R v McCluskey[2018] QSCPR 6

SUPREME COURT OF QUEENSLAND

1. [1]
   NORTH J: The application before me seeks orders severing the trial of counts on the indictment and also orders to exclude evidence obtained as a result of police searches.
2. [2]
   It is common ground between the applicant and the prosecution that counts one to four on the indictment should be tried separately from the other counts on the indictment, that count five on the indictment should be tried separately from the other counts on the indictment and that counts six to 11 on the indictment should be tried separately. 
3. [3]
   That result appears to me to be appropriate in light of the submissions and circumstances and I will make the necessary orders in due course after I have ruled upon the applications concerning to exclude evidence.
4. [4]
   The applicant applies to exclude evidence obtained as a result of a search of a motor vehicle conducted by police officers on 24 October 2014. She also seeks orders to exclude evidence obtained as a result of a second search conducted of a motor vehicle on 5 March 2015.
5. [5]
   The circumstances of the searches were different, the issues raised while having some commonality in a general sense nevertheless require that the applications be considered separately. Both applications raise for consideration provisions of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) and its related regulations.

The search on 24 October 2014

6. [6]
   On 24 October 2014 Constables Crossley and Brunton intercepted a motor vehicle being driven by the applicant on Lancaster Street, Garbutt.
7. [7]
   Neither officer had information about the applicant which might have founded the grounds for reasonable suspicion warranting the detention or search of the vehicle at the time of interception. It was a routine interception conducted for the purposes of a licence check and a breath test.
8. [8]
   At the time the random breath test was performed and the checks on the applicant’s licence and registration were undertaken Officer Crossley observed a quantity of Australian currency in the vehicle. It was a substantial quantity. His evidence is that initially he estimated that it might have been in excess of $5000. He asked the applicant about it and she said that it was her money to be used to pay bills.
9. [9]
   It occurred to Officer Crossley that it might have been drug related property, stolen property or the proceeds of a theft and he asked the applicant if she minded if the car was searched and further asked to “do you mind [indistinct] jump out for us?”^[1]
10. [10]
    It is conceded by the respondent that at the time of the subsequent search Officer Crossley did not have grounds for a reasonable suspicion which might have authorised the subsequent search of the vehicle.^[2] I agree. My conclusion having heard his evidence was that his “suspicion” had more of the character of an “idle wondering” not a basis for a warrant or a search.^[3]
11. [11]
    The respondent accepts therefore that the subsequent search of the applicant’s motor vehicle was unlawful and not authorised by law unless the applicant consented to the search of her motor vehicle.
12. [12]
    The subsequent search of the motor vehicle uncovered the following evidence:

• Sunglass case containing a glass pipe, a cut up straw and two bags of small amounts of methylamphetamine (0.1g and 0.5g);
• Diary;
• Knife;
• Red Bull can with approximately 21 grams of methylamphetamine and 4 MDMA tablets;
• Police scanner;
• Black torch taser; and
• $6,395.00 in Australian currency.

13. [13]
    Both police officers gave evidence and were cross-examined. The applicant also gave evidence concerning the search on 24 October 2014.
14. [14]
    The recording of the questioning and answering or discussion between the police officers and the applicant subsequent to the interception leading up to the point when she alighted from the motor vehicle and the search was conducted confirms that Officer Crossley asked the applicant “do you mind if we have a search of the car” and “do you mind if (indistinct) jump out for us”.^[4]
15. [15]
    The applicant’s effectively uncontested evidence, which is consistent with the evidence of the police officers, supports a finding that she remained silent and did not verbally respond affirmatively or negatively.
16. [16]
    The evidence is that the applicant did alight from the motor vehicle subsequent to the request made of her by the police but she made no answer assenting to a subsequent search, nor am I prepared to infer or find on the evidence before me that by her silence and her actions she unequivocally assented to the search.
17. [17]
    It follows that the subsequent search of the motor vehicle was unauthorised and contrary to law.
18. [18]
    The respondent nevertheless submits that the evidence obtained as a result of the unlawful search should in the exercise of my discretion, be admitted into evidence. The power to discretionally admit into evidence evidence unlawfully obtained by police officers is well established: Bunning v Cross (1978) 141 CLR 54 at 78-80.  
19. [19]
    The factors relevant to the exercise of the discretion have been conveniently summarised by Applegarth J in R v Versac^[5] where his Honour said:

6. [6]
   “Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence. Some factors support exclusion, whilst others support admission. The factors include:

1. whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
2. the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
3. the importance of the evidence in the proceeding;
4. the nature and seriousness of the offence;
5. the nature of the unlawful conduct;
6. whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
7. how easy it would have been to comply with the law.”

20. [20]
    In submissions the counsel for the applicant referred me to a number of decisions of justices of the court who have concluded that evidence obtained as a consequence of an illegal search should be excluded, after taking into account the circumstances it was obtained, the conduct during the unlawful search, the breach of the law and after concluding that the consequences of sanctioning such conduct outweighed the factors or circumstances favouring the admission of the evidence.^[6]
21. [21]
    I accept that the conduct of the police officers on the occasion of 24 October 2014 was neither deliberate nor reckless, they searched the vehicle mistakenly believing that the applicant had by her alighting from the vehicle consented to its subsequent search. The evidence gathered is plainly cogent evidence probative of drug usage, drug possession and related offending. It may reasonably be viewed as probative of serious offending such as the supply of a dangerous drug.
22. [22]
    In circumstances not dissimilar to those that apply here Henry J in R v Purdon^[7] said the following:

29. [29]
    “As against this, it might at one level be thought it is not a particularly serious breach of the rules regulating police conduct for an unlawful search of a person in a motor vehicle intercepted by police to occur, because of the fact that police can so easily, through lawful means, intercept motor vehicles and stop and detain the occupants.
30. [30]
    However, the very ease with which police can lawfully do so gives good reason for the maintenance of particular vigilance by the courts where the police act without a lawful basis for doing so.  If that does not occur, there is a real risk that police will pay lip service to the rules with which they must comply in detaining and searching vehicles and persons.
31. [31]
    Weighing up the competing considerations leads readily to the conclusion that, in this instance, it is more important that the court not be seen as giving curial approval to this unlawful search than it is that Mr Purdon be convicted and punished for his apparent drug offence.”

23. [23]
    I agree with his Honour. His comments apply here. Notwithstanding that the police officers did not act either deliberately or recklessly in searching the vehicle without lawful authorisation, the discretionary factors I consider favour the exclusion of the evidence notwithstanding the evidence is probative of serious drug offending. The circumstances of the interception and subsequent discussions and dealings between the police officers and the applicant are likely to arise often. It is important that officers of police be reminded that the consent of a driver intercepted in circumstances such as this, to an otherwise unauthorised search of a vehicle, be obtained and that the consent be clear and unequivocal. Unlike circumstances where the conduct and behaviour of the driver together with the overt signs of drugs or drug paraphernalia within a vehicle might give rise to a reasonable suspicion the circumstances here did not reach that degree of satisfaction.^[8]  There was no lawful basis for the search. In the absence of a factual foundation for a suspicion there was no grounds to apply for a search warrant. Police officers should, before making a search, be sure of their grounds. If there is no lawful ground for a search without a warrant the express and unequivocal consent of a citizen to a search is required. Failing that police should not search. To discretionally admit the evidence would effectively condone both thoughtlessness and unlawful conduct. In the absence of unequivocal and express consent to a search in the particular circumstances that apply here I rule that the evidence obtained as a result of the search on 24 October 2014 should be excluded.

The search of 5 March 2015

24. [24]
    On 5 March 2015 at approximately 8:25pm Constables Pritchard, Anderson and Golding intercepted the applicant in her car at the car park of her workplace at 54 Abbott Street, Oonoonba. Prior to the interception the officers had conducted surveillance of the applicant’s vehicle for a number of hours. The officers attempted to detain the applicant for the purpose of searching her vehicle. The applicant refused to leave her vehicle and stated that the officers were unable to search her vehicle without a search warrant. In response the officers forcibly removed the applicant from the vehicle and arrested her on a charge of trafficking in dangerous drugs. An officer seized the keys of the vehicle.
25. [25]
    Subsequent to the arrest the officers present had a discussion and it was decided that a search warrant should be obtained from a Magistrate authorising the search of the vehicle.^[9] It was also decided that some of the officers would attend the applicant’s residence to execute a search warrant obtained earlier that day. Constables Pritchard and Anderson left Abbott Street and attended upon the applicant’s residence for the purpose of executing the search warrant. Except for the officers no one was present during the search. Officers located the following items:

    • A concealable WD40 can with a screw bottom underneath the sink area;
    • A cash box that contained $3,000.00 in Australian currency; and
    • Bank deposit slips and other paperwork that identified the residence as the applicant’s.
26. [26]
    After the search warrant of the residence was executed Constable Pritchard returned to Abbott Street. Shortly after Constable Anderson also returned with the search warrant obtained for the search of the vehicle, which was issued at 9:55pm. At this point the vehicle had not yet been searched. Whilst this process was undertaken the applicant remained under arrest at the location of her vehicle.
27. [27]
    The vehicle was then searched by the officers and the following items were located:

• An apple iPhone;
• A set of digital scales;
• A black credit card flick knife; and
• $220.00 in Australian currency.

28. [28]
    The conduct of the officers raises two issues: whether the officers had a reasonable suspicion for the detention of the applicant, the search of the car, and arrest of the applicant, and whether the officers breached their obligations under the PPRA in relation to search warrant applications.

The search warrant

29. [29]
    Counsel for the applicant submitted that the officers breached their obligations under provisions of the PPRA and the Police Powers and Responsibilities Regulation 2012 (Qld) (“PPRR”). Section 150 of the PPRA provided:

“150 Search warrant application

1. A police officer may apply for a warrant to enter and search a place (a search warrant)—

1. to obtain evidence of the commission of an offence; or

…

2. The application may be made to any justice, unless the application must be made to a magistrate or Supreme Court judge under subsection (3) or (4).

…

5. An application under this section must—

1. be sworn and state the grounds on which the warrant is sought; and
2. include information required under the responsibilities code about any search warrants issued within the previous year in relation to—

…

6. Subsection (5) (b) applies only to— 

…

2. information the officer otherwise actually knows.

7. The justice, magistrate or judge (the issuer) may refuse to consider the application until the police officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.”

30. [30]
    The Responsibilities Code contained in Schedule 9 of the PPRR provided:

“3 Search warrant application

1. An application for a search warrant under section 150 of the Act must state the following-

…

2. a description of the place to be searched;
3. for an occupied place, the name of the occupier of the place, if known;

…

7. information or evidence being relied on to support a reasonable suspicion that evidence of the commission of an offence or the confiscation related evidence is-
   3. (i)
      when and where the warrant was issued; and
   3. (ii)
      the type of offence or confiscation related activity to which the warrant related; and
   3. (iii)
      whether anything was seized under the warrant or a proceedings was started after a search.”

31. [31]
    The application for the search warrant in respect of the car was made by Constable Anderson. The application specified that the place to be searched was the applicant’s car located in a carpark behind 54 Abbott Street, Oonoonba. The form nominated by a checked box that the place to be searched was occupied by the applicant. The details of the offence said to have been committed by the applicant was carrying on the business of unlawfully trafficking in dangerous drugs between 11 February 2015 and 5 March 2015.
32. [32]
    The grounds relied on to support a reasonable suspicion that evidence of the commission of an offence was at the place (being the motor vehicle) were based on two main sources: the items located during a search of the applicant’s car on 24 October 2015 (the subject of my earlier ruling) and telephone intercepts between the applicant and Clayton and Lorin Figg.
33. [33]
    Examination of the telephone intercepts relied on in support of the application shows that overwhelmingly the information relates only to conduct involving Clayton and Lorin Figg, and not the applicant. The only telephone intercepts in the application which directly involve the applicant are two telephone calls and two text messages on 3 March 2015, just two days before the search.
34. [34]
    The application further states that upon approaching the applicant at her vehicle on 5 March 2015 she was extremely fidgety and nervous, that she became immediately uncooperative, and that she was arrested. The application states that at the time the applicant was removed from the vehicle police became aware of the mobile telephone in the vehicle.  Further, under the heading of ‘Previous Warrant’ Constable Anderson has inserted ‘nil’.
35. [35]
    The respondent concedes that the application for the search warrant was non-compliant with the PPRA and the Responsibilities Code.^[10] However, the respondent submits that this does not affect its lawfulness because Constable Anderson did not misrepresent the circumstances under which the vehicle was located, nor was the failure to disclose the previous warrant and its failure to locate any adverse material deliberate or reckless. I do not accept those submissions.
36. [36]
    Whilst the application for the search warrant states that the officers located the applicant at approximately 8:20pm that evening in her vehicle it did not inform the Magistrate that the officers conducted surveillance for a number of hours before approaching her and subsequently arresting the applicant after she objected to a non-consensual search of her motor vehicle.
37. [37]
    The applicant was detained at the car park for over two hours while the application for search warrant was made. It is clear from the evidence that the officers’ purpose in detaining the applicant and obtaining the search warrant was so that they could gain access to her mobile phone. Constable Pritchard gave evidence and in cross-examination made admissions to this:

“What I’m getting at is that rather than proceed to the place where you had the search warrant already in existence, you detoured, effectively, via her work to see if she was still at work, you observed her car there and waited for her to get into it, and then you approached it?---Yes, that’s correct. Yeah.

Yes. And the reason you did things in that order was because you wanted her to be present while a search was conducted?---Yeah,  primarily, due to her mobile phone. Yeah.^[11]

…

…I’m talking about the time you went and knocked on the door and said, “You are detained for the purpose of a search for dangerous drugs”?---Yep

That’s what you said to her, wasn’t it?---Yeah, that’s correct. Yeah.

But you didn’t search - - - ?---No, we didn’t.

And the reason you didn’t search without the warrant is because you wanted her to tell you the PIN code to the phone?---Yeah, that’s correct.

And that’s the whole reason why you were waiting to search her wherever she was – because that was probably where the mobile phone would be?---Yes, that’s correct.^[12]

…

---after you arrested her. At that point, she no longer had control of her vehicle, did she?---No, she did not.

She was not an occupant of the vehicle?---No, she was not.

In fact, it was very clear that when you first approached the vehicle you took the keys out of the car?---Yeah, that’s correct.

And yet, you know that the basis of the warrant you obtained in order to get someone to give a PIN code requires them to be an occupant of the place to be searched?---Yes, I do believe that’s right. Yeah.

So despite her being not an occupant of the place to be searched, the specific purpose of sending Anderson to get a warrant was so that you would get the power to compel an occupant of the place to be searched to give up a PIN code?---Yeah. That’s correct.

And the reason you did not take her to the watch-house as you ordinarily would have after you arrested her was because you wanted to keep her at the scene so that she would be subject, in your mind, to that specific power?---Yeah. That’s correct.”^[13]

38. [38]
    Constable Anderson further failed to inform the Magistrate that a search warrant was executed at the applicant’s residence shortly before the application was made which did not uncover cogent evidence of drug offending. Although the grounds for the issue of the warrant state the applicant had been arrested, significantly the application failed to notify the Magistrate that the applicant was no longer in possession of either the phone or the motor vehicle, and that she was not an occupier of the motor vehicle. She had been forcibly removed from the vehicle, placed under arrest and the police had the keys. The phone was in the car but neither were under the control of the applicant.
39. [39]
    It is far from clear on the evidence that the contention in the application that the applicant was ‘fidgety and nervous’ and ‘immediately uncooperative’ is open on the evidence. The applicant exercised her right to question whether the purported search was lawful in the absence of a search warrant. Insisting on the strict observation of ones rights is not suggestive of “uncooperation” in a tolerably free society under the rule of law. Certainly the recording of the exchange of words between the applicant and police officers might support a finding that the applicant was spirited, even feisty, but there is no evidence before me supporting an opinion that she was “fidgety or nervous”. Further, the evidence of the telephone intercepts on 3 March 2015 do not support a charge that the applicant was trafficking in dangerous drugs before 3 March and certainly not as far back as 11 February.
40. [40]
    The respondent further submitted that under the warrant the executing police had the power to request the applicant’s PIN because she was the person in possession of access information for a storage device in her possession. The applicant did not have possession of the mobile phone or the vehicle as she was detained under arrest and the keys seized from her. This argument fails.
41. [41]
    The combined effect of the officers’ deliberate actions in watching the applicant for some hours, arresting the applicant, and misrepresenting the circumstances to the Magistrate for the purpose of gaining access to her mobile device cannot be overlooked. The officers breached their obligations under the PPRA and PPRR described above, and as a result I find the search warrant unlawful.
42. [42]
    In the circumstances of my findings it is unnecessary to make a finding as to whether the officers held a reasonable suspicion to detain the vehicle for the purposes of a search.
43. [43]
    At this juncture it is appropriate to be reminded of the High Court’s comments on search warrants in George v Rockett:^[14]

“State and Commonwealth statutes have made many exceptions to the common law position…in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.”

[Emphasis added]

44. [44]
    The issue then becomes whether I should exercise my discretion to rule that the evidence is inadmissible. In my discussion earlier I outlined the factors which must be considered and balanced in making such a determination. On reflection upon the competing considerations I have decided to exercise my discretion to exclude the evidence. Officers tasked with the responsibility of law enforcement should adhere to a high standard. I find that the actions of the police officers in detaining the applicant for the purpose of securing her mobile telephone in the circumstances combined with the matters mentioned before^[15] was a deliberate and ‘tactical’ breach of their obligations, and one which cannot be reconciled with the benefit of finding the evidence admissible.
45. [45]
    The rulings and orders I will therefore make are as follows:

1. The evidence of the search of the applicant’s vehicle and the location of items during the searches on 24 October 2014 and 5 March 2015 is inadmissible at the trial of the defendant.
2. Counts 1 to 4 on the indictment be tried separately to the balance of counts on the indictment.
3. Count 5 be tried separately to the balance of counts on the indictment.
4. Counts 6 to 11 on the indictment be tried separately to be balance of counts on the indictment.