R v Purdon[2016] QSC 128

SUPREME COURT OF QUEENSLAND

1. HIS HONOUR:   The applicant, Neal Alexander Purdon, is charged on an indictment before the Cairns Supreme Court with two offences, namely, possession of methylamphetamine exceeding two grams and possession of morphine simpliciter.  The pure weight of the methylamphetamine found was about five grams.

2. The context in which his possession of these drugs was discovered was a search of his person after the vehicle in which he was a passenger had been intercepted by police.  In the context of the search of his person there ensued questioning of him about the drugs found.

3. To the extent that any admissions were then made, they related to questioning on the topic of the drugs found, so that if the fact of the search of his person and seizure of the drugs was not a fact that could be elicited at trial, it is difficult to see how the conversation relating to it could be admissible either.

4. Mr Purdon makes application for an order that evidence obtained as a result of the search be excluded from any trial on charges that, on that day, he had unlawful possession of dangerous drugs.  If the application is successful it therefore appears inevitable the case against him would fail.

5. The task at hand involves a consideration, first, of determining whether or not the search which resulted in the finding and seizure of the drugs was unlawful and if so, second, a consideration of a weighing of the competing features discussed in Bunning and Cross (1978) 141 CLR 54.

6. The evidence of the circumstances giving rise to the search is before me in documentary form.  No witness was called.  The main source is the police witness statement of Sergeant DJH.  He states: 

“On Saturday the 28th of February 2015 I was conducting patrols of the Manoora area.  At about 5.25 pm I was driving westbound on Hoare Street and was passing the intersection of McCormack Street. 

An address that I had previously been made aware of in relation to drug offences is located about three houses in on McCormack Street, on the western side of the road.  I looked at this house as I was driving past and observed a male person, who I later identified as Neal Purdon leaving the address. 

I turned the police vehicle around and then drove into McCormack Street.  As I was driving back into McCormack Street I observed that Purdon entered a vehicle and got into the front passenger seat.  The vehicle was an older model, dark or black coloured Mitsubishi, with Queensland registration ...

As the vehicle drove off I followed it for about 200 metres down the street and intercepted it. 

When intercepting the vehicle I had activated the emergency lights of the police vehicle.  I was watching the actions of both the driver and, in particular, that of Purdon, who was in the front passenger seat. 

I could see that when I activated the emergency lights that the driver turned towards Purdon and that Purdon then reacted by leaning forward, and I could tell that he was moving his arms around.  I made the assumption that he was moving something, as that was what his actions were similar to. 

The vehicle eventually stopped after a few seconds.  I stopped immediately behind the vehicle and continued to watch the actions of Purdon as I approached the vehicle.  As I was approaching I could still see that Purdon was fidgeting and placing something either on his body or under the front seat. 

I approached the driver's side of the vehicle first and looked in through the window, which was open.  I was able to clearly see both the driver and also Purdon. 

I identified myself as a police officer by saying, "Sergeant H, Cairns Police.  I've stopped you in relation to some checks."  I then directed the driver, "Can I see your driver's licence, please?"

The driver of the vehicle located his driver's licence and presented it.  I later recorded his details ...

I then asked the driver of the vehicle to exit the car and move to the footpath.  As he was exiting I followed him and still continued to watch Purdon. 

When I reached the footpath I then spoke to Purdon and also asked him to exit the vehicle.  I noted that, as he got out, he took with him one mobile phone and a purple coloured case, along with another mobile phone that was in the original box. 

Once both Purdon and the driver were on the footpath I said to them, "My name's Sergeant H from the Cairns Police.  You're both now detained for the purpose of a search and the search is in relation to drugs.  Because you are detained I'm going to give you this warning:  you have the right to remain silent.  This means you don't have to say anything or make any statement unless you wish to.  If you do, it is being recorded and may later be used as evidence.  Do you understand that?"

Both Purdon and Beech stated that they understood. 

At this time I had attempted to activate my personal body camera.  I later discovered that I'd not turned it on at this time and, consequently, there is no audio or video recording of the search for a period of time ...

I conducted a search of Purdon and located the following items: 

(1) in his left back pocket a green coloured mint tin that was wrapped in black electrical tape.  Inside this were ... three clip‑seal bags.  Each bag contained a substance ... that I suspected was amphetamine or ice. 

(2) in the right back pocket I located Purdon's wallet.  Inside the wallet was a sum of money, documents ...

(3) in the right front pocket was one $50 note and a piece of black electrical tape that was wrapped up.  I could tell that inside the electrical tape was something which I later discovered was a clip‑seal bag with rock crystal that I suspected was amphetamine or ice.”

7. In the upshot, one of the bags found in the mint tin was actually morphine.  The balance of the drugs found were methylamphetamine.

8. The search had two phases:  the first involving the interception of the vehicle, the second involving the actual search of the person of Mr Purdon.

9. The power under which the ultimate search of Mr Purdon occurred was identified in submissions as having been exercised under either or both of ss 29 and 31 of the Police Powers and Responsibilities Act 2000 (Qld).

10. The power to have actually intercepted the vehicle in the first place, if it were a power being exercised other than pursuant to either of those sections, would have to have been, it was submitted, a power exercised pursuant to s 60 of the Police Powers and Responsibilities Act.

11. Section 60(1) empowers a police officer to require the person in control of a vehicle to stop the vehicle for a "prescribed purpose".  None of the prescribed purposes under that section involve a purpose under which Sergeant DJH was acting.

12. I note one of the prescribed purposes pursuant to s 60(3) is to conduct a breath test or saliva test.  This has the consequence that a police officer who might conduct such a test arbitrarily is entitled to require a vehicle to stop for such a purpose.  There is no evidence of any breath test or saliva test being carried out in the context of the search now under consideration and there is no evidence of the vehicle having been stopped pursuant to section 60 for any other purpose prescribed thereunder.

13. Returning, then, to ss 31 and 29, s 31 empowers a police officer to stop a vehicle, detain a vehicle and the occupants of the vehicle, search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.  The premise of the exercise of such power is that the police officer must "reasonably suspect any of the prescribed circumstances for searching a vehicle without a warrant exist".  Those prescribed circumstances, listed in s 32, include that there is something in the vehicle that may be an unlawful dangerous drug.

14. The only relevant circumstance advanced in support of the decision to intercept the vehicle, detain it and Mr Purdon, and search him, is said to be that there may have been something in the vehicle that may have been an unlawful dangerous drug.

15. As to s 29, it empowers a police officer who reasonably suspects any of the prescribed circumstances for searching a person without warrant to stop and detain a person and search the person and anything in the person's possession.  Once again, the only potentially relevant prescribed circumstance of those listed for s 29 in s 30 is that a person has something that may be an unlawful dangerous drug.

16. It is unnecessary to determine whether the search of Mr Purdon's person, which prima facie would be better described as a search pursuant to s 29, is also caught by s 31, in that his person was in the vehicle such that what was on his person comes within the meaning of "a vehicle and anything in it" under s 31.  It is unnecessary to make such a determination because, ultimately, the same question applies:  did Sergeant DJH have a reasonable suspicion that Purdon had possession of an unlawful dangerous drug?

17. Schedule 6 of the Police Powers and Responsibilities Act provides:

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

18. As I observed in R v Jaudzems (2014) QSC 74 (citing George v Rockett (1990) 170 CLR 104):

This is consistent with the well-established principle regarding reasonable suspicion that there must exist some factual basis to reasonably ground the suspicion, although it is unnecessary that there exists proof of the fact reasonably suspected.

19. The factual basis to purportedly reasonably ground the suspicion here is that: 

(1) the sergeant saw Mr Purdon leaving an address the sergeant had previously been made aware of in relation to drug offences;

(2)that when following the vehicle with the police emergency light activated, the driver in the forward vehicle turned towards Purdon, and Purdon reacted by leaning forward, moving his arms around, as if moving something; and

(3) that after the vehicle had stopped, and Sergeant DGH was approaching the vehicle from behind it, he could see that Purdon was fidgeting and placing something either on his body or under the front seat. 

20. These are surprisingly tenuous grounds to be relied on to justify this search.

21. The second and third grounds are of essentially neutral character.  The prospect that a person in a vehicle, at a time after police have commenced obvious steps to intercept it, may move in a way consistent with the person moving property within the vehicle hardly means anything illicit is occurring.  There are a multitude of innocuous reasons why there may be such movement.  Those reasons could involve innocuous movement of property that had no connection whatsoever to the fact that the police happened to be endeavouring to intercept the vehicle and, even if they do, may nonetheless have innocuous motivations, including, for example, concerns of modesty or embarrassment.

22. As to the first ground, I intimated at the outset of this application that an opportunity existed to call Sergeant DGH, so that he might enlarge upon the nature, extent and foundation for that ground.  I infer from the fact he was not called that he could not have provided any more compelling information than the description given in his statement.

23. The mere fact a police officer has been made aware of a residence “in relation to drug offences” is not of itself, or even if considered in connection with the above discussed grounds 2 and 3, anywhere near sufficient to reasonably ground the suspicion.

24. In that regard, the position may be contrasted with the circumstance in Jaudzems that the officer had quite compelling information providing a factual basis to reasonably ground his suspicion.  To illustrate the lack of substance, it is sufficient to highlight that there is no information as to how long before the event Sergeant DGH had been made aware of the information.  Nor is there any indication of whether the “drug offences” had a connection with the house Mr Purdon was leaving, by reason of drugs having been found there or by reason of a known drug offender having previously been in some other way connected with the residence.

25. The information this officer had appears to be so vague and tenuous that it could not conceivably be said to provide a factual basis to reasonably suspect Mr Purdon had drugs on his person or, for that matter, in the vehicle in which he was travelling.  It follows the search of his person was unlawful and the fruits of that search were unlawfully obtained.

26. It remains, then, to consider whether the public interest in the conviction and punishment of Mr Purdon outweighs the undesirability of me giving curial approval to the unlawful search by nonetheless permitting the evidence of what was found to be led.

27. In one sense, the alleged offending is made more serious by reason of Mr Purdon’s lengthy criminal history but on analysis that history really only tends to confirm he is a person with a persistent drug problem.  It is apparently not suggested this was possession for a commercial purpose or, at least, that he would fall to be sentenced on that basis were he convicted.

28. Were he to receive any actual imprisonment, it would be likely to fall into the category of months, rather than years, if indeed he were to receive any actual imprisonment at all.  None of this is to suggest that there does not exist a very significant community concern about methylamphetamine and its effects, but Mr Purdon appears to fall into the category of drug user, rather than drug dealer.

29. As against this, it might at one level be thought it is not a particularly serious breach of the rules regulating police conduct for an unlawful search of a person in a motor vehicle intercepted by police to occur, because of the fact that police can so easily, through lawful means, intercept motor vehicles and stop and detain the occupants.

30. However, the very ease with which police can lawfully do so gives good reason for the maintenance of particular vigilance by the courts where the police act without a lawful basis for doing so.  If that does not occur, there is a real risk that police will pay lip service to the rules with which they must comply in detaining and searching vehicles and persons.

31. Weighing up the competing considerations leads readily to the conclusion that, in this instance, it is more important that the court not be seen as giving curial approval to this unlawful search than it is that Mr Purdon be convicted and punished for his apparent drug offence.

32. I accordingly order: 

1. Application granted. 

2. The evidence obtained as a result of the search of Mr Purdon on 28 February 2015 is excluded from evidence permitted to be led in any trial on charges that, on that day, he unlawfully had possession of dangerous drugs.