R v Goode[2018] QSCPR 16

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with one count of trafficking in the dangerous drug MDMA, one count of aggravated possession of MDMA and one count of possessing a thing, namely a mobile phone, used in connection with the trafficking offence.  The applicant has been charged with these offences following a search of him on the evening of 28 July 2017, when a bag containing just under 100 MDMA tablets was found on him and then later analysis of his mobile phone revealed what are said to be a number of supply transactions.
2. [2]
   On this application, the applicant challenges the lawfulness of the search, and therefore the admissibility of the evidence found in the course of it, on the basis that the police officer’s initial request to him and his two friends to provide identification was unlawful.  It is apparent that, the applicant having complied with that request, the police officer looked up his name in the police computer and obtained some information which, it is said, together with the officer’s observations of the applicant, gave rise to a reasonable suspicion that he may be in possession of illegal drugs.  Consequently, he was detained and searched.  The applicant does not challenge that subsequent conduct of itself, but does challenge the very first interaction, the request for identification, on the basis that if the Court finds, as he contends, that that was unlawful, then the subsequent conduct was unlawful also.  
3. [3]
   The evidence of what occurred on the evening in question comes from Senior Constable

Barber and the defendant/applicant, and includes video footage from the officer’s body worn camera.  

4. [4]
   Officer Barber says in his statement, which is exhibit 1, that at about 10.20 pm on 28 April 2017, he and his partner, a Senior Constable Mastorgio, were driving in an unmarked police vehicle in Fortitude Valley.  He observed the applicant and his two other friends.  He says it appeared to him that the three men were heading towards a green coloured Volkswagen.  
5. [5]
   At paragraph 5, Officer Barber says that “Alden Street, Fortitude Valley is a dead end street and runs behind the Met nightclub which is well unknown [sic, I think he means known] as a nightclub that patrons use illegal drugs”.   In the past, he says he has located a number of offenders in the street who have been in possession of dangerous drugs.  At paragraph 6, he says he noticed that the applicant and the two others appeared to change their demeanour after looking at the police vehicle approaching them, namely that they were laughing amongst themselves and then stopped immediately after looking at the police vehicle.  He says that he and his partner then had a conversation and decided to speak with the men.
6. [6]
   I have watched the video recording of what then ensued.  The video recording shows at the beginning the two police officers stopping the car, getting out and walking towards the three young men, saying something to the effect of, “You guys got any ID on you at all?”  Immediately, all three men say, “Yeah”, and hand over their ID.  There is then a

bit of incidental conversation about where they have been and where they are from, and one of the men says they have been drinking.  Officer Barber can be seen checking details on the police computer, which I presume is an iPad, as this is occurring. 

7. [7]
   After a little while further, Officer Barber asks something to the effect of:  “Guys, do you have anything you shouldn’t have?  Any drugs, weapons, anything like that?  Do you all consent to a search of your pockets, your belongings?”
8. [8]
   One of the men says, “Yeah, all good”, the other says, “Yeah”, and the third, the applicant, says, “No”.  After that, Barber tells him he is detained for the purposes of the search and then says, in fact, they are all detained for a search.  
9. [9]
   The officer proceeds to search one of the men and then later returns to the applicant.  As he starts the search, by formally stating who he is, the applicant says:  “I haven’t done anything wrong”.  He is told, “You’re detained, mate”; and he says, “I haven’t consented”.  When the police officer says he does not have to consent because he has been detained, the applicant asks him why.  The police officer says it is because he believes he may have drugs on him.  The applicant presses the police officer for the reasons why he believes that and they are given as: “You’re nervous”, “there’s information I’ve received off the computer”, “your eyes are dilated” and “your lips are dry”.
10. [10]
    Officer Barber was cross-examined before me today.  He had been a police officer for 10 years at the time of this search.  He acknowledged that he knew he did not have lawful authority under the Police Powers and Responsibilities Act to ask the young men for their ID, but said he asks people things all the time in the course of his work as a police officer, not always using a particular power.  Sometimes they say no.  He did not accept the applicant’s counsel’s description of what he had done was to demand the ID.  He said he had requested it.
11. [11]
    The applicant gave evidence before me as well.  His evidence was that when the police asked for ID, he believed he had to provide it.  He did not think he had a choice.  He said that was based on, in his words, every time he had an encounter with the police and they had asked for ID, if you say no, you are detained.  However, he could not refer to a specific example.  As to why he objected when asked if he consented to being searched, he said because “to my knowledge you need to have a reason to be searched”, and he didn’t think there was any reason, explaining that by reference to his record.
12. [12]
    On this application, there is no contest that the initial request to provide identification was not made in accordance with s 40 of the Police Powers and Responsibilities Act.  That section empowers a police officer to require a person to state the person’s correct name and address in prescribed circumstances, which are then outlined in s 41, relevantly, as including where the police officer reasonably suspects the person has committed an offence.
13. [13]
    For the applicant it is submitted the consequence of that is that the request was unlawful.  It is submitted that the police officer demanded production of the identification, that the applicant responded to that demand reflexively, believing he had no choice, not in the exercise of a free choice.  It was submitted there was coercion involved by the fact of the request or demand, as it was described, being made by a police officer.  Counsel for the applicant sought to distinguish this case from, for example, the circumstances in R v Bossley [2012] QSC 292 on the basis that here the applicant was obliging a demand, thinking he did not have a choice, whereas in Bossley, the young man was obliging a request.
14. [14]
    The Crown submits it was legitimate policing strategy to stop the three men and interact with them, that there was no obligation on the police officers to caution the men that they did not have to provide their ID on request, that a request was made and voluntarily complied with and the request was therefore not unlawful.
15. [15]
    It is my view that that is correct.  
16. [16]
    The relevant legal principles, albeit in the context of a search, are helpfully summarised in Justice Dalton’s decision in Bossley, commencing at paragraph 17.  Her Honour there observes that, as I have said in the context of a search, a search will be illegal if there is not power under some statute to perform it, unless the person searched consents.  As her Honour says, this is clear from obiter in the judgments in Bunning v Cross (1978) 141

CLR 54.   Among other passages, her Honour refers to pages 63 to 64 in the reasons of Chief Justice Barwick.  The point made there is that, in that context in relation to the administration of a breathalyser test, what the relevant statute does is to empower the policeman to require or command submission to the test and to provide a sample of breath.  Failure to comply with that requirement made in conformity with the Act would attract the penalty provided elsewhere in the legislation.  But nothing in the legislation precludes a policeman from asking for a sample of breath from a person and a person being willing to give it.  As Barwick CJ said:  “There is … nothing unlawful in the making of such a test with the co-operation of a person willing without being required or commanded to take it.”  His Honour goes on to say:

“Of course, a fine line divides such a willingness from a willingness the product of coercive conduct:  and in deciding whether the willingness was uncoerced, it is proper to remember the apparent authority of a patrolman and the situation of the motorist who has been ‘taken’ to the police station.  But, in this case, there is no finding of any coercive conduct on the part of the patrolman or authorized person:  nor, in my opinion, ought there to have been.  Rather, the impression the magistrate’s notes creates in my mind is that the applicant, confident of his own innocence of wrongdoing, was quite willing if not anxious to take the test which, it seems to me, it was likely that he believed would clear him.”

17. [17]
    Referring to that passage from Bunning v Cross, Justice Dalton goes on in paragraph 20 of Bossley to note that:

“It is not just that a police officer may appear to the defendant to have authority simply because they are a police officer.  Questions as to a defendant’s knowledge of his rights to refuse to answer questions or to submit to searches proposed by police will also arise.”

18. [18]
    Her Honour refers to the decision of then Chief Justice Gleeson whilst a judge of the Court of Criminal Appeal in New South Wales in R v Azar (1991) 56 A Crim R 414, 419-420.  The point made there, among others, by Chief Justice Gleeson is:

“…that what is involved is an inquiry as to the accused’s will, rather than as to the accused’s state of knowledge, including knowledge of his legal rights.”

19. [19]
    His Honour says:

“What a person knows or does not know may be relevant, as an evidentiary fact, to the question whether the person’s will has been overborne, but knowledge or belief, on the one hand, and will, on the other hand, are different concepts.”

20. [20]
    And his Honour also says:

“There is no justification for the proposition that a statement is voluntary in the relevant sense only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent.”

21. [21]
    Justice Dalton also refers to the decision in Pearce v Button (1985) 60 ALR 537 and to the reasons of Justice Pincus, which, similarly, are to the effect that the test is not one of whether the person accurately understood their legal rights, that being a test which his Honour said “would but seldom be satisfied”.
22. [22]
    In Azar, the point being made in terms of distinguishing the accused’s will from their state of knowledge is that a person who is unaware of their legal rights can nonetheless voluntarily act.  The distinction is not one that would lead to the conclusion that where, as here, the applicant says they did not think they had a choice based on their own belief, that necessarily results in a conclusion that they acted against their will or involuntarily or not of their own free choice.  The point being made in Azar is that despite that erroneous belief, they may still be acting of their own free will.  When that will become significant, however, is where there is evidence of conduct which is misleading or coercive on the part of the police officers, in the context of which the person’s knowledge may well be relevant as an evidentiary fact.
23. [23]
    Here, I do not accept the submission that there was any coercion by the police officers.  In my view, the emphasis on what was said at the beginning of this exchange, being a demand versus a request, based on the language used, is semantic.  
24. [24]
    The police officer is said to have said “You guys got any ID on you at all?”  The men immediately complied.  That the applicant did so on the basis of a mistaken belief as to his legal rights does not alter the fact that he acted of his own free will.  He was plainly someone with the wherewithal to stand his ground when he believed he had a right to do so.  His will was not overborne, even inferentially, by the apparent authority of the police officers.  The police officers had no role, in my view, by their conduct, in leading to any mistaken understanding on the applicant’s behalf.
25. [25]
    The circumstances, in my view, are effectively indistinguishable from Bossley because in that case the young man said the reason why he gave the police officer his bag to search when it was requested of him was that he honestly thought he had no other choice with the outstretched hand in front of him; that basically because it was a police officer, he assumed he had a power over him and he had an outstretched hand.  I do not accept the submission put on behalf of the applicant that there is a significant distinction between the police officer in Bossley saying to that young person “Do you mind if I have a look in your bag?” and the police officers here saying to these young men “You guys got any ID on you at all?”
26. [26]
    In the circumstances, notwithstanding that there was not an express power under the Police Powers and Responsibilities Act to make the request for identification, I find that the request was voluntarily acceded to by the provision of the identification, and as that is the only basis for the application, it is refused.