R v Jaudzems[2014] QSC 74

SUPREME COURT OF QUEENSLAND

1. The applicant is charged with five counts:

1. supply ecstasy on 20 December 2011 at Cairns;

2. supply ecstasy on 21 December 2011 at Cairns;

3. possess ecstasy with circumstances of aggravation on 28 December 2011 at Ayr;

4. possess methamphetamine on 28 December 2011 at Ayr;

5. possess mobile phone, clip seal bags and digital scales for use in connection with possession of dangerous drug on 28 December 2001 at Ayr.

2. In summary, a motor vehicle, in which the applicant was a passenger, was pulled over by police at Ayr for a random breath test.  In an ensuing search of the car the police found 800 pills of ecstasy in a black plastic bag in the boot.  That gives rise to count three.  Count five relates to digital scales and some clip seal bags found in the same bag.  A small amount of methamphetamine found in the applicant’s personal belongings gives rise to count four.  Counts one and two arise out of Facebook messages between the applicant and some alleged customers.  Those messages were found when the police accessed the applicant’s Blackberry mobile phone that was also seized as a result of the search.

3. The applicant seeks two orders:

1. that the Crown not be permitted to lead evidence of the findings of drugs and a Blackberry during the search of the Holden sedan at Ayr on 28 December 2011; and
2. that the Crown not be permitted to lead evidence of Facebook messages displayed on the Blackberry found in the search.

4. The primary argument advanced on the application is that the search was unlawful and, accordingly, the fruits of the search ought be excluded from the evidence against the applicant. An argument advanced in the alternative is that even if the search was not unlawful the powers of search did not extend to accessing the Blackberry and in turn accessing the Facebook messages relied upon to sustain counts one and two.

5. The motor vehicle in which the applicant was travelling was a blue Holden Commodore sedan. Anthony Horwood and Adam Pepperell were also passengers in the vehicle. The driver was Nicholas Lorenzi. It was pulled over by Constables F^[1] and B at about 11.45 p.m. on 29 December 2011 in Ayr.  According to Constable B the vehicle was pulled over for a random breath test.  Constable B performed that test with a negative result. 

6. While that was occurring Constable F was engaged in a radio communication with Townsville Police Communications in relation to the vehicle and the driver.  That conversation, a recording of which is in evidence, included this exchange:

“COMMUNICATIONS:  In relation to an intel submission that was put on the 16^th that Nicholas may be involved in this supply and traffic of amphetamines in the Cairns and Atherton area.  The intel submission has got as a result of a deal information was received possible high level supply of amphetamines to Cairns and nominated this Nicholas Lorenzi umm yeah that’s about it there are no further flags on him.  I will just bring up his licence number.  His licence is a current provisional 2 C class licence for 2013 he has got 11 on traffic.

CONSTABLE F:  Received that can you show us off that vehicle Queen Street Ayr – four occupants in the car we might have a bit more of a look in there.

COMMUNICATIONS:  Yep no worries - um there is also apparently he is …..is your radio still secure?

CONSTABLE F:  Yeah that’s correct.

COMMUNICATIONS:  Sorry mate info received again just on this intel submission that Lorenzi is a large scale supplier of ecstasy to night club market in Cairns.  He supplies the majority of bouncers who turn the product over for him um the person who provided this information to police was open and honest regarding his involvement so yeah take it as what you like and I will show you off with him.

CONSTABLE F:  Yeah thanks.”

7. Constable F subsequently searched the motor vehicle and located the items referred to above.

8. The exercise of power in stopping the vehicle is not challenged. The power to search the vehicle without warrant is. That power is derived from s 31(1) of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) which relevantly provides:

“31Searching Vehicles Without Warrant

(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant existing may, without warrant, do any of the following:

…

(c) search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.” (emphasis added)

9. The relevant prescribed circumstance is set out in s 32 of the PPRA:

“32Prescribed Circumstances for Searching Vehicles Without Warrant

The prescribed circumstances for searching a vehicle without a warrant are that…there is something in the vehicle that—

…

(c)may be an unlawful dangerous drug...”

10. It appears obvious the above-mentioned radio communication caused Constable F to suspect that there may be illicit drugs in the vehicle. The unusual feature of this matter is that since the search Senior Constable F has advanced additional factual allegations of dubious reliability relevant to the foundation for his suspicion.

11. For instance, he now alleges the vehicle was riding low when it was first seen, something he did not allude to in his witness statement, provided a little over five months after the event. He claimed in that statement that as he approached the vehicle he could see multiple soda bulbs covering the back seat and foot wells of the vehicle and suspected they would contain nitrous oxide, however, as he approached the vehicle there would have been two adult passengers in the rear making it unlikely soda bulbs would be visible to an observer approaching the vehicle.

12. More concerningly, his witness statement described his conversation with Townsville Communications in this way:

“They informed me that the vehicle was the subject of two intelligence reports and provided me with the descriptions and possible names of the occupants.”

While the above-mentioned taped conversation with Townsville Police Communications does not rule out that the operator may have been having regard to two intelligence reports, nothing was mentioned in the conversation about the vehicle being the subject of the reports and nor was anything said of the descriptions and possible names of the occupants other than Constable F identifying the driver as Mr Lorenzi.  Constable F’s statement is wrong.

13. Presumably, in an attempt to remedy this error, some nine months later and only days prior to the hearing of the present application, Constable F provided an addendum statement explaining he had “mistakenly confused some of the finer details in relation to the intelligence submissions given and how [he] received them.” In that statement he explained on a prior occasion he had been involved in a vehicle intercept that had some similarities to the present circumstances and had confused the two. However, cross-examination about the detail of that prior occasion exposed marked differences between the circumstances of that matter and the present.

14. Constable F’s addendum statement also claimed there had been two separate conversations with Townsville Police Communications on the occasion of the intercept of 28 December 2011.  The second communication allegedly involved the operator ringing Constable F back on his private mobile telephone number.  In that conversation Constable F allegedly provided the applicant’s details to the operator, requesting a name check. Constable F alleges that in response the operator informed Constable F “of a second intelligence submission indicating the defendant was named as a supplier of MDMA to bouncers within the Cairns district”.  That allegation by Constable F is also wrong.  It is common ground that intelligence information relating to the applicant was in fact never accessed. 

15. Further to all of this, Constable F asserted in the course of the cross-examination that the occupants of the vehicle “looked nervous”, an assertion that did not appear in his original statement or his addendum statement.

16. I accept, as Constable F asserted, that he decided to conduct a search of the vehicle pursuant to his powers under the PPRA because he suspected it might contain an unlawful dangerous drug.  However, the disappointing litany of errors and inconsistencies in his recounting of circumstances potentially relevant to his formation of that suspicion means his evidence about those circumstances cannot be regarded as reliable unless supported by other evidence. 

17. The recorded communication with Townsville Police Communications provides compelling support for Constable F’s assertion he decided to conduct a search of the vehicle because he suspected there may be unlawful dangerous drugs in it.  It records that after he was advised of Mr Lorenzi’s suspected involvement in high-level supply of amphetamines, Constable F responded in a way suggesting he was formulating an intention to search the vehicle.  Having then been told more about the apparent reliability of the intelligence information it is inevitable he suspected unlawful dangerous drugs may be in the vehicle and it is obvious that is why he searched it. 

18. In short, Constable F’s unreliable evidence about other potential reasons for his suspicion was ultimately an unnecessary diversion from the apparently legitimate reason the evidence shows he actually had.

19. It was submitted but ultimately not pressed that where, as here, an officer advances reasons for the holding of a suspicion and where, as here, those reasons are not credible it is not open to the court to infer the reason the officer in fact had for the holding of the suspicion. In such cases it may often be there is insufficient other evidence capable of allowing such an inference to be drawn. However, if such other evidence does exist, there is no reason in principle why it must be ignored and only the direct evidence of the officer must be considered. Much turns upon the individual facts of each case.

20. In the novel circumstances of this case, there is compelling circumstantial evidence of the reason for Constable F’s suspicion. That reason was the intelligence information he was given in the communication with Townsville Police Communications.  Despite rejecting the other potential reasons subsequently advanced by Constable F, I infer as a matter of fact that the reason he suspected unlawful dangerous drugs may be in the vehicle was he had received apparently reliable information that one of the four men in the vehicle was an active drug trafficker in Cairns.

21. As to whether Constable F’s suspicion was reasonable, Sch 6 of the PPRA provides: 

“reasonably suspects means suspects on grounds that are reasonable in the circumstances.”

This distinction is consistent with the well-established principle regarding reasonable suspicion that there must exist some factual basis to reasonably ground the suspicion, but it is unnecessary that there exist proof of the fact reasonably suspected.^[2]

22. The existence of apparently reliable information that one of four men in a vehicle pulled over at Ayr was an active drug trafficker in Cairns gave Constable F grounds that were reasonable in harbouring his suspicion unlawful dangerous drugs may be in the vehicle.

23. He therefore had the requisite reasonable suspicion and the search was lawful. The application to exclude the evidence of what was found in the search of the Holden sedan at Ayr on 28 December 2011 is refused.

24. The second order sought, that the evidence of Facebook messages displayed on the Blackberry found in the search should be excluded, remains for consideration. As was observed in argument, determination of that limb of the application likely turns upon whether the messages were stored in the phone or whether the phone was used by police to access the internet and download the applicant’s messages to the phone. That distinction is of significance because s 31 only empowers a search of “a vehicle and anything in it.” It does not empower police to use the vehicle or anything found in it to search something or somewhere else.

25. The parties agree further evidence must be adduced to allow this limb of the application to be determined.

26. My orders are:

1. The application to exclude evidence of the findings of drugs and a Blackberry during the search of the Holden sedan at Ayr on 28 December 2011 is refused;

2. I will hear the parties further on the admissibility of the Facebook messages.