R v Nguyen[2016] QSC 207

SUPREME COURT OF QUEENSLAND

1. This is an application to exclude evidence of drugs located by police when searching a bag carried by the defendant on 4 September 2014.  There were substantial quantities of methyl‑amphetamine and heroin in the bag.  The basis of the application is that the police detention and search was unlawful because there was no reasonable suspicion held by the police before the defendant was detained and searched.  The relevant section is s 29(1) of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA):

“(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following –

1.  stop and detain a person;

2.  search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.”

Section 30 of the PPRA defines the “prescribed circumstances” and they include that the person has something that may be an unlawful dangerous drug.

2. The facts as to the defendant’s interaction with the police are contentious.  I heard evidence from Senior Constables Spencer and Auld, stationed at Inala, and Detective Senior Constable Behnke, of the Acacia Ridge CIB.  I thought all three did their best to honestly recall what had transpired on 4 September 2014.
3. On 4 September 2014 at about 3.00 pm Senior Constables Auld and Spencer were on uniformed patrol in Inala.  They were driving a police car.  They saw three men; the defendant and another man of Asian appearance, Beh, in the company of a man of Islander appearance who they both swore they recognised as one Tuioti, a drug dealer.  As it turned out they were wrong about this; the man was not Mr Tuioti.  The three men were walking together in the street towards a house located at 1 Sunbird Street, Inala.  The police drove past the three men but, interested in them, performed a U-turn and drove back towards them. 
4. It is unclear why police were interested in the men in the first place.  It may be that both Spencer and Auld thought they recognised Mr Tuioti.^[1]  Senior Constable Auld thought that it was suspicious to see the three men together because, “I’ve worked in Inala long enough [to know] that usually Asians and Islanders don’t normally – normally mix.”^[2] 
5. In addition, SC Auld swore that the house at 1 Sunbird Street was well known at the Inala Police Station as a drug house.  He had his suspicions because he thought that Beh and Nguyen were heading towards that corner.^[3]  There was some controversy about this for SC Spencer originally swore that he knew the house at 1 Sunbird Street to be a drug house but then resiled from that in his evidence before me when confronted with his having sworn to the opposite effect in another associated matter.  As well, around 10.30 pm on 4 September 2014 police made an application to search 1 Sunbird Street and the affidavit does not mention the fact that the house is well known to police as a drug house, although the deponent, Detective Senior Constable Behnke, swore that had that information been available to him he would have included it, and he had been working with both SC Spencer and SC Auld during the course of the afternoon.  Moreover, the case was conducted on the basis that there had been no disclosure of any police material showing that intelligence suggested that 1 Sunbird Street was a drug house. 
6. I do not doubt that SC Auld was attempting to give his best recollection in his evidence before me.  Unfortunately he made no note in his notebook, or anywhere else, on 4 September 2014 and the first time he made a statement in relation to the matter was months later.  I am not willing to act on his evidence in this regard.  It is quite possible that he had information after 4 September 2014 that the premises was a drug house or that, with the passage of time and the lack of any note to refresh his memory from, he was simply mistaken about this matter.  I cannot be satisfied about it. 
7. In any case, there was something about the three men which attracted the police attention; they performed a U‑turn, and headed back towards the three men.  They saw that the man presumed to be Mr Tuioti separated from the other two and headed across the road.  Both SC Spencer – T 1-14 and SC Auld – T 1-34 – thought that separating upon seeing police was suspicious.  They called the man they thought was Mr Tuioti back.  Both SC Auld and SC Spencer say that then they asked the three men for their names and addresses and asked if they were willing to empty their pockets.  In response, the men began emptying their pockets. 
8. Senior Constable Spencer said that in the course of this process he saw a small clip-seal bag with crystalline substance fall from Mr Beh’s hands to the ground.^[4]  There was quite some cross-examination of SC Spencer as to whether or not he saw the bag drop from Mr Beh’s hands or whether Mr Beh originally put the bag onto the top of a wheelie bin in compliance with police direction and then it fell to the ground, or indeed whether or not the first time SC Spencer saw the bag was when it was already on the ground, in circumstances that caused him to infer that Mr Beh had dropped it.  There was also some cross-examination of SC Auld about this.  He was at a further distance than SC Spencer and was primarily concerned with attending to the defendant rather than Beh.  Also as noted, he made no contemporary notes.  I regard SC Spencer’s evidence as more reliable than that of SC Auld for these reasons.  In the end, I do not doubt the honesty of either officer and conclude that the detail of the bag falling does not matter.  What does matter is whether it fell before or after the men were detained and searched under the PPRA.  There is evidence both ways as to this.
9. Later that afternoon SC Spencer made some notes in his police notebook which included:

“Small csb dropped from Beh hand when placing items onto lid of wheelie bin.  Beh detained and searched. 

… Const Auld searched Nguyen.  Nguyen’s bag placed on bonnet of police vehicle.  Search located a large plastic bag containing a small crystal rock.  Beh and Nguyen arrested.”

10. Because of the amount of drug found in Nguyen’s bag the Inala police involved two officers from the Acacia Ridge CIB, Detective Senior Constables Behnke and Johnston.  At about 4.15 that afternoon Johnston questioned Spencer and Auld as to the circumstances of the police interest, search and arrest in the street.  Behnke made notes during this conversation.  After the conversation SC Spencer summarised the facts of these matters in an email he sent to DSC Behnke.  It was sent at 6.51 pm.  Senior Constable Spencer could not say whether he made the notes in his notebook before or after sending this email. 
11. Senior Constable Spencer’s email to DSC Behnke contained the following:

“1505hrs – All persons emptied their pockets voluntarily and placed all items onto a lid of a wheelie bin and were seated on the ground.  BEH went to place a packet of cigarettes on the lid and in the process a small clip seal bag dropped onto the ground.

1505hrs – All persons detailed by S/Con SPENCER.

S/Con SPENCER searched TUIOTI and a black satchel bag that he was carrying, located a large bag of clip-seal bags containing a quantity of small clip-seal bags street checks were conducted on the male and was then searched voluntarily and then was told to sit down male was acting nervous and skittish and pupils were pin pricks.

As Hang Eam BEH was standing up to place property on the bins a clear clip seal bag has dropped on the ground and BEH was searched and all his property was placed in a clip seal bag once search was finished he has sat down and been watched by Con JOSON.

As Van NGUYEN has been sitting on the ground he was being watched by Keir WESTACOTT who observed the male to be playing with his phone which was taken off him, when WESTACOTT has looked at the phone the messages had been deleted.

At 15:10hrs Van NGUYEN was detained for a person search and declared that he had nothing on him, as Snr Con AULD was doing a pat down search he has located a plastic bag with white powder and a clip seal bag containing a white rock of crystallised granules.  Snr Con AULD has then placed NGUYEN under arrest gave him his rights to silence and handcuffed him and placed into the police car.  NGUYENs black bag was placed in the foot well of the passenger’s side of the police vehicle.

At the time of arrest Snr Con SPENCER has placed BEH under arrest and placed into the second police vehicle containing police from Inala.

Once both males were back at station at 15:28hrs both were separated and the black bag of NGUYEN was searched where the bags of drugs were found.  Both the DDO and CIB were informed at 15:40hrs who have then taken control of the scene.”

12. There is an obvious lack of chronology at the beginning of the email.  It appears to me that SC Spencer attempted to summarise all the interaction with the men between the beginning of the note just extracted and the words “pupils were pin pricks”, and then attempted to add further detail out of chronology in the next two paragraphs.  I think on a fair reading, the email is consistent both with the notes in Spencer’s notebook and the evidence he gave before me: Beh was complying with a voluntary request to empty his pockets when he dropped the bag containing crystal substance.  This was before any person was detained.  Both in the email and in his notebook SC Spencer is concerned to record that the three men were emptying their pockets “voluntarily” when the bag dropped to the ground.  Months later SC Spencer made a statement and then even later still made a second statement.  They are consistent with the other evidence from him.
13. The evidence given by SC Auld is consistent with SC Spencer’s evidence on the point which matters – ie, that the bag containing crystal substance was dropped before the men were detained.  And that it was immediately after that that SC Spencer detained the men under the PPRA for the purposes of a search.  Senior Constable Auld also made two statements some good time after the events.  They are consistent with his evidence.
14. Problems arise because the version of events recorded by DSC Behnke in his diary during the conversation referred to at [10] above, and the affidavit which he swore in support of the search warrant on 1 Sunbird Street Inala, are not consistent with the versions given by SC Spencer and SC Auld.
15. In his notebook DSC Behnke recorded that SC Spencer and SC Auld were patrolling when they observed Beh and Nguyen (only there is no reference to the person mistakenly identified as Tuioti) and then record that at 15:01:^[5] 

“Spencer and Auld approached and observed that Beh was trying to get something from pocket and in process dropped 1 x small csb white powder/crystal fell to ground.  Conducted search of Beh located wallet, cigarettes, phone.  Searched Nguyen who was carrying black bag.

…”

16. The affidavit sworn by DSC Behnke in support of the search warrant said:

“At approximately 3.00 pm on the 4^th of September 2014 Police were travelling east on Lorikeet street, Inala when they spotted 3 x males walking from Lorikeet Street into Shelduck Street.  Police stopped and spoke the three males who identified themselves …

NGUYEN stated that he resides at the place to be searched 1 Sunbird Street Inala and given the location of where they had been stopped by Police nearby police reasonably suspect that the three males had just left this location.

…  Police conducted name checks that revealed that each of the three persons they stopped had previously been charged with drug offences.  Police observed that both Beh and Nguyen were displaying behaviours of being nervous and anxious.  Police further observed that they were skittish and that their pupils were pin pricks and small.

Police subsequently detained the three males for the purpose of a search.

Upon Police request all persons emptied their pockets voluntarily and placed all items onto a lid of a wheelie bin and were seated on the ground.  As Beh went to place a packet of cigarettes on the lid and in the process a small clip seal bag dropped onto the ground that contained a white crystal substance.

…”

17. This version of events sworn to by DSC Behnke is in my view inaccurate in two respects.  First, police observed the three men walking towards 1 Sunbird Street, not away from it.  Second, both SC Spencer and SC Auld described the man they mistook as Tuioti as displaying symptoms of drug intoxication, but denied in evidence before me that either Beh or Nguyen were displaying such behaviours.  I prefer their evidence.  It is consistent with Spencer’s email and against the police interest in the case.  Further, the version given in DSC Behnke’s affidavit is illogical in that immediately after recording the detention, it records a request and voluntary compliance with the request, to place items on the wheelie bin lid. 
18. In all the circumstances I prefer the body of evidence from SC Spencer and SC Auld.  Their evidence was consistent, and they were the officers at the scene.  I find it very difficult to think that SC Spencer would give one version of events to DSC Johnston and DSC Behnke orally and then give a different version to DSC Behnke in writing very soon after.  The version of events in DSC Behnke’s affidavit is demonstrably faulty in two respects and illogical in a third respect.  It appears that there was some misunderstanding on his part of what he was told by SC Spencer and SC Auld.
19. There is a third set of documents which are inconsistent with the versions given by SC Spencer and SC Auld.  They are the QP9 forms in relation to five charges preferred against Beh and Nguyen.  Detective Senior Constable Behnke described that several officers may have input into what is recorded in the QP9 forms, even though only one officer’s name is on the document and that officer signs the document – T 1-53.  He accepted responsibility for the document, but it is obvious that what was recorded in the QP9 forms was at least one stage of hearsay from the versions given by officers Auld and Spencer and perhaps two.  The QP9 forms all begin with a common recitation of fact:

“At approximately 3.00 pm on the 4^th of September 2014 Police from Inala Station were travelling east on Lorikeet street, Inala when they observed 3 x males walking from Lorikeet Street into Shelduck Street.

Police intercepted the 3 males who identified themselves as defendants U-turn performed and located the 3 males in Shelduck Street  Van Tuan NGUYEN (7/11/81), Hang Eam BEH (5/1/68) and the third male Enoka TUIOTI (6/11/84).

Police conducted name checks on each of the persons and observed that each of the males were displaying behaviours of being nervous and anxious indicative of persons who have used consumed dangerous drugs.

Police detained each of the males for the purpose of a search and each of the males emptied their pockets and produced the items from inside their pockets.

Police observed that as defendant BEH was taking a packet of cigarettes from his pants, a small clip seal bag containing crystal rock substance fell from his pocket to the ground.

… Police conducted a search of Defendant NGUYEN …”

20. I regard this version as the least reliable of all the versions of events before the Court.  There are obvious errors and examples of carelessness in the version.  Again I note that both officers Auld and Spencer denied in evidence before me that they noted either Nguyen or Beh being nervous or displaying indications of intoxication.

Reasonable Suspicion

21. In R v Fuentes^[6] I said:

“[21] The term ‘reasonably suspects’ is defined in Schedule 6 to the PPRA as meaning, ‘suspects on grounds that are reasonable in the circumstances’. There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion. The meaning of suspicion in this context is discussed by the High Court in George v Rockett. A suspicion and a belief are different states of mind. A suspicion is a state of conjecture or surmise. It is more than idle wondering. It is positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence. Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief. Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist. There must be sufficient factual grounds reasonably to induce the suspicion. The facts must be sufficient to induce the suspicion in the mind of a reasonable person. The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced. That a young man is driving a smart car with some panel damage is not sufficient to give rise to a reasonable suspicion.” (footnotes omitted).

22. In my view SC Spencer and SC Auld did reasonably suspect that the defendant had possession of unlawful drugs before they detained and searched him.  He was one of a group of three who drew attention because members of the Asian and Islander communities do not generally mix and because the group separated upon police evidencing an interest in them.  The police believed (wrongly as it turned out) that one of the group was Tuioti, a known drug dealer, and believed him to be intoxicated with unlawful drugs.  Then a second member of the group, Beh, demonstrated that he was in possession of a substance which the police believed (correctly) to be an unlawful drug.  At this point in time Nguyen had not demonstrated behaviour which the police thought indicated intoxication or nervousness.  However, in all the other circumstances I accept there was sufficient for the police to rationally conjecture or surmise that Nguyen might have drugs in his possession immediately before he was detained and searched.
23. The application must be dismissed.