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SUPREME COURT OF QUEENSLAND
R v Swayn  QSC 116
JAK QUINN SWAYN
Indictment 338 of 2021
Application filed on 13 April 2021
Supreme Court at Brisbane
26 May 2021
17 May 2021; further written submissions on behalf of the applicant dated 24 May 2021; further written submissions on behalf of the respondent dated 25 May 2021
CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant was charged on indictment with trafficking in dangerous drugs and associated offences – where a vehicle the applicant was driving was searched pursuant to ss 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant asserts that the search was unlawful and seeks an order that the evidence obtained as a result of the search as well as various statements made by him in connection with the search be excluded from evidence at his trial – whether the police had a reasonable suspicion that there may be a dangerous drug in the vehicle – whether the search was unlawful
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant is charged on indictment with trafficking in dangerous drugs and associated offences – where a vehicle the applicant was driving was searched pursuant to ss 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant asserts that the search was unlawful and seeks an order that the evidence obtained as a result of the search as well as various statements made by him in connection with the search be excluded from evidence at his trial – whether, if such evidence was unlawfully obtained, it should be excluded in the exercise of the court’s discretion
Criminal Code Act 1899 (Qld), s 590AA
Police Powers and Responsibilities Act 2000 (Qld), s 5, s 7, s31, s 32, s 150, s 393
Bunning v Cross (1978) 141 CLR 54, followed
R v Barbaro  QSC 346, cited
R v Ireland (1970) 126 CLR 321, cited
R v Kairouz  QSC 270, followed
R v Keen  2 Qd R 1, cited
R v Kovacevic  QSC 399, followed
R v Milos  QCA 314, cited
R v Pohl  QSC 173, cited
R v Pollard (1992) 176 CLR 177, cited
R v Versac (2013) 227 A Crim R 569, cited
State of New South Wales v Robinson (2019) 266 CLR 619, cited
Williams v The Queen (1986) 161 CLR 278, cited
P Feeney for the applicant
S Dickson for the respondent
Michael Cooper for the applicant
Office of the Director of Public Prosecutions (Qld) for the respondent
- The applicant is charged on indictment with one count of trafficking in methylamphetamine, one count of supplying a handgun, one count of possession of methylamphetamine in a quantity exceeding two grams and one count of possession of a handgun in a public place. All this alleged offending is said to have come to light after a vehicle driven by the applicant was searched by police late on the evening of 31 May 2020.
- By this application, a ruling is sought on behalf of the applicant that the physical evidence and admissions obtained by police in consequence of the search be excluded from evidence at his trial. It was submitted that there was no power to search the vehicle in the circumstances that then obtained. In the alternative, it was submitted that, if there was power, the search was still unlawful because the police did not have reasonable grounds for suspecting that there were dangerous drugs in the vehicle.
- The application was opposed by the Crown. It was argued that there was both power and sufficient grounds to conduct the search. Furthermore, it was contended that even if the court was to find that the search was unlawful, the challenged evidence should nevertheless be admitted in the exercise of the court’s discretion.
- The application falls to be determined on an agreed body of evidence comprising written statements of the arresting officers (Senior Constables Byrnes and Geraghty), body worn camera footage of the engagement between police and the applicant, and the oral evidence of SC Byrnes. In addition, the court was asked to proceed on the basis that the evidence in the proposed Crown case, if accepted, supports the various allegations set forth in a draft Statement of Facts prepared by the Crown.
- According to the evidence adduced at the hearing, at approximately 11.15 pm on 31 May 2020, SC Byrnes and SC Geraghty were in a marked police vehicle conducting patrols in an area of Lutwyche that is known for illicit drug activity when their attention was drawn to a sedan being driven by the applicant. SC Byrnes decided to intercept the vehicle for the purposes of a roadside breath test and licence check. Before that occurred however, SC Geraghty ran a check on the vehicle’s registration status and learned that it had expired five days previously.
- The applicant soon after drove the vehicle into a “communal car park” underneath a block of residential units and parked in one of the spaces. SC Byrnes and SC Geraghty followed in their vehicle and parked a short distance away before turning on the emergency lights fitted to their vehicle. SC Byrnes activated his body-worn camera.
- Both officers approached the applicant’s vehicle. The engine was still running. SC Byrnes gestured to the applicant to turn the engine off and he did so before alighting from the vehicle and locking it. He was wearing a black hooded sweater with the hood pulled up over his head. SC Byrnes told the applicant to “jump back in the car”. The applicant did not immediately comply with that direction but after SC Byrnes repeated that direction and said that he wanted to conduct a licence check and roadside breath test, the applicant unlocked the driver’s side door and re-entered the vehicle.
- SC Byrnes remained in close proximity to the applicant because of what he perceived to be a reluctance on the part of the applicant to get back into his vehicle. SC Byrnes also observed that, as the applicant sat in the driver’s seat, he attempted to close the door in a “quick, deliberate, forceful manner”. SC Byrnes reached out and took hold of the door frame to prevent that occurring. SC Byrnes then told the applicant that he was “detained for the purpose of a licence check and roadside breath test”. The applicant was then directed to produce his driver’s licence, which he did. SC Byrnes asked a series of formal questions, all of which were answered by the applicant. According to SC Byrnes’ written statement, he then formed the opinion that the applicant was affected by “something”, either alcohol or drugs. The applicant’s eyes were bloodshot with wide, dilated pupils, he had a “strung out tired ruddy look”, slow speech and appeared to be “very nervous and anxious” when retrieving his driver’s licence before handing it over. Further, when giving evidence on the hearing of the application, he said this:
“I initially observed that [the applicant] appeared to have a clammy, ruddy complexion, strung out type … he appeared to be pale, tired, like he’d been awake for some time, sort of an appearance that, to me, was consistent with someone who may have used a dangerous drug.
Also, it appeared that he had bloodshot eyes, and his pupils, in my opinion, appeared to be quite wide and quite dilated. I also observed that when I spoke with him, sometimes his answers weren’t – or he didn’t reply quite clearly and he didn’t appear to be able to listen to me and respond to me quick enough, and I formed a reasonable suspicion that maybe he’s under the influence of something, be it … alcohol or drug.
I also noticed, too, that on his forehead, he had what appeared to be some perspiration, which, in my opinion, given that time of night, that location and time of year, was also consistent with what I know to be drug use.”
- SC Byrnes was then asked whether he suspected that the applicant was under the influence of alcohol, to which he replied:
“I suspected that it was possibly drugs, based on his indicia. Usually, with alcohol, you’ll … smell alcohol being emitted. However, it’s not always the case, so it’s important to conduct a roadside breath test. But more so dangerous drugs, for myself.
- SC Byrnes asked the applicant whether he had consumed alcohol or “dangerous drugs or anything” to which he replied that he had not had anything to drink and that, whilst he “did do drugs” in 2012, he was “sober now”. He said that he had not taken any medication but that he was tired after “a big week”. SC Byrnes then said:
“I’m going to detain you mate for the purpose of a search, is this your vehicle?”
- The applicant replied that it was his vehicle and, on further questioning, said that everything in the vehicle belonged to him, that he had nothing to declare, and that his “reason for travelling tonight” (it having earlier been established that he resided in Yeppoon) was that he was in Brisbane to see a medical specialist and “just popped over” to see a friend.
- As other police arrived at the scene, SC Byrnes told the applicant that he was “detained for the purpose of a roadside breath test” and required a specimen of his breath. When that was taken, the device returned a negative reading. SC Byrnes then said:
“Based on your indicia … you’ve been detained for the purpose of a search and a vehicle search … is there anything in the vehicle at all that may be of interest to us as police officers?”
- SC Byrnes explained in oral evidence that when the breath test was negative for alcohol, he “believed that [the applicant] may have been under the influence of drugs”. He then added:
“I also believed that there may have been possible drugs in the vehicle based on his behaviour at the time of interception when he first got out of the vehicle, and I needed to tell him three times to get back in, and he appeared very reluctant to do so”.
- The applicant said that he had nothing to declare and, at that point, SC Byrnes asked him to alight from the vehicle. The applicant then appeared to yawn, lean forward over the steering wheel and “grab the vehicle key that was situated on the front left passenger … seat”. SC Byrnes asked, “What are you grabbing there?” but the applicant did not answer. Instead, he “proceeded to quickly transfer the key from his left hand to his right hand and then place the … key into the ignition drum”. He turned the key and SC Byrnes “heard the auxiliary position on the ignition drum … turn on”. Because SC Byrnes believed that the applicant “was attempting to drive the vehicle”, he took hold of the applicant’s “right forearm and pulled his hand away from the key” before reaching in to remove the key from the ignition and throwing it onto the vehicle’s roof.
- The applicant was pulled from the vehicle and placed under arrest for obstructing police. As he was being handcuffed, the applicant reached for the front pocket of his sweater. SC Byrnes reached into the applicant’s pocket and retrieved a plastic clip seal bag containing a “crystallised” substance, a glass pipe and $1,000 in cash. He cautioned the applicant before commencing a search of the vehicle. That revealed several things including a loaded handgun, assorted ammunition and the applicant’s mobile telephone.
- When giving evidence at the hearing, SC Byrnes explained that when he and SC Geraghty were placing the applicant under arrest, SC Geraghty suggested to other police on the scene that police officers with training in the administration of roadside drug tests be summonsed but that did not eventuate. None of the police at hand (including SC Byrnes and SC Geraghty) had received any such training.
- The data stored on the applicant’s mobile telephone was subsequently downloaded and, on the Crown’s interpretation of it, the data is said to support the allegations that the applicant trafficked in methylamphetamine between 16 May 2020 and 1 June 2020, that he was able to purchase and supply wholesale amounts of that drug and did so with respect to five identifiable customers over the relevant period, that he sold a total of 10.75 ounces of the drug over four separate transactions for $64,850 and that he was arranging to purchase a kilogram of the drug for $220,000. It will also be alleged that the applicant had access to weapons and on various occasions contacted associates to find out whether they could supply him with ammunition in various calibres. The unlawful supply of weapons count is alleged to be based on an act preparatory to supplying a weapon to another person. The unlawful possession of weapons count relates to the loaded handgun found in his vehicle and the remaining count – possession of methylamphetamine in a quantity exceeding two grams – relates to the substance found in the clip seal bag in the applicant’s pocket.
Was there power to conduct the search?
- The power to search a vehicle without a warrant is conferred by s31 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA). It is in these terms:
“31 Searching vehicles without warrant
- (1)A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following—
- (a)stop a vehicle;
- (b)detain a vehicle and the occupants of the vehicle;
- (c)search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.
- (2)Also, a police officer may stop, detain and search a vehicle and anything in it if the police officer reasonably suspects—
- (a)the vehicle is being used unlawfully; or
- (b)a person in the vehicle may be arrested without warrant under section 365 or under a warrant under the Corrective Services Act 2006.
- (3)If the driver or a passenger in the vehicle is arrested for an offence involving something the police officer may search for under this part without a warrant, a police officer may also detain the vehicle and anyone in it and search the vehicle and anything in it.
- (4)If it is impracticable to search for a thing that may be concealed in a vehicle at the place where the vehicle is stopped, the police officer may take the vehicle to a place with appropriate facilities for searching the vehicle and search the vehicle at that place.
- (5)The police officer may seize all or part of a thing—
- (a)that may provide evidence of the commission of an offence; or
- (b)that the person intends to use to cause harm to himself, herself or someone else; or
- (c)if section 32(1)(b) applies, that is an antique firearm.
- (6)Power under this section to search a vehicle includes power to enter the vehicle, stay in it and re-enter it as often as necessary to remove from it a thing seized under subsection (5).”
- In R v Kovacevic  QSC 399, I had this to say about the operation of this provision:
“One of the purposes of the PPRA is to ‘ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act’: s 5(e). Furthermore, it was the ‘Parliament’s intention that police officers should comply with [the PPRA] in exercising powers and performing responsibilities under it’: s 7(1).
Various ‘prescribed circumstances for searching [a] vehicle without [a] warrant’ are specified in s 32 of the PPRA. These include that there is something in the vehicle which ‘may be an unlawful dangerous drug’: s 32(c). The expression, ‘reasonably suspects’ is defined in Schedule 6 (Dictionary) to the PPRA to mean ‘suspects on grounds that are reasonable in the circumstances’. That definition is consistent with the common law – there must be a factual basis to reasonably ground the suspicion, but it is unnecessary that there exists proof of the fact reasonably suspected: George v Rockett (1990) 170 CLR 104, 115. A reasonable suspicion connotes something less than a reasonable belief but the fact or facts suspected must be more than a mere possibility. There must be something which would create in the mind of a reasonable person a suspicion that, relevantly, there may be an unlawful dangerous drug in the vehicle.
The onus is on the Crown to prove the existence of a proper factual basis for the suspicion, and to do so on the balance of probabilities: R v Keen  2 Qd R 1, -. In this regard, a suspicion is of course a state of mind which is concerned with circumstances as they appear to the holder to be at the relevant time rather than the circumstances as they actually are at that time: Commissioner of Police v Flanagan  1 Qd R 249, 264 . But as I have just touched upon, there is more to it than that; not only must the police officer personally form the suspicion at the time when he decides to detain and search, the suspicion must be objectively reasonable in the sense that it must be based on facts which would create a reasonable suspicion in the mind of a reasonable person: Rowe v Kemper  1 Qd R 247, 254.” [At ,  and , emphasis in original]
- On the hearing of the application, the applicant’s counsel argued that because his client had been extracted from his vehicle, handcuffed and placed under arrest, he was no longer detained for the purposes of s 31 PPRA. That was because, it was contended, the applicant was “unable to re-occupy the vehicle” and therefore “could no longer be an occupant”. At that point, he submitted, the police ought to have stayed their hand and instead sought a warrant to search the vehicle pursuant to s 150 PPRA. With respect, the applicant’s argument involves several misconceptions and cannot be accepted.
- First, once the decision to detain the applicant and his vehicle was made – and assuming that decision was properly based – there was power to search the vehicle. Furthermore, the critical time for the conferral of the search power was when the decision was made, and not at some subsequent time. As soon as the preconditions for the existence of that power were satisfied it mattered not what later occurred between the police and the applicant because the focus of the power was then solely on the vehicle and not the applicant. Put another way, once conferred, the exercise of the search power no longer required any connection between the applicant and the vehicle and, so, regardless of whether the applicant’s detention had come to an end, that circumstance could not affect the continuing existence of the power.
- Second, although there is a line of single judge decisions of this court where consideration has been given to the relevance of occupancy of a vehicle by a person to the existence of the power conferred by s 31 PPRA (see, for example, R v Versac (2013) 227 A Crim R 569; R v Pohl  QSC 173; R v Keen  2 Qd R 1; R v Barbaro  QSC 346; R v Kairouz  QSC 270), they do not have any bearing on the outcome of this case. That is because the applicant was seated in the driver’s compartment (and therefore an occupant) when SC Byrnes formed (what I find below to have been) a reasonable suspicion that there was a dangerous drug in the vehicle.
- Third, I do not accept in any event the proposition that a person who, after being detained is placed under arrest, is no longer detained. As Bowskill J observed in R v Kairouz  QSC 270 at , a “person may be detained, without being arrested; but a person who is arrested is also, in a practical sense, [still] detained”. It would otherwise be absurd if the lawful detention of an offender could be made unlawful by conduct on the part of the offender leading to his or her arrest; as I concluded above (at ), the existence of the search power in any given case depends on satisfaction of the preconditions for the coming into being of that power and not on events that occur subsequently.
- In supplementary written submissions received after the hearing of the application, the applicant submitted that “once an arrest without warrant is made for an offence of the kind involved here [obstructing police] any detention that is not an incident to that task is not lawful”. This appears to be a slightly different point to the one advanced on the hearing of the application but, be that as it may, the applicant cited two decisions of the High Court to support this new formulation – Williams v The Queen (1986) 161 CLR 278 and State of New South Wales v Robinson (2019) 266 CLR 619 – although the passages relied on from those decisions were not identified in the written submissions. Reference was also made to a number of provisions of the PPRA including s 393(1)(a) which stipulates that the duty of a police officer after arrest without warrant is to “as soon as reasonably practicable, take the person before a court to be dealt with according to law” and both Williams and Robinson were concerned with similar provisions in other States. If the applicant’s new formulation of the argument is that any continued detention of him after arrest was unlawful, that does not advance his cause for similar reasons to those expressed above (at ) i.e., even if the applicant’s detention became unlawful, that circumstance could not affect the existence of the search power. Additionally, I do not accept the factual premise for the argument. The obligation on the part of police officers is to take the arrested person before a court as soon as reasonably practicable. It is not an obligation to do so immediately or, in every case, to abruptly cease doing everything then being carried out as part of a lawful investigation in favour of transporting the person to the watchhouse for processing.
Were there reasonable grounds for SC Byrnes’ suspicion?
- The applicant’s counsel submitted there were insufficient “objective grounds for the search” of the applicant’s vehicle or, expressed differently but to the same effect, the police did not have reasonable grounds for suspecting that there were dangerous drugs in the vehicle. In this regard, he contended that the observations made by SC Byrnes regarding the applicant’s indicia were made with respect to “a stranger over a very short period of time” and therefore presented as a “scant basis for deciding beyond the possibility that [the applicant] was affected by drugs”.
- I cannot agree.
- SC Byrnes impressed me as an experienced police officer who proceeded not only in accordance with a correct understanding of the limits of his search powers, but in a logical way. After observing the applicant’s behaviour (including the locking of his vehicle after he first alighted from it, his reluctance to immediately comply with directions and his attempt to forcefully close the door after resuming his seat), SC Byrnes formed the opinion that the applicant was affected by either alcohol or drugs, or both. Not only that, in his written and oral evidence, SC Byrnes provided considerable detail regarding the indicia he observed and which formed the basis for his opinion in that regard. He then proceeded logically; requiring the applicant to undertake a breath test for the presence of alcohol. When that produced a negative result, he concluded that the applicant must be affected by a drug. That was an entirely reasonable, and soundly based, conclusion to reach in all the circumstances (including that a drug test could not be administered to confirm the position one way or the other). Accepting that to be so, as I do, it was then reasonable to suspect that the applicant, as a drug-affected person, might have an unlawful dangerous drug in his vehicle.
- It follows that I am satisfied, the onus being on the Crown, that SC Byrnes had reasonable grounds for suspecting that there was a dangerous drug in the applicant’s vehicle and, because of that, he was empowered to detain the vehicle as well as the applicant and then conduct a search of the vehicle. It was a lawful search.
How would the court’s discretion be exercised?
- Even if I am wrong in that conclusion, it would not follow that the evidence obtained during the search and the admissions elicited by the police in their conversations with the applicant should automatically be excluded from evidence at the trial. That is because the court may nonetheless exercise its discretion against exclusion: R v Ireland (1970) 126 CLR 321, 335; Bunning v Cross (1978) 141 CLR 54, 72, 78-80; R v Pollard (1992) 176 CLR 177, 202-203; R v Milos  QCA 314, .
- Returning to R v Kovacevic, I made the following observations about the discretion:
“… I start from the long-accepted premise that there are considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police, namely, the ‘threat which disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice’: R v Rockford  SASCFC 51, . Indeed, it has been observed that ‘acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion; or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms’: R v Ireland, 334. In all such cases, the court must carefully weigh the competing ‘public requirements’:
‘On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there 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’: R v Ireland, 335.
That said, it has also been observed that:
‘[I]t may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law’: Bunning v Cross, 78.” [At -.]
- As counsel for the applicant frankly conceded, there can be no doubting that the applicant is charged with serious offences and, further, that the cogency of the evidence seized by police has not been affected by any conduct on their part. Nor could it be sensibly suggested that the police conducted themselves in deliberate or reckless disregard of the law; at best for the applicant (if his counsel’s arguments were accepted), SC Byrnes simply erred by arresting the applicant and/or did not have sufficient grounds to form a reasonable suspicion, but acted in good faith under the mistaken belief that he did have sufficient grounds to search the vehicle. Lastly, the evidence obtained is of critical importance to the outcome of the proceeding; without it, the trafficking count cannot be supported.
- It follows that, even if I concluded that the search was unlawful, I would exercise the discretion against exclusion.
- For these reasons, the application must be dismissed.
- Published Case Name:
R v Swayn
- Shortened Case Name:
R v Swayn
 QSC 116
26 May 2021
- Selected for Reporting: