Carew v The Queen[2016] QSCPR 2

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, Joshua Shane Carew, has been committed for trial to this court.  A new indictment was placed before the court today, in place of an indictment which charged him with a number of co-offenders.  That indictment charges him with one count of trafficking in dangerous drugs, being methylamphetamine and amphetamine, one count of producing the dangerous drug methylamphetamine, one count of possessing a thing used in connection with producing a dangerous drug, one count of possessing a dangerous drug in excess of two grams, two counts of possessing a thing used in connection with trafficking in a dangerous drug and one count of possessing property obtained from trafficking.
2. [2]
   What might be described as the real evidence – that is, drugs, a great deal of money and utensils and other objects dealing with those offences – were found during an emergent search conducted of the defendant’s property, which was the subject of a successful application for a post-search approval order. In the post-search approval order, the items seized were described as $3400 in cash;  separately, $144,150 in cash;  a round plastic container in heat-sealed clear plastic, wrapped in grey duct tape, which contained an unknown amount of white powder substance;  a square plastic container in heat-sealed clear plastic, wrapped in grey duct tape, which again contained an unknown amount of white powder substance; an unknown amount of white powder substance wrapped in white paper and contained in heat-sealed clear plastic;  a set of digital scales;  a notepad and pen;  a justice of the peace stamp and inkpad;  a black Esselte notebook;  a quantity of banking and rental documents;  a plastic tub of MSN;  a plastic tub of Epsom salts;  nine white capsules containing white powder substance;  one Apple iPhone;  a box containing financial documents;  a large yellow notepad and résumé;  a coverless notebook;  a document titled “Memo”;  a white Sunbeam heat-sealing machine;  a roll of clear plastic;  a plastic spoon;  an Apple laptop computer;  a small freestanding safe;  a roll of grey duct tape;  and a metal base plate from the laundry sink in the bar area.
3. [3]
   A number of those items were found in a room which contained a pool table.   The post-search approval order was made by a magistrate, who certified that she was satisfied, after hearing a sworn application by Senior Constable Ross Hutton, now Detective Sergeant Ross Hutton, that, in the circumstances that existed before the search, the police officer, before his powers under the Act, had a reasonable suspicion for exercising those powers, and there was a reasonable likelihood that the evidence would be concealed or destroyed.
4. [4]
   The applicant has made a number of contentions as to why the emergent search which was carried out was carried out unlawfully and has sought the exclusion of the evidence on that basis.  There is a further question, if I were to determine that the search was carried out unlawfully, whether or not I should exercise my discretion to nevertheless allow the evidence to be admitted.  The burden of proof of both the illegality of the search and of an exercise of discretion in the applicant’s favour rests on the applicant, on the balance of probabilities. 
5. [5]
   The contentions made by the applicant were that the emergent search was unlawful as Detective Hutton did not hold the requisite suspicion required pursuant to s 160(1)(a) Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) prior to the search; that the emergent search was unlawful, on the basis that a search warrant could have been obtained after the roadside apprehension of the applicant;  that the post-search approval order was invalid because it was granted on the basis of untrue and selective information within the relevant application;  that the post-search approval order was invalid because Detective Hutton did not swear to his own reasonable suspicion;  and, finally, in oral submissions, that the emergent search was unlawful because Detective Hutton did not specify to the occupier the offence for which he was conducting the search.
6. [6]
   A search commonly referred to as an emergent search is, in fact, a search of a place to prevent loss of evidence found in Chapter 7, Part 2 PPRA.  Chapter 7, Part 1 deals with searching places with warrants, and Chapter 7, Part 2 deals with a search of a place to prevent loss of evidence.  Section 155 within that part provides that the Part applies only in relation to certain offences, which are thereafter called Part 2 offences.  The first of those is an indictable offence.  It is clear in this case that the search was conducted in relation to serious drug offences, all of which are indictable offences.  Section 160 then provides as follows:

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

1. (a)
   a thing at or about a place, or in the possession of a person at or about a place is evidence of the commission of a part 2 offence; and

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

…

1. (3)
   a police officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.

That sets out the limited circumstances in which a police officer may conduct a search. 

7. [7]
   In order to provide protection to the members of the community who may be subject to such a search, s 161 PPRA provides that:

As soon as reasonably practicable after exercising such powers, the police officer –

that is, the police officer who conducted the search –

must apply to a magistrate in writing for an order approving the search.

Such an order is called the post-search approval order.

8. [8]
   And that occurred here.  An application was sworn, stated the grounds on which it was sought and, as I have already indicated, a post-search approval order was made.  The post-search approval order was made under s 162 PPRA, which provides that a magistrate may make a post-search approval order only if satisfied under subsection (1)(a):

…in the circumstances existing before the search –

1. (i)
   the police officer, before exercising the powers, had a reasonable suspicion for exercising the powers; and

1. (ii)
   there was a reasonable likelihood that the evidence would be concealed or destroyed or may have caused injury to a person.

9. [9]
   It can be seen, from the way in which I have expressed the contentions of the applicant defendant that he has alleged that the search was unlawful on three grounds and that the post-search approval order was invalid on two grounds.  The search was unlawful, it is contended, because Detective Hutton did not hold the requisite suspicion and because he could have obtained a search warrant before conducting the search and because he did not specify the offence as he was about to commence the search.  The other two grounds specified that the post-search approval order is invalid, firstly, because it was granted on the basis of untrue and selective information within the relevant application and, secondly, because Detective Hutton did not swear to his own reasonable suspicion. 
10. [10]
    I shall deal with each of those five grounds in the order in which they were argued.  I shall concentrate on the matters which the detective disclosed to the magistrate as to whether or not he held the reasonable suspicion.  In doing so, I am acutely aware that some of the material before the magistrate has been redacted in the information provided to the defendant and some of that redacted information which I have had the opportunity to view does support the reasonable suspicion.  I shall refer specifically, however, only to the material that has not been redacted and has therefore been revealed to the defendant.  In doing so, I will inevitably traverse some of the other contentions. 
11. [11]
    The defendant’s father-in-law is one Michael Smith.  The defendant is married to Michael Smith’s daughter.  The Queensland Police Service had been, for some time, monitoring and analysing lawfully intercepted telephone calls made from and to Smith, which led them to the belief that he was supplying dangerous drugs to a number of people and that he used code when talking to customers to arrange suspected meetings.  Those communications showed that he was in what is described as heavy contact with his own sons and with his son-in-law, the defendant, Mr Carew.  None of that is the subject of dispute on this application. 
12. [12]
    During the period in question, the police became aware of two matters of interest with regard to Mr Smith and the applicant, Mr Carew.  One was that Mr Smith had travelled from Brisbane apparently to Cairns, although he had given a number of different versions to people as to where he was going and what he was doing.  Additionally, the police were aware from lawfully intercepted telephone calls that the applicant, Mr Carew, and his family had moved from his residence near Yandina to a rented property in the Cooroy area.  Although Detective Hutton had been unable to find out the precise address, he was able to tell from the intercepted telephone calls, as he gave evidence today, that Mr Smith had been to the house into which the Carews had moved. 
13. [13]
    The next piece of information which formed part of his suspicion was a lawfully intercepted telephone call between Mr Smith and his wife.  Detective Hutton had been told what was in the call but he listened to it himself earlier in the morning of 11 March 2013, the date of the emergent search.  He did not have a transcript of it, which is now in evidence.  Such transcript had not yet been prepared and was not prepared until much later, so he relied on what he heard in that telephone call to give an account of it to the magistrate, which is relevant to both the reasonableness of his suspicion but also to the later question of whether or not the magistrate was given incorrect information.
14. [14]
    The telephone call between Mr Smith and his wife had been made at 6.52 pm on 9 March 2013.  In the information given to the magistrate, Detective Hutton gave this account of it:

 During the call, Smith said, “I caught up with the Townsville bloke this afternoon.” Jenny Smith said, “All good?” Michael Smith said, “All good.” Jenny Smith said, “Why don’t you catch a flight home?” Michael Smith said, “I can’t …” Jenny Smith said, “Oh, shit, yeah ..... do you want me to drive up and get you?” Michael Smith said, “No.”

15. [15]
    Detective Hutton swears that, as a result of this lawfully intercepted telephone conversation, police believed – which, of course, included himself – that Smith was in possession of property related to his drug-trafficking activity.  Given the background, that suspicion was entirely reasonable.  In Detective Hutton’s evidence, he repeated that version of the conversation as the basis for his suspicion. 
16. [16]
    He was cross-examined, effectively, about whether or not that was, first, what he heard at the time and, second, whether or not it was a misleading version of the conversation.  The conversation was then played in court.  I should just first say what the later transcript reveals as to the conversation, although even this transcript does suggest that, notwithstanding careful listening, some of it is indecipherable.  The relevant part of the transcript says this:

M1:  I caught up with the Townsville blokes this afternoon.

F1:  Oh, okay.  All good?

M1:  Yeah (words) all good – coughs – spits (words) I just hate that stuff.

F1:  Mmm.  Why.  Why don’t you catch a flight home, darl?  Pause.

M1:  Yeah.  I can’t be bothered, darl.

F1:  Hey?

M1:  I can’t be bothered.

F1:  Oh, shit, yeah. 

17. [17]
    It is important to put this in the context of what the call sounded like.  M1, who was Mr Smith, was obviously extremely ill.  He was coughing and spluttering and unable to speak.  He whispered rather than spoke his words.  Some of it is extremely difficult to hear.  When Mrs Smith asked him why he did not catch a flight home, there was quite a long pause.  He then says “Yeah.  I can’t”.  I accept that he may have gone on to say “be bothered, darl”, but that was difficult to hear when I heard the call played in court.  The distinct impression that one got was that there was some reason why he did not want to fly home which had nothing to do with not being bothered.  And when he said it, which was an odd response, it is clear from the transcript that his wife was uncertain what he meant, and he repeated it, and then she understood when she said “oh, shit, yeah”. 
18. [18]
    It would be reasonable for a police officer who conducts drug investigations to understand that the reason why he was not catching a plane home was not because he could not be bothered but that there was a reason associated with the drug trafficking why he would not want to catch a plane home.  I am satisfied that that telephone conversation in its context was certainly sufficient to cause Detective Hutton to have the reasonable suspicion that he said he had – that is, that he was in possession of property relating to his drug trafficking.  And I should interpolate here, which is relevant to a later contention, that I am satisfied that he did not intend to mislead the magistrate.  It was clear that he knew there were words after “I can’t”, but he was not certain what they were, and that is shown by the ellipsis after “I can’t”.  In any event, saying, as I have said, he cannot be bothered was an absurd answer and clearly meant to convey something else. 
19. [19]
    The next piece of evidence which informed Detective Hutton was a telephone call which was lawfully intercepted on the morning that the emergent search took place.  This was a telephone call from Mr Smith, whom we had heard on the earlier telephone call, obviously extremely ill and speaking to his wife.  On this occasion, the other participant in the telephone call was his daughter, Mr Carew’s wife.  Again we hear him coughing on the phone and then she says to him, “Listen, your, um, train’s delayed.  Yeah.” 
20. [20]
    There was no suggestion that Mr Smith was on a train, and he says, “Yeah, darl.  Yeah”, and then there are various pieces of over-talking which cannot be distinguished.  She then says, “Josh said, Josh said get off at Cooroy.”  Josh is a reference to the applicant, Mr Carew, whose name is Joshua Shane Carew, or at least I take it to be a reference to Mr Carew, and Mr Smith repeats, “At Cooroy.  Okay.”  She then says, “He’ll pick you up.  He’s gonna show you the pool table.”  There is a pause and Mr Smith says, “Sorry?”  She then repeats, “He’s going to bring you home and show you the new pool table”. Then he says something more or less indistinguishable, something about “Is it?” and she says “Yeah.”  He says “Okay” and coughs.  Then there are arrangements made for him to be picked up at Cooroy by Mr Carew. 
21. [21]
    Now, at this point, Detective Hutton has reasons to suspect that Mr Smith’s trip has been to do with drug trafficking.  He is to be picked up by Mr Carew.  Detective Hutton regarded the conversation about picking him up at Cooroy and bringing him to their house to show him the pool table as code.  He regarded them as speaking in code because they were trying to talk about drugs or drug trafficking or drug possession without revealing that to anyone who might be listening on the telephone.  This, of course, is not an unusual way in which people who engage in these kinds of conversations usually behave.  It was submitted by Mr McDougall that I would not regard it as code for two reasons:  one, it turned out there was a pool table at the house and, two, because there was no hesitation.  He also put those matters to Detective Hutton.
22. [22]
    There are two reasons why I would not regard those matters as of any moment.  Firstly, there clearly was a hesitation and a need for Joshua Carew’s wife to repeat to her father about being picked up to show him the pool table.  Detective Hutton knew that Mr Smith had already been to the house and was likely to have seen the pool table already and was ill and had been expressing in all his earlier telephone conversations the need to seek urgent treatment for what was clearly, at least, very serious bronchitis.  Secondly, it was apparent when the search was done of the house that important material –evidence suggestive of drug trafficking – was found in the room with the pool table and so the fact that there was a pool table there which, of course, Detective Hutton did not know at the time he listened to the phone call, was irrelevant to the fact that  what was intended to be shown to Mr Smith were items that were in the room containing the pool table.  Detective Hutton was entitled to regard that as code and entitled to maintain that view even after he attended the house and saw that there was in fact a pool table there.
23. [23]
    As a result of these matters, Detective Hutton and other police believed there were items related to drug trafficking activities at Carew’s residence.  The vehicle in which Carew and Smith were travelling was intercepted.  Mr Carew was asked for his address.  It will be recalled that the police had been unable to find out the precise address where Mr Carew now lived, although they knew that he had moved.  Mr Carew at first expressed some uncertainty as to his exact address.  Although he appeared to become more certain as he went on, there were still indicia of uncertainty, such as “I’d say it was” before saying what his address actually was.
24. [24]
    Mr Carew was then asked if he was willing to attend at the Cooroy Police Station with police.  It appears that it was intended to take him back to the police station and a search warrant prepared.  However, Mr Carew refused to attend at the police station with them, as he was entitled to do, and Detective Hutton said in his evidence that he did not believe that he could then arrest him.  He took the view that if he did not conduct an emergent search of the house where Carew lived that items would be hidden or destroyed that were evidence of drug trafficking.  He had reason to think that by virtue of an earlier telephone conversation he had heard between Mr Smith and his wife where she referred to the house having been “cleaned up”, or words to that effect.
25. [25]
    Detective Hutton asked if Mr Carew’s wife was at the house and he had said that she might be, so Detective Hutton had to make a decision whether or not to return to the police station, prepare the material for a search warrant and obtain a search warrant, or to conduct an emergent search.  He took the view, which he expressed in the application for the post-approval order, that the police believed that if a search was not immediately conducted of the residence, the evidence may be destroyed or concealed by Carew or other members of his family if they attended the house.
26. [26]
    By the time the post-approval search warrant was sought, Carew had taken them to the dwelling.  Detective Hutton said in his application before the magistrate that Carew was unable at the intercept location to provide an accurate address for his property, as he had just moved into the dwelling.  It was submitted on behalf of Mr Carew that this suggested that he was being evasive and unreliable.  In fact, the reason given is not that he was being evasive or unreliable but that he had just moved into the dwelling, and that does appear to have been the reason why he was uncertain of the precise address, although he could take them there.
27. [27]
    In my view, there is nothing misleading or inaccurate in what was said in the application for the post-approval warrant with regard to Mr Carew’s uncertainty, and the reasons for it, as to the precise address of his property.  It is also the case, with regard to Detective Hutton’s belief that materials may be destroyed or moved, that Michael Smith had contacted a solicitor from the side of the road.  The solicitor could quite properly have advised members of Mr Smith’s family, including Carew’s wife, that they had been detained by police, and there is no doubt, then, that the prospect of finding incriminating material at the house would be likely to be lost.  If Mr Carew had been released while the search warrant was prepared, there is no doubt that he would have destroyed or removed the incriminating material that was found.
28. [28]
    I am satisfied that the emergent search was not unlawful on the basis that Detective Hutton did not hold the requisite suspicion pursuant to s 160(1)(a) PPRA prior to the search.  I am satisfied on the basis of all of the material in the application for the post-approval warrant and Detective Hutton’s evidence that he did hold the requisite suspicion, and the magistrate was entitled to be satisfied of that. 
29. [29]
    I am satisfied that the emergent search was not unlawful on the basis that a search warrant could have been obtained after the roadside apprehension of the applicant.  I am satisfied that if that had occurred then it is likely that evidence would have been destroyed or concealed by Carew or other members of his family.
30. [30]
    I am satisfied that the post-search approval warrant order was not invalid because it was granted on the basis of untrue and selective information within the relevant application.  Given that highly incriminating material was found in the room where the pool table was, the fact that there was in fact a pool table at the residence was irrelevant information to tell the issuing magistrate;  however, if it had been included, it could only have served to strengthen the application.
31. [31]
    The fourth matter is the question of whether or not the post-search approval order was invalid because Detective Hutton did not swear to his own reasonable suspicion, as required by s 162(1)(a)(i) PRRA.  There is no doubt that Detective Hutton, as I have said, had the reasonable suspicion which I have referred to and that he was the one who prepared the application before the magistrate.  It is clear from the evidence given in this court that it was he who held that suspicion, but he used the term “police” rather than the word “I” when referring to his suspicion in the application.  That may be unfortunate but, nevertheless, it would have been apparent to the magistrate that it was the maker of the application who was the person who held the reasonable suspicion and she was not in error in thinking that because, indeed, it was.  This is not a case where the person who makes the application is not the person who held the reasonable suspicion, which distinguishes it from the case of R v Munck [2010] QSC 416.  There were other errors in that case which meant that the evidence obtained on the emergent search should have been excluded.
32. [32]
    The remaining matter is whether or not the search was unlawful because Detective Hutton did not specify the offence.  In the application for post-approval, of course, he did specify the offence, as he was required to do in the form.  The question is: did he sufficiently specify the offence when he conducted the emergent search?  There was some uncertainty as to precisely what Detective Hutton had said about that at the beginning of the search.  No transcript has been made of that so I took the opportunity to listen again to precisely what was said.  What Detective Hutton appears to have said in answer to a question from an unidentified person is, “I am searching in relation to drugs.”  He then asked, “Is there anything you wish to declare?”  The answer given to him by the occupant of the house was “No”.  “No drugs?”, replied Detective Hutton. 
33. [33]
    Although that is a very shorthand way of identifying the offence and the particulars, it would make it perfectly clear to the occupant that what Detective Hutton was doing in that search was looking for the presence and therefore the possession of dangerous drugs and, indeed, as is common in police practice, he asked the occupant if there was anything he wished to declare, by which he meant, “Do you have any drugs or other incriminating material here which you wish to tell me about?”  Very often, a person who is the subject of the search will then show the police where there are drugs or other incriminating material.  Mr Carew, with his criminal history, would have known precisely what Detective Hutton meant.  He said that he did not and, again, Detective Hutton repeated, “No drugs?” 
34. [34]
    So it was made clear that the search was being conducted to find the presence of unlawful drugs.  There could have been no misapprehension on the occupant’s part or Mr Carew’s part as to the nature of the search that was being undertaken, the reasons for it and at least one of the offences which would have arisen from the finding of dangerous drugs.  True it is that that description would not have been enough to satisfy an application for a search warrant, had it been made with leisure, not in the situation of an emergent search with the danger of the losing of the very material for which they were searching.  But in my view, it was sufficient in the circumstances to alert Mr Carew to the reason for the search.  It was not a broad-ranging search of an unknown or wide area for an unknown or wide reason.  The reason given was quite precise and the area to be searched was known:  the residence of Mr Carew.
35. [35]
    So I am not satisfied that that makes the search unlawful.  It follows that I am satisfied that the search was not unlawful or, perhaps more correctly, I am not satisfied that the search was unlawful.  There was no reason to exclude the evidence.
36. [36]
    Submissions were made about whether or not the evidence would be admitted, even if it were found to be unlawful, and there would be solid reasons for doing that given the highly probative and reliable nature of the evidence found, but in the circumstances, it is not necessary for me to make the ruling on that. 
37. [37]
    So the only order that it is necessary to make is that evidence obtained as a result of an emergent search at 158 Wust Road, Cooroy, on 11 March 2013 should not be excluded on any of the grounds of contention I have alluded to on this application.