R v TZY[2024] QSC 238

SUPREME COURT OF QUEENSLAND

1. [1]
   TZY (the applicant) is charged on indictment with four counts as follows:

“Count 1 that between the twenty-fourth day of August, 2021 and the eighteenth day of June, 2022 at Coolum Beach and elsewhere in the State of Queensland, [TZY] carried on the business of unlawfully trafficking in dangerous drugs.^[1]

Count 2   that on the eighteenth day of June, 2022 at Tewantin in the State of Queensland, [TZY] unlawfully had possession of the dangerous drug methylamphetamine.^[2]

Count 3   that on the eighteenth day of June, 2022 at Tewantin in the State of Queensland, [TZY] unlawfully had possession of the dangerous drug cannabis.^[3]

Count 4   that on the eighteenth day of June, 2022 at Tewantin in the State of Queensland, [TZY] had in his possession a mobile phone and clipseal bags that he used in connection with the commission of the crime of trafficking in a dangerous drug.^[4]”

2. [2]
   All counts arose from a search performed by police of the applicant’s person without warrant.  There is no suggestion that the evidence is not admissible but the applicant alleges that the search was either illegal or improper and seeks an exercise in his favour of the Bunning v Cross^[5] discretion, excluding all evidence of the search.
3. [3]
   As originally framed, the application was based on one ground.  That was that the police officer who conducted the search did not hold the necessary reasonable suspicion of the presence upon the person of the applicant of dangerous drugs before undertaking the search.^[6]  It is common ground that such a reasonable suspicion is a necessary prerequisite to the power to search without warrant which was exercised by the police officer.
4. [4]
   During the hearing of the application, it became apparent that the police officer did not activate his body-worn camera (BWC) immediately before engaging with the applicant.  Counsel for the applicant then advanced a second ground, namely that the failure to activate the BWC breached a standing direction made by the Commissioner of Police concerning the use of BWCs.  It was submitted that was conduct which constituted impropriety sufficient to raise the Bunning v Cross discretion.  That raised issues as to the status of the Commissioner’s directions and the relevance of any breach of them to the discretion to exclude evidence. The parties provided supplementary written submissions on this ground.

Background

5. [5]
   On 18 June 2022, two police officers, Sergeant James David Driver and Senior Constable Timothy Brown, both then attached to the Noosa Heads Police Station, were on patrol in Tewantin.
6. [6]
   The police observed the applicant walking down the road drinking from a pre-mix can of alcohol.  He had been dropped off in Goodwin Street by a car which sped away as police observed it.
7. [7]
   The police stopped their vehicle and then spoke to the applicant.  Sergeant Driver suspected that the applicant may be in possession of illicit substances and determined to detain and search him pursuant to s 29 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA).  That provides, relevantly:

“29  Searching persons without warrant

1. A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following—

1. stop and detain a person;

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

2. The police officer may seize all or part of a thing—

1. that may provide evidence of the commission of an offence; or

2. that the person intends to use to cause self harm or harm to someone else; or …” (emphasis added)

8. [8]
   Section 30 of the PPRA identifies the “prescribed circumstances” for s 29.  It relevantly provides:

“30 Prescribed circumstances for searching persons without warrant

1. The prescribed circumstances for searching a person without a warrant are as follows—

1. the person has something that may be—

…

2. an unlawful dangerous drug; or …”

9. [9]
   As a result of the search, the applicant was found in possession of:

3. (a)
   1.818 grams of methylamphetamine within 2.389 grams of substance.  That possession constituted count 2 on the indictment;

3. (b)
   a small amount of cannabis in a clip seal bag.  That possession constituted count 3 on the indictment; and

3. (c)
   a quantity of empty clip seal bags and a mobile telephone.  That constituted count 4 on the indictment.

10. [10]
    In due course, the applicant’s mobile telephone was analysed and that analysis revealed evidence of the applicant trafficking in dangerous drugs.  That constituted count 1 on the indictment.
11. [11]
    It is unnecessary to analyse the evidence of the trafficking in any detail.  The following summary suffices:

1. the trafficking is alleged to be over a period between 24 August 2021 and 18 June 2022,^[7] a period of about 10 months;
2. the drugs allegedly supplied in the course of the trafficking were methylamphetamine, cannabis, 3,4-Methylenedioxymethamphetamine (MDMA), cocaine and prescription medications;
3. the business involved about 40 customers;
4. most of the customers were end users but there were some supplies by the applicant to customers who were selling the product to others;
5. methylamphetamine was supplied in amounts ranging from 0.1 of a gram to 28 grams;
6. the cannabis was supplied usually in quarter, half or full ounce amounts;
7. MDMA was advertised for sale by the applicant at $110 per gram;
8. cocaine is not alleged to be the applicant’s staple product but he advertised it for sale when available.  Two instances of offers to supply cocaine, one of 3.5 grams and one of 7 grams, were identified;
9. prescription medications such as buprenorphine, alprazolam, oxycodone and endone were sold as they became available to the applicant;
10. the applicant had a steady source of supply of drugs.  He allegedly purchased methylamphetamine and MDMA on a daily and sometimes twice daily basis, at least between 9 June 2022 and 17 June 2022; and
11. significant quantities of drugs were purchased at any one time, including purchases of 84 grams of MDMA, 8 ounces of MDMA and cannabis being purchased by the pound.

12. [12]
    Also found in the possession of the applicant was $160 cash and a knife.  In addition to the counts on the indictment, the applicant was charged summarily under s 10A(1)(d) of the Drugs Misuse Act 1986 (Qld) with being in possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act (the cash) and an offence under s 51(1) of the Weapons Act 1990 (Qld) with being in possession of a knife in a public place.
13. [13]
    It is accepted by the Crown that the evidence obtained from the analysis of the telephone is evidence which is derived from the search.  Therefore, if the search was unlawful or otherwise improper, the evidence of all things found and the evidence derived from the analysis of the phone is all potentially subject to exclusion in exercise of the Bunning v Cross discretion.
14. [14]
    It is convenient to deal firstly with the ground that arose during argument.

Alleged breach of the Commissioner’s direction

15. [15]
    It is well established that police services in Australia are each a disciplined force which operate through a hierarchical chain of command.^[8]
16. [16]
    That structure is achieved in Queensland^[9] through the Police Service Administration Act 1990 (Qld) (PSA Act).  The PSA Act is not the only legislation in Queensland which regulates the QPS and its members.  The PPRA, as the name suggests, grants powers to, and imposes obligations upon, Queensland’s police officers.
17. [17]
    Section 609A of the PPRA purports to empower police officers (and others) to wear and deploy BWCs.  It provides:

“609A  Use of body-worn cameras

1. It is lawful for a police officer, protective services officer or watch-house officer to use a body-worn camera to record images or sounds while the officer is acting in the performance of the officer’s duties.

2. Use of a body-worn camera by a police officer, protective services officer or watch-house officer under subsection (1) includes use that is—

1. inadvertent or unexpected; or

2. incidental to use while acting in the performance of the officer’s duties.

3. Subsection (1) does not affect an ability the police officer, protective services officer or watch-house officer has at common law or under this Act or another Act to record images or sounds.

4. To remove any doubt, it is declared that subsection (1) is a provision authorising the use by a police officer, protective services officer or watch-house officer of a listening device, for the purposes of the Invasion of Privacy Act 1971, section 43(2)(d).

5. In this section—

body-worn camera means a device—

1. worn on clothing or otherwise secured on a person; and

2. designed to be used to—

1. record images; or

2. record images and sounds.”

18. [18]
    Even without the express authorisation of s 609A, the wearing of a BWC is not unlawful.  Section 609A was inserted by amendment in 2015.^[10]  The explanatory memorandum for the amending Act explained that the reason for the amendment was to remove any doubt as to the lawfulness of the use of BWCs.
19. [19]
    The significance of s 609A of the PPRA for present purposes is:

1. (a)
   the use of BWCs in itself is not unlawful or improper such as to give rise to consideration of the Bunning v Cross discretion; and

2. (b)
   section 609A is permissory.  It gives a right to use a BWC.  It does not impose an obligation to use a BWC.

20. [20]
    The Commissioner has issued the Digital Electronic Recording of Interviews and Evidence Manual (the BWC manual).^[11]  Unlike s 609A of the PPRA, the BWC manual imposes obligations upon police officers in relation to their use of BWCs.  The BWC manual has its foundations in the PSA Act.
21. [21]
    Part 2 of the PSA Act provides for the establishment and maintenance of the QPS.  Section 2.3 prescribes the function of the QPS which includes:

1. “(f)
   the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of—

1. the provisions of the Criminal Code;

2. the provisions of all other Acts or laws for the time being committed to the responsibility of the service;

3. the powers, duties and discretions prescribed for officers by any Act …” (emphasis added)

22. [22]
    Part 4 of the PSA Act establishes the office of the Commissioner.  Section 4.8 creates the “prescribed responsibility”.^[12]  It provides:

“4.8  Commissioner’s responsibility

1. The commissioner is responsible for—

1. the efficient and proper administration, management and functioning of the police service in accordance with law; and

2. without limiting paragraph (a), the efficient and proper administration, management and functioning of—

1. Marine Rescue Queensland under the Marine Rescue Queensland Act 2024; and

2. the State Emergency Service under the State Emergency Service Act 2024.

2. Without limiting subsection (1), a regulation may prescribe—

1. particular matters within the scope of the prescribed responsibility; or

2. additional responsibilities of the commissioner.

3. The commissioner is authorised to do, or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility.

4. In discharging the prescribed responsibility, the commissioner—

1. is to comply with all relevant industrial instruments and determinations and rules made by an industrial authority; and

2. subject to this Act, is to ensure compliance with the requirements of all Acts and laws binding on members of the police service, and directions of the commissioner; and

3. is to have regard to section 4.6 and ministerial directions duly given thereunder; and

4. is to discharge the responsibility in relation to such matters as are prescribed for the time being.”

23. [23]
    In essence, the Commissioner is charged with the responsibility for the proper running of the QPS.  Apart from the broad power in s 4.8(3), which empowers the Commissioner to do all lawful things to fulfill the prescribed responsibility, there are specific powers given by s 4.9.  It relevantly provides:

“4.9  Commissioner’s directions

1. In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service.

2. A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act.

3. Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction. …”

24. [24]
    It can be seen that by s 4.9(1), the Commissioner’s directions may be “general or particular”.  Section 4.9(1) is the statutory basis for various police manuals and procedures including the BWC manual.  By s 4.9(3), every officer must comply with the Commissioner’s directions.  Sections 4.8 and 4.9 together are features of the hierarchical structure of the QPS with the Commissioner at the apex.
25. [25]
    It is not a criminal offence to contravene a direction made under s 4.9 of the PSA Act.  However, Part 7 of the PSA Act establishes a disciplinary regime for police officers.  Section 7.4 prescribes the grounds for disciplinary action which includes a contravention without reasonable excuse of a direction by the Commissioner.^[13]
26. [26]
    Relevantly, the BWC manual provides:

“4.4  Body worn cameras

For the purpose of this section officer means;

1. police officers, protective service officers and watch-house officers; and

2. other staff members who have been approved to use and issued a Service body worn camera (BWC).

The use of BWC (see SMD) provides audio-visual evidence of officer’s interactions with members of the community and can reduce the incidence of violent confrontations, use of force and false or malicious complaints against officers.

…

A BWC provides audio-visual evidence of an event, however officers are to be aware BWC may not capture the full details of an incident and wherever practicable officers should seek other evidence such as witness statements or independent video recordings.

…

Carriage of BWC

Officers are authorised to use a BWC in the performance of their duties (see s. 609A: ‘Use of body-worn cameras’ of the PPRA).

OICs are to assign Service-issued devices on a ‘single user’ basis. A Service-issued BWC is not to be swapped between officers without the BWC being reassigned by an OIC or supervisor. Where a Service-issued BWC has been allocated to an officer, they are to wear and use the device whilst ‘on rostered duty’ (as defined in s. 14.4: ‘Service-issued weapons’ of the OPM), to remove any doubt, this includes officers performing plain clothes duties, except for approved covert or surveillance operations and activities.

Where a Service-issued BWC is not available, OICs are to send an email to the BWC business email requesting a Service-issued BWC for any shortfall.

…

Overt use of BWC

ORDER

A BWC is only to be used as an overt recording device, except for approved covert use (see below).

Covert use of BWC

ORDER

A BWC is not to be used for covert use unless authorised by a commissioned officer or as part of an approved investigative or intelligence practice.

When to use a BWC

ORDER

Officers allocated a BWC are to:

1. turn the BWC on (buffering mode) at the commencement of their shift;

2. commence a recording as soon as practicable after an officer reasonably believes they may:

1. exercise a power under legislation;

2. apply a use of force (see s. 14.3.2: ‘Situational Use of Force Model (2016)’ of the OPM); or

3. have any interaction with a prisoner, including: 

• the issuing of medication;
• searching; and
• conducting cell checks;

3. make BWC recordings when the:

1. recording might assist in providing a record of evidence which assists in the investigation of an offence or suspected offence; or

2. officer believes the interaction should be recorded;

4. only make BWC recordings in a court precinct, when authorised through a practice direction issued by the Chief Justice, Chief Judge or Chief Magistrate which includes:

1. during a confrontation where use of force is imminent;

2. whilst effecting an urgent arrest; or

3. where the officer reasonably believes they may exercise a power under legislation; and

5. make BWC recordings when at the scene of a significant event that may be reasonably expected to be subject of later external review (e.g. fatal traffic incident, arson, terrorist event etc.) irrespective of whether they are investigating the incident. Such recordings may assist in identifying witnesses and other persons of interest; provide evidence or may assist in giving an appreciation of the event. Officers recording in these circumstances are to advise the investigator or incident commander of the BWC recording as soon as practicable after the event.

In regard to recording an exercise of power or use of force it would be considered impractical, where an incident has commenced or escalated at such a pace an officer has been unable to commence a recording prior to responding (e.g. an officer is assaulted without warning and is required to immediately defend themselves or apply a use of force). In these circumstances, a BWC recording should be made as soon as practicable thereafter. …” (emphasis added)

27. [27]
    The explanation in the BWC manual that the use of BWCs reduces malicious complaints against police officers may be correct but demonstrates a rather police centric view of things.  It has long been recognised by the High Court that citizens who are dealing with police are often in a vulnerable position and are liable to false allegations of making confessions etcetera.^[14]  Where BWCs are available and used, any police misconduct is likely to be electronically recorded.  Where BWCs are not used, there will be no electronic corroboration of police evidence, and suspicions and doubts may arise as to the veracity of police evidence.^[15]  The Commissioner’s direction, which effectively obliges police to electronically corroborate their actions, is a significant protection to the public. 
28. [28]
    R v Ireland^[16] and Bunning v Cross^[17] marked a departure from jurisprudence which emerged from the United Kingdom as to the circumstances in which unlawfully or improperly obtained evidence might be excluded. 
29. [29]
    In the United Kingdom, any discretion to exclude unlawfully obtained evidence was based on unfairness and was determined pursuant to the principles of the unfairness discretion.^[18] The High Court recognised the existence of a separate discretion calling for the balancing of competing public policy considerations.  This emerged from the judgment of Barwick CJ in Ireland where his Honour said:

“Whenever such unlawfulness or unfairness appears, the judge has 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 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. Hence the judicial discretion.”^[19]

30. [30]
    Adopting these principles, Stephen and Aickin JJ in Bunning v Cross^[20] observed:

“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, therefore 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. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.”^[21]

31. [31]
    These principles were affirmed and summarised in Police v Dunstall^[22] where the recognised discretions were described and compared as follows:

“The first is where the probative value of the evidence is outweighed by the risk of prejudice to the defendant (the Christie discretion). The second is where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority (the Bunning v Cross discretion). The rationale for the latter discretion is not so much a concern with fairness to the defendant as with the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty is to enforce the law.”^[23] (footnotes omitted)

32. [32]
    In Ridgeway v The Queen^[24], the Court described the various considerations in exercise of the discretion as follows:

“Those considerations were identified in judgments in this Court in cases in which the Bunning v Cross discretion was established and explained.^[25] The relative weight to be given to them will vary according to the circumstances of the particular case. Thus, the weight to be given to the public interest in the conviction and punishment of those guilty of crime will vary according to the degree of criminality involved. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence — the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement — will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of the illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances.^[26] Ordinarily, however, any unfairness to the particular accused will be of no more than peripheral importance.”^[27]

33. [33]
    The failure of a police officer to comply with a binding direction where one of the consequences of the application of the direction is to protect citizens from police misconduct is impropriety which may enliven the discretion.^[28]  However, a limitation to the discretion arising is that the impropriety or illegality must be committed in the course of obtaining the evidence.  That follows because if there is no real connection between the impropriety and the securing of the evidence then the court can not be said to be condoning the impropriety by allowing the evidence to be led.^[29]
34. [34]
    The deployment of the BWC is not a legal prerequisite to the right of search accruing to police.  Therefore, there is no direct causal connection between any failure to activate the BWC and the search and seizure of the evidence discovered being illegal or improper.  The effect of a failure to deploy a BWC is:

1. depending upon the circumstances, there is a breach of the BWC manual; and
2. there is no (or no full) electronic record of the interaction with police; but
3. the failure to deploy the BWC does not lead to the evidence being obtained.

35. [35]
    In Director of Public Prosecutions v Moore^[30], the Court of Appeal of Victoria considered an appeal concerning a traffic offence.  Under the relevant legislation, a certificate of analysis of breath was admissible to prove the blood alcohol content (BAC) of a driver of a motor vehicle.  The legislation also provided that the driver might request a blood test.  That right was important as it gave a driver an avenue to scientifically test the accuracy of a breath analysis certificate.
36. [36]
    It was accepted that the driver had a conversation with the police officer who was operating the breath analysis machine about the driver’s intention to obtain a blood test.  The officer told the driver that blood tests are likely to show a higher BAC than shown by breath analysis.  Relying on that information, the driver did not request a blood test. 
37. [37]
    At his trial, the driver argued that it was improper for the officer to give him that advice and the certificate of analysis of the breath test ought to be excluded pursuant to the principles in Bunning v Cross.  That argument was successful in the Court of Appeal, notwithstanding that the relevant conversation occurred after the breath test had been conducted and the certificate issued, and there was no suggestion of any unlawfulness or impropriety up to the point of the issue of the certificate.  It was the certificate which had evidentiary value and which constituted evidence of the state of the driver’s BAC.
38. [38]
    Chernov and Eames JJA both decided that the Bunning v Cross discretion was enlivened.  Their Honours considered that as the rationale for the discretion was based upon the public interest in having the police conduct themselves properly, the discretion can arise, even where the impropriety did not affect the direct means by which the evidence was obtained.  The two judges delivered separate judgments.  Chernov JA, after referring to a number of authorities, observed:

“To reiterate, it seems to me that the authorities to which I have referred including Question of Law Reserved and Lobban, establish that the public policy discretion is enlivened only where the impugned conduct was the means by which the evidence was obtained or where the obtaining of the evidence involved such conduct. Thus, when the impugned conduct by the authorities takes place after the evidence has been obtained, the public policy discretion ordinarily does not arise for consideration even where it can be said that there was some connection between the conduct and the evidence, as was the case in Question of Law Reserved where the subject of the unlawful agreement by the police involved the evidence that was previously obtained by them. But there may be situations where the improper conduct by the law enforcement authorities so closely follows that by which they have obtained the evidence and so closely relates to the value and effect of that evidence that there can be no meaningful separation between the two aspects of their seemingly continuous conduct for the purpose of determining if the public policy discretion is enlivened. In cases such as Question of Law Reserved and Lobban it may be straightforward enough to separate the acts by which the evidence was obtained from those which constituted improper or unlawful conduct and to conclude that, in those circumstances, the impugned conduct does not give rise to the public policy discretion.”^[31]

39. [39]
    Eames JA said this:

“In my view, the force of those observations is as relevant to the situation where unlawful or unfair conduct immediately follows the obtaining of evidence, and which conduct denies the opportunity for the accused to test the evidence, as it is to conduct which precedes the obtaining of the evidence. In either case there is an important public policy consideration which deserves to be treated as more than merely one of a range of considerations which might or might not determine the question whether the trial of the accused had been rendered unfair.”^[32] (emphasis added)

40. [40]
    Batt JA also held that the evidence should be excluded.  His Honour though relied not on the Bunning v Cross discretion, but the unfairness discretion.^[33]
41. [41]
    Moore has been consistently cited and followed.^[34]
42. [42]
    Here, if there was a failure to deploy the BWC during the exchanges between the applicant and police which resulted in the evidence being seized, and that failure breached the BWC manual, the best evidence of that episode has been lost through the improper conduct of the police.  In my view, following the majority in Moore, and having regard to the rationale behind the rule in Bunning v Cross, while the conduct may have no direct causal connection with the discovery and seizure of the evidence, the discretion would arise. 
43. [43]
    It is now necessary to determine whether there was in fact a breach of the BWC manual. 
44. [44]
    The breach which is alleged is a failure to activate the BWC “as soon as practicable after [Sergeant Driver] believe[d] they may … exercise a power under legislation”.  The relevant power was to detain and search under s 29 of the PPRA.
45. [45]
    In his statement, Sgt Driver explained:

3. “7.
   I observed the defendant walk from the intersection of Cullinane Street up Goodwin Street. At that time, he was dressed in a grey sweatshirt and black shorts; he was carrying a cardboard box of premixed alcohol cans. I noted that the defendant appeared to be drinking from an open can of liquor.

3. 8.
   S/C BROWN and I pulled over so as to speak to the defendant. I observed that he had blood shot glazed eyes, that he had gross and jerky motor movements, appeared unwashed and had an unhealthy appearance. When spoken to, the defendant stated that he had had a couple of drinks, however I noted that the fingers of his right hand were sporadically moving, with him clenching and unclenching his hand. This movement is commonly known as ‘spirit-fingers’.

3. 9.
   When further spoken to, the defendant stated that he was off to a mate’s house but was rather vague about who his mate was and where the house was. The location where he had been dropped off was not a main thoroughfare, and there were limited houses in the vicinity, and notably the defendant was walking on the opposite side of the street to those houses, making no attempt to walk to them. The defendant provided me with his name and date of birth, and I checked those details with the Police computer database. (This revealed the defendant had a criminal history in relation to drugs and that he was at that time on bail for Enter premises and Commit Indictable Offence x 3 and Receiving x 3 having a residential and residential clause in respect of Coolum).

3. 10.
   Due to a culmination of the aforementioned matters, I exited the Police vehicle and detained the defendant for the purposes of a search; at that time, I introduced myself.

3. 11.
   Whilst S/C BROWN walked around the vehicle I took a photograph of the defendant on my Police issued iPad. As I did so I noticed that the defendant was fidgeting with his hands in his pockets, and I thought there appeared to be something in his right short pocket.

3. 12.
   At this time, I activated my BWC. I have subsequently viewed the recording made on this BWC and found it to be an accurate depiction of the interaction with the defendant [TZY] on Saturday the 18^th of June 2022. This footage has subsequently been downloaded onto a DVD.” (emphasis added)_

46. [46]
    Sergeant Driver gave oral evidence.  In evidence-in-chief, he explained^[35] that he was with SC Brown in a police vehicle in Goodwin Street Tewantin when he noticed the applicant alight from an older BMW car.  He observed the applicant carrying a small box of alcoholic drinks and the applicant appeared to Sgt Driver to be unkempt and unhealthy looking.  He explained that the police vehicle did a U-turn^[36] and pulled up adjacent to the applicant.  He gave this evidence about what then occurred:

“Okay.  Officer, I interrupted you before.  You said in your last answer, the last part of it, that you pulled over – or there was a U-turn and to be pulled over.  What was the reason for the vehicle being pulled up near [TZY] – the male that you saw, sorry?---Yes.  The main reason for speaking to him was his ap – his appearance.  His position in that street at that time piqued my interest.  I’m a naturally – and I’m, probably because of my 20-plus years in the police, an inquisitive individual, and I thought I’d have a chat to him, just to see what was happening.  My only intention at that stage, and the only thing I’d really identified is that he was carrying which I could see was liquor, and he – I had observed that he was drinking liquor in public, which is an offence.  Obviously, bearing in mind the time, date and place, it – it wasn’t the most serious offence, but I thought I might be able to provide him some advice, but at that time, I really formed – formed an intention just to speak to him about that at that stage, and maybe flesh out what – what he was up to in that area

- - -

Okay?--- - - - at that time.

And so, Officer, when the van that you were in pulled over, were you closer to the man that you saw further ahead?---Yes, that’s correct. So we pulled up along the kerb. [TZY] was directly adjacent to the police vehicle. I had my window open, and we were probably less than a metre away.

In that shorter distance between you, did you make any further observations about the man’s appearance?---Yes. So from that – that distance, I reaffirmed my impression that he was unkempt. He had sort of glazed, bloodshot eyes, from memory. He had the appearance of having not slept or – or not being well rested and washed, and he appeared slightly jittery, was making sudden small movements with his hands and his eyes.

And in relation to those things, did that remind you of any – did – sorry – in relation to those things that you’re saying – well, just – sorry, I’ll start that again. In relation to those matters that you’ve just described, are they consistent with anything, in your experience?---Yes. So, obviously, there could be a number of reasons for that – Tourettes, mental health issues – but, largely, in – in my experience, that sort of behaviour of the eyes and the physical manifestations, especially with the hands, are indicative of stimulant use, so, namely, amphetamine use or the like.

And now, Officer, after making those observations, what did you do next?---So, from – from memory, I had a – a brief conversation with him, where I remember him tipping out the rest of his drink, or putting his drink down. He put the case down. I had a suspicion at that time that he was – he had taken some illegal substances, some drugs, some dangerous drugs. I’d formed the intention that I would search him for those drugs, and exited the vehicle. That was based, obviously, on the time, date and place that [TZY] was – sorry, I should outline, before forming that intention, I had a – a quick conversation with him in relation to his movements and where he was headed. He said he’d been dropped off by mates and he was headed to another mate’s house, but he was very vague in relation to where exactly he was heading, and he seemed a little evasive in relation to those answers to my questions. And the location, Cullinane Street, where he had been, isn’t a main thoroughfare. If he had been driven through the area, it’s probably more than likely he would have used Poinciana and been dropped off on Poinciana to head towards the other residential properties nearby. So based on his appearance, time, date and place, and that story, I’ve exited the vehicle. I’ve introduced myself as Jimmy Driver, a sergeant at Noosa Heads Police Station. I know I would have said that because I pretty much say that every time I’m talking to somebody. It’s – it just comes out as rote, almost to the extent I have trouble when I move stations because I’m so used to saying one particular station. And I’ve outlined that he’s just detained for the purposes of a search for dangerous drugs.

Now, before we get to that, did you identify who he was when you – before you detained him?---Yes. So I can’t – and I can’t remember whether I asked him his name before or after speaking to him. I normally do things very – not rigidly, but I have a – a process that I – I normally adhere to. I obviously like to get people’s names and addresses. I’ve been – I’ve had numerous people run off from me, throw evidence away and that sort of thing, so I like to secure evidence as quickly as possibly – possible. I like to obtain people’s details as quickly as possible, and often I’ll do that by requiring details, which then, if they fail to do so, is an offence, and enables me to be able to take action. So I know at some stage I’ve asked him his name and he’s provided his name freely, and I can’t remember having an issue with that. Actually, all our interactions were fairly conversational. There was no animosity or aggression on either part. And I remember checking on the police computer system in relation to who he was. What I – what I remember happening is detaining him, getting his name, waiting for my – my partner, Senior Constable Tim Brown, to walk around the vehicle so as to assist me. Whilst doing that, I’ve looked him up on the police computer system, and I’ve identified – yes, that’s right – so I’ve id – got – I’ve obtained his name, had a look on the police computer system in relation to who he was, his activities and interactions with the police, etcetera. I’ve then detained him for the purposes of the search. I’ve walked backwards and taken a photo of him, and that was largely in relation to unrelated matters. We were in the area as a result of break and enters, and I just wanted to secure an image of him to be used later for intelligence purposes, if that dee – was deemed necessary, which it wasn’t. And then when Tim Brown has come around the car, we’ve initiated the search.”^[37] (emphasis added)

47. [47]
    As to activating the BWC, Sgt Driver’s evidence-in-chief was:

“And now, Officer, did you activate your camera?---Yes, I did. From memory, I – as I exited the vehicle – no, it wouldn’t have been then, sorry. It would have been – I exited the vehicle, had that brief conversation with [TZY], or a part of the conversation, have taken a photograph, and it was after that that I have activated the body-worn camera.”^[38] (emphasis added)

48. [48]
    Sergeant Driver’s evidence-in-chief shows a clear breach of the BWC manual.  He said that his intention to search the applicant for drugs was formed before he exited the police vehicle.  By his own admission, he believed at that time that he “would”, not “may”,^[39] exercise the power of search.^[40]  The BWC was not activated until after a conversation with the applicant and the taking of his photograph.^[41]
49. [49]
    In cross-examination, this evidence was given:

“How long did you interact with [TZY] for without your body-worn camera running?---Oh, it would have been a very short period of time – less than a few minutes.

All right. So potentially more than one minute?---It’s hard to say. I don’t – I don’t remember having a – an exceptionally lengthy conversation with him, and I’d say it – it would be less than two minutes – probably around the minute mark. It wouldn’t be long at all.

And why did you do that? Why did you not activate your body-worn camera as soon as the decision was made to intercept this fellow?---Yeah. I think, basically, my first intention when seeing [TZY] was to just have a conversation with him about his liquor use, as previously stated in – in-chief, that if it was a different time and place, a different location, somebody consuming liquor would – say, outside of a – a nightclub on a Friday night, would automatically – I would be looking at taking some sort of enforcement – enforcement action of some description. Being that it was an early Saturday morning, no one else was present, his behaviour in itself wasn’t drawing my attention to – to – to him. The only thing initially – obviously, I’ve outlined what piqued my interest, but initially I was going to speak to him about his liquor use and the offence of drinking in public, and provide him some advice.

All right. So whilst you were still in the car, and whilst the car was still in motion, you formed the intention to question [TZY] about the commission of an offence. Do you agree?---Not question him. Well, I suppose, just having a conversation, finding out what he’s up to and that sort of thing. If that’s questioning, then yes. Yes - - -

Well, asking questions - - -?--- - - - I had that inten - - -

- - - is questioning, isn’t it? And one of the first things you would have asked him is, “What’s your name? What are you drinking?” Do you agree?---Probably not in the way that I speak to people, and I like to try and keep things as conversationally as possible. I would have said, “Hello, mate. What are you up to? What brings you here today?”, that sort of thing.

All right?---I probably would have had a little conversation with him before asking his name.

All right. So there would have been a greeting, “Hello, mate”, followed by questions. Do you agree?---Yes.

All right. So whilst you were in the car, whilst the car is - - -?---Yes.

- - - still in motion, you formed an intention to question [TZY] about what you considered to be the commission of an offence. Do you agree?---Yes.

All right. Notwithstanding that intention, you decided to embark upon that questioning without first activating your body worn camera. Do you agree?---Yes, that is correct. That is what happened.

You’re unsure for how long you questioned [TZY] with the body worn camera not activated, you agree?---Yes, I can’t categorically give you an accurate time. That’s correct.

And you concede that it could have been several minutes of unrecorded conversation with [TZY]. Do you agree?---Yes, previously stated, I think it would be more the – the singular minute to many minutes but as I’ve just stated seconds ago, I can’t definitively answer that.

All right. What is the purpose for which body worn cameras are issued and used to the Queensland Police Service or issued to the Queensland Police Service and used by officers in their interactions with the public?---So our directions, they were initially instigated as an ethical standards command tool to monitor disciplinary complaints, etcetera. They were not issued to us as an evidence-gathering tool. Policy outlines that we are to activate them when enforcing a power and that’s that.”^[42] (emphasis added)

50. [50]
    Recordings from the BWC were tendered in evidence before me, as was a transcript which appeared accurate.  The opening passage of the recorded conversation is:

“SGT DRIVER:  Have you got something in that hand?

[TZY]:  Mm?

SGT DRIVER:  What’s in there?  What’s in there?  [INDISTINCT].

[TZY]:  [INDISTINCT].

SGT DRIVER:  Just get, pull the whole pocket out.  Mate, you.  Right, my name’s Jimmy Driver, Sergeant at Noosa Heads Police Station.  Okay, just right now you’re under arrest for possession of a dangerous--”

51. [51]
    The BWC recording shows that the first real interaction between police which is caught electronically is Sgt Driver directing the applicant to empty his pocket and then arresting him.  That is consistent with Sgt Driver’s evidence.
52. [52]
    A decision by a police officer to speak to a citizen does not activate the requirement to deploy a BWC.  A policeman may approach and speak to any citizen.  That does not involve the exercise of a power.  If the citizen engages consensually in the conversation, no power is being exercised by the officer in speaking with the citizen, although obligations might fall on the officer.^[43]  The obligation to deploy the BWC arises only once the officer forms a belief that they will exercise a power which must mean a coercive power.
53. [53]
    However, Sgt Driver did not activate the BWC before he left the vehicle, even though he had by that stage determined to exercise powers of detention and search.  I find:

1. there was a breach by Sergeant Driver of the BWC manual; and
2. that is, in context, improper conduct which enlivens the Bunning v Cross discretion.

Reasonable suspicion?

54. [54]
    In the circumstances of this case, Sgt Driver had power to search the person of the applicant if, before exercising the powers of detention and search, he reasonably suspected that the applicant had on his person dangerous drugs.^[44]
55. [55]
    Sections 29 and 30 of the PPRA operate in the investigative stage of a police officer’s duties.  A police officer forms a “suspicion” as to whether something exists.  If that subjective “suspicion” is formed on grounds that are reasonable in the circumstances,^[45] then the officer is authorised to use investigative powers to ascertain whether the thing suspected is a fact.^[46] 
56. [56]
    In Queensland Bacon Pty Ltd v Rees^[47], Kitto J explained that a suspicion is a state of intellectual conviction less than satisfaction of the existence of something:

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to “a slight opinion, but without sufficient evidence”, as Chambers’s Dictionary expresses it.”^[48]

57. [57]
    Lord Devlin, sitting in the Privy Council, in Hussien v Chong Fook Kam^[49], described “suspicion” as:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”.  Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.”^[50]

58. [58]
    The High Court in George v Rockett^[51] cited and followed the statements in Queensland Bacon Pty Ltd v Rees^[52] and Hussien v Chong Fook Kam^[53] which appear above.^[54]
59. [59]
    Sergeant Driver clearly subjectively held a suspicion that the applicant was in possession of dangerous drugs.  That was not challenged.  The matter in contention is whether he held that suspicion on reasonable grounds.
60. [60]
    Sergeant Driver identified a number of factors which he said led him to suspect that the applicant was in possession of dangerous drugs.  I shall turn to those shortly.  In cross-examination of Sgt Driver, Mr Funch for the applicant made the point that each of the factors did not point unambiguously to the applicant being in possession of dangerous drugs.  Two observations ought to be made about that approach.
61. [61]
    Firstly, what is in issue is the reasonableness of a “suspicion” not a “belief” or proof of a particular fact.  A jury considering a criminal charge may only draw an inference against an accused if it is the only reasonable inference open.^[55]  That principle is the product of the Crown at the trial of a criminal charge having to prove the existence of essential facts beyond reasonable doubt.  However, it is possible, and indeed common, for a set of facts to give rise to various competing suspicions.  After investigation, it may become apparent that one or more of the facts suspected are true and others not.  As already observed, s 29 is operative at the investigative stage.  It empowers a police officer to investigate further once particular suspicions are held on reasonable grounds.  Provided that one of the things prescribed by s 30 of the PPRA is suspected by the police officer to be true, and provided that suspicion is held on reasonable grounds, then the power to search has been established, even though there are other inferences open.^[56]
62. [62]
    Secondly, reasonable grounds for holding a relevant suspicion may be found, notwithstanding that each particular fact relied on may not, standing alone, reasonably support the suspicion.  Just as individual pieces of circumstantial evidence may, when taken together, prove a fact beyond reasonable doubt,^[57] a number of factors, each of which taken alone may appear innocuous, together cumulate to form a reasonable basis to hold a suspicion.
63. [63]
    The factors upon which Sgt Driver formed his suspicion were firstly the circumstances of the applicant being dropped off by the BMW.  He was apparently not delivered to a particular house.  There are some houses in the area but he did not appear to be walking to any of them.  The road was not a main road, or any major thoroughfare, so the applicant seemed to have exited from the car with no apparent destination.
64. [64]
    Sergeant Driver observed that the applicant had bloodshot glazed eyes, appeared unwashed and unhealthy and his bodily movements were jerky.  All this, Sgt Driver considered, was consistent with drug use.  Although it was put to Sgt Driver that not all these things could be seen on the BWC footage, it was not put to him that these things were not consistent with drug use.
65. [65]
    The footage from the BWC shows the applicant in an agitated state, consistent with amphetamine use.  I cannot see from the footage whether the applicant’s eyes were bloodshot or glazed, but I found Sgt Driver to be an honest witness.  I accept his evidence as to the appearance of the applicant.
66. [66]
    Reference was made by Sgt Driver to the QPS database which disclosed that the applicant was, on 18 June 2022, on bail for offences of dishonesty and that he had convictions for drug offences.
67. [67]
    Mr Funch relied on the decision of Dalton J (as her Honour then was) in R v Bossley.^[58]  There, a police officer purported to exercise powers under s 29 of the PPRA to search a bum bag and its contents on suspicion that the person wearing the bag may possess amphetamines.  That suspicion was based on the person’s “excited talkative behaviour” which was consistent with having taken a stimulant.  Her Honour concluded that there were no reasonable grounds for the suspicion.  Her Honour observed that the defendant there was at a music festival and it was hardly surprising that there were excited people carrying their possessions in a bag.  Her Honour went on to dismiss the application to exclude the evidence, finding that in any event when the circumstances of the search were properly understood, the defendant had consented to it.
68. [68]
    No doubt her Honour’s decision was correct.  However, the judgment appears, with respect, to be a completely conventional application of well-established principles to the facts as her Honour found them.  The comparison of different factual findings in different cases based on different evidence is always unlikely to be of much assistance.  Bossley is of no assistance here.
69. [69]
    Sergeant Driver confronted the applicant and noticed indicia consistent with both sustained and recent drug use.  He also knew of the applicant’s connection with drugs given his criminal history.  Those factors gave reasonable grounds for a suspicion that the applicant had recently consumed illicit drugs, which in turn gave grounds for suspicion that he may be in possession of illicit drugs.
70. [70]
    I find that Sgt Driver held the relevant suspicion on reasonable grounds and that the search was lawful, as was the seizure of the things discovered, including the applicant’s mobile phone.  It follows that the subsequent investigation of the mobile phone was lawful.

Exercise of discretion

71. [71]
    The applicant has failed to establish that the search was unlawful.  He has though established impropriety attending to the search, being Sgt Driver’s breach of the BWC manual and so the discretion falls to be exercised.
72. [72]
    I find that the breach was not deliberate.^[59]  Sergeant Driver said in cross-examination that he believed that the BWC manual provided that BWCs would be activated “when enforcing a power and that’s that”.^[60]  That is not correct in that, by the BWC manual, a BWC is to be activated as soon as the officer believes a police power may be exercised.  That misunderstanding is understandable given the statement in the BWC manual that the BWC policy is driven by a desire to protect police when exercising a power.  Consistently with Sgt Driver’s understanding of the requirement upon him, the BWC was deployed by the time of the arrest of the applicant.  It was never suggested to Sgt Driver in cross-examination that he deliberately breached his obligations under the BWC manual.
73. [73]
    Where, as here, the impropriety has not been either deliberate or reckless, cogency of the evidence which has been obtained is a fact for consideration.^[61]  The failure to activate the BWC earlier than it was does not affect the cogency of the evidence that was discovered through the search.  There seems little doubt from the available evidence that the things alleged to have been in the possession of the applicant, including his mobile phone, were in fact in his possession.  The mobile phone contained electronically stored information which evidences the alleged trafficking.  That information was not altered by the fact that events leading up to the seizure of the phone were not caught on camera.
74. [74]
    In this case, the real point is that evidence, which might at least hypohetically cast doubt on the legality of the search, was not electronically recorded.  However, it was never suggested to Sgt Driver that there were any particularly relevant events or conversations which occurred from the time he exited the vehicle to the time the BWC was activated.  He was cross-examined about the chronology of those events, but nothing seemed particularly contentious.
75. [75]
    In balancing the different policy considerations, regard must be had to the seriousness of the alleged offences.  The trafficking charge which is count 1 on the indictment is a serious one.  The trafficking business, as alleged, was substantial.  There was a large group of customers being supplied substantial amounts of drugs over a lengthy period. 
76. [76]
    In my view, the public interest in the prosecution of such a serious offence outweighs the public interest in denunciation of the impropriety identified here, especially when:

1. the search which actually revealed the incriminating evidence was lawfully conducted pursuant to powers bestowed by the PPRA;
2. there is no suggestion of any deliberate breach of the BWC manual, or any deliberate cutting of corners;^[62]
3. Sergeant Driver acted honestly, albeit mistakenly;
4. the breach was only partial in that the BWC was activated, albeit late;
5. the impropriety does not affect the cogency of the evidence detected during the search; and
6. there is no unfairness to the applicant identified as flowing from the impropriety.

77. [77]
    I dismiss the application.

Order

1. The application is dismissed.