R v Watson[2017] QSC 4

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant defendant, Mr Watson, is charged with possession of methylamphetamine in excess of two grams and unlawful possession of a weapon, a form of conductive described in evidence as a taser.  The methylamphetamine and taser were found in the course of a search of a vehicle he had been driving and of his person by police on 13 September 2015.
2. [2]
   Mr Watson applies for an order excluding the evidence of the fruits of that search and Mr Watson’s response to police questioning during the search.
3. [3]
   Mr Watson relies on the ground that there was no proper factual basis for the reasonable suspicion necessary for a lawful exercise of any search power.
4. [4]
   It is necessary to determine whether or not the search was unlawful and, if it was unlawful, to determine whether, notwithstanding that unlawfulness, the evidence ought still be admitted in the exercise of my discretion.

Background

5. [5]
   Senior Constables D and L, police officers with the Far Northern District Tactical Crime Squad, were conducting patrols in an unmarked police car in Cairns at about 1.25 am on Sunday 13 September 2015.
6. [6]
   As they drove southbound on Mulgrave Road towards McCoombe Street they observed a white Toyota Corolla motor vehicle drive out of a nearby side street onto Mulgrave Road, heading inbound.  The vehicle then turned right off Mulgrave Road in the vicinity of Lyons Street.  The police decided to intercept the vehicle for a licence check and breath testing of the driver.  They followed the vehicle to Hartley Street, intercepting it as it travelled inbound along Hartley Street, just short of the intersection with Aumuller Street.
7. [7]
   The police checked the vehicle’s registration on their mobile computer system and ascertained the vehicle was a hire car.  The police approached the vehicle, observing that its sole occupant, Mr Watson, was in the driver’s seat.  He did not have his driver’s licence but provided his correct name and date of birth which were checked to the satisfaction of the police.  He was then subjected to a breath test which returned a negative result.
8. [8]
   During this activity Senior Constable D had been speaking with Mr Watson, who remained seated in the driver’s seat.  He asked Mr Watson where he was travelling from and why he was travelling where he had been intercepted, an area which is a mix of residential and industrial buildings.  Mr Watson said he was travelling from his address, but the police ascertained that Mr Watson’s address was in Aumuller Street and he had been intercepted travelling towards, not from, Aumuller Street.
9. [9]
   He initially told police he was driving towards a friend’s house, then indicated he was looking for his girlfriend whom he named, then he stated that he was going to his girlfriend’s house but, as the conversation progressed further, he was unable to provide police with the address he was going to or an area that he was travelling to.
10. [10]
    Senior Constable D asked Mr Watson who had hired the vehicle and he nominated the hirer as his friend’s girlfriend, Tilly.  He was either unable or unwilling to provide Tilly’s surname when asked for more detail about who had hired the vehicle.
11. [11]
    Also during this phase Mr Watson appeared nervous in that he continued to look straight ahead, avoiding eye contact.  This aspect of his behaviour continued even after he had been informed that the breath test result was negative.
12. [12]
    The two officers, whose suspicions were aroused by this collection of circumstances, conferred and Officer D then informed Mr Watson he suspected there were drugs inside the vehicle or on Mr Watson’s person.  He asked Mr Watson if there was anything illegal like drugs in the vehicle to which Mr Watson said, “Not that I know of.”  He then detained Mr Watson, informing him that he was going to search both Mr Watson and the vehicle.
13. [13]
    After that point Mr Watson stated he had a container of drugs in his front pocket.  That admission was only made after Mr Watson had been detained for the purpose of the search and in response to questioning after the exercise of that power.  Mr Watson was handcuffed and taken to the rear of the police vehicle at which time Senior Constable L’s worn video-recording device was activated.  The recording of what followed was tendered and played during the application but it is of limited assistance in the present context since the critical events occurred prior to the activation of the recorder. 
14. [14]
    In the ensuing search methylamphetamine was found in bags in Mr Watson’s right and left-hand pockets, as well as in a zip-up bag found in the driver’s side footwell.  The total gross weight of all methylamphetamine found was 14.157 grams and the pure weight was 10.943 grams.  Further, a glass pipe was found with the methylamphetamine in the driver’s side footwell.  The taser, disguised as a torch, was found in a container on the front passenger seat. 
15. [15]
    An Apple i-Phone mobile phone was found in the console between the front seats and a Huawai mobile phone was found in the driver’s side rear passenger footwell.  Senior Constable D gave evidence that in dealing with Mr Watson he noticed each of the mobile phones and noticed that each of them illuminated, indicating the receipt of text messages, at least once each.  However, it transpired in the course of his testimony that he was unable to recall whether he had noticed the phone in the console between the front passenger seats before or after he had detained Mr Watson for the purpose of the search.

Was the search unlawful?

16. [16]
    It is common ground the police acted within power in intercepting the vehicle.^[1]  The issue is whether the police were empowered to search Mr Watson and the vehicle without a warrant.
17. [17]
    The power pursuant to which the police purported to lawfully search Mr Watson’s person must have been s 29 Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) which relevantly provides:

18. [18]
    The prescribed circumstances for searching a person without a warrant are in s 30 PPRA which lists various circumstances including, in s 30(a), that the person has something that may be an unlawful dangerous drug.
19. [19]
    The provision authorising the police search of the vehicle without warrant must have been s 31 PPRA which relevantly provides:

20. [20]
    The prescribed circumstances for searching a vehicle without warrant are similar to though not identical to those for searching a person without warrant.  They are set out in s 32 of the PPRA and include that there is something in the vehicle that may be an unlawful dangerous drug.
21. [21]
    As to what is meant by “reasonably suspects”, schedule 6, the definition schedule of the PPRA provides:

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

22. [22]
    This definition accords with the well-established common law principle regarding reasonable suspicion that there must exist some factual basis to reasonably ground the suspicion but it is unnecessary that there exist proof of the fact reasonably suspected.^[2]  It ought be borne in mind that reasonable suspicion is not the same as reasonable belief, and that facts which may be insufficient to reasonably ground a belief may, depending on the circumstances, be sufficient to reasonably ground a suspicion.^[3]
23. [23]
    The grounds upon which the detaining and searching officer, Senior Constable D, arrived at his suspicion in the time prior to him detaining Mr Watson were described by him in evidence:

“During that time, my suspicion was raised on … a number of reasons.  Initially, the time of night, the inconsistent story that we received in relation – what I believed to be an inconsistent story, anyway of his travel’s origin, from his place in Aumuller Street; it just didn’t – that just didn’t make – make any sense to me.  The differing stories that I received in that period of time from going from the – to go to a girlfriend’s – to a friend’s place, sorry, to looking for a girlfriend then going to a girlfriend’s house.  The fact that the – Mr Watson didn’t know who the – who the actual renter of the hire car was.  In my experience, when people are borrowing people’s hire cars, they’re either very hesitant in lending out people’s hire cars, or if you did, you would know who the person was that you were borrowing that hire car from.  Further to that, two mobile phones in the – in the vehicle both illuminating at that stage.  Further to that Mr Watson was quite nervous, even after advising him that his driver’s licence was okay and that his breath test had resulted zero.  His mannerisms didn’t change, and in my experience, once we – people have a tendency to be nervous when intercepted by police.  However, upon giving them the information that there’s nothing really wrong, they have a tendency to relax, where Mr Watson’s mannerisms didn’t change.  He was avoiding eye contact, staying in the same sort of manner that – that he recorded when we first intercepted him.  I’ve formed a reasonable suspicion that there were – that I believed that there were illegal drugs inside the vehicle…”^[4]

24. [24]
    As earlier explained, Senior Constable D’s ultimate position was that he was uncertain whether he had noticed the second mobile phone and the fact that it was illuminating at a time prior to his detention of Mr Watson.  The possession of a mobile phone and the prospect even at 1.25 am of someone sending a text to such a phone is unremarkable.  It should be disregarded in now considering whether there in fact existed grounds for the requisite reasonable suspicion.
25. [25]
    In considering whether the requisite grounds existed, the following circumstances are relevant:

    1. (a)
       The combined circumstances that a local resident was driving a hire car in the early hours of the morning on a route seemingly avoiding major roads such as Mulgrave Road.

Plainly it is not of itself suspicious that a person might be driving a vehicle in the early hours of the morning, but the time of night has contextual relevance.  For example, a law-abiding citizen driving in the rush hour may well take back streets and avoid major roads to reduce delay because of traffic load or the number of traffic lights.  In the context of this case, Mr Watson’s route at such a late hour of the night had the potential, assuming other factors of greater significance were present, to trigger the impression that Mr Watson was taking a route of the kind someone hoping to minimise police interception would take.  As to the fact that he was driving a hire car, Senior Constable L explained it was well known to police that drug users utilise hire vehicles to avoid police detection.  That pattern of illicit use – well known to the court – has greater significance than it would in the absence of other circumstances. It is the combination of circumstances mentioned which heightens the likelihood of the hire car being used for the illicit purpose of drug movement well known to police.

2. (b)
   The fact that Mr Watson did not provide any more identifying information about the identity of the hirer of the vehicle.

On the face of it, it would have been surprising that in the normal course a person in possession of a vehicle hired by someone else, if authorised to use it by that person, could do no more than provide the first name of that person.  It ought also be borne in mind that neither officer gave evidence to the effect, for example, that Mr Watson explained he had a memory block about the hirer’s surname but proffered other identifying information.  The extremely limited information Mr Watson was prepared to or was able to provide, when considered in combination with the overall circumstances, bespoke an apparent reluctance to give the police information about other persons in connection with the hire car and what he was doing with it.  There was of course no lawful obligation on him to do so, but in circumstances where he was electing to speak, his selectivity in the detail he was providing was telling.

3. (c)
   The inconsistency in Mr Watson’s claim about the direction he was travelling from.

The police witnessed Mr Watson drive from a side street on the McCoombe Street side of Mulgrave Road and then drive along and beyond Mulgrave Road into Lyons and Hartley Streets before intercepting him just short of Aumuller Street.  His course of travel was not in a direction from Aumuller Street.  To the contrary, when first seen, he had been seen travelling from a location well removed from Aumuller Street and had in fact driven towards Aumuller Street.  True it is, as was submitted by Mr Watson’s counsel, he may simply have been on a round trip which had started from Aumuller Street to whence he was returning.  However, I am not here concerned with the question of whether or not such a theoretical possibility could have been excluded and it hardly presents as an obvious prospect.  Nor was it suggested as logically arising from other information Mr Watson gave police.

4. (d)
   Fourthly, there is Mr Watson’s inconsistency about where he was travelling to.

Mr Watson varied from indicating that he was heading towards a friend’s house, to indicating he was looking for his girlfriend, to indicating that he was going to his girlfriend’s house and was ultimately unable to tell police “what actual address he was going to, either a friend’s house, or a girlfriend’s house, or an actual area that he was travelling to”.^[5]  Inconsistency and variability of this kind smacks of the sort of obfuscation that might be engaged in by someone behaving illicitly.

26. [26]
    On a collective consideration of the above circumstances I readily conclude there at least existed reasonable grounds for suspicion that Mr Watson was in possession, whether on his person and or in the vehicle he was driving, of evidence of illegal activity.  The two issues upon which argument particularly focussed were whether there existed reasonable grounds for suspecting unlawful drugs were in Mr Watson’s possession and or in the vehicle and, if not, whether it is enough that a police officer reasonably suspects a circumstance prescribed in ss 30 or 32 is present, even if the facts do not allow a basis to form a reasonable suspicion as to which particular circumstance it is.
27. [27]
    As to the first issue, Mr Watson’s counsel submitted there was nothing in the facts known to police to ground the more specific suspicion held by them that Mr Watson had possession of an unlawful dangerous drug or that an unlawful dangerous drug was in the vehicle.  He particularly emphasised the absence of some fact specifically connected with unlawful drugs, such as the sighting of a pipe, a needle and syringe or indicia of drug intoxication.  While such specific evidence pertaining to drugs would likely provide reasonable grounds for the requisite suspicion, the law does not proscribe there must be such specific evidence.  Moreover, it does not follow from the absence of such specific evidence that there will not be more indirect evidence which, considered collectively, provides grounds which are reasonable in the circumstances.  Whether there are reasonable grounds to suspect the possession on a person or presence in a vehicle of an unlawful dangerous drug must inevitably turn upon the individual circumstances of the case.
28. [28]
    Did the circumstances of this particular case go far enough to provide reasonable grounds, not merely to suspect illegal conduct by Mr Watson but to suspect it involved Mr Watson’s possession of or the presence in his vehicle of an unlawful dangerous drug?  By reason of the combined force of the four sets of circumstances I have already identified as relevant, I am satisfied there did exist grounds which were reasonable in the circumstances for the police to suspect there was something in Mr Watson’s possession or in his vehicle that may have been an unlawful dangerous drug.
29. [29]
    In reaching that conclusion I do so conscious the circumstances do not fall to be assessed by asking whether they provided positive proof of the presence of dangerous drugs prior to search or even provided grounds for a reasonable belief dangerous drugs were present prior to the search.  I am only concerned with whether there were reasonable grounds in the circumstances to have suspected unlawful dangerous drugs “may” have been present in the vehicle or on Mr Watson’s person.
30. [30]
    It is unnecessary to repeat my earlier observations about the four relevant circumstances.  However, it is instructive to contemplate them in light of the knowledge police had by reason of their experience about hire cars being a favoured means of transportation in the context of drug offending. 
31. [31]
    The applicant’s counsel contended that police experience in respect of the use of hire cars by drug offenders could not of itself support reasonable suspicion.  He referred to an article published in Pennsylvania’s Journal of Constitutional Law^[6] which discussed a debate in courts of the United States of America as to whether police experience is an independent factor supporting the existence of reasonable suspicion or whether it provides the lens or perspective through which the facts purportedly giving rise to reasonable suspicion are to be evaluated.  The author wrote:

“Thus, for example, in Commonwealth v Dunlap, …the Pennsylvania Supreme Court found that the lower court had erred in relying on Officer Devlin’s experience and training as a “stand alone factor” in assessing probable cause.  The state supreme court did not discount the relevance of the officer’s training, observing that probable cause “is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his training and experience.””  But, the court concluded, that training and experience are only “an aid” in evaluating probable cause or a “‘lens’ through which courts view the quantum of evidence observed at the scene.”  Accordingly, the court required proof of “a nexus” between the officer’s training and experience and the facts used to justify the presence of probable cause…

There is much to be said in support of the Pennsylvania opinion…  As the state supreme court pointed out, according a police officer’s training or experience independent status in evaluating probable cause and reasonable suspicion allows the officer to “bootstrap” a hunch based on constitutionally insufficient objective evidence simply by adverting to his experience as the foundation of his suspicion.””^[7] (citations omitted)

32. [32]
    It is beyond question the mere fact that a citizen is driving a hire car and the police are aware that hire cars are commonly used by drug offenders, would not of itself be grounds for the requisite reasonable suspicion required by ss 29 and 31.  Were it otherwise, police would be at liberty to intercept and search the driver of any hire car in any situation.  In this case, however, the situation in which the police found themselves dealing with Mr Watson involved a collection of circumstances which, setting aside the fact he was driving a hire car, were sufficient to ground a reasonable suspicion he was engaged in illegal activity.  Once it is accepted there existed proper grounds for such a suspicion, the fact Mr Watson was driving a hire car then assumes significance.  That is because the form of illegal activity with which hire cars are known to be connected is drug offending.
33. [33]
    While it is conceivable hire cars might be used for a wide array of criminal activity, the evidence does not suggest they are known to be commonly used for any other illegal purpose than the conveyance of drugs.  Once the surrounding circumstances suggested Mr Watson was likely engaged in some illegal conduct, it was hardly surprising the police suspected that conduct involved the presence of unlawful dangerous drugs on his person or in his vehicle. 
34. [34]
    In light of those circumstances and once it is appreciated the type of illegal conduct that hire cars are commonly associated with is drug offending, such a suspicion was a reasonable suspicion.  It follows the search was lawful and the fruits of the search were lawfully obtained.  I will therefore dismiss the application.
35. [35]
    This conclusion makes it unnecessary to express a concluded view on the second issue, namely whether or not it is sufficient to suspect the presence of one of the circumstances prescribed in ss 30 or 32 without holding a more specific suspicion as to which of them it is. 
36. [36]
    Because the circumstances in this case might be regarded as finely balanced, it is appropriate to consider whether, had my decision about those circumstances fallen the other way, I would nonetheless have admitted the evidence in the exercise of my discretion.

The exercise of the discretion

37. [37]
    In Bunning v Cross^[8] Stephen J and Aickin J cited the Chief Justice’s observations in R v Ireland^[9] as representing the law in Australia in respect of unlawfully obtained evidence, namely:

“Whenever such unlawfulness or unfairness appears, the Judge had a discretion to reject the evidence.  He must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion.”^[10]

38. [38]
    Their Honours went on to observe:

“What Ireland involves is no simple question of ensuring fairness to an accused, but instead the weighing against each other of two competing requirements of public policy thereby 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.”^[11]

39. [39]
    Considerations identified as relevant in Bunning v Cross were: firstly, the nature of the unlawfulness, particularly whether it involved a deliberate or reckless disregard of the law; secondly, whether or not the illegality affected cogency; thirdly, the ease with which the law might have been complied with; and, fourthly, the nature of the offence charged. 
40. [40]
    In the case at hand, firstly I detected no sign of the police decision-making involving a deliberate or reckless disregard of the law.  Secondly, their conduct did not bear upon the cogency of the evidence found.  Thirdly, this is not a case in which the ease with which the law might have been complied with in procuring the evidence is an apt consideration.  If there was not a sufficient basis to ground police suspicion, then there was no way of satisfying the legal requirements necessary for search without a warrant or, for that matter, with a warrant.  Fourthly, as to the nature of the offence charged, the possession of 10 grams of methylamphetamine in the normal course would likely attract a sentence of imprisonment.  Moreover, the promulgation of methylamphetamine within our community is a matter of serious concern.  As against this, the alleged offending is at the moderate rather than major level of seriousness relative to the spectrum of cases involving methylamphetamine coming before this court. 
41. [41]
    No one of these considerations is determinative and moreover they do not constitute a complete list of relevant considerations.  Indeed, Stephen and Aickin JJ warned in Bunning v Cross against fixing upon abstract criteria relevant to the exercise of a discretion.^[12]  Relevant considerations will vary depending upon the circumstances of an individual case.
42. [42]
    In this case the most determinative consideration relevant to the exercise of the discretion is the fact the police did not act in deliberate or reckless disregard of the law.  The evidence shows they turned their mind to the sufficiency of the facts in support of the suspicion held by them so that if there was an error, it was an error of judgment on a matter of degree. 
43. [43]
    This is not a case in which the police acted in blatant disregard of the constraints upon them in respect of their power to search.  This court should of course be on its guard against giving curial approval to deliberate or reckless disregard of the law.  However, the exercise of the discretion in the circumstances of this case in favour of admitting the evidence, notwithstanding error as to the sufficiency of grounds for the requisite suspicion, is inherently unlikely to be interpreted by police as a signal from this court that it will turn a blind eye to deliberate or reckless disregard of the law by police.  In the particular circumstances of this case the desirable goal of bringing the wrongdoer to conviction carries obviously greater weight in comparison to the improbable prospect of the dismissal of the application being seen as giving curial approval or encouragement to unlawful conduct by police. 
44. [44]
    Therefore, even were I to have concluded there were insufficient grounds for the requisite suspicion I would nonetheless have allowed the evidence in the exercise of my discretion.

Order

45. [45]
    My order is:

    1. Application dismissed.