R v AB[2018] QSCPR 14

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

HOLMES CJ

Indictment No 898 of 2018

THE QUEEN

v.

AB

BRISBANE 

2.32 PM, FRIDAY, 12 OCTOBER 2018

RULING

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

THE CHIEF JUSTICE:   The applicant seeks the exclusion of evidence of the finding of a large quantity of methamphetamine in a car in which he was travelling on 18 October 2017, on the basis that the search of the vehicle was unlawful.  Police had been conducting investigations in relation to a drug operation and became aware from telephone intercepts that the movement of a quantity of methamphetamine from Brisbane to Central Queensland was anticipated.  They had identified a man named CD as transporting the drugs. 

On 18^th of October 2017, CD was known to be driving a hire car, a Toyota Corolla.  A number of police were briefed about the likelihood of the drug movement expected on that day.  That evening, it became apparent from surveillance that CD was travelling north in the Toyota Corolla.  The Crown case is that AB was driving the vehicle. 

Detective Sergeant Lima, one of the senior police officers involved in the investigation and the officer who conducted the search in question, gave evidence that a decision was made to use the power under section 31 of the Police Powers and Responsibilities Act to stop the vehicle, detain its occupants and search it, rather than to apply for a warrant for a search of the vehicle in advance. 

He explained that, firstly, it could not be certain which vehicle would be carrying the drugs until the Toyota Corolla was actually seen to be travelling north, and secondly, that because the transportation of these drugs was merely part of a much larger operation, there was some concern not to have to reveal by way of the serving of a warrant that police were aware of the more extended activities of CD and others.  It was hoped that the interception would be taken by the vehicle’s occupants as a routine traffic stop.  However, things did not work out quite as planned. 

Two police officers who had been briefed that afternoon about the operation, Constables Irwin and Scanlon, were detailed to follow the Toyota Corolla.  However, it sped away from them on the Gateway Motorway, and they found themselves following a set of taillights, which, as it turned out, were those of a different vehicle, with the result that they prematurely took an exit from the motorway, and when they realised their mistake had hurriedly to perform a U-turn. 

Sergeant Lima, who was waiting not far up the highway, confirmed that the car had not passed him, so Scanlon and Irwin left the motorway at the next exit and went to a nearby service station, where they saw the vehicle again in the car park.  There was no one in it, but they saw CD and AB leaving the service station, carrying fast food, about 15 metres away from the vehicle.  The two of them sat down in an eating area and were approached by the two constables.  They were questioned and CD disclosed that he had been previously convicted of a drug offence.  Sergeant Lima was contacted and arrived shortly afterwards.  He detained the two men and searched them, finding the car keys on AB, and with the assistance of Scanlon and Irwin, he searched the car, finding the drugs. 

The power Sergeant Lima relied on was that under section 31(1)(c) of the Police Powers and Responsibilities Act, which permits a police officer who reasonably suspects that any of the prescribed circumstances for searching a vehicle without a warrant exists, to search a vehicle for anything relevant to the circumstances for which it and its occupants are detained.  One of the prescribed circumstances is that there may be an unlawful dangerous drug in the vehicle. 

There was no argument here that Sergeant Lima would not have had a reasonable suspicion that this vehicle contained drugs.  Instead, the applicant contends that the search was unlawful because, although CD and AB had been detained, they were not at any relevant time occupants of the vehicle, having left it previously to buy food and being at some distance from it when detained.  The Crown did not contend to the contrary.  I should say, though, that there was some evidence that the two of them had been the occupants of the vehicle.  CD conceded that his mother had hired it.  The keys were found on AB.  The relevant question was whether they met the description of detained occupants when the vehicle was searched. 

There is certainly scope for argument about how literally the word “occupants” in section 31(1) is read, but the matter has received consideration previously in this Court.  In R v Keen [2015] QSC 7, Justice Jackson, construing the section and considering how liberally the section ought to be read, made a number of observations.  Firstly, the power to search a vehicle was an exception to the requirement that in general, a search warrant had to be obtained to search a place.  Secondly, the circumstances to which section 31 was directed might be considered to be those in which there was a concern about a vehicle and its occupants decamping.  Thirdly, section 31, was the only section of the Act to refer to occupants as opposed to a person in control of a vehicle; the latter expression, plainly enough, could extend to a person outside a vehicle.  It follows – this is my gloss – that if the legislation had meant to capture any driver able to get back into a car and drive away, regardless of degree of proximity to the vehicle, the latter expression could have been used.

Justice Jackson noted that the limits of the operation of the section were difficult to identify.  There might be difficulties when occupants got out of the vehicle as it was being approached by a police officer.  In the case before him, however, the applicant and his companion were standing outside, although near, a stationary vehicle when police officers arrived.  They were not occupants. 

I would adopt a similar construction of section 31(1).  Without seeking to set the section’s limits, I conclude the applicant is correct in contending, and the Crown is right in accepting, that AB and CD were not occupants of the vehicle when the police arrived, having left it at least several minutes before and gone elsewhere.  It follows they were not its occupants when they were detained.  The search was unlawful.

That leads to the real question of how the Bunning v Cross discretion should be exercised.  I do not think that there was anything improper about Sergeant Lima’s

decision to rely on the section 31(1) power to detain and search the vehicle rather than obtain a warrant in advance.  The problem was that the conditions for a lawful search under section 31(1) did not apply when the search took place. 

Sergeant Lima explained that the reason to proceed in the car park of the service station was that it was a good deal safer to do so while the vehicle was stationary rather than seek to apprehend it while it was travelling north.  He did not appreciate that there was any problem about the two men having left the vehicle.  He might have had some more apprehension in that regard had he kept up to date with decisions of this Court, including Keen.  He acknowledged that he had not for some years read cases relevant to searches.  It should be acknowledged, on the other hand, though, that there is no appellate authority on the question of who is an occupant for the purposes of section 31. 

Both the two constables involved, Scanlon and Irwin, said that they believed what was done was lawful, and there is no reason to suppose otherwise.  I accept that none of the three police officers acted with any deliberate disregard for the law.

There is, however, a very concerning feature to this case.  On 18^th of October 2017, two days after the search, Detective Sergeant Cope, who was the lead investigator in the drug operation, applied to a magistrate for and obtained a post-search approval order under section 161 of the Act.  The magistrate in that order expresses herself satisfied after hearing Sergeant Cope’s sworn application, that he had a reasonable suspicion for exercising search powers, and that there was a reasonable likelihood that evidence would be concealed or destroyed, and on that basis that the order was made approving a search made by him of the Toyota Corolla. 

The evidence is, of course, that Mr Cope was not at the service station at the relevant time, formed no suspicion himself, and had nothing to do with the search of the vehicle.  Section 161 approval applies to the exercise of powers under section 160, searching in order to prevent a loss of evidence.  Mr Lima made it clear that he did not act on any such basis here, which makes the application all the more remarkable. 

To be fair to Sergeant Cope, he did not in the application suggest that he had been personally involved in the search, or personally entertained the relevant suspicion, or that Lima held any concern about concealment or destruction of evidence, which makes the magistrate’s decision to grant the approval both puzzling and perturbing. 

It is extraordinary, and may be an indication of some systemic misapprehension and hence misuse of post-search approval powers, firstly, that someone who did not conduct a search could apply for, and secondly, that he could obtain from a magistrate, an approval without the preconditions for the exercise of section 161 powers being met.  Sergeant Cope did not perceive any difficulty about it, and apparently thought that as case officer, he was the appropriate applicant.  The magistrate equally, it seems, was unconcerned by the requirements of the provision. 

The applicant for exclusion of the evidence here, AB, argued that while there had been no evidence of dishonesty or a deliberate attempt to circumvent the law, the case had demonstrated a systemic failure in the police service to educate and train officers in the exercise of search powers.  That was, he said, particularly demonstrated by Sergeant Cope’s misconception of the requirements of a post-search approval application. 

Counsel pointed to statements by Applegarth J in the case of R v P and another [2016] QSC 49, in which his Honour in considering the exercise of the discretion referred to the undesirability of courts’ being seen to condone unlawful police conduct by admitting illegally obtained evidence, and suggested that a failure to address the need to train and instruct police about the extent of their legal authority, notwithstanding a series of decisions about searches of vehicles, suggested that those in higher authority in the Police Force tolerated unlawful conduct. 

While in this case there is cause for very real concern about the approach taken to the post-search approval, that conduct seems to be independent of anything that Sergeant Lima did at the service station.  He said that he was not involved in the application for a post-search approval order and did not consider that he needed one, having acted, as he thought, under section 31.  He was certainly right to the extent that section 161 approval had no application in this case.  But the conduct in seeking that approval was not engaged in or endorsed by any of the searching officers.  I do not consider that it bears on or taints the search in such a way as to militate against the exercise of discretion in favour of admission. 

The degree of obliviousness to the requirements of the Act entailed in the post-search approval is of different proportions to Sergeant Lima’s error.  Whether individuals in circumstances such as these are to be regarded as occupants of a vehicle is a question of fact and degree, which in this case he misjudged, although, as I have said, had he been familiar with the decision in Keen, he might well have taken a different view of the situation.  While plainly it would be desirable that police officers be kept informed of decisions like Keen relevant to searches, I am unconvinced that Sergeant Lima’s error is related to any tolerance at higher levels in the Police Force of unlawful conduct.  This is not a case like R v P, in which there was no rational view of the suspects as occupants of the relevant vehicle. 

The primary policy consideration here is the public interest in police being required to adhere to the legislative limits of their powers.  In favour of the admission of the evidence, it is beyond argument that it is cogent and critical.  It is the basis of the case against AB, who does not appear to have come to police attention earlier in this investigation, and thus was not the subject of evidence-gathering, unlike CD.  Relevantly, the cogency of the finding of the methamphetamine is unaffected by the unlawful nature of the search which located it.  And the case involves the commission of an extremely serious offence;  356 grams, 260 grams pure, of the drug was seized.  Against that is to be balanced the feature of the public interest in the police being required to adhere to the legislative limits of the search power. 

Having regard to all the relevant considerations, the balance falls in favour of refusing the application to exclude the evidence obtained by the search of the vehicle, and an exercise of discretion in favour of its admission.  Accordingly, I refuse the application. 

I should say that I do not consider that the favourable exercise of discretion ought in any way suggest approval of the way in which the post-search approval was obtained.  To the contrary, I will direct that the Director of Public Prosecutions bring this decision to the attention of the Commissioner of Police so that the adequacy of police training in this regard can be considered, as, of course, should be the desirability of regularly providing updates of decisions on search powers to those officers likely to be exercising such powers. 

…

THE CHIEF JUSTICE:     I will order, then, that the relevant exhibit, the application for post-search approval, be placed in an envelope to be sealed and marked not to be opened without the order of a Judge. 

…

THE CHIEF JUSTICE:   I will adjourn it for review on the 26^th. 

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