R v Van Hass[2023] QSC 88

SUPREME COURT OF QUEENSLAND

1. [1]
   The defendant applicant is charged with possession of a substantial quantity of methylamphetamine and some cannabis, found during a police search of his car in suburban Cairns at 11.00 pm on Sunday, 3 April 2022.  This discovery later led to a search of the defendant’s home on 29 April 2022, where more methylamphetamine and cannabis was found and he refused to provide access codes to two mobile phones, evidence from at least one of which ultimately revealed two drug supplies. 
2. [2]
   The vehicle search was conducted without a search warrant.  The applicant seeks a pretrial ruling, excluding all evidence of what was found in the vehicle search as well as the evidence resulting from the search of his home.  He contends the search of the vehicle was unlawful, with the consequence that the evidence obtained during it was unlawfully obtained.  He also contends the evidence obtained during the search of his home was unlawfully obtained because that search was a consequence of the allegedly unlawful search of his vehicle. 
3. [3]
   The vehicle search is said to have been unlawful because two of the statutory requirements for the search without warrant of the vehicle were not met, in that:

   1. (a)
      there was not the requisite reasonable suspicion for a search without warrant; and
   2. (b)
      the defendant was not an “occupier” of the vehicle, because he had alighted from his vehicle before police pulled in behind it.

What was the requisite reasonable suspicion?

4. [4]
   The legal foundation for a lawful search of the vehicle without warrant was said to be ss 31 and 32 Police Powers and Responsibilities Act 2000 (Qld), which relevantly provide:

“31 Searching vehicles without warrant

1. (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—

1. (a)
   stop a vehicle;

2. (b)
   detain a vehicle and the occupants of the vehicle;

3. (c)
   search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained. …

32 Prescribed circumstances for searching vehicle without warrant

3. (1)
   It is a prescribed circumstance for searching a vehicle without a warrant that there is something in the vehicle that— …

3. (c)
   may be an unlawful dangerous drug; or …

6. (f)
   may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug; …” (emphasis added)

5. [5]
   Critically, s 31 only empowers search without warrant if the officer reasonably suspects any of the circumstances prescribed in s 32 (only some of which are quoted above).  In the context of this case the reasonable suspicion could only potentially have been that there was something in the vehicle which may be an unlawful dangerous drug or which may have been or was intended to be used for the administration of a dangerous drug.  The case as argued went to the former suspicion, namely a reasonable suspicion there was something in the vehicle which may be an unlawful dangerous drug. 
6. [6]
   The term “reasonably suspects” is defined in schedule 6 of the Act as meaning “suspects on grounds that are reasonable in the circumstances”.  The requirement of suspicion is not as high a requirement as belief but there needs to be a factual basis to reasonably ground a suspicion.^[1] 
7. [7]
   The requisite reasonable suspicion then is the officer exercising the power of search suspected, on grounds that were reasonable in the circumstances, that there was something in the vehicle which may be an unlawful dangerous drug.
8. [8]
   To consider whether such a suspicion was held it is necessary to consider the circumstances allegedly giving rise to it.

What transpired to excite police suspicion?

9. [9]
   Sergeant Heemi, Senior Constable McIntyre and Senior Constable Gibson were in uniform in an unmarked police vehicle, a Toyota Landcruiser, in a carpark within Harald Falge Park off Lennon Street at about 11.00 pm on the night of Sunday, 3 April 2022.  They were monitoring traffic travelling along nearby Alfred Street, which is a section of the Cairns Western Arterial Road, on the lookout for stolen vehicles.  They observed a late model silver Mercedes travelling at what they considered to be a fast speed from Alfred Street into Lennon Street.  They drove after it.  The Mercedes turned right from Lennon Street at a roundabout into Tills Street.  By the time the police entered Tills Street there was no sign of the Mercedes ahead.  They drove along, keeping an eye out down side streets.  When they drew near Tills Street’s intersection with Elmire Close they observed the Mercedes was in that street doing a u-turn. 
10. [10]
    Elmire Close is a cul-de-sac residential street in suburban Westcourt.  It is L shaped so that the dead-end is not visible on entering it from Tills St and would only become visible on nearing the elbow of the L.  It was in that vicinity that the defendant executed a u-turn.  By the time the police vehicle was driving down Elmire Close it bypassed the defendant’s vehicle which was now travelling back in the opposite direction towards Tills Street.  Before the police executed a u-turn the defendant’s vehicle had pulled over to the verge between Elmire Close and the footpath, within one or two houseblocks of the corner with Tills Street, and the defendant had alighted.  
11. [11]
    After executing their u-turn the police drove back, pulled up behind the defendant’s vehicle and activated their vehicle’s blue and red lights.  Sen Con McIntyre alighted and approached the defendant who was wearing a T shirt, shorts and shoes.  Tattoos were visible on some of his limbs. 
12. [12]
    The defendant had walked two or three paces in the meantime but was still near the the driver’s side door when approached.  Indeed, just before Sen Con McIntyre drew close and started to speak to him, the defendant can be seen, in the police’s body-worn camera footage, leaning in and then out again of the driver’s side door of the vehicle.  A large amount of cash was later to be found in that door.
13. [13]
    By the time Sen Con McIntyre was approaching the defendant he had ascertained from an electronic check that the defendant’s vehicle was a hire car.  When Sen Con McIntyre approached the defendant and asked him for his licence, the defendant also volunteered the vehicle was a hire car. 
14. [14]
    When asked where he was going, the defendant responded, “Just visiting my mate … We were going to go to the pokies…up the road here”.  The defendant’s reference to “visiting my mate” was accompanied by a turning body gesture as if he was referring to one of the houses nearby.  The police later asked who the mate was to which the defendant responded, “Nathan, he lives here”.^[2]  There is no evidence of the police calling into any nearby house to check if that was so.  The defendant’s reference to “up the road here” may have been a reference to Cazalys Cairns, a club located less than a kilometre away near the end of Tills St at its T intersection with Mulgrave Road. 
15. [15]
    According to the police form QP9 summary of facts and Sen Con McIntyre’s witness statement, the defendant appeared vague, nervous and was avoiding eye contact.  However, this allegation was largely abandoned at the committal proceedings where Sen Con McIntyre confirmed the only observation he made which supported the assessment the defendant was nervous was that he avoided eye contact.  He conceded the defendant was not shaking, his speech did not indicate he was nervous and that he responded to the questions asked.  A mere absence of eye contact can be an unremarkable incident of conversations for many innocuous reasons.  Watching the footage of the episode reveals a lot of night-time glare coming from nearby light sources, such as hand-held police torches and the police vehicle’s headlights and flashing roof lights.  It also reveals there were occasions when the defendant’s eyes in fact did look at the officer who was speaking.  The alleged absence of eye contact carried no relevant weight here. 
16. [16]
    Sen Con McIntyre wandered about the vehicle, shining his torch into it.  He saw a large sum of Australian cash beside what appeared to be a set of digital scales tucked in the storage compartment of the inner side of the driver’s door.  That was an observation of obvious significance.  The fact it had been made was mentioned to other police, as can be later heard in Sgt Heemi’s body worn camera recording shortly before a breath test occurred, with negative result.
17. [17]
    The defendant’s licence had earlier been produced and passed to Sgt Heemi who then returned to the police vehicle and checked the defendant’s identity on a police QLiTE electronic tablet.  The information he discovered from that check was drug intelligence to the effect the defendant was potentially moving drugs in rental vehicles for major organised crime.  He showed the QLiTE screen to Sen Con McIntyre, but the only information McIntyre saw were the headings “Intelligence”, “Drugs”, “Subject”.  He was not told the substance of the intelligence.
18. [18]
    After the breath test, Sen Con McIntyre told the defendant he was detaining him for the purpose of a search of him and the vehicle.  That included this exchange:

“McIntyre:  At this point in time you are detained for the purpose of a search of yourself and this vehicle okay.  I can see a large sum of cash in the door here next to what appears to be digital scales.

Defendant: Digital scales?

McIntyre: Yeah.  Next to the …

Defendant: No it’d be the phone.”

19. [19]
    A search of the vehicle and of the defendant ensued.  There was indeed a large amount of cash, about $5000, found in the driver’s door.  The suspected digital scales were found to be a mobile phone, just as the defendant had said on being detained.  That the item turned out not to be scales does not exclude the relevance of Sen Con McIntyre’s observation of what it appeared to be. 
20. [20]
    As this Court often sees in drug cases, digital scales come in various shapes and sizes.  The actual appearance of the defendant’s mobile phone was not argued to be inconsistent with what a set of digital scales of similar size, or a visible part thereof, may appear to look like.  Sen Con McIntyre was not challenged at committal or in evidence in the application about the reliability of his assertion that the item appeared to be digital scales, save for it being highlighted that he was not certain it was a set of digital scales.  The result demonstrates that the item could not have been clearly visible to Sen Con McIntyre but that is not at odds with his observation of the item being a qualified one, namely, not that it was digital scales but that it appeared to be digital scales.  The fact also remains that even on the night, before the search started, he said he had seen what appeared to be digital scales.  On the known evidence the resulting find was not inconsistent with Sen Con McIntyre’s evidence, which I accept, that he saw a large amount of cash and what appeared to be digital scales. 
21. [21]
    The vehicle search also revealed the presence of some cannabis and 12.4 grams gross (9.3 grams pure) of methylamphetamine.  A further $5000 cash was found in the search of the defendant.  For present purposes the issue is the lawfulness of the search of the vehicle as distinct from of the defendant. 

Was the requisite reasonable suspicion held?

22. [22]
    In this case it is common ground the officer who had to have the requisite reasonable suspicion was Sen Con McIntyre, the officer who purportedly exercised s 31(1)’s power of detention and search.  It was therefore necessary that Sen Con McIntyre suspected, on grounds that were reasonable in the circumstances, there was something in the vehicle which may be an unlawful dangerous drug.
23. [23]
    While Sen Con McIntyre was not entirely consistent and clear in his articulation of what his suspicion was, I find on the whole of his evidence that he did suspect there was something in the car which may be an unlawful dangerous drug.  Frankly, it is likely any experienced police officer presented with a hire car which has been driven late at night into a non-throughfare suburban residential street and with a view inside it of a large sum of cash and what appears to be digital scales in its driver’s door, would hold such a suspicion. 
24. [24]
    Those same features are relevant to the topic, to which I now turn, of whether the suspicion was held on grounds that were reasonable in the circumstances.
25. [25]
    It is implicit in s 31 that the officer exercising the power does not do so unless the officer considers the suspicion held is reasonable in the circumstances.  That is because it is a “reasonable” suspicion, not just a suspicion, which the section requires.  But in the context of a challenge like the present it is not enough that the officer thought the officer’s suspicion was reasonable.  The requirement of reasonableness calls for an objective assessment by the court of whether there then existed circumstances sufficient to ground a suspicion which was reasonable. 
26. [26]
    That distinction is relevant here because of the emphasis placed by the defendant’s senior counsel upon Sen Con McIntyre’s evidence, particularly under the pressure of cross-examination at the committal proceedings, about his subjective opinion of what was or was not a reasonable foundation for his suspicion.  I had the strong impression his evidence of what he then suspected had become evidence of what he in hindsight now thinks, however erroneously, might be acceptable objective reasons for his suspicion.  That drift may at least in part have been the result of some occasional conflation, not discouraged by questioning, of his opinion then and his opinion now.  In any event, this culminated in him proffering the unlikely assessment in cross-examination at the committal proceedings that it was only when he saw the information on Sgt Heemi’s QLiTE screen that he had reached the level of reasonable suspicion. 
27. [27]
    It was unlikely for two reasons.  The first reason is that all he saw on the tablet screen were the headings “Intelligence”, “Drugs”, “Subject”.  Even accepting he reasonably assumed he was shown the screen because it related in some way to the defendant in whom they were then interested, the information he was shown, three one-word headings, is so sparse as to verge on being meaningless.  It is not even clear that, assuming it related to the defendant, it related to him as a suspected drug offender as distinct from say a witness or informant or a friend or associate of a person in whom the police were interested.  The sighting of those bare headings did not sensibly raise the probability the defendant was carrying drugs beyond the probability which was apparent from the already prevailing circumstances.  
28. [28]
    The second reason it was unlikely is that the circumstances known prior to the sighting of the QLiTE screen were already enough to found grounds that were reasonable in the circumstances.  Sen Con McIntyre had by that time already done his torchlight search from outside the car and noticed the cash and what appeared to be the scales.  The irresistible inference is that with that observation he would by then have believed he had reasonable grounds for suspecting there was something which may be unlawful dangerous drugs in the car.
29. [29]
    Sen Con McIntyre’s unlikely evidence in hindsight as to when the point of reasonable suspicion had been reached might matter more if there did not exist unchallenged evidence of the factual circumstances which did provide reasonable foundation for the requisite suspicion regardless of what might have been taken from reference to the QLite screen.
30. [30]
    At the committal proceedings, and later in cross-examination before me, Sen Con McIntyre testified it was the combination of his sighting of the cash along with the information displayed on the QLiTE device which founded his reasonable suspicion.  It is likely Sen Con McIntyre did not include the sighting of what appeared to be scales in that list of items founding his suspicion because, as it turned out in the ensuing search, the item which appeared to be scales was in fact a mobile phone.  It is another illustration of hindsight likely contaminating how he gave evidence.  I note the sighting of what appeared to be scales had re-entered his list in his evidence-in-chief before me. The ensuing cross-examination did not confront that directly, merely inviting his compliant agreement with the list he gave in cross-examination at the committal.  I readily infer that as at the time he exercised the power of detention and search, the fact that there was what appeared to be a set of scales tucked in the driver’s side door beside the cash - a fact he mentioned on the night when explaining the detention - was information contributing to the foundation for his suspicion. 
31. [31]
    Another aspect of the prevailing circumstances which Sen Con McIntyre did not in his evidence specify as founding his suspicion, but which must have formed part of its foundation, was that at 11 o’clock on a Sunday night the defendant was driving a hire car in a residential street in which he was apparently not a resident.  Hire cars may of course be used for innocuous purposes by many people, for instance by visiting tourists or visiting businesspeople.  But it is unlikely a significant proportion of such visitors have cause to drive their hire cars into dead end suburban streets to visit residents at 11 o’clock on a Sunday night.  Of course, the mere fact it was a hire car driving at such an hour in such a location would fall well short of founding a reasonable suspicion that there were drugs in the vehicle.  It is the combination of all available information which informs the reasonableness of the suspicion. 
32. [32]
    In this case, that combination was not merely that the defendant was driving and stopping a hire car at 11 o’clock on a Sunday night in a non-throughfare residential street but that he was doing so with a large amount of cash and what appeared to be a set of scales tucked in his driver’s side door.  That combination of facts was sufficient to found a reasonable suspicion that there were unlawful dangerous drugs in his vehicle because such a combination of circumstance is well known to occur in connection with the covert movement and sale of unlawful dangerous drugs as between suppliers and customers.  It is notorious – at least to those with knowledge of the facts of the many drug cases which come before the courts (a cohort including police) – that such activity commonly involves the provision of dangerous drugs for cash, the weighing of the drugs with scales and the movement of the drugs and cash to or from dealers or customers residing in the community, in vehicles which are often hire cars. 
33. [33]
    Such a combination will not always be enough.  Much may turn upon what if anything else is seen, said or done which sheds further light on the circumstances and whether it dispels the otherwise suspicious significance of that combination of circumstances.  There was nothing like that here though. 
34. [34]
    In my conclusion, Sen Con McIntyre suspected, on grounds that were reasonable in the circumstances, there was something in the vehicle which may be an unlawful dangerous drug.  The defendant’s first argument therefore fails.
35. [35]
    Before leaving this topic is necessary to touch briefly upon some other evidence, which received passing attention in the application, to explain its irrelevance.  It was evidence of a discussion between police at the conclusion of police activity at the scene. 
36. [36]
    The discussion was recorded by a body worn camera one of them forgot to turn off.  Comments made included:

“Interesting what happens when you just sit still for a minute, isn’t it?  I thought we had a stolen car but as soon as I realised he stopped and got out and we saw the tats we’ve all gone, drugs. …

That’s what led me to my reasonable suspicion. …

It’s drugs.  He was nervous.  You spotted the huge amount of cash. …”

37. [37]
    The discussion included various other comments, including the telling of a tale about another case, consistent with this being idle conversation between co-workers informally debriefing after an event in the field rather than some post search attempt to co-ordinate evidentiary accounts.  It does show the fact the defendant had tattoos did not escape police attention.  It is well known some criminals have tattoos and that the content of some tattoos can carry specific meaning.  However, tattoos are now so ubiquitous in society that the mere fact a citizen being dealt with by police has tattoos is not of itself a logical foundation for reasonable suspicion of anything.  All of that said, it was not suggested by the evidence of any police witness that the fact the defendant had tattoos was a foundation for the requisite reasonable suspicion required here. 
38. [38]
    The inadvertently recorded discussion takes the present application nowhere. 

Does s 31(1) require the detention of both a vehicle and an occupant together?

39. [39]
    The defendant’s other argument as to why the search was unlawful turns upon whether the defendant was at the time an “occupant” within the meaning of s 31(1).  It is argued that by the time the police purported to exercise s 31(1)’s power of search the vehicle was already stopped and the defendant was no longer an occupant of it because he was no longer inside the vehicle. 
40. [40]
    That argument would be academic if s 31(1) permits the detention and search of the vehicle in the absence of an accompanying detention of its occupant(s). 
41. [41]
    It will be recalled s 31(1)(b) refers to the detention of “a vehicle and the occupants of the vehicle” and s 31(1)(c) refers to “the vehicle and its occupants” (emphasis added).  A premise of the defendant’s argument is that s 31(1) does not apply optionally to the detention and search of the vehicle or to the detention and search of the occupants.  Rather, it only applies to the vehicle and occupants in combination.
42. [42]
    This premise of duality may at first blush seem odd in that the detention of a vehicle will not always coincide with the detention of the occupants.  What, for example, if the police stop a vehicle but its sole occupant, the driver, flees before there is a chance to successfully detain the driver?  Applying the defendant’s premise of duality, the police cannot search the vehicle pursuant to s 31(1)(c) because it cannot be said “the vehicle and its occupants are detained”.  However, in such a situation the urgency of the moment, heightened by the presence of a vehicle and its occupant, with the associated risk the occupant may cause the vehicle to be driven away before there is time to obtain a search warrant, has been removed by the occupant driver’s flight.  The police are not without options pending the procuring of a warrant.  For example, depending upon resourcing, an officer may be able to remain with the vehicle.  Further, if it is reasonably suspected the vehicle has been abandoned, s 124(1) of the Act permits police to move the vehicle to another place for safe keeping.  On the other hand, if there is a concern the urgency has not passed, because it is reasonably suspected the driver or another may return to move or enter the car so as to conceal or destroy evidence of an indictable offence in the vehicle (or other part 2 offence as defined in s 159 of the Act), then s 160 of the Act, “Search to prevent loss of evidence”, may permit the emergent search of the vehicle. 
43. [43]
    In any event, as explained in R v Wassmuth; Ex Parte Attorney-General (Qld),^[3] the applicability of s 31(1) is not determined by a requirement, not appearing in the section, that urgent circumstances make it impractical to promptly seek a warrant.  It is determined by the requirements of the section’s text, interpreted by reference to the context in which its words are used and the broader context of the statute and other relevant provisions within it.^[4] 
44. [44]
    I record for completeness that this interpretative task, as in Wassmuth, is not said to find specific guidance from reference to the Human Rights Act 2019 (Qld).  The interpretative task should nonetheless be undertaken consistently with the general principle, implicit in that Act, that a legislative provision which infringes upon rights ought be interpreted as intending to do so only to an extent which is clearly provided for by the provision and no more.^[5]
45. [45]
    Turning to the section’s text and context, s 31(1) allows police to take any of the three actions listed in its (a), (b) and (c).  The action identified at (b), detaining the vehicle and its occupants, is not necessarily dependent upon the police having taken the action identified at (a), of stopping the vehicle.  That is unremarkable, for a vehicle may have stopped before the police decide to “detain” it, for instance it may have stopped independently of police intervention or been stopped by police in the exercise of another power under the Act, for example under s 60, “Stopping vehicles for prescribed purposes”.  However, the action identified at (c) is clearly dependent upon the action identified in (b), having been taken.  That is because the search action in (c) is for “anything relevant to the circumstances for which the vehicle and its occupants are detained” – a clear reference to the preceding act of detention of the vehicle and its occupants.  This dependency upon there already having been an act of detention of the vehicle “and” its occupants imparts a dual need for the vehicle and its occupants to have both been detained before there can be the exercise of the search power under s 31(1)(c). 
46. [46]
    I am fortified in that conclusion by s 31(1)’s use of the word “detain”.  “Detain” is not defined by the Act.  Its ordinary meaning, to keep from proceeding,^[6] is only apt to motor vehicles in a context where they may move off if not kept from doing so.  Motor vehicles are inert in that they do not ordinarily move on without human operation (at least at this stage in the advancement and adoption of self-driving car technology).  The word detain is thus not contextually apt for use in respect of an inert object like a motor vehicle considered in isolation, in contrast, for example, to words such as “seize”, “impound” or “take possession of”.  However, it is contextually apt in respect of a vehicle and occupants, for the presence of an occupant raises the risk the vehicle may otherwise be driven away. 
47. [47]
    For all of these reasons I agree that a vehicle referred to in s 31(1) can only be detained and searched if an occupant of the vehicle is also detained. 
48. [48]
    Note that, because s 31(1) refers to an act of detention of the vehicle and the occupants in combination, it requires a unity of time and place as between the act of detention and the things being detained.  Put simply, to be detained together, the occupant(s) and the vehicle will need to be nearby to each other at the time of detention.  It is a point of contextual importance to which I will return in now considering the determinative issue of whether the defendant was an occupant.

Was the defendant an “occupant”?

49. [49]
    The word “occupant” is not defined in the Act.  It is a word with various meanings in various contexts.  Focussing upon dictionary definitions of its meaning in the context of someone being an occupant of a physical place, the Macquarie Dictionary Seventh Edition relevantly defines “occupant” as:

“1. someone who occupies. 2. a tenant of a house, estate, office, etc. 3. Law an owner through occupancy.”

50. [50]
    Its definitions of “occupy” relevantly include:

“1. to take up (space, time, etc.) … 5. to be resident or established in (a place) as its tenant; to tenant. …”

51. [51]
    The Oxford English Dictionary Second Edition relevantly defines “occupant”:

“1.  A person occupying or holding in actual possession (property, esp. land, or an office or position); one who occupies, resides in, or is at the time in (a place). …”

52. [52]
    Its definitions of “occupy” relevantly include:

“2. To hold possession of; to have in one’s possession or power … b. To reside in and use (a place) as its tenant, or regular inhabitant; to tenant. …

3. To take up, use up, fill (space or time); also in weakened sense, To be situated or stationed in, to be in or at (a place or position). …”

53. [53]
    Note that while these definitions include persons physically situated in a place, they also include persons such as tenants who regularly inhabit the place and have a legal right to possess and occupy the place.  Thus, a person with the right to be occupying a place may be its occupant although not always physically within it.  Conversely a person who has no possessory right over a place but is temporarily permitted to be physically within it may also come within the meaning of occupant. 
54. [54]
    In R v Keen,^[7] Jackson J observed a resident of a house might be described as an occupant of it, notwithstanding that the resident is outside it temporarily.  To flesh that example out, suppose police are purporting to exercise a power under the Act in connection with an occupier of a suburban house who rents the house.  Police approach the house and the tenant occupier is seen by police as they arrive to have walked from the house and stop and stand on the front footpath outside.  It would be ordinary usage of the word occupier to describe that person at that point as an occupier of the house, even though the person is physically outside it. 
55. [55]
    There is an obvious parallel in that person’s close degree of connection with the house’s occupation and the defendant’s close degree of connection with the vehicle’s occupation here.  It is, admittedly, a less common usage of language to speak of a person who is not in a vehicle as its occupant, as compared say to the tenant of a house who happens to be outside it.  That is likely because the physical occupation of vehicles is more transitory than of houses.  To what extent, if any, does the word occupant, when used in respect of motor vehicles, apply to persons who are not at the time in the vehicle?
56. [56]
    Jackson J posed that question in Keen, asking rhetorically:

“If a person who is outside the vehicle can be an occupant, where is the line to be drawn?  For example, if the vehicle is parked and the person goes elsewhere to attend to business but intending to return within minutes, is he or she an occupant?  What if it is hours, or longer?  What if the vehicle is parked overnight in a garage, or driveway, or on the street?”^[8]

57. [57]
    As against that, his Honour observed of circumstances like the present:

“There may be difficulties within cases where occupants get out of a vehicle, before the vehicle and occupants are detained, when the vehicle is being approached by a police officer, but they are not this case.”^[9]

58. [58]
    Of course, it may be difficult for the “line to be drawn” and requiring actual physical occupation of the vehicle at the time of purported detention certainly has the appeal of simplicity.  However, the text of section 31(1) does not qualify the meaning of “occupants” by specifically requiring physical occupation at the time of detention.  Such an approach would mean “occupants” in s 31(1) should be read as “a person in the vehicle”.  Yet s 31(2), in conferring another stop, detain and search power uses exactly those words, that is, “a person in the vehicle”, rather than the word occupant.  The notion that the legislature intended its reference to occupants in s 31(1) to be confined to a person in the vehicle is contextually at odds with it electing to use that more confined description in s 31(2).
59. [59]
    Whether a person who is outside the vehicle can, at the time of detention, be an occupant within the meaning of s 31(1) is obviously informed by the earlier mentioned point that the detention is a combined one of both the vehicle and the person.  The context that the occupant(s) and the vehicle will need to be nearby to each other to effect such a dual detention restricts consideration of those outside the vehicle as potential occupants to those who are physically close to the vehicle.
60. [60]
    However, a closer connection to the vehicle than mere proximity is required, for otherwise anyone who happens to be nearby to a vehicle would be an occupant.  Such a closer connection was missing in Keen, where the targets of the search were not seen inside the vehicle before the police approached it.  They were outside at all times and Jackson J accordingly concluded they were not occupants. 
61. [61]
    Plainly a closer form of connection would be that a person nearby to the vehicle at the time of detention was recently inside it.  Indeed, the transitory nature of vehicle occupation, taken with s 31(1)’s use of the word “occupant” in a dual detention context, strongly suggests that for a person to be detained as an occupant pursuant to s 31(1), when outside a vehicle, they must recently have been physically occupying the vehicle. 
62. [62]
    However, the legislature chose not to proscribe what nature and degree of connection with the vehicle will or will not be sufficient in every case and it would be folly for me to do so by finding recent physical occupation is always necessary.  To illustrate, take the example of a Kombi van lived in and slept in by a traveller on a tourist odyssey driving around Queensland.  That such a person may be nearby the vehicle yet at the time in question has not been inside it for hours would be unlikely to preclude the person being regarded as an occupant of the vehicle.  That example involves a greater degree of connection with the vehicle’s occupation than otherwise derives from the usually transitory nature of occupation of a vehicle by a passenger.  The example demonstrates that the nature and degree of connection of a person outside a vehicle which will show the person is an occupant may vary depending on the individual circumstances of the case.
63. [63]
    Returning to the circumstances of this case, it may immediately be observed the present case differs from Keen in that here the defendant was recently seen to be a physical occupant of the vehicle by the police who followed and approached the vehicle.  The police interest in the defendant plainly derived from the fact of his physical occupation of the vehicle.
64. [64]
    True it is, by the time Sen Con McIntyre commenced speaking to the defendant he was out of the vehicle, but he had not at any point moved more than two or three paces from the driver’s side door.  
65. [65]
    Significantly, in the moments before Sen Con McIntyre started speaking to the defendant and when the defendant had to have known police were walking towards him and the vehicle, the defendant reached back inside the vehicle’s door.  He was therefore at least partly in the vehicle when the police were walking towards him and the vehicle.
66. [66]
    Further, the defendant was also both the hirer and driver of the vehicle, which is a further significant degree of connection with the vehicle.  I am conscious the legislature did not in s 31(1), use the terms “in charge of” or “in control of”, terms used elsewhere in the Act.  The fact a person is in charge of or in control of a vehicle is not enough, in itself, to mean the person is an occupant of the vehicle.  I have already made the same point about mere physical proximity considered in isolation.  It is the overall collection of factual circumstances connecting the defendant with the vehicle which informs the present assessment.
67. [67]
    The defendant’s connection with the vehicle at the time of detention involved the persuasive combination of these significant elements:

    1. (a)
       spatial connection – he was nearby to the vehicle he had earlier been seen inside it;
    2. (b)
       temporal connection – he had recently been within the vehicle, when it was being driven by him and, in part, when he leaned back into the drivers side door area as police approached him;
    3. (c)
       controlling connection – he had a renter’s continuing right to exercise dominion or control over the vehicle and was the known driver of the vehicle.
68. [68]
    This combination of spatial, temporal and controlling connections is sufficient to compel the conclusion that at the time of his detention the defendant was an occupant of the vehicle within the meaning of s 31(1). 
69. [69]
    It follows the second basis of complaint that the search was unlawful has also failed. 

Should these reasons deal with whether discretionary considerations would have resulted in the application succeeding or failing if the search was unlawful?

70. [70]
    I have concluded the search was lawful.  Argument in the present case was also advanced as to whether I should exclude the evidence in the exercise of my discretion in the event I concluded the search was unlawful.  The rationale for such exclusion would be that the desirable goal of bringing a wrongdoer to conviction is outweighed by the undesirable effect of giving curial approval or encouragement to the unlawful conduct of those tasked to enforce the law.^[10]
71. [71]
    It is desirable where practicable for judges to resolve all potentially determinative arguments before them in case their determination of only some arguments is reversed on appeal.  It is not practicable to resolve how the discretion to exclude would be exercised here if the search was unlawful.  That is because the unlawfulness arguments did not turn upon a singular circumstance so it is not possible to know the character of the unlawfulness which would need to be assumed for the purposes of determining the discretionary exclusion argument.

Orders

72. [72]
    Both arguments that the search was unlawful having failed, my order is:

Application dismissed.

Associate’s note: On 20 June 2023 the applicant pleaded guilty to and was sentenced for the offences in the indictment.