R v Hammond & Loosemore[2016] QSC 98

SUPREME COURT OF QUEENSLAND

1. HIS HONOUR: The defendants Mr Loosemore and Ms Hammond make application for the exclusion of evidence found in police searches of their residence, a duplex at unit 2/4 McHugh Street, Rural View on the 15^th and 16^th of June 2014.  Rural View is a suburb near Eimeo in Mackay’s Northern Beaches district. 
2. At the applicants’ residence, police located implements and substances of the kind used in the production of methylamphetamine along with traces of methylamphetamine.  The products of the search give rise to an indictment before the Supreme Court at Mackay charging the applicants co-jointly with count 1, production of methylamphetamine, count 2, possession of relevant things and count 3, possession of a prohibited combination of items.  The female applicant is also charged in count 4 of the indictment with possession of instructions for producing dangerous drugs, which instructions were also found during the search. 
3. The applicants complain the search was unlawful, with the consequence the evidence found ought be excluded.  The respondent argues the search was lawful.  Even if it was not, the respondent submits the evidence ought not be excluded because, in weighing the discretion identified in Bunning v Cross (1978) 141 CLR 54, the public interest in the conviction of the applicants outweighs the public interest in the protection of citizens from unlawful police conduct.
4. Before considering the alleged unlawfulness, an overview of the facts and some relevant provisions of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) is required. 
5. The police interest in attending the applicants’ residence on Sunday 15 June 2014 at about 7.20 in the evening arose out of an incident some five hours earlier.  The application for post-search approval order, made two days later, described that incident in the following way:

At approximately 2.20 pm on the 15^th day of June 2014, police from the Mackay Dog Squad were conducting patrols in Rural View when they observed a white tray-back utility leave a known drug offender’s residence at 2/4 McHugh Street, Rural View.  Police have followed this vehicle, and on attempting to intercept the vehicle, it has decamped at a high rate of speed.  The vehicle has driven through a red light on Eimeo Road at the intersection of Carl Street.  When attempting to follow, the police vehicle has been involved in a crash, and the offending vehicle has not stopped.

6. In fact, what had occurred was that one Dog Squad officer, Sergeant H, had collected another Dog Squad officer, Senior Constable M from his home, at or near Rural View, en route to the commencement of their shift.  That route took them along McHugh Street.  As they drove along McHugh Street, they happened to see a white LandCruiser utility.  On Sergeant H’s account that vehicle departed from near McHugh Street, whereas Senior Constable M testified that it actually came from 4 McHugh Street and, more specifically, unit 2.  For reasons which are not entirely clear, but may be connected with the premises being known to the police, they chose to follow the vehicle to a local shopping centre.  After the two vehicles pulled in near there the white utility suddenly did a U-turn and accelerated quickly off.  The suspicions of at least one of Officers M or H must have been enlivened by this for they gave chase with police lights, but not siren, activated.  The utility sped through a red light and the pursuing police, apparently also running the red light, collided with a citizen’s vehicle which was entering the relevant intersection in the face of what was presumably a green light. 
7. I note for completeness that, despite the obvious fact the police were pursuing a suspect of sorts at the time of the collision, Sergeant H, the driver, disowned the notion that the suspect was evading them.  I further note that the earlier interest in the vehicle had not been as great as may have seemed, in that the police did not even take in the number plate of the vehicle. 
8. After the collision, Officers H and M, who received minor injuries, spent some time at the scene.  They submitted to breath tests by other attending police.  They took their respective police dogs, both of which were injured, to the vet, and they tended to other obligations of the kind arising out of such an unfortunate collision by police with members of the public.
9. Later during their shift, nearing 7 in the evening, Senior Constable M went home temporarily.  In doing so, he noticed a vehicle consistent with the appearance of the suspect white utility parked in the front driveway of 2/14 McHugh Street.  This prompted a briefing back at North Mackay Police Station, to which he had returned. 
10. As a result of that briefing about this mere traffic matter, some five police officers, including a senior sergeant and two sergeants, attended 2/4 McHugh Street at about 7.20 that night. 
11. Not too much ought be made of such a highly ranked investment at attending a mere traffic matter, for, I was told it just so happened to reflect the apportionment of available personnel on this weekend police shift.  In a similar vein, at first blush the presence of five officers seemingly resulted from a high degree of determination, unlikely to have been present had there not been the ignominy of the earlier collision.  However, I was assured the numbers additional to Sergeant H, the injured potential identification witness, along with his less injured Police Dog Squad colleague, reflected a concern the suspect might decamp when police attended, given the suspect’s earlier elusive behaviour. 
12. On arrival at the duplex, three officers, Sergeant W, Senior Sergeant P and Sergeant H approached the front door.  To do so they bypassed the very vehicle in question.  It was parked on the front driveway.  Neither Sergeant H nor Senior Constable M stopped to look at it to see if it was the car they followed.  This was a remarkable degree of disinterest, even giving due weight to their assertion of not wanting to delay in approaching the premises lest the suspect have a chance to see them and take flight.
13. While those three officers approached the front door, Senior Constable M and Constable B walked along the side of the premises inside the fence line to the yard at the rear.  Their purpose in so doing was supposedly to wait outside and watch for, and, if necessary, pursue the suspect fleeing from the dwelling by the rear door or a window.  That, I acknowledge, is understandable given the suspect had seemingly fled in traffic from police earlier in the day (an inference I draw despite Sergeant H’s evidence that events had not gone so far as to describe the suspect as evading police).  In the upshot, however, they apparently abandoned their role as mere precautionary observers outside and entered inside the dwelling via the rear door at about the same time the other officers entered via the front door.
14. The circumstances of the entry via the rear door were not recorded, although, I note, one of the officers later activated a digital video recording device in his possession.  The entry at the front was recorded on an audio device. 
15. Sergeant W led the front entry.  The wooden front door was open.  The front flyscreen door was closed, though perhaps not clicked shut.  Sergeant W was followed by the other two police as he approached the threshold and was apparently seen through the screen door by a female inside. 
16. He said to her, “G’day.  How are you going?”  And she responded, “Hi.  How are you going?”  He said:

Not too bad.  Not too bad.  Sergeant [W] is my name, from the police over at Northern Beaches.  Just conducting some inquiries.  Mind if we come in?

17. On his own account, as he said this, Sergeant W, in fact opened the door and was, perhaps, a step or two inside the house.  In short, he was already on the way in by the time he was saying, “Mind if we come in?” 
18. The female’s response was, “Yeah.”  Taken literally, that signifies she did mind them coming in.  Its tone was possibly acquiescent and, taken in isolation, might arguably have been open to interpretation as consent to the entry. 
19. However, further to the context of the officer having already opened the door and moved to enter, the ensuing exchanges only served to confirm that the entry could not genuinely have been thought by Sergeant W to have been invited and that the police entry was not consented to by the occupiers:

Sergeant W:  Thank you very much.  Do you –

Unidentified speaker:  Well –

Sergeant W:  -- have anyone else here?

Unidentified speaker:  -- it’s not my house, so – you’re already in.

Sergeant W:   How are you going?

Unidentified Speaker:  Yeah, I’m ‑ ‑ ‑

Sergeant W:   Anyone else here?

[Portion of recording indistinct]

Unidentified Speaker:   What’s, um ‑ ‑ ‑

Unidentified Speaker:   I’ve got one.

Unidentified Speaker:   What’s all this about, fellas?  What’s all this about, fellas?

Unidentified Speaker:   Is there any paperwork or anything?

Unidentified Speaker:   Yeah, is there any paperwork?

Sergeant W:   No, no.  You invited us in.  What we’re doing is just conducting some inquiries ‑ ‑ ‑

Unidentified Speaker:   No, we didn’t.  No ‑ ‑ ‑

Unidentified Speaker:   No, we didn’t invite ‑ ‑ ‑

Unidentified Speaker:   [Indistinct].

Unidentified Speaker:   ‑ ‑ ‑ you in, mate.

Unidentified Speaker:   [Indistinct].

Unidentified Speaker:   ‑ ‑ ‑ invited yourself in first.

20. Similar exchanges occurred at a later time.  Later still, when, in a seemingly reflective state, Sergeant W said:

Mate, in relation to the entry ... we’re going to go in bold.  We’re going to go in ... like we own the joint ... until we can keep control.

21. In the interim, Sergeant W had announced the purpose for this unwelcome police intrusion into a citizen’s dwelling house.  He explained:

We’re conducting inquiries in relation to a traffic offence that occurred today on Eimeo Road near Carl Street ... okay?  We’re looking for the driver of a ute matching the description of the one out the front there.  Okay?  That’s what we’re here for. 

22. He thereafter requested everyone present to identify themselves, extending, it appears, to persons fetching their drivers licences to produce.  Why such a roll call was needed before actually asking if anyone present could indicate who the owner of the white utility outside was is unclear.  It unfortunately shows the low priority given to the purported purpose of this intrusion of someone’s home.   
23. This all occurred in the lounge immediately inside the front door.  Looking from there into the premises, there was a kitchen visible directly behind the lounge and the door from it to the laundry to the left of the kitchen was visible.  The rear door entered into the laundry.  The bedrooms were at the other end of the unit to the right of the lounge and kitchen. 
24. On Sergeant W’s account, he saw Senior Constable M and Constable B entering from the rear almost simultaneously upon his own entry into the front.  He did not, however, communicate with them at that stage. 
25. In evidence, Sergeant W made the quite unconvincing claim that the entry of Senior Constable M and Constable B changed Sergeant W’s perception of what police would be doing inside the house:

The fact that they entered the residence – or entered the dwelling has changed things.  It changed – they wouldn’t have entered the rear of the residence had they not formed a suspicion.  So their job wasn’t to come in the back door.  The very fact that they have come in the back door has indicated to me that they formed a suspicion.  Therefore, their whole reason for being there and us being in the house changed.

26. I did not believe this evidence.  It was completely at odds with the fact that Sergeant W made no inquiry at all of Senior Constable M or Constable B as to why they entered or what their supposed suspicion was.  Indeed, that fact supports my impression it was probably always expected that Senior Constable M and Constable B would enter the rear as soon as they could, once they had established that no-one was fleeing the premises on the entry of the police at the front.
27. In due course, Sergeant W ended up outside with the couple who owned the white utility parked there.  He was there given quite convincing information about them and their vehicle, making it highly unlikely their vehicle was the vehicle involved in the episode earlier that day. 
28. Meanwhile, Senior Constable M, one of the officers who came in the rear, had proceeded to look about the bedrooms of the dwelling, on his account checking for the presence of anyone hiding who might injure police.  In a bedroom leaning in a corner, he saw the top third of an apparently unsecured long-arm firearm.  Later, when he went outside the front of the unit, he claims to have told Senior Sergeant P he had seen the firearm.  By this time though, curiously, Sergeant W had been told of the firearm by Sergeant H.  Sergeant H says he was told of the presence of the firearm by Senior Constable M. 
29. Not much turns on these inconsistencies, which are explicable by the vagaries of memory.  What is more noteworthy is the lack of urgency in Senior Constable M announcing the presence of the firearm.  Even more noteworthy still is the complete silence by him and Constable B about why they had entered through the rear door as the others entered through the front door, when the supposed plan was that they were to wait outside.  It is a topic to which I will return. 
30. Having learned of the sighting of the firearm, Sergeant W re-entered the premises and, while speaking to the defendants, became concerned by Mr Loosemore’s increasingly agitated demeanour.  Given Mr Loosemore’s demeanour and the presence of the unsecured firearm, Sergeant W declared what he described as an emergent search. 
31. The digital recording demonstrates Sergeant W referring to the identification of an item of interest and being constantly interrupted in attempting to do so by Mr Loosemore and, to a lesser extent, Ms Hammond.  He proceeded to administer a police caution and, amidst constant interruptions by Mr Loosemore, indicated he was looking to ask questions in relation to the firearm, which, by that stage, was being described as an air rifle.  Ultimately, he said:

I’m now declaring an emergent search.  All right?  You are now detained for the purpose of an emergent search ...

32. He was further interrupted, but eventually said:

Now, stop talking, stop moving.  It’s as simple as that.  All right?  Had you have cooperated, this could’ve gone a lot simpler.  It’s not – I’m now declaring it as an emergent search under the provisions of the Police Powers and Responsibilities Act ... you are detained ... you’re ... not free to move around at all.

33. The search he was declaring was evidently a search pursuant to s 160 of the PPRA, which relevantly provides:

160 Search to prevent loss of evidence

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

(a) 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

(b) the evidence may be concealed or destroyed unless the place is immediately entered and searched.

...

(3) A police officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.

34. At this stage, the only evidence of a “part 2 offence” which Sergeant W suspected was the presence of an apparently unsecured firearm.  It will be necessary to consider whether the search by Senior Constable M, which led to police knowledge of that firearm in the first place, was lawful.  Further, if it was, it will be necessary to consider whether Sergeant W reasonably suspected, in the absence of an immediate search, that the firearm was going to be concealed or destroyed.
35. Continuing with the narrative of events, in the ensuing search, according to the eventual application for a post-search approval order, police located the firearm, two water pipes, a coffee grinder covered in green-leaf material and smelling of cannabis, 18 used syringes and 15 cannabis seeds.  Further to these items, police noticed a baking dish with a white substance in the sink, an iodine bottle in the accused’s bedroom, clip seal bags with a crystalline substance in the laundry and in the rear courtyard of the unit, items which might have related to methylamphetamine production. 
36. Police declared the premises a crime scene.  The police Illicit Laboratory Investigation Team were assigned to attend and in the morning, a magistrate issued a crime scene warrant.  The evidence thereafter located easily supports the charges on the indictment, setting aside what may or may not be said at any trial, should it eventuate, about who was in possession of the evidence. 
37. It is accepted by the prosecution that the lawfulness of the latter search activity flows inevitably from whether the foundation for that activity, what was found in the so-called emergent search, was found lawfully.  Working backwards, further to the events already mentioned, the earlier search by Senior Constable M, in which he saw the firearm, also informs the lawfulness of the emergent search.  It is useful, then, to return to the events in the backyard which allegedly caused Senior Constable M and Constable B to enter via the rear door. 
38. As they had first arrived at the rear of the house, a woman was standing at the back door.  She said, “The cops are here.”  Senior Constable M told her to go back inside and she did.  Constable B then heard a tap running and approached outside the kitchen window.  He there saw a male he later identified as the applicant, Mr Loosemore, standing at the sink washing up a dish in the sink.  He also saw Mr Loosemore drop a plastic container to his right, between the kitchen bench and fridge.  Constable B was not sure, but believed that the plastic container was a water pipe.  On his account he yelled to Mr Loosemore to stop trying to hide stuff and move away from the sink.  None of the police entering at the front reported hearing any such yelling. 
39. Constable B then entered the house, albeit behind Senior Constable M. He testified the reason for his entry was he had observed Mr Loosemore trying to hide a water pipe. 
40. In the end result, long after the entry and in the early stages of the search after the declaration of the emergent search, a bong was found on the floor between the kitchen sink and fridge.  The video, by then being operated by Constable B, shows him pointing that area out to other police, saying, “He’s dropped something down the side.”  It is obvious for several reasons the fact a bong was in fact found has resulted, perhaps subconsciously, in a degree of hindsight reconstruction of Constable B’s level of certainty that the plastic container he had seen dropped by Mr Loosemore appeared to be a bong. 
41. Firstly, the window he was looking through had an Australian flag covering it as a curtain and there were objects lining the window sill.  Allowing for backlighting enhancing his view through the fabric of the flag, I accept he may have been able to see some movement and objects, but hardly with clarity.
42. Secondly, while in his application for a post-search approval order two days later Constable B said he observed Mr Loosemore to be holding a water pipe, in his witness statement of 25 May 2015 he described the item at that point in the narrative merely as a plastic container.  According to his statement, when he came to the item much later during the search, he observed that the plastic container Mr Loosemore had dropped was a homemade bong. 
43. Thirdly, on his account, he told no-one he had seen what he thought was a bong being hidden until the moment when he pointed out its location during the later search. 
44. Notwithstanding that, his companion at the rear, Senior Constable M, was to claim in evidence that while they were still outside, Constable B had told him he believed Mr Loosemore had hidden a bong.  Curiously, he made no mention of that in his statement and no mention of it to any other officer once inside the premises.  Indeed, he had not even mentioned it in his evidence-in-chief until quizzed by me on the detail of his entry.  Up to that stage, his evidence-in-chief was essentially consistent with his statement, the relevant part of which was:

“5.  Upon arrival, I proceeded to the backyard of the address.  When in the backyard I observed a female, who I now know to be Sophie Hammond, the defendant in this matter, come out the back door of the address.

6.  Hammond has then seen myself and then gone back inside the back door and yelled words to the effect of, “Everyone, cops are here.” 

7.  I then walked to the back door.

8.  I then observed Constable B having a conversation with a person through the back window. 

9.  I heard Constable B say words to the effect of, “Stop trying to hide stuff.  Get away from the kitchen.” 

10.  I then looked in the window and observed that Constable B was talking to a male I now know to be David Loosemore.

11.  I then walked into the back door after the police in the front had been invited in.”

45. The overall impression arising is that, in fact, Senior Constable M and Constable B entered through the back door because they understood at that time the other police officers were entering through the front door.  While the timing suggests that may always have been the plan, I conclude their decision to enter when they did, rather than linger longer outside in case someone fled, was heavily influenced by their knowledge that their presence outside had been announced to the household by Ms Hammond from the back door and, to some degree, by their perception Mr Loosemore may have tried to hide something incriminating, thus reinforcing the view that their presence would be more useful inside than out. 
46. I turn then to the question of what power authorised the entry and presence of five police officers inside a private home this night without a warrant. 
47. Submissions focused particularly upon ss 19 and 57 of the PPRA.  Turning firstly to the apparently less relevant of the two provisions, s 19 relevantly provides:

“19General power to enter to make inquiries, investigations or serve documents

(1)The purpose of this section is to ensure a police officer performing a function of the police service may enter and stay on a place in circumstances that may otherwise be trespass.

(2)However, this section does not authorise entry to a private place if a provision of this Act or another Act provides for entry in the particular circumstances only under a search warrant or other stated authority. 

…

(3)A police officer may enter a place and stay for a reasonable time on the place to inquire into or investigate a matter.

…

(4)Also, a police officer may enter and stay for a reasonable time on a place to serve a document.

(5)However, if the place contains a dwelling, the only part of the place a police officer may enter without the consent of the occupier is the part of the place that is not a dwelling.

(6)Also, the police officer may only use minimal force to enter the place.

Example for subsection (6) –

turning a door handle to open an unlocked door and opening the door

48. “Place” is defined at schedule 6 as including “premises”.  “Premises” is in turn defined as including “the land where a building or structure…is situated”.  It follows a suburban dwelling house, and the land it is on, is a place. 
49. In the present context, s 19 dispenses with the need to rely on the common law implied licence or consent to enter private property for likely welcome purposes, such as approaching and knocking on the front door (see for example, Halliday v Neville and Anor [1984] 155 CLR 1).  Here, the police entry on the front of the land to approach the front door was prima facie lawful by reason of s 19, because the three officers were inquiring into and investigating a traffic matter.  The entry to the backyard by Senior Constable M and Constable B, otherwise a likely trespass given householders would hardly be thought to impliedly consent to strangers wandering their backyard after dark, was rendered at least potentially lawful by s 19.
50. Whether it was made lawful by s 19 is less clear, for neither of them was inquiring or investigating.  Their role was to prevent people fleeing.  Arguably, the fact that they were, in that context, assisting other police who were inquiring or investigating might extend the protection of s 19 to them, but in the end result, because this is not the determinative issue, I will refrain from deciding the point and proceed for present purposes on the premise the two officers were lawfully in the backyard.  Section 19 is, however, of no assistance in authorising the police entry into this dwelling, because s 19(5) precludes its application to entry to a dwelling without the occupier’s consent.  Those entering the front of the dwelling did not, on the whole of the evidence, as I have already found, have such consent.  There is no evidence at all to suggest the two officers entering in the rear of the dwelling had consent. 
51. I note that s 19(2)’s exclusion of s 19’s operation does not seem to be triggered by schedule 3 of the Transport Operations Road Use Management Act 1995 (Qld) because under s 20(4), part 3 thereof does not apply to police where its provisions correspond to a provision of the PPRA.  Again, however, I need to express no concluded view because the point is not determinative. 
52. I turn then to s 57, which is contained within chapter 3 of the PPRA, “Powers relating to vehicles and traffic”.  Section 57 provides:

57 Power of entry for ss 54–56

1. For sections 54 to 56, a police officer may enter a place and stay on the place for the time reasonably necessary for the purpose of the entry.

2. However, the police officer may use reasonably necessary force to enter the place only if the entry is authorised by a police officer of at least the rank of inspector.

53. As to ss 54 to 56, s 54 relevantly provides:

54 Power of inquiry into road use contraventions

1. It is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act … has been committed.

2. Also, it is lawful for a police officer to arrange for someone else to make any reasonably necessary inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act … has been committed.

54. The Road Use Management Act is defined to mean the Transport Operations (Road Use Management) Act 1995.   It will be recalled the premises’ occupants had been informed by Sergeant W that the offence under investigation was the running of a red light.  That is a breach of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), a regulation, that is, a statutory instrument, made under the Transport Operations (Road Use Management) Act 1995.  By virtue of s 7 of the Acts Interpretation Act 1954 (Qld), reference to the provision of an Act includes reference to a regulation made therein under.  Section 54 therefore has potential application.  However, it is irrelevant in that the purpose of the entry was to identify the suspect driver and or vehicle.  It was not to inquire or investigate whether an offence had been committed.
55. I turn then to s 55.  It applies where a police officer reasonably suspects a contravention of the Transport Operations (Road Use Management) Act involving a vehicle has been committed and allows the officer to require information that will “help identify the person who was in control of the vehicle”, from persons who may reasonably be expected to be able to give the information.  Because, on one account, the suspect vehicle actually came from the driveway of the unit in question, the persons present at the unit that night might reasonably be expected to have been able to give such information.  It follows s 55 is relevant here. 
56. As to s 56, it relates to a so-called “relevant vehicle incident” defined in schedule 6 to mean an incident involving a vehicle on a road in which death or injury is caused to a person or animal or to property.  There was such an incident, that is, the collision involving the police car and another citizen’s vehicle.  The potentially relevant power under s 56 could, in the context of this case, only be the making of any reasonably necessary inquiry or investigation to obtain information about a person involved in that incident.  But the suspect driver was not “involved” in that incident.  The mere causal connection that the police elected to run a red light in following a suspect driver does not mean that driver was “involved” in the incident which caused the injury and damage.  Section 56, which gives somewhat broader powers than s 55, therefore does not apply here.
57. The upshot, reading s 55 with s 57, is that subject to s 57(2), the police were entitled to enter the dwelling and stay there for the time reasonably necessary for the purpose of the entry.  That purpose, limited by s 55, was to require persons at that place to give the police information identifying the person who was in control of the vehicle when it ran the red light.  Ascertaining whether the vehicle at the front of the duplex was the vehicle in question was a different purpose, although likely to assist the purported lawful purpose for entry.  The ease with which it could be answered by Sergeant H and Senior Constable M looking properly at the vehicle informs what period might be regarded as reasonably necessary.
58. Section 57’s application is limited not merely by the requirement of only taking the time reasonably necessary for the purpose; it is also limited by s 57(2).  The effect of s 57(2) is that if force is to be used to enter the place, it must be authorised by an inspector and must only be reasonably necessary force.  Force, albeit quite minor force, was used to enter the front door of the dwelling, for Sergeant W opened the front flyscreen door.  Such a physical act is within the ordinary meaning of force.  The example given at s 19(6) of minimal force actually includes opening a door, demonstrating the Act accords “force” its usual meaning.
59. The respondent argued the force of opening the door was well under what a reasonable force might be, but that does not remove the requirement that if he wanted to open the door, and if, as I have found, he did not have the occupiers’ permission to do so, Sergeant W needed to seek the permission of an inspector.  He did not do so. 
60. It is irrelevant to the question of lawfulness that an inspector may have approved such force as reasonable, although an inspector if asked may well have pointed out that it was not necessary to enter the premises, to use Sergeant W’s language, like the police owned the place.  An inspector might have suggested, since this was, after all, only a red light violation, that asking those present to come outside was a preferable course.  Similarly, an inspector might have suggested that Sergeant H and Senior Constable M look properly at the vehicle out the front before entering a dwelling.  In any event, the front entry did involve force and was thus unlawful because of the non-compliance with s 57(2).
61. The entry in the rear did not involve force because on the sole evidence on the point from Senior Constable M, the back door was open.  It was, of course, Senior Constable M who, when in the premises, saw the barrel of the firearm when checking if persons were present in the bedroom.  Was the purpose of his entry to require persons present to give information that would help identify the suspect driver, that being the requisite purpose under ss 55 and 57 to make his entry lawful?  That obviously was not his individual purpose, nor is there any evidence he proceeded to fulfil such a purpose by asking persons present about the suspect’s identity.
62. His witness statement asserted he entered after the police out front had “been invited in”, implying his ensuing check for persons present involved him assisting the police entering via the front in their purpose.  However, if he was assisting police perform a purpose those police were not performing lawfully, then it is hardly to the point that he had entered through an open back door to assist them in their unlawful behaviour, for that would not make his entry lawful.
63. Another basis for contending his entry was lawful flowed from the introduction in his testimony before me of an implication that his entry was done in the execution of an emergent search of sorts.  This did not entirely crystallise as a basis for entry until he laid claim to it in cross-examination, saying the entry was to “execute an emergent search at that point”.  He explained that was prompted by his knowledge of what Constable B told him he saw Mr Loosemore doing.  I reject Senior Constable M’s evidence that he entered in the execution of an emergent search.  Had he done so, he would have mentioned it promptly to other police present, and he would have put it in his witness statement. 
64. Moreover, s 160 of the PPRA requires such a search relate to a suspected “part 2 offence”.  Pursuant to s 159, part 2 offences are indictable offences, offences involving gaming or betting or offences against the Criminal Proceeds Confiscation Act 2002 (Qld), Explosives Act 1999 (Qld), Nature Conservation Act 1992 (Qld) or Weapons Act 1990 (Qld).  The summary offence of possession of a bong, that is, a thing used in connection with the smoking of a dangerous drug, is not a part 2 offence.  Senior Constable M was not lawfully on the premises when he searched the bedrooms for people and saw the barrel of the firearm.
65. The upshot is that when Sergeant W declared the emergent search, he was unlawfully on the premises, and the information on which he grounded his purported reasonable suspicion was based on information derived from the unlawful search of the premises’ bedrooms by Senior Constable M.  The ensuing search was therefore unlawful.
66. I note, for completeness, in addition to the above reasons for the unlawfulness given in respect of the entry by the three officers through the front of the premises, that they did not only stay on the place for the time reasonably necessary for the limited purposes of their entry.  As is apparent from the activity I have already described, they in fact exhibited no urgency in getting to the point and inquiring after the sole purpose which could have justified their entry.  Their lack of urgency, particularly in the context of them having entered a dwelling house, causes me to conclude that they stayed for longer than was reasonably necessary.
67. The unlawfulness of the ensuing search in turn infects the crime scene warrant, for it was a product of the fruits of the unlawful emergent search, a fact which obviously would not have been disclosed to the issuing magistrate.  In short, the evidence found and relied on in support of the charges was unlawfully obtained, notwithstanding the prima facie legitimacy of the crime scene warrant, because the warrant under which it was obtained was obtained through reliance on unlawfully obtained evidence.
68. Before turning to discretionary considerations, it is necessary to deal with the submission of the applicants that the emergent search was also unlawful because it was not reasonably suspected the evidence, namely, the firearm, may be concealed unless the premises was immediately searched.  It was submitted, in essence, that the police could have retreated from the dwelling and guarded the premises while an officer went and sought a search warrant.  I reject this aspect of the applicants’ argument.  It is clear a factor in Sergeant W’s thinking was that Mr Loosemore had, by then, become agitated, and the tape confirms as much.  His movements after the declaration of the emergent search verged on disobedience, thus tending to confirm the reasonableness of Sergeant W’s suspicion that Mr Loosemore might conceal evidence.
69. I turn, then, to whether, despite the unlawfulness of the obtaining of the evidence, it ought nonetheless be admitted in the exercise of the Bunning v Cross discretion.  The nature of that discretion has been widely discussed in the authorities (recently and helpfully, for example, by Applegarth J in both R v P [2016] QSC 49 and R v Versac (2013) 227 A Crim R 569).  It remains, as was explained in Bunning v Cross at 74, an exercise in weighing competing requirements of public policy “seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer, and 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”.
70. There are undeniably weighty considerations in favour of admitting the unlawfully obtained evidence.  The evidence found provides cogent proof of offences of the type charged and, if admitted, the only issue at trial would likely be who associated with the premises was responsible for committing them.  While the offences are towards the lower end of the scale of methylamphetamine productions often seen by the courts they are, of course, serious and likely to attract terms of imprisonment involving service of actual jail time, particularly in the case of Mr Loosemore, who has a material criminal history.  The public interest in the conviction of those who produce methylamphetamine, a dangerous drug, the prevalence of which excites serious community concern, is obvious.  In addition, the exclusion of the evidence will likely result in the discontinuance of the charges for want of evidence to prove them with the consequence that persons against whom there is otherwise a strong prima facie case will escape the prospect of conviction. 
71. As against this, it is concerning that of the five police in attendance there were two sergeants and a senior sergeant who, given their rank, might be expected to have the knowledge and restraint necessary to comply with the law regulating their conduct as investigating police, rather than lead by example in its breach. 
72. The ease of compliance with that law is self-evident.  There was no special urgency in play here at all.  The alleged traffic offence occurred at about 2.20 pm.  Senior Constable M gave evidence he had seen the specific residence from which the vehicle in question departed.  There was, therefore, an existing line of evidentiary inquiry to pursue and no need to wait until the suspect car or one like it was sighted in the vicinity of that residence.  If the matter was a truly urgent concern arrangements would have been made for police to attend the address promptly after the collision to ask if anyone present knew who the driver of the vehicle which had recently left the premises was.  The police had ample time to reflect on how they might lawfully conduct themselves when, ultimately, they did attend upon the dwelling in question. 
73. That they were attending a dwelling is also significant.  The law has long recognised the special care needed to guard against the unwarranted intrusion of the state into the security and privacy of the homes of its citizenry.  The PPRA reflects that long-held concern in various of its provisions, which pay special attention to police attendances in respect of dwelling houses.  The need for the police to take special care to comply with the law before and in electing to enter dwelling houses had to have been well known to these police officers.
74. It is particularly concerning the police displayed such an astonishingly cavalier attitude to the fact they were intruding upon a dwelling house, especially given they were only inquiring into traffic offending involving running a red light and possibly speeding.  In my experience of the criminal law investigations of much more serious offending, often undertaken by detectives, generally exhibit a markedly higher level of respect for the sanctity of dwelling houses and the need for care in complying with the laws which exceptionally permit police entry of them.
75. Perhaps most breathtaking was the complete lip service given to whether the occupiers consented to entry into the premises in the first place.  The entry into the front of the premises bespoke an obvious intent to shock and awe the occupiers into acquiescence to the entry by, as Sergeant W put it, “Going in bold like they owned the joint.”  Such an attitude, which bespeaks an underlying legitimate concern for the safety of police in performing their duty, might be utterly unremarkable for police executing a search warrant.  But this was not an entry to search the premises.  It was a mere inquiry into a traffic matter. 
76. Further, there were two officers present who were in a position to use their eyes to see if they recognised the suspect driver and the suspect vehicle yet no priority was given to tending to those most elementary tasks.  Had it been it would have been discovered, as after much delay it eventually was, the suspect driver was not present at the premises and the vehicle at the premises was not the vehicle police were seeking.
77. The court acknowledges police perform a difficult task in managing unpredictable risks to their safety when attending dwellings.  Police have lost their lives in doing so.  However, the provisions of the PPRA give police ample means of protecting themselves without having to bend or break rules protecting the community from an arm of the state which should be protecting the community’s rights rather than violating them.  The uneasy impression to which the evidence gives rise is that the police were insensitive to the need for care in complying with the law in intruding upon a dwelling house because of their belief this dwelling housed a person or persons of past police interest and because of misplaced confidence they would locate the suspect connected to the unfortunate collision earlier that day.  They doubtless thought of that suspect as bearing much moral responsibility for the fact that the police van ran a red light and caused a collision with a civilian involving both property damage and injury to persons, as well as the two police dogs.  But the need for care in compliance with the law in intruding upon homes must not be disregarded merely because the police suspect wrongdoing, for, as this case shows, suspicions may prove to be wrong. 
78. Despite the weighty considerations in favour of exercising the discretion to admit the evidence, they are in this case, outweighed by those favouring its exclusion, with the undesirability of giving curial approval to such a cavalier disregard of the law safeguarding the sanctity of peoples’ homes being a particularly significant consideration.
79. In short, the community interest in seeing to it in this specific case that a couple of likely drug offenders are convicted and punished is outweighed by the broader community interest in ensuring police do not think they can behave like this towards citizens in their own homes when investigating a mere traffic matter. 
80. The application of each defendant is upheld.  I exclude from evidence permitted to be adduced at trial the evidence of what was found in the police searches of unit 2/4 McHugh Street, Rural View, on 15 and 16 June 2014.