R v Dang & Duong[2015] QSC 377

SUPREME COURT OF QUEENSLAND

1. Each applicant applies for a ruling to exclude the evidence seized as a result of an emergent search conducted by the police at 10:05pm on 4 September 2013 at an address in Harvey Place, Calamvale where both applicants were present.  Each applicant also sought exclusion of a field record of interview between that applicant and police that was recorded during the search.  Mr Swanwick of counsel conceded at the outset of the hearing of the application that the prosecution would not be relying at trial on those field records of interview.  The prosecution bears the onus of proving on the balance of probabilities that the emergent search was lawful.
2. The indictment presented in this Court against the applicant Dang charges him with trafficking in methylamphetamine and heroin between 30 June and 5 September 2013, possession of methylamphetamine where the quantity exceeded 200 grams, possession of MDMA and heroin where in each case the quantity exceeded 2 grams, possession of cannabis and alprazolam, possessing a sum of money obtained from trafficking, and possessing things used in connection with trafficking in a dangerous drug.
3. The indictment presented in this Court against the applicant Duong charges him with possession of methylamphetamine and cocaine where in each case the quantity exceeded 2 grams, possession of MDMA, paramethoxymethanphetamine and heroin, and receiving a sum of money obtained from trafficking.

Background

4. A police operation in which the applicant Dang was a target was due to be closed on 4 September 2013.  Nine targeted persons, including Dang, were to be arrested on that day.  Search warrants were obtained from the Magistrate at Holland Park by Senior Constable Dwyer in relation to the targets.  The search warrant for Dang was in respect of an address at Camira which was believed to be the address of Dang.  The offences for which the warrant was issued were trafficking in the dangerous drug methylamphetamine between 26 June and 5 September 2013 and unlawful possession of methylamphetamine on 4 September 2013. 
5. There was a briefing at Dutton Park Police Station about 5pm for all the police officers involved in the closure of the operation.  Detective Senior Constable Green was given the task of executing the search warrant at Dang’s address.  There were at least three other officers involved in assisting her:  Detective Sergeant Kempton, Detective Senior Constable Malcolm and Senior Constable Purcell.  The warrants for all the targets were to be executed simultaneously.
6. Detective Green had information that Dang’s telephones were in the Calamvale area.  The address at Camira on the search warrant was in darkness when she attended with Officer Purcell and she decided not to execute the search warrant.
7. Detective Green then obtained information that Dang was living at an address in Calamvale.  Detectives Green and Purcell drove to Calamvale to see if they could locate Dang’s car.  Detective Kempton was then provided the precise address in Harvey Place that was an address of interest for Dang and Detectives Kempton and Malcolm located one of Dang’s cars, a black Honda Jazz, at the relevant address in Harvey Place and telephoned Detective Green at 9:05pm. 
8. Detective Green was aware of information from telephone intercepts that suggested that on 4 September 2013 Dang had received a very large quantity of drugs. 

What happened at Calamvale

9. There are discrepancies in the evidence of Detective Green and Officer Purcell who were in one vehicle compared with the evidence of Detectives Kempton and Malcolm who were in the other vehicle about the detail of what occurred at the time when Detectives Kempton and Malcolm first took up a position in Stockton Street.  I am unpersuaded that there was any sinister reason for these discrepancies.  The events that preceded the search were not significant for the police officers, as it is apparent from what they said and how they gave their evidence about the events that it was unremarkable for them that they did proceed in the circumstances to do an emergent search.  That was particularly as Detective Green obtained a post-search approval order from the Magistrate at Holland Park for the emergent search conducted at the Harvey Place address.  Statements were not obtained from the police officers on the circumstances that resulted in the emergent search until some weeks before the hearing of this application.
10. Detectives Kempton and Malcolm who were in plain clothes had parked their unmarked vehicle in Stockton Street facing the chicane that joins Harvey Place and Alfred Circuit.  But for the chicane, Harvey Place would be a continuation of Alfred Circuit.  Stockton Street is perpendicular to Alfred Circuit.
11. Detectives Kempton and Malcolm observed what they believed was the black Honda Jazz drive through the chicane and into Alfred Circuit.  They decided to follow the vehicle, but lost it and returned to Stockton Street.
12. Detective Green believed that she and Officer Purcell had arrived at Stockton Street, before the Honda Jazz had been spotted travelling into Alfred Circuit.  Detective Green said she saw the Honda Jazz driving past slowly as she was speaking on her mobile telephone whilst out of her vehicle. Officer Purcell also said that he saw the Honda Jazz.  Detectives Kempton and Malcolm do not recall that Detective Green had arrived in Stockton Street at this stage.  One or other of the police officers is mistaken about whether or not Detective Green and Office Purcell were in Stockton Street at this stage. Detective Green and Officer Purcell (who were also in plain clothes) state that they also left Stockton Street and attempted to catch up with the other vehicles, but were unsuccessful in doing so. 
13. Another discrepancy is the order in which the vehicles returned to Stockton Street.  Detectives Kempton and Malcolm returned to Stockton Street.  As Detective Green and Officer Purcell’s vehicle was driving along Alfred Circuit towards Stockton Street, the Honda Jazz pulled in behind their vehicle and was following it.  Although their vehicle was unmarked, it did have red and blue lights in the back parcel tray (but they were not illuminated).  The police vehicle turned left into Stockton Street and the Honda Jazz continued into Harvey Place and stopped outside the residence which was the address provided for Dang and where it had been parked previously. 
14. Detective Green is not sure when she identified the driver of Dang’s vehicle was female. She estimated it was around 9:35pm that she arrived back at Stockton Street.  The police officers discussed what they should do.  Detective Green was concerned the female driver would alert Dang of their presence and the evidence they expected to find at Dang’s residence would be lost.  Detective Kempton also thought their position had been compromised by Dang’s vehicle driving past twice and was concerned that the closure of the operation had involved a number of targets and other search warrants had been executed.  (Detective Malcolm explained in his evidence that the concern arising from other arrests was that Dang may have been telephoned by an associate about the arrests.)  Detective Green decided to do an emergent search and that was not disputed by the other officers.  She had no idea how many people were inside the relevant residence, but there were two to three cars out the front of the house.  She called Acacia Ridge CIB to get more police officers to assist.  They arrived about 20 minutes later.  While they were waiting for the additional officers, Officer Purcell tried to observe the rear of the subject residence in Harvey Place which backed onto bushland that he accessed from Stockton Street, but it was too thick to traverse. 
15. Detective Green did not consider obtaining a search warrant by telephone, as she did not know or had forgotten that could be done.  She thought she had to go back to the station and type up a warrant.  Detective Green accepted that she wanted to search the residence in Harvey Place, because she believed that Dang was there.
16. When Detective Green applied for post-search approval order, she stated:

“On the 4^th September 2013, prior to executing a search warrant in relation to [address omitted] Camira I ascertained that the telecommunications services being used by DANG [telephone numbers omitted] were mapping in the Calamvale area.  During the execution of the above mentioned warrants information was received from ….. that DANG no longer resided at ….. Camira but resided at an address in Calamvale.  Further intel obtained from investigators involved in ….. a Covert Controlled Operation, ascertained that DANG may be residing at ….. Harvey Plc, Calamvale.  As a result myself and other investigators conducted patrols and identified Honda Jazz Qld registration [registration omitted] parked at the address.  Whilst maintaining observation on the address a female left the address in DANG’s Jazz for a short period of time and when returning to the address pulled in behind the unmarked police car I was driving before returning to the address.

Mapping of Prospective Data on DANG’s mobile services indicated that DANG was still in the Calamvale area and I believed that DANG was inside ….. Harvey Place Calamvale.

Due to the fact that the female driving DANG’s vehicle was aware police were in the street and possibly watching the house I believed the female would advise DANG.  I believed as a result DANG would dispose of any drugs or other evidence I reasonably suspected he was in possession of and evidence of the above offences would be lost.”

17. Although a couple of the police officers called out “search warrant” when the entry to the residence in Harvey Place commenced, Detective Green soon explained to the five occupants (which included the applicants Dang and Duong) that they did not have a search warrant and would be getting a post-search warrant and issuing them with the paperwork in the next couple of days.  The requisite advice of rights and cautions was given by Detective Green to the applicants, but they were denied the opportunity to exercise those rights when they were questioned during the search without being able to speak to a lawyer.  It was for that reason that the prosecution conceded that the field records of interview would not be relied on as evidence at the trials.

Was the emergent search lawful?

18. Section 160 of the Police Powers and Responsibilities Act 2000 (Qld) (the PPRA) permits a police officer to enter and exercise search warrant powers, as if those powers were conferred under a search warrant, if the conditions for an emergent search set out in s 160 are fulfilled. 
19. Section 160(1) provides:

“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.”

20. The definition of “reasonably suspects” in the dictionary in schedule 6 to the PPRA is “suspects on grounds that are reasonable in the circumstances”.
21. It is common ground that strict compliance is required with the conditions for the issue of a search warrant and that also applies to the conditions that authorise an emergent search (without a search warrant).
22. The issue raised by these applications is whether the police officers, but particularly Detective Green, reasonably suspected the matters that are specified in paragraphs (a) and (b) of s 160(1) before deciding to do the emergent search.
23. Even though the applicant Duong was not a target of the operation that was being closed on 4 September 2013, he was present at the Harvey Place address when it was searched and items were seized that the prosecution seeks to rely on for the purpose of proving the charges against Duong.  The lawfulness of the seizure of those items depends on the lawfulness of the emergent search directed at the applicant Dang.  
24. It was submitted on behalf of the applicants that a new search warrant could have been obtained by Detective Green in the usual manner in the time that elapsed between being notified by Detective Kempton of the address in Harvey Place at which Dang’s vehicle was parked and commencement of the emergent search or Detective Green could have relied on s 800 of the PPRA to obtain a new search warrant by telephone.  The fact that there may have been other means to obtain a search warrant for Dang at the Harvey Place address does not decide the question of whether in the circumstances the emergent search that was undertaken was authorised.  The availability of other means to obtain a search warrant is one of the circumstances to take into account in considering whether the circumstances for an emergent search were satisfied.
25. It is clear that the police officers were affected in their judgment as to the requirement of urgency for a search by the fact that Dang’s vehicle had passed Stockton Street in which at least one unmarked police vehicle was parked and had followed the other unmarked police vehicle when it returned to Stockton Street, giving the driver who was likely to be an associate of Dang, as it was Dang’s vehicle, the opportunity to observe that there were police officers in the vicinity of the Harvey Place residence.  It was submitted on behalf of the applicants that the Honda Jazz had to slow down to negotiate the chicane in the road and that there was no reason for the police offices to infer that they in their unmarked vehicles and plain clothes had been identified as police.  Whatever the reason the Honda Jazz slowed down at the chicane, the fact is that it did.  The sighting of Dang’s vehicle where its driver may have seen the unmarked vehicles and occupants was in circumstances where the police officers were concerned that the search warrants for the other targets may have been executed with the potential for Dang to have been notified of other arrests.
26. Even though the exigency of the simultaneous execution of search warrants on the closure of the operation (on the day on which there was telephone intercept evidence that a very large supply of drugs was made to Dang) was not identified by Detective Green on the application for the post-search approval order as a specific factor operating on the decision to proceed with the emergent search, it was undoubtedly the underlying operational reason for the task given to Detective Green to execute the search warrant with the incorrect address for Dang and clearly remained a circumstance that affected Detective Green’s decision to proceed with the emergent search.  There were good grounds for the police officers to suspect that there were drugs in the possession of Dang or the residence where he was located in light of the very large supply of drugs that the telephone intercepts strongly suggested had been made to Dang that day.  The existence of those drugs carries with it the inference that Detective Green drew that there was the potential for those drugs to be destroyed or concealed, if Dang suspected the police were nearby.
27. Care must be exercised in not applying hindsight to the circumstances that applied to the police on that evening.  Theoretically an hour may be sufficient time for a police officer to complete the paperwork or to procure another police officer to do so in order to obtain a search warrant whether in person or by telephone.  (Even for obtaining a search warrant by telephone, s 800(2) of the PPRA limits the circumstances in which the provision can be used to urgent or other special circumstance and s 800(3) requires the prior preparation of an application in writing stating the grounds on which the warrant is sought.)  When Detective Green arrived at Stockton Street after the location of Dang’s vehicle had been confirmed, the course of the matter was affected immediately by that vehicle leaving the residence in Harvey Place. The time taken for the additional officers to arrive from Acacia Ridge to assist in the emergent search is something that was also only known with precision after the event.
28. The applicants submitted the fact that Detective Green waited at least 20 minutes for reinforcements itself proved that Detective Green and the other three officers did not act immediately in doing the search and therefore they did not have the requisite suspicion that the evidence would be lost without an immediate search.  The description “immediately” in s 160(1)(b) of the PPRA is not an absolute measure of time.  It has to take into account all the circumstances. The time for additional officers to arrive from the nearby Acacia Ridge police station to ensure a safe search does not negate the reasonable grounds that Detective Green otherwise had for deciding that an emergent search was required.
29. The applicants submitted that there was lack of good faith on Detective Green’s part and that she travelled to the vicinity of  the residence in Harvey Place where Dang’s vehicle was parked as part of an enterprise to search that residence, intending to “cut corners” under the PPRA.  As the decision to do the emergent search was not made until after the episode when the Honda Jazz left and returned to the residence which itself was a factor that influenced Detective Green, I reject the submission that it was always her intention to do an emergent search.  This is not inconsistent with the concession by Detective Green that she wanted to search the residence in Harvey Place when she was advised that his car was located there.  How the search would be done was dictated by the events as they unfolded.
30. It was also submitted that the failure of Detective Green and the other police officers to permit the applicants to contact lawyers before they were questioned during the search showed a continuing course of conduct by the police not to comply with the PPRA and assists in characterising the conduct of Detective Green in deciding to do an emergent search.  I am satisfied that Detective Green acted in good faith in deciding to do the emergent search and that is not displaced by the subsequent failure of Detective Green and the other police officers to give the applicants the benefit of the right to speak to a lawyer before being questioned. 
31. In all the circumstances that applied to the situation in Stockton Street that Detective Green and the accompanying officers found themselves in after having seen Dang’s vehicle traverse near their position where it was not unreasonable for them to be concerned about Dang then being notified of their presence with the risk that held for the loss of evidence that was reasonably believed to be where he was, the conditions for an emergent search were satisfied (despite Detective Green not considering other means to obtain a new search warrant) and that was validated by the post-search approval order. The possibility of obtaining a new search warrant was not explored because of the concern that the police presence may have been noticed. The search was therefore lawful.

Bunning v Cross discretion

32. If my conclusion that the emergent search was lawful were incorrect, it would be necessary to consider whether to exercise the discretion to exclude the evidence obtained on an unlawful search in accordance with the competing policy considerations and balancing the factors relevant to those policy considerations as was done in Bunning v Cross (1978) 141 CLR 54, 78-80.  A summary of relevant factors was set out by Applegarth J in R v Versac [2013] QSC 46 at [6].
33. In R v Williamson [2009] QSC 434 the police officer who purported to conduct an emergent search of storage sheds in which extremely large quantities of drugs and cash were located was found at [42] to have made the decision to enter without the warrant as “a calculated disregard of the law”.  Although that was acknowledged by Byrne J as a highly significant factor, favouring the exclusion of evidence of what was found in the sheds, the contents of the sheds were vital to the prosecution case, so the exclusion of the evidence could result in a defendant guilty of serious crimes going free.  It was held at [56] that weighing all the pertinent factors resulted in the balance favouring refusal of the application to exclude evidence about the contents of the sheds.
34. An emergent search was conducted by police in R v Milos [2014] QCA 314 where the police attended a unit complex with a search warrant for one unit where it was believed the appellant resided only to find that he had moved to another unit in the same complex.  The police did not know whether or not he was in this unit, but were concerned that their arrival at the unit complex may have been obvious to the appellant or others who might notify him which may have given any persons who were in the unit the opportunity to conceal or destroy evidence.   The primary judge had ruled the search was unlawful, but exercised the discretion in favour of admitting the evidence, as the police officers were acting in good faith and things had moved at a fast pace, precluding any practical attempt to obtain an alternative search warrant.  That exercise of discretion was upheld on appeal.  Morrison JA stated at [97]:

“Further, the evidence obtained in the course of the search was cogent in respect of the offences charged. In terms of the competing issues of policy, the public interest and safety would demand that action be taken to secure the drugs which were seized, to ensure they were not disseminated into the community, and retained in a way to ensure that evidence was not lost. In that sense the urgent steps taken by the police officers were justified by policy considerations.”

35. Morrison JA also at [101] endorsed the approach in Williamson based on the “importance to society of securing a conviction in a case of serious crime”.
36. Mr Jacob of counsel on behalf of the applicant Dang sought to distinguish Williamson on the basis that in that case what was seized under the unlawful warrant was “vital” to the prosecution of the defendant, whereas it is apparent that the evidence seized during the search that is attributed to Dang is not the only evidence that the prosecution has for its case against Dang.  That factor may have tilted the balance in favour of allowing the evidence in Williamson, but that was also a case where there was a flagrant disregard of the law.  Detective Green’s failure to obtain a search warrant was due to her ignorance (and that of her fellow officers) of the availability of using the telephone to obtain the assistance of other police to obtain a new search warrant (whether in person or by telephone) directed to the Harvey Place address.  This is not a case where there is any suggestion that the cogency of the evidence obtained on the search was adversely affected by the failure to obtain a search warrant. It is also not a case like Versac where a factor in favour of excluding the evidence was that the conduct of the police who searched a car for drugs without complying with the PPRA was tolerated by those in higher authority in the police service. The quantity of the methylamphetamine that was located that resulted in the charge against Dang with the circumstance of aggravation that the quantity exceeded 200 grams was so significant there is a compelling public interest in the most cogent evidence of that possession and related offending being available to the prosecution that balances the factors in favour of not excluding the evidence seized on the search and attributed by the prosecution to Dang, despite any unlawfulness of the search. 
37. The charges against the applicant Duong are not the same level of seriousness as against the applicant Dang, but are still serious charges.  The quantity of cash that is the subject of the receiving charge appears from exhibit 7 to be in excess of $200,000.  Mr Hughes of Queen’s Counsel who appeared with Mr Fenton of counsel for the applicant Duong emphasised the sanctity of a person’s residence and the historical reasons for why strict compliance for obtaining a search warrant or doing an emergent search is essential if the sanctity is to be preserved.  It was submitted that not to exclude the evidence would only encourage police to cut corners out of ignorance and give curial approval and encouragement for the police force to be “ignorant” about their obligations.  When applications like these are determined that highlight the need for police to ensure their familiarity with all relevant provisions of the PPRA, it increases the likelihood that in a future matter admission of ignorance about obtaining a search warrant by telephone will be given greater weight in favour of excluding the evidence seized without obtaining a search warrant if the conditions for an emergent search were not otherwise satisfied.  In view of my finding that Detective Green was otherwise acting in good faith in proceeding to do an emergent search, balancing the factors relevant to exercising the discretion as to whether to exclude the evidence in respect of Duong also favours not excluding the evidence seized on the search and attributed by the prosecution to Duong for serious drug charges, despite any unlawfulness of the search.  This is particularly so when the nature of the charges suggest that the evidence that was seized is an important aspect of the case against Duong.  I therefore reject the submission made on behalf of Duong that in all the circumstances applying to him “the ignorance of police is too high a price to pay for a conviction”.  

Orders

38. It follows that in each matter the order which should be made is:

Application to exclude evidence seized in the search conducted by the police on 4 September 2013 at Harvey Place, Calamvale is refused.