Unlike the situation in R v Versac, both Paddock and Simmonds gave evidence that they were aware of the operation of the emergent search powers. They were not acting under a misapprehension, but were disregarding the constraints placed on search powers.

Whether such conduct is encouraged or tolerated by those in higher authority

31. There is no evidence to suggest that this search or the conduct of these officers was encouraged or tolerated by those in higher authority in the police force.

The ease of compliance with the law

32. Both Simmonds and Paddock were aware of the ability to obtain a warrant from an on-call magistrate,^[35] Simmonds having previously carried out this procedure, and Paddock aware of it by word of mouth. Simmonds explained the procedure: a warrant would be typed up at a police station, then an on-call Magistrate would be called, and the grounds read through to that magistrate.^[36] The fact the police officers were aware of this procedure, combined with the ease in which a warrant could have been obtained, is a factor favouring the exclusion of the evidence.

Conclusion

33. Despite the cogency of the evidence and seriousness of the alleged offence, I have concluded that this is an appropriate case for the exercise of the discretion to exclude the evidence. It is clear from the evidence of the two officers that the situation was not one where an emergent search was required to prevent the disappearance of the evidence. A warrant could easily have been obtained and the law complied with. The evidence is, to adopt the time honoured phrase, ‘the tainted fruits of unlawful conduct’,^[37] and this is a case in which the evidence could easily have been lawfully obtained: there is a clear public interest in protecting individuals from unlawful and unfair treatment.^[38] The factors which tend to support the admission of this evidence are not, in my opinion, sufficient to displace that public interest.

34. Accordingly, it will be ordered that the evidence obtained against the applicant in the search of the Holden Rodeo vehicle registration 951 RVY, on 1 December 2012, is to be excluded.